now dISCuss...

The Red Tape Peril

Interesting to read that the state sector is also blaming red tape and overzealous child protection policies for the decline of foreign exchange trips (see Telegraph article ‘Foreign exchanges ‘axed over security fears’). The independent sector has been equally worried; more so, in fact, due to apparent discrepancies between Government guidance to state and independent schools on whether CRB checks are required, when a family in the UK volunteers to host an overseas pupils. Remarkably, until ISC won an important acknowledgement from DCSF last year that Government guidance was wrong, parents of children at independent schools were required to be CRB-checked, whereas parents of children at state schools were not.

That has now changed. But the Vetting and Barring Scheme, due to come in later this year, threatened to be the final nail in the coffin of exchange trips: parents would have needed to be subject to lifetime monitoring before being cleared to put up overseas children. Again, ISC (and others) intervened and Sir Roger Singleton’s excellent report, “Drawing the Line”, has restored some sanity.

A larger concern persists with the Vetting and Barring Scheme. This Government’s policy remains that, over the next five years, all adults – estimated at around 11m individuals in total – must register with the scheme if they wish to work with children (or vulnerable adults); and schools which employ adults who should be, but are not, registered will be committing a criminal offence. From November 2010, it is likely to be compulsory for all new teachers to be registered – we await the implementing regulations.  But Sir Roger’s changes need to be properly dealt with, not rushed through before the guillotine of an election.  And a change in administration might well see a further fundamental shift in policy about where the line is drawn. Even without a change in Government, the prospect of untried IT systems coping with an estimated 1.1 million registrations between July 2010 and March 2011, and the impossible position that schools will be in if their new teachers cannot get registered in time, drives only one sensible conclusion: the Government must announce a temporary stay of implementation for at least a year.

ICT Advice: How to get adverse material removed from websites

Pupils, former pupils and parents are able to publish, true or not, material about your school or staff that is defamatory. It is very difficult for the school to have this material removed from a website. What can you to to avoid or manage such a problem?

What you need to know:
- Schools face a new problem: it is has never been easier to publish information and schools have no control over what is published.
- Videos, pictures, articles and comments can be published on the internet instantaneously.  There is little effective regulation or restriction on what can be published.
- Schools cannot prevent the publication of material. Anyone with a grudge or an axe to grind can reach a world-wide audience immediately.
- Some schools have experienced problems of pupils and former pupils posting defamatory information about the school, its staff and pupils; video clips of lessons; or of pupils behaving badly.
- Those who create these sites or forums have administrative control of the sites and, in most cases, there is little that the school can do to ‘edit’ what is posted on the site.

Some of the key sites used by pupils
- www.youtube.com. This is a very popular site for posting video material. On the one hand it is a great teaching resource; but it is possible to post videos of lessons, pranks, and pupils behaving badly.
- Social networking sites including Facebook, Myspace and Bebo. Pupils can post pictures and videos on their own areas. Pupils and former pupils have set up ‘groups’ for most of the schools in the country.
- Rate your Teacher (www.rateyourteacher.com) – this is a site where pupils can write comments about their teachers and give them a rating.
- Unofficial websites purporting to be the school’s official website.
- There have been instances when parents or pupils have purchased domain names (website names) which are very similar to the official school site name (eg. …..school.co.uk rather than ……school.org.uk).

What you might do next
Monitor key sites regularly by logging onto each site and using the site search facility (tag) putting in the name of your school.
Purchase all of the domain names relating to your school ( ….school.org.uk, ….school.org; ….school.com; …school.co.uk; ….school.sch.county.uk etc.)
In most cases, for instance when there is another organisation of the same or similar name, the school will often have a right to own the domain names.
Some schools have trademarked™ their school names and logos.

