Which is the right tribunal?

Charity law specialist Tom Murdoch believes the Brethren's appeal for charitable status should be heard in the Upper Tribunal

Tom Murdoch
Tom Murdoch

After numerous column inches and much parliamentary debate, the appeal by a Plymouth Brethren congregation against the Charity Commission's decision to deny it charitable status will be heard in the First-Tier Tribunal (Charity) - informally known as the charity tribunal - in March.

But Tom Murdoch, a charity specialist at the law firm Stone King, suggests that Preston Down Trust's case should be heard in the Upper Tribunal (Tax and Chancery) instead. As a court of record, the Upper Tribunal can set a binding legal precedent, whereas the First-Tier Tribunal cannot - although its ruling might be persuasive.

The trust wanted its case to go to the Upper Tribunal, but last month Alison McKenna, principal judge of the charity tribunal, decided that it should stay at first-tier level. Her reasons included "the absence of a discrete point of law on which the appeal turns" and "the substantial factual evidence that must be heard in order to determine this appeal".

The Attorney General, or the commission with the Attorney General's consent, can refer questions of law to the charity tribunal, which can ask for them to be transferred to the Upper Tribunal. This happened with cases involving the Independent Schools Council and benevolent funds, following references from Dominic Grieve, the Attorney General. In the funds case, the judges questioned whether such a reference had been necessary.

Last month, written parliamentary answers revealed that Grieve had decided against a reference or intervention in the Brethren case. The commission had asked him for a reference earlier last year.

Murdoch says it is "very strange" that the case is not going to the Upper Tribunal, especially since the two other recent cases involving public benefit - in relation to the advancement of education and the relief of poverty - have been heard there.

"The commission has acknowledged that the Charities Act 2006 has had an unclear effect on the public benefit requirement for religious charities," he says. "It's a specific role of the charity tribunal to clarify the law - so where the regulator admits the law is uncertain, it should be uncontroversial that it is clarified by a chamber that is capable of doing so."

Murdoch acknowledges the case is "very fact-specific", but says the application of public benefit in general to religious charities is still in doubt. He suggests "political fears" are behind the position adopted by the commission and Grieve: the case has sparked fierce debate among MPs.

Stephanie Biden, senior associate at the charity law firm Bates Wells & Braithwaite, is not sure that this is the right case to be sent to the Upper Tribunal for clarification of the law in relation to public benefit and the advancement of religion. "This case is likely to turn on some unusual factors so, in that sense, the first-tier tribunal is the right forum for it to be considered in," she says.

A spokeswoman for the commission says that it would not have objected had McKenna requested the transfer of the case to the Upper Tribunal, but it takes issue with some of the arguments made to move it. She says that it is hoped the first-tier tribunal decision will clarify charity law for the benefit of both the appellants and the commission.

A spokesman for the Attorney General's Office says Grieve does not consider it necessary to join the Brethren appeal at this stage, but that he will keep the position under review.

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