OG95 B1 - THE CHARITY TRIBUNAL

In this section...

OPERATIONAL GUIDANCE

THE CHARITY TRIBUNAL

DECISION APPEALS AND APPLICATIONS

OG 95 B1 – 18 March 2008

Purpose

This OG gives information on the process of applications for decision reviews and our response.

Functional responsibility

For action

Customer Service

For information

All operational staff

Contents

1. Decisions that can be the subject of an appeal or application
2. Who can request an appeal or application and when can they do it?
3. Receiving a written notice and preparing the Commission’s response
4. Receiving the appellant’s reply and making a secondary disclosure

Index to further related information


The Law	Refer to a lawyer	Refer to an accountant

1. Decisions that can be the subject of an appeal or application
	Schedule 1C to the Charities Act 1993, as amended by the Charities Act 2006 includes a table which lists all the decisions and orders which the Charity Commission makes which can be the subject of an appeal or in the case of reviewable matters, an application to the Tribunal. This table is available on the HMSO website.
	The Commission has a separate process for dealing with complaints relating to any area of our customer service. See OG 93 for more information.

2. Who can request an appeal or application and when can they do it?
	2.1 Who can request an appeal or application? 2.2 The Commission’s "final decision" 2.3 Period in which a request for an appeal or an application can be made

	2.1 Who can request an appeal or application?
	The table in the Charity Tribunal Rules 2008 sets out for each type of decision who is eligible to request an appeal or application. The charity trustees or the charity itself (if it is a body corporate) can normally request an appeal, but eligibility varies depending on the type of decision. For example, in relation to an order made under section 18(1) of the Charities Act 1993, any person suspended by the order may bring an appeal.
	For a number of decisions "any other person who is or may be affected by the order/direction/decision" can bring an appeal, so the scope to request an appeal or application is very wide.
	It is for the Tribunal to determine who falls into this last category (i.e. who is or may be affected). The Commission makes a similar judgement for the purposes of deciding who is eligible to apply for a decision review. This is explained in OG 94.

	2.2 The Commission’s "final decision"
	The Commission’s decision review process exists so that those affected by our decisions can raise any concerns they have about the decision we have made. If an individual or organisation successfully applies to us to undertake a decision review, the review will be led by a member of staff or Board member who is senior to the original decision maker. This individual is often supported by a decision review panel. The individual decision reviewer or the panel reconsiders the information available, to ensure that the decision is correct. More information about the decision review process is set out in OG 94.
	As a result of a decision review, the Commission makes what is called a "final decision". This final decision either confirms that the original decision was correct or it substitutes a different decision to that which was originally made. It is only at this point, once the decision review process has been exhausted and once a final decision has been made, that the opportunity to make an appeal to the Charity Tribunal normally becomes available.
	In exceptional cases where our original decision is taken by the Commission’s Board or one of its members, there is no internal decision review process available, because there is no-one senior to the original decision maker who could lead the review. In these cases when the Commission notifies the applicant of the original decision, we will also make it clear that this is the Commission’s final decision, that there is no decision review available and that the opportunity to appeal to the Tribunal is available.
	The Commission’s website includes details of final decisions. OG 94 provides more information about which decisions are published on the Commission’s website.

	2.3 Period in which a request for an appeal or application can be made
	In order to request an appeal or application, a notice must be submitted to the Tribunal within 42 days of the Commission notifying the appellant of the final decision. This means either:
	Where the appellant is the subject of the decision - within 42 days from the date that the Commission informed the individual or organisation of the final decision; or
	Where the appellant is not the subject of the decision - within 42 days of the final decision being published on the Commission’s website.
	An appellant may (under Rule 17(9)) ask the Tribunal to issue directions to allow an appeal or application to be made after the time limit for doing so has expired.

3. Receiving a written notice and preparing the Commission’s response
	3.1 Notice of appeal or application 3.2 The Commission’s response

