The Office of the Scottish Charity Regulator (OSCR) has published its decisions on the review of charitable status of 13 independent schools. Of the 13 schools reviewed, ten have passed the charity test and three have failed. The three schools which have failed the test have been issued with directions by OSCR to make changes within the next 18 months in order to retain charitable status.

These decisions on independent schools follow on from an earlier review of 13 other schools in December 2011. As a result of the 2011 review, eight schools were determined to pass the charity test and five were considered to fail the test because they did not provide public benefit. But after making changes, all five of those schools subsequently passed the charity test and retained their charitable status.

Gavin McEwan, Deputy Head of Turcan Connell's Charities Legal Team said,"The legislation which has governed Scottish charities since 2005 removes the presumption that all charities provide public benefit. Instead, charities must satisfy OSCR that they provide public benefit through their activities. Whether or not any charity provides public benefit can be affected by a number of factors including whether or not there are fees or charges levied in order to access the benefits which the charity provides. If a fee or charge is considered by OSCR to be unduly restrictive then the charity may be considered to fail the charity test and may be asked to make changes in order to pass the test. In the case of charities charging fees, that may mean making appropriate concessionary arrangements or other"facilitated access" available to potential beneficiaries."

He added,"It is important to stress that these rules on public benefit are not unique to schools, although much media attention has focused on the independent schools sector. The public benefit rules apply to all Scottish charities and not just to schools. Of all of the independent schools assessed in 2011, those considered to fail the charity test at first were subsequently deemed to pass the test after making various adjustments, including in some cases provision for bursaries and other fee mitigations. As a result, no independent school has yet had its charitable status entirely withdrawn by OSCR."

"As a result of its published decisions, charities can see the approach which OSCR takes to the question of public benefit and the types of changes which they have to make in order to meet the charity test. Although there are no hard and fast rules, or absolute thresholds, the published decisions give a steer to charities on the efforts which must be made in order to maintain charitable status."