Charity tribunal unable to enforce its own ruling because of 'lacuna'

Appellant takes case of Kidd Legacy Being a Part of Central Park, Dartford to the Administrative Court after ruling by tribunal judge Alison McKenna

Alison McKenna
Alison McKenna

An appellant to the charity tribunal has been forced to take his case to the Administrative Court because the tribunal cannot enforce its own ruling.

A charity called Kidd Legacy Being a Part of Central Park, Dartford, whose sole trustee is Dartford Borough Council, sold a small section of the charitable land it owns to a property developer in 2005.

The Charity Commission ruled that the council had breached charity law, but accepted that it had acted in good faith and, in 2008, approved its proposal to replace the sold land with other land of lower value and provide £270,000 towards the maintenance and improvement of the charity land.

Local residents Lennox Ryan and Derek Maidment appealed to the charity tribunal against the commission's decision.

Two of their four objections were accepted by the tribunal after a hearing in 2009. The tribunal told the council that it had to make a number of changes, including appointing independent trustees and reinstating the original objects of the charity, which had been modified by the commission’s scheme.

The tribunal also required the trustees to put in place a policy for managing conflicts of interest, which was agreed by the commission in 2010.

In 2012, Ryan contacted the commission with concerns that the trustees had not complied with the terms of a conflict of interest policy and that a planning decision had been taken in breach of that policy. He said that when an application was put forward for a new development on the land adjoining the charity’s land in 2011, the councillors, acting as trustees, discussed and welcomed the application during a committee meeting.

The commission told Ryan in May last year that it had looked into his concerns but had found no regulatory issues in the council's actions. On 5 July of the same year the commission turned down a subsequent request for an internal review of the decision.

Ryan then appealed to the charity tribunal, asking for it to review the commission’s decision not to carry out an internal decision review.

As part of his appeal, Ryan asked the tribunal to intervene and take action itself to enforce the conflict of interest policy introduced as part of its 2009 scheme, if it found that it had been breached by the charity.

The tribunal rejected the request in August 2012. As part of the rejection, tribunal judge Alison McKenna explained that a "lacuna" – a hole in the tribunal’s jurisdiction – meant it could not intervene and enforce its own ruling.

McKenna said: "Some commentators have suggested that the absence of enforcement powers in respect of non-monetary awards is a lacuna in the Tribunals Courts and Enforcement Act 2007 that should be remedied. However, at present the legislative framework is clear – that the tribunal has no jurisdiction and so no power to intervene where it is alleged that a party is acting in breach of its earlier decision."

McKenna suggested that Ryan take legal advice about possible alternatives.

After the rejection, Ryan appealed to the Administrative Court for permission to apply for a judicial review of the commission’s decision to not conduct an internal review and its decision not to intervene. This appeal was refused on 8 May this year. Ryan then asked for his application for permission to apply for judicial review to be reconsidered and he was granted an oral hearing, which will be heard on 25 July.

The commission said that it was aware of the oral hearing in July. A spokeswoman for Dartford Borough Council said it was inappropriate for it to comment.

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