Regulator successfully defended judicial review application

Charity Commission's annual report shows that Court of Appeal backed it over its handling of a complaint against the Nuffield Foundation

The Charity Commission successfully defended a judicial review application about its handling of a complaint made against the Nuffield Foundation, its latest annual report reveals.

The report, published this week, says that the complainant, Kingsley Miller, was concerned that the commission would not carry out an investigation into "the affairs of a major national charity". 

A spokeswoman for the regulator said Miller had complained to the commission about a statement by the Nuffield Foundation, which funds research and innovation in education and social policy, that "shared parenting legislation is not in the interests of children".

The commission said Miller, a campaigner for the rights of fathers, first complained to it on 4 July 2011, and that he filed his claim in court on 23 March 2012.

"We considered Mr Miller’s complaint but found there were no regulatory concerns," the commission spokeswoman said. "Mr Miller requested the matter be considered under our two-stage complaints process and after this he was still not satisfied. Therefore, his only remaining remedy was to challenge in the administrative court by way of judicial review."

Miller was refused permission to apply for judicial review on 28 August 2012, with Timothy Brennan QC saying that the claim was "not reasonably arguable".

"In substance, the claimant appears to complain of the failure to remove the chairman of trustees and about the commission's approach to the internal activity of the charity," he said in the judgment. "But in the absence of a statutory inquiry (which the commission had no obligation to commence, and had not commenced) there was no power to remove trustees. As the foundation puts it: it is not the commission’s role to investigate a charity simply on the basis that [the claimant] does not consider that the charity’s activities are in the public interest."

The judge said a judicial review was not appropriate and ordered the claimant to pay £2,500 towards the foundation’s cost. Miller then applied for an oral permission hearing, which took place on 12 December 2012. Permission for a judicial review was refused and the claimant was ordered to pay the Charity Commission £3,000 towards its costs.

Miller then took his case to the Court of Appeal, but it refused him permission to appeal on 29 April 2013. The Right Honourable Lord Justice McCombe said the commission had "a discretion as to how to proceed in the regulation of charities" and that it had to be "sensibly selective".

The commission spokeswoman said it had finite resources, so could not take action over every complaint made to it about charities by members of the public.

"In this case, the information provided by Mr Miller to us did not amount to evidence or a strong suspicion that there had been misconduct or mismanagement in the administration of the charity or that it was necessary and desirable to act for the purpose of protecting the property of the charity," she said. The spokeswoman added that it was difficult to calculate how much the case had cost the commission, but that lawyers’ time had cost £4,774.50.

Frances Bright, communications manager at the Nuffield Foundation, said Miller originally made a complaint directly to the charity and that this was "investigated in accord with our own complaints procedure and found to be groundless".

"We submitted a supporting statement in the judicial review and were glad the claim against the Charity Commission was found to be totally without merit," she said.

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