The charity tribunal

Robert Nieri, a senior associate at Freeth Cartwright, assesses the tribunal's work so far

The two most recent verdicts of the charity tribunal suggest that it is bedding in quite nicely since it opened for business in March 2008, promising a low-cost, speedy and user-friendly way to appeal against the decisions of the Charity Commission.

Last October, the tribunal overturned the commission's decision to remove a trustee of the Sivayogam temple for alleged misconduct and mismanagement because it was not satisfied there were sufficient grounds and because, at the time, he had not been provided with all the information available to the commission and so could not defend himself properly.

Meanwhile, in a combined appeal decided only weeks later, two Dartford residents were partly successful in challenging the commission's scheme to deal with their council's legally flawed sale of charity land that had been gifted for use in perpetuity as a public recreation ground. The tribunal ruled that the council committee responsible for running the charity should have a quorum of people who could take decisions free from conflicts of interest between the authority and the charity.

Several aspects of these cases are interesting. One is that the tribunal has adopted a 'horses for courses' approach. In the Sivayogam case, where the appellant was represented by a barrister, lawyers did battle over 22 files of papers, and the tribunal's 50-page judgement is peppered with legal authorities. In the Dartford case, by contrast, the tribunal tailored its procedure to enable the residents, who represented themselves, to respond to the commission's lawyer's points, rather than - as is normal procedure - vice versa.

The appellants were complimentary about their experience of the tribunal. The message is that if you cannot afford or don't want legal representation, the tribunal will do its best to ensure you are not at a disadvantage.

An interesting feature of the tribunal's jurisdiction illustrated by the Dartford case is that it may hear appeals not only from charities or trustees, but also from any people "who are or may be affected by" decisions of the commission.

In the Dartford case, the tribunal processed the appeal within its 30-week target period. The Sivayogam case took well over a year, but that was partly because the appellant needed time to arrange new legal representation.

As for the clarification and modernisation of charity law, which is another of the tribunal's stated aims, the recent introduction of a two-tier tribunals system will allow applications that have particular legal significance to be fast-tracked to the more authoritative Upper Tribunal, where High Court judges can sit alongside Upper Tribunal judges and from which appeals on points of law go straight to the Court of Appeal.

Also, the tribunal's rules no longer require appellants to apply to the commission for an internal review of the offending decision before lodging appeals, which should improve the prospects of charities using their statutory rights of appeal for the benefit of the sector as a whole, rather than deciding they have had enough of complaining by the time they reach the end of the commission's internal review process and giving up the ghost.

All three charity tribunal cases so far have been appeals: rehearings of commission decisions, rather than more limited reviews, where the tribunal looks at whether the commission acted irrationally or illegally in reaching its decision, or references from the commission or Attorney General on important points of law. But the limited evidence available so far suggests the tribunal will provide a practical and user-friendly way of challenging the commission's decisions. The result of this should be an even more responsive and accountable regulator, working for the benefit of the charity sector.

 

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