Practical advice on getting material removed from websbsites
1. Contact the website administrators, (eg. of YouTube or Facebook)
- Schools have enjoyed varying degrees of success in getting material removed by administrators.
- Administrators are usually supportive if there is a child protection issue.
- They often take the stance that if the material does not break their publication rules (ie. that the person posting the material has the right to do so and that it is not pornographic etc), there is a freedom of publication and that schools do not have any right to regulate the material just because they don’t like the content
- Schools do not have the right to regulate material just because they don’t like it
- Rateyourteacher.com is generally very unsympathetic
- Administrators are responsive if there is an issue of libel. So the material has to be defamatory and untrue. Opinion (as opposed to what is purported to be objective material) is more difficult to deal with as any opinion “honestly held” is not regarded as libel unless it contains untrue facts.

2. Contact the person who posted the material or who administers the forum.
- This is the easiest and the most effective way of getting material removed from a site.
- Some schools have encouraged “on board” pupils in the school to persuade other pupils that they should remove material (“pride in the school”, “reflects badly on us all” etc). Pupils usually know who posted the material on the website.

3. Contact the parents of the person who posted the material, or who administers the forum.
- Where the publisher is a pupil, some schools have found that the most effective technique is to write to their parents.
- In one case where a video of a very drunk pupil in boarding house had been posted on YouTube, the headteacher wrote to the parents explaining the long-term danger to the reputation of the pupil.

Useful Phrases:
- I am very concerned that this particular footage is extremely unflattering for <your child> and could have serious repercussions in the future.
- Some employers are beginning to use social networking sites to vet potential employees: http://www.collegejournal.com/columnists/thejungle/20041018-jungle.html; http://www.nytimes.com/2006/06/11/us/11recruit.html?

The legal route
- Is the content defamatory of you, your school, or another member of staff?
- Are the damaging facts untrue?
- If the content is damaging and untrue, you may contact all of the websites who are publishing the content and ask them to remove it pending libel action. You may also contact internet service providers such as BT Internet, Tiscali, AOL etc. ISPs are not generally considered liable as long as they act to take down potentially libellous material when notified.

ICT Advice: Management Information Systems

Management information systems are helping schools reduce administrative burdens and helping managers make informed decisions.

What you need to know
School Management Information Systems (MIS) should:
- reduce bureaucratic burdens by reducing time spent on administration;
- raise standards through enabling collaborative working to provide the knowledge needed for assessment and self evaluation;
- provide more time and information to support teachers and parents so that they can take an active role in the child’s education;
- create better informed management.

MIS can now be used as an essential business tool for day-to-day school management and accountability.
- Virtual Learning Environments (VLEs) linked with a school’s MIS can provide opportunities to develop the school’s analytical and reporting functions.
- The Government’s e-Strategy will make heavy demands on the use of information to inform the public, support learners, transform teaching, learning and assessment, and assure the effectiveness of the education system itself.

What you might like to discuss
- Does your MIS system help you with the above
- Are you able to use your electronic data to improve how you teach, learn and assess?
- Is the information you get from data transfer with other schools what you need?

Checklist – is your MIS:
- Future proof?
- Low profile – integrated (functionally and at a database level) with seamless upgrades?
- Easy to maintain?
- Intuitive and easy to use. Does it use skills staff have learnt elsewhere?
- Expandable in the future?
- Resilient – up and running without failure on a regular basis?

What you might consisider doing next
- Ask key staff to use a self evaluation tool and compare the responses.
www.new-media-learning.com/data_confident_print.htm
- Consider the use of analytical tools that work with your MIS to enable you to explore achievement issues.
http://4matrix.org/4Matrix_example_reports.pdf

Further reading:
- Government website – www.teachernet.gov.uk/ims
- Becta Expert Seminar on MIS http://www.becta.org.uk/etseminars/presentations/index.cfm?seminar_id=14&section=7_1

At last some common sense on safeguarding from Ed Balls

I appeared on the BBC News Channel on Sunday 13th December to welcome the announcement by Ed Balls on the Vetting and Barring of adults coming into contact with children. I said that Ed Balls’ interview on the Andrew Marr programme was belated recognition that the original scheme was badly flawed. ISC had been warning about this for some time, and had made a substantial submission to Sir Roger Singleton’s review. We are pleased that he has listened.

