The review of independent schools which the Office of the Scottish Charity Regulator (OSCR) recently completed has presented the sector with a mixture of challenges and opportunities.

From the early days of the development of the charity test in the Scottish Parliament, it was clear that independent schools may not have the easiest of rides. A political agenda developed which led to the insertion of an explicit reference to fees and charges in the public benefit section of the Charities and Trustee Investment (Scotland) Act 2005. A number of those who supported the inclusion of this wording made it clear that it was the independent schools sector which they had in their sights.

The result was a public benefit test which emphasised the need for OSCR to consider fees and charges when assessing whether any unduly restrictive conditions existed that would tend to mitigate against the public benefit which independent schools provide.

As it turned out, even with this special emphasis on fees and charges, the vast majority of independent schools cleared the OSCR hurdle on first assessment. Of the independent schools which were considered to fail the charity test, all of them complied with directions from OSCR to widen access, and all of them remain on the Scottish Charity Register.

Nevertheless, the process was not always easy for the sector. Media reporting, with a few notable exceptions, was frequently skewed against independent schools and there were vocal arguments about how their mere existence was socially divisive and had a detrimental effect on maintained schools in the same localities. OSCR could find no strong evidence to support those arguments, but the debate was in danger of becoming highly polarised before the OSCR review process was even properly under way.

In facing up to these public expressions of opposition, the sector had a chance to set the record straight, highlighting the value of the independent schools sector to the country as a whole through the promotion of excellence, contributions to the development of the national curriculum, sharing of resources with the state school sector and local communities and, importantly, serving as a major employer in Scotland.

The Scottish Council of Independent Schools (SCIS), as one of the key sector voices, was able to turn the challenges of adverse public views and media reporting into a real opportunity to present independent schools in a positive light. This is an opportunity which SCIS and individual schools need to continue to embrace, as the conclusion of the recent OSCR review is not the end of the story.

Despite the fact that 80% of schools passed the charity test on first assessment, the initial failure rate of 20% led OSCR to conclude that their early focus on the school sector was justified. The level of initial failure means that independent schools are still considered to be higher risk charities – almost entirely because of the fees charged to attend them, according to OSCR's report on the schools project, published in December. OSCR will therefore maintain a higher level of vigilance when considering independent schools' compliance with the charity test. Those schools which initially failed can expect to be selected for further monitoring under OSCR's 'targeted regulation' programme, which will begin in 2015.

Is this perception of risk and increased vigilance a bad news story for the independent schools sector? Almost certainly not. Of course, no-one likes to feel that there is a regulator breathing down their necks, but the experience of OSCR in its first 10 years is that it is generally far from heavy-handed. Its light-touch and pragmatic approach has been broadly welcomed by the Scottish charity sector. There is no reason to suppose that this will change.

The groundwork laid down from the OSCR reviews is impressive. The amount of means-tested bursaries and the level of fee remission for assisted pupils (in some cases, full fee remission) has been a surprise to many critics and has helped to dispel the impression of a sector which is inaccessible to all but the wealthiest.

Even so, challenges remain: individual schools will need to keep up the focus on facilitated access and on telling their school's story (particularly through annual trustee reports) to maximum advantage. OSCR is alert to the risk of"backsliding" and schools need similarly to be alert. While the sector will continue to face challenges, opportunities equally abound.



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