Better particulars?
September 2008
Vicki Bowles and Michael King conclude the recent review series of the Charity Commission's draft guidance...
The Charity Commission is, as you read this, considering the responses it has received to the draft guidance on public benefit and education[i]. This article looks at some of the main issues raised in the draft document, and suggests where the Commission might be able to improve upon the guidance they have currently issued.
What is education?
Charity law gives a wide meaning to the term ‘education’ and does not limit it to that provided in schools or in higher education. So it covers a wide spectrum, including professional or vocational training, lifelong learning and research. What is important for educational charities is that there is an experience that is capable of being educational, and that the educational nature of that experience is deliberate and structured in such a way that the consequence is an increase in learning, understanding, skills or capabilities.
While theCommission has been clear in the guidance that the meaning of education goes beyond what is provided by schools, it also goes on to suggest a number of ways in which education can be assessed, which, in our view, go far beyond the Commission’s remit in terms of policing public benefit.
Balanced and not advocating a particular point of view
The Commission accepts in the draft guidance that education does not have to be value-free or completely neutral, but if it advocates a particular point of view, that must be based on broad values that are uncontroversial. What the guidance does not explain is what might be considered uncontroversial; would the health benefits of a vegetarian diet, for example, be ‘educational’ if the education did not present both sides of the argument for vegetarianism?
The Commission seems to suggest that education which does not offer both contra-arguments is by definition not educational. Indeed it could potentially draw support from the ruling in the Dimmock case[ii] where the court examined theeducational use in maintained schools of Al Gore’s film An Inconvenient Truth about climate change. The use of this film as part of the teaching process was challenged by a school governor on the basis that the film did not provide a balanced presentation of the political issues involved in the climate change argument. Mr Justice Burton ruled that the film did have a degree of political bias, but given that the film was substantially founded on scientific research and fact, it could be continued to be shown so long as teachers explained the context via guidance notes issued to schools with the film. However, the judge was chiefly concerned, not that the film was controversial but that it contained some nine factual errors, so it needed the other side of the argument to be suitable for use in schools.
The Commission states in its guidance that any ‘education’ which attempts to persuade people to form a particular view is not charitable education.The guidance suggests that raising people’s awareness of an issue to build support for a campaign is not educating them about the issue – the aim, it says, is to gain their support. It is not clear why this should be the case – taking the vegetarian diet example above, if a paper based on evidence formed the conclusion that a vegetarian diet is healthy, this could be used to persuade people to adopt a vegetarian diet. But why would that paper not be educational? There could be a major problem if such a view were taken by the Commission in relation to the religious, moral and ethical instruction offered by institutions founded by religious bodies.
Structure, value and merit?
To fall within the definition of ‘charitable education’, the Commission looks for some form of structure to the education being offered, in other words for the education to be deliberate and intended or explained or analysed or to be structured in a way that is capable of increasing understanding or skills and capabilities. This fails to recognise that unstructured learning can be as effective for certain beneficiaries, and therefore more emphasis should, we think, be placed upon the structure being appropriate for the beneficiaries, rather than there being a structured process.
The Commission must be right in requiring some form of educational value or merit in the activities of an educational charity, and the purpose of, or intention behind, those activities should be to provide that education. However, the Commission goes further than this and talks about the subject and/or the process having educative value and/or merit.
It is not clear from the guidance whether both the subject and the process have to have value/merit, or whether there only needs to be value/merit in the subject or the process. As it currently stands, the guidance is confusing and ought to be clarified.
Dissemination
Dissemination of research and other work is clearly important if there is to be a public benefit element – an academic paper which goes no further than the author’s study could not be said to advance the education of the public, or even a section of the public. The guidance explains that adding to the store of useful human knowledge is a benefit, so long as it is capable of increasing knowledge, understanding and learning and is not nonsense, even if the results of the research are inconclusive or negative.
What the guidance does not explain, is how widely a paper should be disseminated to be for the public benefit. For example, a highly academic and specialised scientific paper which might be unintelligible to the majority of the general public is published in a specialist journal or even made available through a learned institution’s library – would this be sufficient? Certainly it would be sufficient and therefore for the public benefit, if the journal or the library were available to all, but what if (more likely) the journal or the library were only available to those working in that specialist field? On the other hand, if an article more generally accessible to educated but non-specialist members of the public were produced but only published in a specialist journal with a small circulation, would there be public benefit? The answer might be affected by what those specialist readers could do having read the article.
Given the public benefit requirement, it now seems incumbent upon educational charities, involved particularly in higher education, to consider the wider publication of such papers, or at least an executive summary, on the internet.
What is for the public benefit?
As is well known, the Commission has adopted a ‘two principles’ approach to public benefit, with specific sub-section for each principle to enable trustees to examine the public benefit of their activities. (See Johnathan Burchfielld's article, Public Benefit?.)
Principle 1: There must be an identifiable benefit or benefits
(1a) The benefits must be clear.
The Commission accepts that the general benefit of education to the public is clear. As long as the education provided is patently of value, trustees should not have any issues in complying with this.
(1b) The benefits must be related to the aims of the charity.