	3.1 Notice of appeal or application
	Summary of the law
	In order to make an appeal or application, the appellant or applicant (described in the Rules as "the appellant") must submit a written notice to the Charity Tribunal in line with Rule 17.
	In summary, this notice must include:
	contact details, including those of the appellant’s representative (if any);
	whether the appellant is requesting an appeal or application;
	information to enable the Tribunal to determine whether the individual is eligible to bring an appeal or application;
	the grounds on which the appellant is relying;
	details of the final decision the request relates to (including a copy, except where there is a good reason that means this is not possible); and
	any request for directions (a request for directions could amongst other things include a request for a direction to extend the time limit, where the time limit for making an appeal or application has expired).
	At the same time as filing the notice with the Tribunal, the appellant must send a copy to the Commission and to any other party.
	Rule 10 sets out the requirements about the format, method and period in which documents may be sent. This includes placing a requirement on a party, which intends to send a document by document exchange, fax or email, to first obtain agreement to this in writing from the other party in line with Rule 10(2). This applies to sending the notice of appeal, the Commission’s response and all other documents covered in the Rules.
	On receiving the notice, the Tribunal must enter the details of the appeal or application into the register and inform the parties in writing of the date on which the Tribunal received the notice and the date on which the Tribunal’s notification was sent.
	Where the appellant does request an extension of time, the Tribunal must make a decision either in writing or orally at a directions hearing about whether to allow this. The Tribunal must inform all parties, specifying the date on which the decision is sent.
	In practice - receiving a notice of appeal or application
	The form and guidance notes for the notice of appeal or application are available on the Charity Tribunal’s website. The Commission cannot supply this information and staff should not provide advice about how to complete the notice form. All queries should be directed to the Charity Tribunal.
	At the same time that the appellant submits a written notice to the Charity Tribunal, the Commission’s DRT Team should receive a copy. As mentioned above, the DRT Team may be contacted by the appellant, in relation to how we are prepared to receive documents.
	In addition the Tribunal should write to the Commission and other parties confirming the date on which it received the notice.
	There a number of statutory deadlines in relation to the different stages of the process from this point onwards.
	On receiving a notice of appeal, the DRT Team should log details of the notice in the database and should file the document. They should open a new case and will use this new case number as the Commission’s reference number on all further correspondence about the case. However please note that the Charity Tribunal will use as its reference number, the case number from the decision review case.
	Each Tribunal case will have a designated lawyer. This will normally be the same lawyer who was assigned to the corresponding decision review case. The DRT Team should identify this lawyer and forward the notice to them. If it is not immediately clear which lawyer this is, the DRT Team should seek advice from the Heads of Legal Services.
	The DRT Team should identify which case officers were involved in the original case and decision review and alert them, their line manager and Head of Division to the notice.
	The DRT Team should also notify the following people that there is a new Tribunal case:
	All members of the Director’s Group;
	Heads of Legal Services; and the
	Head of Corporate Affairs

	3.2 The Commission’s response
	Summary of the law
	The Commission must submit a response and other supporting documents to the Tribunal within 28 days of receiving written notice from the Tribunal of the date that it received the appeal notice. This is dealt with by Rule 18. This must include:
	1. A response including the information specified in Rule 18(3). A template for the Commission’s response is included at OG 95 C2;
	2. A list of the documents relied on by the Commission when reaching the final decision (except where Rule 15(2) on exceptions to disclosure applies);
	3. A list of any additional documents which in the opinion of the Commission might undermine the Commission’s final decision or adversely affect its case or support the appellant’s case (except where Rule 15(2) on exceptions to disclosure applies);
	4. A copy of the Commission’s final decision; and
	5. If the Commission intends to play an active part in proceedings, the names of any witnesses the Commission intends to call. If the Commission intends to call an expert witness, this must include full details about this witness, identifying the nature of the expertise and requesting the Tribunal’s permission to call this witness.
	In addition it may include:
	6. A request for directions.
	A request for directions may relate to a variety of things. One example is a request for a direction which would allow for a document to be excluded from the list of documents submitted with the Commission’s response, on the ground that disclosure would not be in the public interest. Rule 3 deals with directions and Rule 15 with exceptions to disclosure. Both these subjects are also covered in OG 95 B3.
	A request for directions becomes a requirement if the Commission does not submit the response within the 28 day period. In this case the submission must include a request for a direction to extend the time limit for filing a response and must include a statement of the reasons for the delay in filing the response.
	Where the Commission does request an extension of time, the Tribunal must make a decision about whether to allow this. The Tribunal must inform both the parties, specifying the date on which the decision is sent.
	At the same time as filing the response and supporting information, the Commission must send to any other party a copy of the response, the lists of documents, the names of any witnesses and any request for directions.
	Rule 10 sets out the requirements about the format, method and period in which documents may be sent both to parties and to the Tribunal. This includes placing a requirement on a party, which intends to send a document by document exchange, fax or email, to first obtain agreement to this in writing from the other party in line with Rule 10(2). This applies to sending the notice of appeal, the Commission’s response and all other documents covered in the Rules.
	In practice - preparing the Commission’s response
	The DRT Team is responsible for preparing a response and supporting documents in line with the requirements. The DRT Team should prepare this in close liaison with the designated lawyer and case workers who were previously involved in the case, clarifying any points and assembling any additional information needed to complete the Commission’s response template in OG 95 C2. Added information can be drawn directly from the information compiled as part of the decision review for the case in question.
	It is the designated lawyer who is responsible for ensuring that all appropriate paperwork is included and is correct. They should sign off the response in advance of the 28 day deadline.
	The DRT Team is responsible for fulfilling our statutory requirements in terms of submitting the response to the Tribunal and sending a copy of the response and relevant supporting information to the appellant. As mentioned above, the DRT Team may need to contact the appellant, in relation to how they are prepared to receive documents. We expect that the DRT Team will agree with the Tribunal to send documents by email. The Team will liaise with the Charity Tribunal as necessary about this.

