Lawyers want consistency in testing of public benefit

Charities are 'put off' contacting the Charity Commission, says legal expert

Charities are being put off from engaging with the Charity Commission because they fear becoming embroiled in lengthy assessments of their public benefit, according to some charity lawyers.

Emma Moody, a solicitor at Dickinson Dees, said a wide range of charities had had their public benefit scrutinised after contacting the commission about such matters as applying for incorporation, altering their objects, selling land or revising their trustee benefit provisions.

A commission spokeswoman said she was unable to give a list of situations that triggered consideration of public benefit because each case was taken on its merits.

She said public benefit was a routine part of much of the commission's casework and was inevitably a consideration when authorising changes to objects. "We take a risk-based and proportionate approach to assessing this," she added.

Moody said the assessments could be excessively time-consuming and caused anxiety and frustration to charities. "Applications that used to take one or two weeks can now take two or three months," she said.

Both she and Jonathan Brinsden, a partner at Bircham Dyson Bell, said there was no consistency in the commission's responses. Brinsden said this made it difficult to advise clients.

He said he had resorted to advising fee-charging charities and members' organisations, which were particularly likely to be scrutinised, not to contact the commission unless they had to.

Ann Phillips, a partner at Stone King Sewell, said she knew of a number of independent schools whose public benefit had been scrutinised in recent months.

She said it was right for the commission to consider issues of charitable status in exercising its powers. "However, where there are minor or no changes in objects, detailed consideration of public benefit causes delay and risks being disproportionate," she said.

Scots schools' new plans

The Office of the Scottish Charity Regulator has confirmed that all four of the fee-charging schools that failed its charity test last year have submitted their remedial plans ahead of the 12-month deadline on 28 October.

The schools were all judged to have "unduly restrictive conditions" on the opportunity to benefit because they had not done enough to mitigate the effects of high fees.

A spokesman for the OSCR said a report would be released once the regulator had assessed the plans, probably in November or December. This would summarise the schools' responses and highlight the aspects that informed the OSCR's decisions.

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