Our main concerns were

- Language exchanges and sporting tours, where children were put up with families. We were concerned that arrangements brokered by or sanctioned by schools would be caught by the new legislation so that parents would need to be vetted.
- Community service, where children over 16 would need to be vetted if they came into contact with other children or vulnerable adults.
- Boarding school children spending weekends or half terms with their friends’ families. Here too arrangements must be blessed by schools so might not have been seen as private arrangements.
- Occasional visitors who go to lots of different schools like authors, MPs or, dare one say, the Chief Executive of ISC.

We hope that the recommendations by Sir Roger will now be implemented in such a way that our concerns are met. We will await the detail of the DCSF response before passing judgement and will be discussing it with them. But initial impressions are that this is a victory for ISC and the teachers’ and heads’ associations who have lobbied hard.

How much of the population actually went to independent schools: 7% or 14%?

Reading the media on schools, you tend to hear a lot about how the independent sector in the UK only accounts for 7% of pupils, (see for example this article from The Telegraph last month).  The figure is used as a stick to beat the independent sector with: a narrative of independent schools being only for a small minority gets generated, and when this gets added to the debate surrounding social mobility the apparent small scale of the independent sector is used to exemplify insufficient social mobility in our society.  This happened recently in Alan Milburn’s report ‘Unleashing Aspiration’.

The figure of 7% is based on the proportion of the current school population who are at independent schools, but we know that this proportion is not the same for all ages.  For example, only around 4% of the 5-year-olds currently at school are in the independent sector, while around 8% of 15-year-olds are.  The general rule of thumb is that, once children hit compulsory school age, the older they are the more likely they are to be in an independent school.  After children hit 16 and compulsory school ceases, the proportion at independent schools increases further, although the figures are harder to calculate as sixth-form colleges and further education colleges account for a number of children in education, although technically no longer part of the school system.  Further research on this came out in last month’s ISC Bulletin.

What this age profile shows is that pupils don’t necessarily remain part of the maintained sector or the independent sector for their whole school career: they move between the sectors.  Indeed, the boundary between the two sectors seems to be something of a porous one.  Moreover, over the course of their time at school, they’re more likely to join the independent sector than leave it.  So the figure of 7% only shows the proportion of pupils currently at independent schools, it doesn’t show the proportion who will attend one at some point in their school life.  ISC therefore commissioned a survey to show how much of the adult population had attended an independent school.  We found that 14% of adults in Britain had been educated in the independent sector: twice as many adults had been to independent schools than previously thought.  If applied to the adult population of Britain, it suggests that well over seven million adults experienced an independent education.  This is a sizeable number and by no means an insignificant minority!

There are two important implications from this result.  First, If pupils often move between the two sectors, then this is further reason to reject the use of school background as a proxy for socio-economic background.  For more on the perils of using school as a proxy for background see this demographic analysis of ISC pupils.  Pupils frequently don’t fit into straightforward boxes of ‘independent school’ or ‘maintained school’ through-and-through.  Second, there are implications for the social mobility debate.  When politicians and the media use the figure of 7% to highlight a lack of social mobility – as they habitually do – by suggesting an ‘over representation’ of independent school alumni in the professions, they are in fact underestimating the numbers of these alumni.  If in fact twice as many people experience independent education than previously thought then their apparent over representation in the professions is much reduced.

The survey also found that 22% of adults had had some form of paid tuition when they were a child, in addition to anything they received as part of their normal schooling.  Most of these people had not been to independent schools meaning that 29% of adults received some sort of paid-for teaching, be it school education, private maths coaching, lessons for a musical instrument or paid-for sports coaching.  This establishes the fact that for over a quarter of adults someone paid for them to receive at least some of the sorts of teaching on offer at independent schools.  It’s very clear that we should stop thinking of only a small minority opting for teaching that’s not supplied by the state, rather we should recognise that a very significant number of people choose, and pay for, bespoke independent education.

