R Charity Commission for England and Wales
| Jurisdiction | UK Non-devolved |
| Judgment Date | 13 October 2011 |
| Date | 13 October 2011 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
Upper Tribunal
Before Mr Justice Warren, Chamber President, Judge Alison McKenna and Judge Elizabeth Ovey
In order to fulfil the public benefit test in the Charities Act 2006, as applied to independent schools which charged fees, there had to be more than a token benefit for the poor, but once that low threshold had been reached, what the trustees decided to do in the running of the school was a matter for them.
The Upper Tribunal (Tax and Chancery Chamber) so held in two closely related proceedings in a judgment which decided that guidance issued by the Charity Commission for England and Wales on the public benefit requirement should be corrected.
In the first set of proceedings the claimant, the Independent Schools Council, applied for judicial review seeking an order quashing certain parts of the guidance. The guidance comprised Charities and Public Benefit: the Charity Commission's General Guidance on Public Benefit, issued in January 200 8, and Public Benefit and Fee-Charging and The Advancement of Education for the Public Benefit, both issued in December 2008. The National Council for Voluntary Organisations and the Education Review Group both intervened in the judicial review proceedings.
In the second set of proceedings the Attorney-General referred for determination a series of specific questions about the operation of charity law in relation to a hypothetical independent school.
Mr William Henderson and Mr Mark Mullen for the Attorney-General; Mr Robert Pearce, QC, for the Charity Commission; Mr Nigel Giffin, QC, and Mr Matthew Smith for the Independent Schools Council; Ms Francesca Quint for the National Council for Voluntary Organisations; Mr David Lawson for the Educati on Review Group.
MR JUSTICE WARREN said that in the present case the court assumed, and took it as common ground, that there would have been no dispute about the relevant charitable status of the relevant schools had it not been for the restriction on access which flowed from the requirement to pay f ees.
The central questions concerned constitutional matters and operational matters. The second question raised issues about what a school actually needed to do to be seen as operating for the public benefit.
Many, and probably most of the schools, provided benefits other than education to those who paid full fees. Those...
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