The effectiveness of the tribunal so far is likely to be considered as part of the review of the Charities Act 2006, which began this month. The tribunal was set up to meet two aims: to provide swift, low-cost access to justice; and to develop charity law, because the cost and complexity of going to the High Court had deterred some challenges to Charity Commission decisions.
The recent decision on fee-charging schools has boosted the tribunal's profile and provided an authoritative analysis on the law of public benefit in this context, which might have implications for charities operating in other areas. But how has the tribunal dealt with more run-of-the-mill cases, which, though they might not break any new legal ground, are of great importance to the charities involved?
In 2008, the tribunal planned to deal with up to 50 cases a year and there were high hopes for its impact. During the passage of the Charities Act 2006, the government accepted there should be a presumption in favour of including within the tribunal's remit any commission decision that there was no strong reason to exclude.
But the act provides no general right of appeal to the tribunal on commission decisions. Instead, if you are unhappy with a decision you must first check Schedule 1C to the act, which sets out the types of decisions that can be challenged.
Many decisions are not subject to appeal to or review by the tribunal. These include cases where the commission has taken no action, where there is no relevant decision, order or direction in the first place, and where, because it has opened fewer statutory enquiries in recent years, the commission has delivered more informal decision reviews under its internal procedures, which are outside the tribunal's remit.
In the case of the Manchester and District Home for Lost Dogs, a former trustee complained about governance of the charity running the home, but a 22-page determination of the complaint was not deemed a relevant decision that fell within Schedule 1C.
The principal judge of the tribunal, Alison McKenna, acknowledged that the complainant was unhappy that the tribunal could not hear his appeal, and in her judgement reported his comments that there needed to be a way for the tribunal to provide adequate opportunity for appeals against Charity Commission decisions other than on the narrow grounds listed in the official documentation.
What do a home for lost dogs, an Apostolic Pentecostal Church and Romsey Public Walk and Pleasure Ground have in common?
The answer is they have all been the subject of applications made to the charity tribunal that have fallen at the first hurdle on the grounds of lack of jurisdiction. To date, this has been the fate of nearly half of all applications to the tribunal.
In another case, the tribunal could not hear a complaint about the governance of the Melton Mowbray Town Estate. Having then turned to the commission's Independent Complaints Reviewer, the applicant is now preparing to make a complaint to the Parliamentary Ombudsman.
Rethinking its role
Of course, none of us is operating in a vacuum. The commission has fewer resources than it did in the past, now that its budget has been cut by a third. It has had to rethink its role as regulator, asking itself which of its activities are necessary and what impact they will have.
If everyone who might be directly affected by any commission decision could appeal to the tribunal, the commission would grind to a halt, unable to make any decisions. But surely a balance can be struck, with a selective widening of the categories of decisions that can be challenged?
For example, perhaps there is a case for allowing challenges to commission decisions not to order schemes for the administration of charities, when an application has been made for one.
The tribunal has started to deliver on its aim of clarifying the legal context in which charities operate. Let us hope that the review of the act includes revisiting Schedule 1C with an open mind, to see if the tribunal can truly come of age and deal with a wider range of issues that affect charities, rather than merely sympathising with appellants whose complaints it is unable to hear.
Robert Nieri is senior associate at Freeth Cartwright