Choir Schools

It is fair to say that a choir school can offer a truly unique opportunity, twinning first-class independent and musical education. As Christmas approaches, and the eyes and ears of the country turn to Cambridge, King’s College and the Festival of Nine Lessons and Carols, this month we will take a look at choir schools, and why they are an excellent choice for musical children.

There are 34 choir schools, attached to cathedrals, churches or college chapels within the Independent Schools Council group of schools. These cater for children aged between 7 and 18, although most of them focus on the 7-13 age range. They educate some 15,000 pupils, including 1000 choristers, 90% of whom qualify for financial help with fees. This fee assistance comes either from the schools themselves, or via the government which operates the Choir Schools’ Scholarship Scheme.

In the Cambridge area, there are 3 ISC choir schools: King’s College School which has been admitting choristers since 1447, and holds voice trials in October and January; St John’s College School, with choristers in situ since the early 16th Century, and holding annual trials in September; and King’s Junior School, Ely, which has 22 boy choristers and a cathedral girls’ choir (with auditions for this held in the February of each year prior to admittance to the school in September) as well. 

Most choristers are admitted to choirs between the ages of 7 and 9, and are expected to be full boarders owing to the level of time and commitment required. They would usually be expected to play a musical instrument, and take singing lessons and music theory lessons. Choir schools look for vocal potential, a good musical ear and enthusiasm for singing in a prospective chorister, all of which must be demonstrated in their audition.

As you will undoubtedly imagine, combining being a chorister with the same academic curriculum as non-choristers in the school can be demanding – rehearsals commonly take place before and after the normal school day, and there will be additional rehearsals on Saturdays and Sundays for regular services. A passion for music is therefore crucial; being a chorister cannot be done without full commitment, and the willingness to give up out-of-school time for something you love. At the same time, choristers are the recipients of all of the benefits of an independent education, while gaining musical knowledge and singing ability unavailable to the vast majority of children their age.

If your child is dreaming of becoming a chorister, you need to start preparing for auditions. They are usually around 10 minutes long, during which applicants will need to sing a short piece they have prepared and be tested on other aspects of singing. This is in addition to the normal process of application used by the school for those not auditioning to be choristers.
The following are some useful links for those wishing to find out more. The Choir Schools Association represents schools up and down the country; the scholarship scheme can provide more information on what help with fees is available, and; the websites of the three ISC choir schools in Cambridgeshire.

Choir Schools Association
Choir Schools’ Scholarship Scheme
King’s College, Cambridge
St John’s College School, Cambridge
King’s Junior School, Ely

Judith Fenn and Ian Summersgill work for ISCias (Independent Schools Council information & advice service) giving information to parents about Independent schools.

Further information
More information on school fee assistance
Scholarships
Music scholarships
Choral scholarships / choir schools

How can schools think strategically to cope better with the rapidly changing digital landscape?

What can Heads learn about ICT from Music?  Not so much I thought, or at least that was my opinion before last Wednesday’s ISC ICT Strategy Conference at Radley College.  One of the presentations at the conference was a high-energy presentation from Radley’s own Head of Digital Strategy, Ian Yorston, who suggested that Heads of Music already knew the answers to many ICT questions.  Just as two pupils of the same age can arrive at school, one able to play a concerto, the other unable to play a note, so it is with ICT: pupils arrive with wildly different ICT skills and needs.  If Music departments can prepare pupils for Grade exams that are not tied to specific ages, and teach in a range of settings from one-to-one tuition to a whole orchestra coming together, then perhaps the effectiveness of this flexibility shows the way for ICT.  It also highlights how, just as the challenges a Music department faces are not all about the technicalities of music, many ICT challenges have more to do with the curriculum and pedagogy than ICT itself. 

