The charity tribunal: a two-year progress report

The caseload is small, but the function is vital, says principal judge Alison McKenna

Much has changed for the charity sector since the establishment of the dedicated charity tribunal was first debated in the run-up to the 2006 Charities Act. One change is that the regulatory practice of the Charity Commission has evolved and is far less focused on the formal use of statutory powers, relying for example on 'action plans' to resolve regulatory issues in a consensual way.

The 2006 act has also had a deregulatory effect, so that charities can self-certify for certain issues without the need for formal orders. Whatever you think of this change of approach (I have heard arguments for and against it), the undoubted effect has been to reduce the number of cases that the tribunal can hear.

This is because the right to apply to the tribunal is linked to the making of a formal decision, direction or order by the commission. There may be a lack of knowledge about the tribunal and how to use it in the sector, but we are doing all we can to address that so that charities know their rights.

The cases that have come to the tribunal in the past two years since it started work have not involved peripheral issues for the charities concerned, but rather back-to-the-wall struggles, sometimes for their survival. It is vitally important that there is an independent means of dispute resolution for such cases and that charities understand that they do not have to rely on the commission's internal review process as an alternative or as a gateway to the tribunal.

The tribunal was established as an independent judicial body under the 2006 act and there is a statutory right to apply to it that is unaffected by the availability of the internal review process of the Charity Commission.

Against a predicted caseload of 50 a year, our register shows that we have formally determined only eight cases since we were created. The tribunal's administration has adapted to take account of this situation. We share case officers with other tribunals, so that we are not over-resourced but remain able to tap into additional staff if and when we need them. My own role has also evolved so that I have become a multi-tasking tribunal judge, sitting to hear cases in two other tribunal jurisdictions in addition to charity cases.

We are committed to providing swift, low-cost access to justice for charities: the only circumstance in which a charity might have to pay any costs is if it behaved unreasonably in the tribunal proceedings - and such cases are likely to be extremely rare. Charities can represent themselves before the tribunal, or there is a panel of volunteer barristers to represent them in appropriate cases. There is also a developing volunteer network of solicitors and legal executives to help them earlier on in the process, advising on rights of appeal and filling out application forms.

Details of the volunteer legal advice schemes are available on our website, www.charity.tribunals.gov.uk, along with application forms, guidance, previous decisions, details of forthcoming hearings and statistical data about the number of weeks it has taken us to resolve each case. This shows that we have exceeded our target of completing 75 per cent of cases within 30 weeks.

We have made a good start and I am looking forward to seeing how things develop further over the next two years.

Alison McKenna is the principal judge of the First-Tier Tribunal (Charity)

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