Editorial: The David Orbison case was not the Charity Commission's finest hour

Events have vindicated the arguments of its former staff member, even though he has lost his case in the employment tribunal, writes Stephen Cook

Stephen Cook
Stephen Cook

The conviction and sentencing last week for Gift Aid fraud of Eyob Sellassie, former chair of the now defunct African Aids Action, inevitably brings to mind the earlier and separate investigation of that charity by the Charity Commission, which ended in 2010 with no action other than advice and guidance to the trustees.

That investigation had uncovered, among other things, illegitimate expenses claims and expenditure that did not further the charity’s purposes, and the commission officer who conducted it, David Orbison, was so upset by the decision not to take stronger action that he challenged it under the Public Interest Disclosure Act, which facilitates whistleblowing.

There followed a long and bitter dispute: Orbison eventually resigned, claiming constructive unfair dismissal. He won part of his case at an employment tribunal, then lost it recently on appeal. The appeal tribunal said one aspect of the case should be reheard, but Orbison has opted not to proceed with this, declining an associated offer of £7,000 from the commission that would have involved an undertaking not to speak further about the case.

Orbison has argued all along that the commission was failing in its statutory duty by neglecting to take stronger action against a charity so clearly in the wrong, and that the commission was driven by the desire to avoid a challenge in the charity tribunal, which had criticised it severely in another case a short while before.

The commission’s response has been that its decisions were right all along and that Orbison was a difficult employee seeking a pay-off. After the case, the head of enforcement at the commission said the earlier charity tribunal case cited by Orbison had provided a "steer" about using its powers in a proportionate way. "If we’d proceeded to exercise our powers in a way that we knew would be overturned by the tribunal, that would be the action of an irresponsible regulator," she said.

Looking back, it seems unlikely that the commission would have been criticised by the charity tribunal for using its own legal powers against, or seeking the prosecution of, a trustee who, according to its own inquiry report, used a charity’s money to buy suits for himself and tickets for cinemas and the London Eye. The more likely explanation, surely, is that the commission, under a leadership soft on charities and mindful of Sellassie’s threats to appeal to the tribunal and sue for racial discrimination, chose to appease AAA and take a hard line on its own staff member instead.

In the meantime, of course, things have moved on. The commission has been criticised by parliamentary committees in terms that echo Orbison; in response, it has started taking a harder regulatory line and opening more investigations; and its new chief executive has declared that charities are unlikely to get the benefit of the doubt in future. One suspects that if Orbison's investigation happened now, firmer action would be taken.

Orbison, as if often the case for whistleblowers, has paid a high price for the stand he has taken and for his persistence: he has lost his employment case, suffered ill-health and unemployment, and is not very likely to succeed in his quest for an inquiry into the whole affair. His consolation, however, is that the case has not been the commission’s finest hour and the moral victory is clearly his.

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