The comparison with music tackles ICT as a subject being taught in schools, but of course, ICT strategy goes much further than that.  Heads need to think about issues such as how to handle cyber bullying, how they should respond to pupils bringing smart ‘phones into the classroom, whether and when they should move the storage of their data and the operation of their computing to ‘the cloud’ and how best to avoid wasting money by making poor ICT investments.  But if parallels with teaching music showed that issues in teaching ICT often weren’t technical matters, so it was that at the conference speakers emphasised that these strategic concerns were also not really ICT issues: cyber bullying should be recognised as simply a form of bullying and handled accordingly, and smart ‘phones with internet access aren’t a technological challenge to the sanctity of the classroom but, less threateningly, they’re another teaching tool to be embraced, just as the calculator was in the ‘70s and ‘80s.  This emphasises the underlying theme of the conference: ICT strategy is not something that should be left to network managers and IT specialists; rather, it is something that should be at the heart of every school’s strategic thinking.  Heads, Bursars and Governors need to be aware of the changing ICT world in order to make the correct strategic decisions, and I hope that this conference will have helped some of them gain more of that sort of awareness.

The conference brought together high quality and respected speakers such as the dynamic Steve Molyneux, and the former Secretary of State for Education and Employment David Blunkett.  A demonstration from two former Radley pupils showed the audience how adept school pupils are as ‘digital natives’ able to use social networking to myriad ends.

It being an ICT conference, naturally there’s plenty of material relating to the day on the web: the presentations are available here, and there’s a twitter feed that picked up on any tweets using the hashtag #ISC09, meaning that delegates could make real-time comments on presentations as the day unfolded.

School Open Day Season

School Open Day season is the time of the year when schools will be throwing open their doors, giving you a chance to see what they have to offer. Most of the applications for entry next September will be made before Christmas, so it is imperative that you make the most of the opportunities abounding at this time of year, if you are considering independent education. There are lots of important things to remember when you see a school for the first time, lots of important questions to ask, and lots of things to see. Here are a few things you should make sure you know before you leave, and who to ask.

The first person you will probably want to meet is the head. He or she is the school’s primary representative, and has ultimate responsibility (along with the Board of Governors) for much of the work of the school. Any of the overarching questions you have about the school, they should be able to answer; questions about the ethos or aims of the school, its policies, its history or plans for the future should all be answered authoritatively. Equally, there are a few more practical questions you might want to ask: How much contact do parents have with teachers? Does the school have a chaplain? Which senior schools or universities do pupils commonly go on to?

Meeting some of your child’s prospective teachers is probably the next step. They will be the people with whom your child spends the most school time over the coming years, so it is hugely important that you get a feel for what they are like. If your daughter is particularly keen to take physics, for example, try to meet someone from the physics department. Here is an opportunity for you to ask some in-depth questions that the headmaster or headmistress would not necessarily have been expected to know the answers to: What does the physics curriculum look like for your daughter’s age? What support is available if she falls behind? How many of the students go on to A-level? If you are looking at a pre-prep or prep school, you might want to ask what will be expected of pupils in the Early Years Foundation Stage, or how closely the school follows the National Curriculum at Key State One. You will find that many of the teachers, if not the majority, will also play a role in the extra-curricular stream of the school, running clubs and societies, or coaching teams, and will be more than happy to discuss the non-academic side of the school too.

Finally, possibly the most important people to meet are the pupils themselves. Often, pupils will be your guides around the school’s grounds, and they are perhaps the best evidence available of what type of person your child might be after going to that school. Try to ask them some questions; they can not be expected to know the school inside-out ‘ A-level classics students may not know too much about the chemistry syllabus! but they will answer honestly, and how they approach the question can be even more important than the answer. How do they get on with their teachers or the head? The atmosphere should not be cold or overly formal, but certainly respectful. Even the simple fact that most of the pupils are smiling as they go about their day can tell a parent more about a school than a crude school league-table comparison.

Many schools are keen for parents to see both their pedagogy and staff at work, and you will quite possibly get the opportunity to look in on a lesson in progress at some point. While not always feasible, do take the chance if you can, as there is nothing like first-hand experience of how the teachers get the subject matter across, and how pupils respond to it. If looking in on a lesson is not possible, you should nevertheless have the opportunity to see classrooms themselves; how well looked-after are they? Are they making use of new technology? Do the pupils have a hand in making displays or other things for them?

