OG95 A1 - The Charity Tribunal

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OPERATIONAL GUIDANCE

THE CHARITY TRIBUNAL

OVERVIEW

OG 95 A1 – 18 March 2008

Purpose

This guidance provides information about the Charity Tribunal and explains the procedures for Charity Commission staff involved in dealing with appeal, review and reference cases that are brought to the Tribunal.

Functional responsibility

For action

Customer Service

For information

All operational staff

Contents

1. Background - Why was the Charity Tribunal established?
2. What status does the Charity Tribunal have and who runs it?
3. Where is the Charity Tribunal based?
4. What type of cases does the Tribunal deal with?
5. How can I find out about Tribunal cases?
6. Can the Tribunal award compensation?
7. What legislation governs the Charity Tribunal?
8. How can I find out more information about the Tribunal?
9. Who is involved in the Charity Commission’s Tribunal work?

Index to further related information


The Law	Refer to a lawyer	Refer to an accountant

1. Background - Why was the Charity Tribunal established?
	Before the Charity Tribunal was established a charity wishing to appeal a legal decision of the Charity Commission could challenge this through the Commission’s own decision review process. If a charity was not satisfied with the outcome of that review the only further route of appeal was by taking the case to the High Court. The 2002 Strategy Unit report Private Action, Public Benefit identified a widespread public perception that this process caused charities undue expense and delay and was little used.
	The Charities Act 2006 changed this by (amending the Charities Act 1993) providing for a Charity Tribunal to be set up. The intention behind this change in the law was that the Tribunal would provide an independent route of appeal for charities which have exhausted the Commission’s decision review process. The Tribunal should be more accessible than the High Court, as appellants are not charged a fee to take cases to the Tribunal and are likely to incur lower costs.
	The Tribunal became operational on 27 February 2008.

2. What status does the Charity Tribunal have and who runs it?
	The Charity Tribunal is part of the Tribunals Service, an executive agency of the Ministry of Justice. It is independent of the Charity Commission.
	The Tribunal has a President (who is the judicial head of the Tribunal), legal members and ordinary (or "lay") members with knowledge and experience of the third sector. A panel made up of some of these members is set up for each case. A panel may have one, two or three members but must have at least one legal member. The composition and complement of the panel will vary according to the complexity of the case.
	Tribunal members are appointed by the Lord Chancellor on the recommendation of the Judicial Appointments Commission.
	A list of current members is available on the Charity Tribunal’s website: www.charitytribunals.gov.uk
	Please note that at the time that the Tribunal is established only the President will be in place, but legal and lay members will be appointed shortly afterwards.

3. Where is the Charity Tribunal based?
	The Tribunal is administered from Arnhem House in Leicester, but Tribunal hearings can take place anywhere in England or Wales, subject to the availability of suitable accommodation.

4. What type of cases does the Tribunal deal with?
	The Charity Tribunal deals with three types of cases, explained below:
	(i)		Appeals of Charity Commission decisions
	The Tribunal can consider appeals against Charity Commission decisions. In such cases it considers the decision, direction or order appealed against afresh. In doing so, the Tribunal can take account of new evidence which was not available to the Commission when the decision was made.
	Having heard a case, the Tribunal can dismiss it or it can exercise various powers if it finds that the Commission has acted unlawfully. For example, it can quash a decision and replace it with its own decision or it can direct the Commission to take some specific action, such as adding a charity to the register of charities. The options available to the Tribunal depend on the type of decision in question and this is set out in OG 95 C1.
	Normally this route of appeal only becomes available after the Commission’s internal decision review process has been exhausted.
	(ii)	Applications regarding reviewable matters
	There are certain types of decisions and orders that the Commission makes that cannot be the subject of an appeal, but which can instead be reviewed by the Tribunal. The following decisions and orders fall which are made under the Charities Act 1993 fall into this category:
	Decision to instigate an inquiry under S.8 with regard to a particular institution;
	Decision to instigate an inquiry under S.8 with regard to a class of institutions;
	Decision not to make a common investment scheme under S.24;
	Decision not to make a common deposit scheme under S.25;
	Decision not to make an order under S.26 in relation to a charity;
	Decision not to make an order under S.36 in relation to land held by or in trust for a charity;
	Decision not to make an order under S.38 in relation to a mortgage or land held by or in trust for a charity; and
	An order made by the Commission under S.69(1) In relation to a company which is a charity.
	These "reviewable matters" are dealt with in line with the principles that apply to judicial review. This means that the Tribunal considers whether a decision was taken correctly, looking at the decision making process, rather than the outcome. It does not look at the decision afresh.
	In these cases the Tribunal cannot decide that the Commission’s decision was incorrect or take the decision afresh itself. The Tribunal can direct the Commission to stop taking some action or quash a decision and refer it back to the Commission to take the decision again, following the correct process. The table in OG 95 C1 includes these reviewable matters.
	Normally this route of appeal only becomes available after the Commission’s internal decision review process has been exhausted.
	(iii)	References
	The reference procedure enables the Attorney General or the Charity Commission with the Attorney General’s permission to ask the Tribunal to consider wider questions to help to clarify or develop charity law.
	The process for dealing with appeals and applications is set out in some detail in the Charity Tribunal Rules 2008 and is explained in OG 95 B1, B2, and B3. The process for dealing with references will largely be determined through directions issued by the Tribunal and for this reason this is covered more briefly in OG 95 B4.