4. Receiving the appellant’s reply and making a secondary disclosure
	4.1 The appellant’s reply 4.2 Secondary disclosure by the Commission

	4.1 The appellant’s reply
	Summary of the law
	The appellant must file a written reply that must be received by the Tribunal no later than 28 days from the date on which the appellant received a copy of the Commission’s response.
	The appellant’s reply is dealt with in Rule 19. It must include the following information:
	Identify all matters contained in the Commission’s response which are disputed by the appellant;
	The appellant’s reasons for disputing these points; and
	The date the reply is filed.
	The appellant’s reply must be accompanied by:
	A list of all the documents on which the appellant relies in support of the appeal or application (except where Rule 15(2) on exceptions to disclosure applies);
	The names of the witnesses the appellant intends to call. If the appellant intends to call an expert witness, this must include full details about this witness, identifying the nature of the expertise and requesting the Tribunal’s permission to call this witness; and
	A copy of any request for directions that has been made.
	At the same time as filing their reply with the Tribunal, the appellant must send a copy of their reply to the Commission and any other party, together with a copy of the list of documents, the names of any witnesses they intend to call and a copy of any request for directions. By this stage of the process the appellant should already have ascertained (under Rule 10), the way in which the Commission is prepared to receive documents, and should follow this advice.
	A request for directions becomes a requirement if the appellant does not submit a reply to the Tribunal within the 28 day deadline. In this case the appellant’s reply to the Tribunal must include a request for a direction to extend the time limit for filing the reply and must include a statement of the reasons for the delay in filing the appellant’s reply.
	Where the appellant does request an extension of time, the Tribunal must decide whether to allow this. The Tribunal must inform the parties of its decision, specifying the date on which the decision is sent.
	In practice - receiving the appellant’s reply
	The DRT Team should log receipt of the appellant’s reply in the database and forward the document to the designated lawyer for the case and other staff as appropriate.
	The DRT Team should check whether the Commission has copies of all the documents referred to in the list received with the appellant’s reply. If not, the DRT Team should contact the appellant and request the appropriate documents (under Rule 16).
	If the Commission wishes to respond to any of the matters raised in the appellant’s reply, a request for directions will need to be made.
	*There is an error in the current version of the Rules in Rule 19(4), the effect of which is to require the Commission to supply details of the appellant’s witnesses. We understand that this will be corrected before 27 February 2008.

	4.2 Secondary disclosure by the Commission
	Summary of the law
	Under Rule 20, the Commission must file a list of any further material (over and above that mentioned in the list of documents filed with the Commission’s response), which might reasonably be expected to assist the appellant’s case as disclosed by the appellant’s reply. There are certain exceptions to disclosure dealt with in Rule 15, see OG 95 B3.
	If there is further material, a list of this must be filed with the Tribunal within 14 days of the Commission receiving the appellant’s reply. A copy of this list must also be sent to the appellant and any other party within the same timescale.
	In practice - preparing and making a secondary disclosure
	The DRT Team considers the appellant’s reply and identifies whether there is any further information which the Commission holds that that was not included in the list of documents submitted with the Commission’s response and which could assist the appellant’s case.
	The DRT Team should consult relevant case officers as appropriate as part of this process and then ask the designated lawyer to decide whether secondary disclosure is required.
	If further information is identified, the DRT Team is responsible for fulfilling our statutory requirements by making a secondary disclosure to the Tribunal and sending a copy of the list to the appellant within 14 days of the Commission receiving the appellant’s reply. As mentioned before, the documents should be sent to parties in line with Rule 10.

Index to further related information