The announcement was made following a review by the Office of the Scottish Charity Regulator (OSCR) into fee-charging schools. The investigation found that many schools were deemed to have passed the public benefit test however others were warned that they needed to do more.
Passing the public benefit test is crucial for any body which wants to register as a charity in Scotland and remain on the register. In order for a body to be entered onto register it must meet the charity test set out in section 7 of the Charities and Trustee Investment (Scotland) Act 2005 (the 2005 Act) and part of this test requires that the body provides a public benefit.
Section 8 of the 2005 Act sets out the public benefit test. No particular purpose will be presumed to be for the public benefit. In order to determine whether a body provides or intends to provide a public benefit regard must be had to how any private benefit and disbenefit compare with any benefit gained by the public as a consequence of the body exercising its functions. In addition, if a benefit is or is likely to be provided to a section of the public only, it is necessary to consider whether any condition on obtaining that benefit (including any charge or fee) is unduly restrictive.
The latter requirement has caught out several private schools. In its review, OSCR found that these schools failed to meet the charity test due to insufficient mitigation of high fees or because of the restricted access to the benefit they provide. However, it is possible for a body to remedy problems in this area and retain their charitable status. So far, OSCR has announced that ten schools have now complied with directions given to them and that they therefore meet the requirements to retain their charitable status. OSCR is still to publish its reports on two remaining fee-charging schools.
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