The Charity Tribunal - questions and answers
This article gives an overview of the Charity Tribunal ("Tribunal"), which will open for business from early next year and suggests how charities and others may make best use of it.
What's it all about?
The Charity Commission ("Commission") has a lot of power in regulating the charities sector. With power goes accountability but challenging the Commission's decisions in the High Court is not a practical route for many charities because of the potential expense. The idea is that the Tribunal will provide a quicker, more cost-effective challenge to Commission decisions.
What matters will the Tribunal hear?
The Tribunal will deal with appeals, applications for review and also with references (about which more later).
Appeals
The Tribunal will hear appeals from decisions, directions or orders which are mentioned in a detailed table contained in Schedule 1C to the Charities Act 1993 (introduced by the Charities Act 2006).
There will be no blanket right to appeal any decision of the Commission: in many instances where the Commission refuses to make a decision or to give a direction or order there will be no right of appeal.
The Tribunal may take into account evidence not considered by the Commission.
Reviews
Certain other decisions- such as a decision to institute an inquiry into a charity- will only be "reviewable": the Tribunal will apply the principles which would be applied by the High Court on an application for judicial review and will not consider fresh evidence.
Who can appeal or apply for a review?
Those parties specified in the table in Schedule 1C include (aside from the charities concerned and their trustees) any person who is or may be "affected" by a decision, etc.
Where will the Commission's decisions be posted?
It is likely the Commission's decisions will continue to be posted onto its website.
How long will you have to appeal a decision, direction or order of the Commission?
The draft Rules proposed up to 28 days from notification of the Commission's final decision but this may change following consultation.
And what are references?
Here the Tribunal is not being asked to reconsider a decision made by the Commission in relation to a charity or other party. Instead the Attorney General, as protector of charity, or with her consent the Commission, can refer a question on charity law for the Tribunal to clarify.
This procedure is likely to assist in the development of the law, in particular to develop the revised definition of charitable purpose and to refine the concept of public benefit.
Charities and others who are likely to be affected by the Tribunal's decision on the reference may apply to the Tribunal for permission to become a party to it.
So what's the Tribunal procedure to be?
The draft rules remain to be finalised but are similar to other tribunal rules in setting out the framework for the resolution of a dispute, requiring each party to set out its case in writing, providing for the disclosure of documents and giving the Tribunal flexibility to make directions for the "just, economical and expeditious determination of the appeal or application".
What powers will the Tribunal have?
The Tribunal may uphold a decision of the Commission or, depending on the issue before it, will be able to quash a decision, replace it with its own decision or direct the Commission to take some specific action. In ruling upon a reference the Tribunal will help to clarify the law.
What if we don't agree with the Tribunal?
It will be possible to seek permission to appeal to the High Court.
Can we recover our costs?
Probably not. Only where the Tribunal considers a party has acted "vexatiously, frivolously or unreasonably at any stage of the Tribunal proceedings" or, in the case of the Commission, that its decision was "irrational". In practice both thresholds may be too high to meet, leaving an appellant, whether successful or not, to bear its own legal costs.
When it's all going to happen?
The Charity Tribunal is expected to be established (and the finalised Tribunal Rules in place) by February 2008.
So, all in all, what do you think?
As ever, charities will need to cut their coat according to their cloth: if a wider purpose is to be served, might it be best to try to tag onto an appeal or a reference before the Tribunal or even to seek to prompt the Attorney General into making a reference, the idea being to encourage her to do most of the running (in her public interest role) and to seek to limit your involvement to providing evidence of fact or of expert opinion for the Tribunal's assistance?
Should charities attempt to represent themselves during the Tribunal process, perhaps with initial and sporadic guidance from lawyers, instead of seeking legal representation throughout?
What are your practical tips?
- Charities need to be fleet of foot and use whatever they can to influence the agenda.
- Charities should also watch out for the forthcoming guidance on using the Tribunal, which will be posted onto the Commission's website
- From next February it may be a good idea to monitor final decisions published by the Commission on its website because you may be able to become a party to an appeal.
- This means you need to be prepared to explain how you have been affected by the relevant decision.
- If you want to appeal, have you gathered all relevant evidence? Is there any more information you could gather and present?
- If you seek a review of a Commission decision, can you put forward good arguments why it has been irrational in reaching its decision, not just incorrect? Are you familiar with the general principles of judicial review?
- Try contacting the Attorney General's Office: see whether she would be prepared to make a reference on a matter of sufficient importance?
- Keep monitoring the Ministry of Justice website for existing references which might have relevance to your organisation.
- Decide whether you want to apply to become a party to an existing reference. Even if you won't be doing all the running, on a cost-benefit analysis will the opportunity to have your say be worth all the time, effort and money it is likely to take? Be clear about your objectives and spec out your input into the process (if appropriate, with lawyers who should be able to give a realistic assessment about what will be required).
- Use lawyers sparingly and selectively- to best effect!
Robert Nieri
Senior Associate
Freeth Cartwright LLP
robert.nieri@freethcartwright.co.uk
0115 936 9324
28 November 2007
Whilst every effort has been made to ensure the accuracy of this review, it does not provide complete coverage of the subject matter (which is yet to be finalised) and it is not a substitute for professional legal advice and should not be relied upon as such.