The Commission’s use of the term ‘aims’ (as opposed to ‘objects’ or ‘purposes’) is proving to be particularly controversial, and this is neatly illustrated in the case of two charities, each running a school:
Charity A has the broad objects often found, ‘the advancement of education’, whereas Charity B’s objects are narrower, ‘the advancement of education by the provision of X School’. The Commission seems to be taking the view that in both cases, the ‘aim’ of the charity would be to run a school. This means that any activities carried out by Charity A which are not related to the running of a school, but do not amount to a separate aim – for example the provision of educational, sporting or cultural facilities and events for the local community – could not be ‘counted’ for the purposes of public benefit. Equally, Charity B has very narrow objects which in the Commission’s view seem to permit only the operation of X School.
The Commission also takes the view that public benefit must be shown for each object/aim and, benefits that are accidental or unplanned cannot be taken into account and the wider benefit to society of educating people will not be sufficient alone – there must be other more direct benefits.
In our view this is incorrect. The education sector would generally prefer to see a more holistic approach to public benefit, and this issue is particularly live in the case of schools and the wider community benefits that they provide. Schools, whether independent or maintained, are clearly an important part of the local community, and provide a resource that is available for that community in terms of facilities and out-of-hours activities.
Furthermore, schools themselves see their role as being wider than simply educating the pupils enrolled on the courses provided, and as a result conduct a number of activities aimed at improving the social responsibility of pupils which in turn potentially has an effect on the local communities served by the schools. It seems a nonsense that the benefits to the community of, for example, being able to attend the performance of a play, concert, church service or other event put on by the students cannot be counted as part of the overall educational benefits provided.
(1c) Benefits must be balanced against detriment/harm.
Generally, there is unlikely to be any detriment or harm in the provision of education, unless the content of the education could cause harm – such as providing a course in bomb-making for terrorists.
Principle 2: Benefit must be to the public or a section of the public
(2a) The beneficiaries must be appropriate to the aims.
This is self-explanatory in the educational context – if people register themselves or their children and such registrations are accepted in accordance with published criteria, the Commission is unlikely to raise any problem on this score. Teaching native French speakers conversational French would not be a benefit appropriate to the aim of improving the language capability of the wider public, for example.
(2b) There can be no unreasonable restrictions placed on who can benefit.
The Commission seems in this section to focus on what restrictions exist, and then looks at what is reasonable. Indeed the guidance indicates that the restrictions should be legitimate, proportionate, rational and justifiable given the aim of the organisation. It may be more appropriate to focus on the class or type of beneficiary to be assisted by the charity, then decide whether they form a sufficient section of the public. At that point, the reasonableness for any restrictions can be taken into account.
(2c) People in poverty should not be excluded.
This is a key section in the guidance, and applies mainly to charities that charge significant fees. Since there is separate draft guidance for fee-charging charities (see Simon Weil's article, A bit rich?), this will not be considered further here, except to make the point that there is an acceptance that running educational institutions, given salary, administrative and infrastructure costs, is not cheap and such costs need to be covered, whether by fees charged to users or from external funders, including government agencies and local authorities.
(2d) Any private benefits must be incidental.
Finally, this question brings up issues in relation to professional or vocational education. Clearly there are private benefits in the education of qualified lawyers, accountants and others who may be able to do well in their own professions as a result of their increase in knowledge. However, that profession would generally be providing a service to the public, so the public generally also benefits from the increased knowledge of the service providers. The Commission classes this as ‘complex’ but should it be?
Conclusion
There is much in the education guidance which trustees may find difficult to apply to their individual charities, given the wide range of types of education that qualify for charitable status. There are also a number of issues with the way in which certain principles have been interpreted. However there is little to quarrel with in terms of the main principles, even if we have a problem with a somewhat rigid interpretation of those principles in specific cases.
We can be assured that both the Commission and the trustees of educational charities will have at the forefront of their minds the importance of education to society in general, and the consequential public benefit that flows from an educated society.
Key points
- It is accepted that education generally is of public benefit and important to society at all stages.
- Educational charities cover a vast range of subjects and processes, and the Commission's guidance needs to ensure that it reflects this.
- An holistic approach by the Commission to public benefit would be much preferred by the sector to the current line of trying to squeeze aims and benefits into neat boxes.
[ii] R (on the application of Dimmock) v Secretary of State for Education and Skills [2007] EWHC 2288 (Admin)
Author: Vicki Bowles
Vicki Bowles is a barrister within the charity and education team at Stone King and was formerly legal adviser at the Charity Commission.
A member of the Charity Law Association, Vicki is currently sitting on the working party that is responding to the education and public benefit guidance.
She is also a Brownie leader and a governor at a local school
Author: Michael King
Michael King is senior partner of Stone King LLP and head of its charity and education team. An active member of the Charity Law Association, he was its chairman from 1997 to 2000.
He is recognised by Chambers Directory and the Legal 500 as a leader in charity law and has held several appointments as receiver and manager/interim manager of a charity by the Charity Commission.
He is co-author with Ann Phillips of Charities Act 2006 - Guide to the New Law (Law Society 2007).
He regularly speaks and writes on charity matters, lives in Bath and divides his time between Bath and London
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