News analysis: Charity Tribunal to open its doors

Charities will soon be able to challenge Charity Commission decisions more cheaply. Ben Cook reports.

Alison McKenna and Lawrie Simanowitz
Alison McKenna and Lawrie Simanowitz

The Charity Tribunal, established to give charities an affordable way of challenging decisions made by the Charity Commission, is due to open for business shortly.

The tribunal was stipulated by the Charities Act 2006 and will be administered by the Tribunals Service, a government agency. Sitting in judgement will be a president and 12 other members, including five legally qualified members and seven lay members.

Alison McKenna, a former in-house lawyer at the Charity Commission and head of the charity department at Wilsons solicitors, was appointed president of the tribunal earlier this month, but none of the dozen other members have been selected.

A spokeswoman for the Tribunals Service insists that it always intended to appoint a president before any of the other members were chosen and that the Judicial Appointments Commission is still recruiting members.

Qualifying tests

The JAC is the body responsible for drawing up a list of candidates and forwarding it to the Lord Chancellor for approval. A spokeswoman for the JAC says it is not yet at the interview stage, but that "qualifying tests are being done".

However, she declined to reveal how many applications had been received by the JAC for the 12 unfilled posts. Interviews for the positions are not expected to take place until the first two weeks of April.

The recruitment process itself has already run into difficulties. At the beginning of the year, Gareth Morgan, professor of charity studies at Sheffield Hallam University, withdrew his application to become a tribunal member because the JAC refused to reimburse him for travel expenses for attending his interview (Third Sector, 9 January).

Morgan claimed that such a policy disadvantaged applicants on low incomes, but the JAC said in January that it would not be right to use taxpayers' money to pay the travel costs of individuals seeking paid judicial appointments.

So how will the tribunal work? Charities will have 42 days after a Charity Commission ruling to launch an appeal using application forms that will be available online.

"The rules allow for a pre-hearing review, an oral hearing and a dialogue before the formal hearing," says the spokeswoman for the Tribunals Service.

The cases that become formal hearings will take place in public, unless there are exceptional circumstances. Case decisions will be made on the day, unless judgement is reserved. It is expected that the tribunal will hear about 50 cases a year, according to the spokeswoman.

However, Lawrie Simanowitz, charity partner at law firm Bates Wells & Braithwaite, expects only a handful of cases to go to a full hearing.

"Once the process is under way, a settlement might be made," he says. Simanowitz believes that the cases most likely to go to the tribunal will involve registration - either the Charity Commission deregistering charities or refusing to register them in the first place.

Simanowitz says that in many cases the tribunal will be a cheaper way of appealing against commission decisions, but he argues that it could also make some appeals more costly for charities. If a charity wants to appeal against a decision made by the tribunal, the case will end up in the High Court, which means the tribunal will merely have the effect of delaying the case and making it more costly, he says. "If charities don't instruct lawyers for the tribunal hearing, there are no external costs," says Simanowitz. "If they were to need the help of a lawyer, costs could be in the £5,000 to £25,000 bracket."

Costs are not awarded automatically to those who successfully appeal, but there is provision in the tribunal's rules to make a costs award if it believes the commission's original judgement was unjustified. Simanowitz says costs could, therefore, deter charities from appealing against a commission decision to investigate them. "The commission could initiate an inquiry, but it could be more cost-effective to go through the inquiry," he says.

Simanowitz adds that the presence of the tribunal could make the commission more cautious when ruling on cases, as well as providing appellants with a bargaining tool. "It might make the commission look over its shoulder more when it makes decisions - charities could say 'if you don't change your mind, we'll go to the tribunal'."

Dame Suzi Leather, chair of the Charity Commission, says: "The Charity Tribunal is an important milestone for the sector - once the commission has reviewed a decision internally, charities and other people affected by it can have confidence that they will get an independent hearing."

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