There is a lot to do during an open day, and often it can seem like there simply isn’t enough time to do it. You might not get to ask all of these questions – you might not feel the need to ask all of them but if you do, you should come away from a school with a genuine and honest picture, and you can have informed confidence in deciding whether or not to apply. ISC maintains a list of which schools are having open days, and when, on our website; simply go to http://www.isc.co.uk/, then click School Search, then School Open Day Search.

For more information school open days and applications to independent school, or for help finding them, the Independent Schools Council operates a free information & advice service (ISCias). You can call us from Monday – Friday, 09:00-17:00 on 0845 SCHOOLS (7246657), or send an e-mail to information@isc.co.uk.

The Appropriate Relationship between staff and pupils in cyberspace

Traditional, established and agreed boundaries between staff and pupils are being blurred by the way in which Social Networking Sites operate.

What do you need to know

• Social Networking Sites [e.g. www.Facebook.com facilitate the sharing of up-to-date personal information including photographs and videos with ‘Friends’.
• These sites are not totally open to the public. The user can determine with whom they choose to share their information by accepting them as a ‘Friend’.
  - Users can request that they and other users become ‘Friends’
  - Users can either accept or refuse requests to become a ‘Friend’.
  - Once a Friend the other user will be able to see and download any pictures or information on the site.
  - Some sites [e.g. Facebook] allow for different levels of information to be available to Friends
• Thus, Staff and pupils who are ‘Friends’ on a social networking site are likely to have access to each other’s personal information, including any pictures and videos that have been posted there.
• Established principles that staff do not socialise with pupils in their private lives are challenged by the use of these sites.

What you might like to discuss:

• Under what circumstances, if any, should staff and pupils be ‘Friends’ on a Social Networking Site
• What advice should Schools give to staff about their use of Social Networking Sites so that staff can protect themselves from an accusation of behaving unprofessionally?
• How will the school management police your decisions?
• How will the school respond when it becomes apparent that a member of staff has known through a social networking site that pupils are at risk [e.g. having under age sex, taking drugs] but did not inform the school?
• How will the school respond when a video of one of the staff drunk at a party with their friends circulates around the sixth form at school?

What you might consider doing next

• Drafting a policy for the Staff Handbook

The Debate
All contact between staff and pupils in this forum is inappropriate

• Teachers are expected to keep a professional distance from the pupils whom they teach.
• There should be a clear separation of the private social lives of teachers and that of pupils. It would be
  inappropriate for a teacher to go clubbing with a sixth former, or to share details of their private life with them.
• There is no need for social networking to go on between staff and pupils. There is no clear educational benefit.
• Schools need to protect both staff and pupils and the easiest way to do this is to have a policy that deems this inappropriate.

Having contact with pupils on a Social Networking site should be permitted

• Teachers should be allowed to exercise their professional judgment as to what personal information they choose to share with pupils.
• It may be prudent and appropriate for schools to advise staff not to post any information which would
  compromise their position and authority as a teacher in the school. The use of allowing pupils to see limited profiles may be the best way to achieve this.
• It is impossible to police any regulation that is made by a school as the use of social networking sites is a major part of the leisure time of many users.

Download a pdf of this here

Why Schools are Charities

Most of us will have opinions about independent schools. It’s also very likely that we think we know what charity means.  Put together these two preconceptions, and it’s easy to see why there is such a spectrum of views about whether schools are charities.

In order to understand why schools are charities, these preconceptions need challenging.  Take a typical dictionary definition of charity: “a system of giving money, food or help free to those who are in need because they are ill, poor or homeless … any organisation which is established to provide money or help in this way”.   This emphasises the role of charities in assisting people in poverty and carrying out altruistic works.  By this yardstick alone, almost no school would qualify.  But then neither would, for example, the National Trust; or the British Museum; or the RSPCA, RSPB or RHS; or, in fact, many of the other 190,000 or so registered charities in England and Wales.  So there must be something more to being a charity than simple philanthropy.

