When the decision of the Upper Tribunal on the Attorney General’s reference and the judicial review by the Independent School’s Council of our public benefit guidance was published earlier this month (see solicitorsjournal.com, 14 October 2011), some commentators suggested this was a victory for the ISC. There have been rather more circumspect analyses since then, which pointed out that, broadly speaking, the judgment upheld the Charity Commission’s interpretation of the law.

Before the tribunal’s decision, many charity lawyers would have said that the definition of a ‘sufficient section of the public’ for the purposes of demonstrating public benefit required merely that the class benefiting should not be numerically negligible or...

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