Independent schools in England are likely to feel the pressure this week, with a tribunal investigating their charitable status and demands from government and education leaders over academy sponsorship. In the same week the Independent Schools Council (ISC) has been forced to restructure following a vote by the Headmasters’ and Headmistresses’ Conference (HMC) to withdraw from the organisation after it accused the ISC of ‘losing focus’.

 

Tomorrow the ISC, a body which represents over 1,200 independent schools, will challenge the Charity Commission. At a ground-breaking tribunal, a decision to force two independent schools to fund more bursaries in order to justify their charitable status will be examined. Following the 2006 Charities Act, fee paying schools are no longer automatically granted charitable status. The Charity Commission issued guidance in late 2008 laying out how schools could meet new requirements - largely by proving that they provide “public benefit”. Critics have suggested that offering sufficient bursary places was clearly the most obvious route to satisfying the commission and was a way of forcing schools to increase these against their will. After a ‘trial test’ of the public benefit requirements, the Charity Commission found that two out of the five schools failed to prove that they provided sufficient bursaries. These two schools have now passed after finding more subsidised places.

The ISC has called for a judicial review of the decision which has been backed Dominic Grieve, the Attorney General who suggested that the new guidance created “uncertainty as to the operation of charity law in the context of fee-charging schools”.

In a document submitted to the High Court preceding tomorrow’s hearing, deputy chief executive of the ISC, Matthew Burgess, said the guidance had “potentially major unintended consequences” for all concerned. “Trustees must consider whether fee increases for all are required to fund bursary places for the few with the inevitable result that many families who have, not without sacrifice, managed the fees up till now will be pushed out in favour of the very rich who can afford the fees no matter how expensive and the very poor who will win the few very places subsidised by others. For many schools, this will require the trustees to embark on fee strategies which might prove not to be economically viable, with potentially catastrophic circumstances.”

The Charity Commission has defended its guidance and in a submission to the judicial review, Kenneth Dibble, one of the commission’s executive directors, wanted to make clear that it did not “wish to prescribe minimum or maximum thresholds for the amount of means-tested fee assistance that should be provided by charitable schools in general, or by any particular school. The commission made it clear that it was for the charities to produce plans in response to the commission's initial public benefit assessments, and that the commission did not insist that the plans, whether in relation to the provision of bursaries or otherwise, should take any particular form.”

One of the possible ways in which an independent school can demonstrate their commitment to the wider public is entering into a sponsoring partnership with a new academy. Education secretary, Michael Gove, has consistently called on independent schools to consider sponsoring state academies. But many schools have been reluctant to back academies because they are not allowed to select pupils, a key feature of most independent schools, but Mr. Gove said, “Can you only succeed if you hand pick pupils?

In a reading of the Education Bill in the commons last week, Graham Brady, chairman of the 1922 Committee, led a failed attempt to amend legislation and expand the number of academically selective state schools. In his amendment Mr. Brady and supporters called for the Academies Act to be revised to give independent schools opting into the state sector the ability to continue to select their intake.

Last week Dr Anthony Seldon, Master at Wellington College, added his voice in a piece written for The Times, “With vision and leadership, there could be a hundred or more academies sponsored by private school foundations. We urge the governors of all independent schools to rise to this challenge. Many already have fruitful partnerships with state schools: starting and partnering an academy is a logical development. By doing so they will not only be establishing excellent new schools and taking on exciting fresh ventures. They will be helping radically to improve the national education system.”

However, today, The Times has reported that HMC Heads have demanded an overhaul of the ISC claiming that it has lost focus. It is reported that some head teachers fear a hidden agenda at the ISC to become a more wide reaching organisation which would also represent new academies and free schools.

The restructuring was forced by the HMC, a highly influential group of 250 leading public schools whose members pay a substantial contribution to the ISC’s £1.4 million annual subscription income.

The ISC hearing begins tomorrow and is expected to last for 10 days.