This short blog is not meant to be a full critique of the Charity Commission’s approach to public benefit issues.  Instead, it is intended to provide a straightforward answer, based on prevailing charity law rather than the Commission’s disputed guidance, to the question “why is an independent school a charity?”

What is a ‘charity’?
The Charities Act 2006 defines ‘charity’ to mean an institution which is established for charitable purposes only.   It is therefore immediately apparent that the legal definition is focused on an organisation and its purposes, and not ‘charity’ as a concept or value (as described perhaps most famously in 1 Corinthians 13).

What are ‘charitable purposes’?
The Charities Act has a similarly pithy definition of ‘charitable purpose’, incorporating two elements.  First, it must be a purpose falling within a prescribed list set out in the Act.  And secondly, it must be a purpose which is for the public benefit.  

The prescribed list of purposes includes “the advancement of education” so this part of the test is completely straightforward for schools.   The list also includes, for example, “the advancement of the arts, culture, heritage or science” and “the advancement of animal welfare” – which explains why the national institutions referred to above are also charities.  Significantly, the list separates out “the prevention or relief of poverty” as a distinct charitable purpose, emphasising the fact that dealing with poverty is not a necessary or integral part of all charitable purposes.

But it is really the second part of the definition – that the purpose must be for the public benefit – which has proved so controversial.

What is a ‘purpose for the public benefit’?
Crucially, the Charities Act does not define ‘public benefit’.  Instead, the Act expressly preserves the pre-existing meaning of ‘public benefit’.   In other words, its meaning is unchanged by the Act and must instead be drawn from case law.  The Act does make clear, however, that it should not be presumed that a purpose of a particular description is for the public benefit.  The Act also mandates the Charity Commission to issue guidance on public benefit.   This does not confer upon the Charity Commission law-making powers; merely the responsibility to publish guidance “to promote awareness and understanding”.

What is the meaning of public benefit in case law?
In general terms, ‘public benefit’ comprises two elements, and any organisation claiming charitable status must show that both these elements are intrinsic to the organisation’s purposes: that its purpose is of benefit, and that the benefit is offered to the public or a sufficient section of the public.  Indeed, the Charity Commission’s two general principles reflect this and are largely uncontroversial: that there must be an identifiable benefit or benefits and that the benefit must be to a sufficient section of the public.

In relation to the first element – the benefit – it is apparent that this may encompass both direct and indirect benefits.  In the case of a charity set up to run a school, for example, the direct benefit will be the education provided to pupils of the school.  But there will be other indirect benefits as well, such as the national benefit of well-educated members of society and maintenance of academic standards, and the savings to the taxpayer of not having to fund additional pupil places at state schools.

In relation to the second element – the public – it is important to note that ‘public’ does not mean everyone.  The Commission itself refers to “the public or a sufficient section of the public”, which is the right test.  From case law, one can draw two further elements, one quantitative and one qualitative, to determine whether purposes benefit ‘the public’.  First, the people who are offered the benefit must not be numerically negligible.  Secondly, they must not all form part of a group which might reasonably be regarded as a ‘private’ or ‘closed’ grouping rather than a ‘public’ or ‘open’ grouping.  So, for example, a school established to educate only relatives of a common ancestor, or children of employees of a single company, would be restricting those eligible to apply to a closed grouping of individuals.  By contrast, a charity set up to run a school for boys in Birmingham would have an open – and numerous – pool of potential pupils, and therefore would have a purpose which is for the ‘public’ benefit in both senses of the word.

In summary, therefore, in relation to a typical independent school:

o the principal or direct benefit is the education it offers to its pupils (although there will be many other benefits, both direct and indirect); and
o the public is the pool of potential pupils who are eligible to be considered for a place at the school.

What is the relevance of fees to public benefit?
None at all.  It is long established that charities may charge fees to recoup their costs and generate a surplus.  The majority of charities rely on revenue income, whether the revenue is directly levied on members or users of the charity, or indirectly channelled from other sources such as Government grants or contractual funding from statutory bodies.  Indeed, it would be very unusual for charities with high levels of operating or capital cost, such as schools, to rely solely on investment income generated from returns on historic donations.