5. How can I find out about Tribunal cases?
	The Tribunal maintains a register of information about ongoing cases and decisions which it has made about previous cases. This register is accessible on the Charity Tribunal’s website.

6. Can the Tribunal award compensation?
	The Tribunal cannot award compensation. However it can award costs in certain circumstances. More information is included in OG 95 B2.

7. What legislation governs the Charity Tribunal?
	The legal framework within which the Tribunal operates is provided by two pieces of legislation:
	The Charities Act 1993, as amended by the Charities Act 2006; and
	The Charity Tribunal Rules 2008.
	The legislation can be viewed on the Office of Public Sector Information website

8. How can I find out more information about the Tribunal?
	This guidance document provides information which will be of interest to Charity Commission staff. The Charity Tribunal’s website provides full details of its procedures.
	The Charity Tribunal can be contacted as follows:
	Arnhem House Tribunals Operational Support Centre PO Box 6987 Leicester LE1 6LR
	Telephone: 0845 600 877 Fax: 0116 249 4253 Email: CharityTribunal@tribunals.gsi.gov.uk

9. Who is involved in the Charity Commission’s Tribunal work?
	9.1 The Decision Review and Tribunal Team (DRT Team) 9.2 Designated lawyer 9.3 Case officers 9.4 The Heads of Legal Services 9.5 Executive Directors and the Directors Group 9.6 The Board 9.7 Charity Commission Direct (CCD)

	9.1 The Decision Review and Tribunal Team (DRT Team)
	This Team in Legal Services is responsible for the following:
	Managing the Commission’s work on Tribunal cases.
	Identifying a designated lawyer for each case (usually the lawyer that was involved in any related decision review) and any case officers who were involved in earlier stages of a case.
	Completing the necessary paperwork – This includes for example the Commission’s response and lists of documents. The Team involves case officers to the appropriate degree and asks the designated lawyer to approve any such documents before they are sent to the Tribunal or any parties. It is the designated lawyer who is responsible for ensuring that all appropriate paperwork is included and is correct.
	Ensuring that the Commission meets deadlines - There are a number of statutory deadlines that the Commission must meet in relation to Tribunal cases. The DRT Team is responsible for driving the process forward. The Team maintains a database of information relating to decision review and Tribunal cases. This includes a reminder system to help ensure we meet our deadlines.
	Determining who will represent the Commission at oral hearings – The Team is responsible for ensuring that the Commission’s case is represented to the optimum at hearings, pre-hearing reviews and preliminary reviews. This may mean that a lawyer, Head of Division, case officer or an independent legal representative is identified. A member of the DRT Team or a nominated officer may also attend an oral hearing to provide support to the Commission’s advocate.

	9.2 Designated lawyer
	The designated lawyer is responsible for the following:
	Providing advice on a case to the DRT Team – This work must be given priority and the lawyer must respond within the deadlines specified by the DRT Team.
	Signing off outgoing documents - This includes signing off documents such as the Commission’s response and secondary disclosure. This work must be given priority and the lawyer must respond within the deadlines specified by the DRT Team. It is the designated lawyer who is responsible for ensuring that all appropriate paperwork is included and is correct.
	Representing the Commission at hearings – The DRT Team is responsible for determining who will represent the Commission. The designated lawyer may be asked to represent the Commission at hearings, pre-hearing reviews and preliminary reviews or to brief others who will represent the Commission.

	9.3 Case officers
	When the DRT Team receives a notice of appeal or application it identifies the case officers who were involved in the earlier stages of the case and alerts them to the Tribunal case.
	Normally a lot of the preparatory work for a Tribunal case is carried out as part of the decision review process. However case officers may be called upon to assist the DRT Team and lawyer in preparing documents and in preparing for hearings. This work must be given priority and case officers must respond within the deadlines specified by the DRT Team.
	Case officers may also be asked to represent the Commission or to attend hearings to provide support to the Commission’s representative.

	9.4 The Heads of Legal Services
	The DRT Team escalates certain decisions to the Heads of Legal Services. This relates to decisions which would in some way vary the normal course of a case. This includes for example decisions to request directions, to seek an adjournment or to make a representation against a costs order. The Heads of Legal Services may make such arrangements to delegate such decisions as they consider appropriate.

	9.5 Executive Directors and the Director’s Group
	Each Executive Director is responsible for presenting any requests to initiate references from within their Directorate, to the Director’s Group. If the Director’s Group agrees the proposal to initiate a reference, this will also need Board approval.
	The Director’s Group is responsible for determining whether to request an appeal of a Tribunal decision at the High Court.

	9.6 The Board
	A proposal to initiate a reference must be agreed by the Board because any reference could have an important impact on the development of charity law.

	9.7 Charity Commission Direct (CCD)
	CCD receives all correspondence in relation to Tribunal cases and is responsible for emailing this to the DRT Team in a timely manner. This includes scanning any incoming mail into an electronic form.

Index to further related information