OSCR announced its decision on 13 of the 40 fee-charging schools in Scotland which are being reviewed by the regulator.
Ten of the schools met the charity test defined under the Charities and Trustee Investment (Scotland) Act 2005, but three schools, including Tony Blair's former school, Fettes College, in Edinburgh, were found to have failed the test and now have 18 months in which to comply.
The other schools were St George's School for Girls in Edinburgh and St Columba's School in Inverclyde and all three were found to have taken insufficient measures to provide assistance in respect of the high fees they charge pupils to attend.
Under the 2005 Act, conditions on the public gaining access to
the benefit provided by charities must not be unduly
restrictive.
The three schools will have to show progress on fee assistance, or
otherwise widen the access to the benefit they provide, within 18
months or risk losing charitable status.
The regulator plans to review all the remaining fee-charging schools in Scotland by summer 2014.
OSCR's approach raises further questions about the regulatory approach to access to public benefit. While there is no certainty that the Charity Commission will take the same approach with English schools, it does mean that the question of access will be looked at very carefully when the Charity Commission's revised guidance on public benefit is published later this year.
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