What is the relevance of bursaries to public benefit?
Again, none at all.  There is no legal authority for linking fee remission to the question of whether a charitable purpose is or is not for the public benefit.

As was stated at the beginning, this paper is not the place for a full rebuttal of the Charity Commission’s approach to public benefit.  But it is useful to consider the major differences of approach:

Public benefit as an activities test rather than a purposes test: The Commission ignores the express language of the Charities Act linking public benefit to a charity’s purposes and instead looks at the charity’s activities to determine whether the charity is operating for the public benefit.  ‘Public benefit’ therefore becomes a subjective assessment of a catalogue of activities, some of which appear to carry greater weight or significance than others.  Of course, if the charity’s trustees are not operating the charity in accordance with its purposes, this is rightly a matter of concern – but it is not a public benefit issue determining whether the organisation is or is not properly registered as a charity.

Fees: The Commission believes that fees operate to exclude those who cannot afford them, and that exclusion is intrinsically anathema to charity.  It is particularly concerned that ‘people in poverty’ are effectively discriminated against by charities which recoup their costs by charging fees, and goes to great lengths to interpret existing case law so as to conclude that an organisation charging ‘high fees’ (defined so as to include all independent schools) has a high hurdle to pass to demonstrate that those who cannot afford the fees are not excluded.  However sympathetic one might feel about the social merits of its position, basic economics alone would lead one to question this stance: any organisation with bills to pay must have reliable sources of income to fund those bills, and charities are no different.  In fact, the social justice case is not particularly strong either, if the end result is to raise fees for all parents resulting in more lower- and middle-income families being unable to afford the increased fee burden.  Neither is the Commission’s position justified by case law.  Indeed, the precedent upon which the Commission relies expressly refers to the fact that the charity in that case was excluding those who could not afford its fees, with no adverse impact of its status as a charity.

Tax: The Commission unfailingly links the question of public benefit with the tax benefits of charitable status.  For the independent regulator of charities to imply that schools are only using charitable status as a tax-efficient wrapper for their activities is as misleading as it is untrue.  How charities are taxed is a matter for HMRC and the Treasury, not the Charity Commission, and many schools were founded as charities centuries before modern taxation started.  Interestingly, the Commission fails to acknowledge the estimated £235 million of irrecoverable VAT that schools pay to HMRC each year; a single statistic which more than outweighs the oft-quoted figure of £100 million of tax savings for charitable schools.

Savings to the taxpayer: The Commission takes a similarly unbalanced view towards the substantial savings to the taxpayer of the education of half a million children outside the state-maintained education sector.  Notwithstanding a direct reference in the Commission’s quoted precedent to the fact that the medical charity in question provided general benefit to the community as a result of relieving pressure on beds and medical staff at a local general hospital, the Commission disregards any analogous relief to places at, and teachers of, state schools resulting from independent schools. ISC has calculated the value of this relief to be of the order of £3–4 billion per annum.

Matthew Burgess
Deputy Chief Executive, ISC

1.) Cambridge Advanced Learner’s Dictionary
2.) Section 1(1)a Charities Act 2006
3.) Section 2(1) Charities Act 2006
4.) Section 2(2)(b) Charities Act
5.) Section 3(3) Charities Act 2006: “any reference to the public benefit is a reference to the public benefit as that term is understood for purposes of the law relating to charities in England and Wales
6.) Section 4 Charities Act 2006
7.) Re Resch (1969) 1 AC 514: “…such exclusion as there is, is of some of the poor – namely those who (a) have not contributed sufficiently to a medical benefit scheme or (b) need to stay longer in hospital than their benefit will cover or (c) cannot get a reduction of or exemption from the chanrges.”
8.) Re Resch (1969) 1 AC 514: “The general benefit to the community of (the private medical charity) results from the relief to the beds and medical staff of the general hospital, the availability of a particular type of nursing and treatment which supplements that provided by the general hospital and the benefit to the standard of medical care in the general hospital which arises from the juxtaposition of the two institutions.”