Guidance

Dissatisfied with one of the Charity Commission’s decisions: how can we help you?

Updated 7 March 2024

Applies to England and Wales

1. Introduction

In the course of its day-to-day work, the Charity Commission makes regulatory decisions relating to the exercise of its functions and use of its powers.

This guidance tells you what you can do if you are unhappy with one of the Commission’s decisions and want to apply to the First-tier Tribunal (Charity) or ask the Commission to undertake a review of its decision.

It also sets out how you can comment on, or make representations about, draft Charity Commission orders or schemes.

1.1 What is a decision?

The Charities Act 2011 (as amended) sets out a range of powers that the Commission can use to enable it to fulfil its statutory objectives to:

• increase public trust and confidence in charity
• promote awareness and understanding of the public benefit requirement
• promote compliance by charity trustees with their legal obligations to exercise control and manage the administration of their charity
• promote the effective use of charitable resources
• enhance the accountability of charities to donors, beneficiaries and the general public

Under the Act the Commission has a range of powers to:

• make decisions, including decisions about whether or not to register charities
• give advice and guidance and make schemes and orders, and
• exercise powers of investigation and remedy in cases of abuse

Decisions include, but are not limited to, making:

Directions

Directions are actions specified of charity trustees and others in the administration of a charity. They may be used during the course of our compliance work and to ensure the proper administration of a charity.

Schemes

Broadly speaking, a scheme can change or replace the trusts of a charity. However, some types of schemes do other things (such as creating a Common Investment Fund).

Orders

Orders can be used in many circumstances; they can authorise trustees to do something that their trusts don’t otherwise allow, or to do something which is in the interest of the charity (such as transfer property to the Official Custodian). They can also be used to appoint trustees and to protect charities and their property.

Where the Commission has made a scheme or an order, it may only be able to set it aside if it was made by mistake, or as a result of a misrepresentation, or the relevant requirements of the Charities Act were not carried out.

Some decisions are decisions not to do something, for example not to register a charity, not to give consent or not to exercise a legal power.

1.2 Decisions - the Commission’s commitment to you

The Commission is committed to making decisions which, taking into account the facts and circumstances of the case, are:

• legally correct
• fair
• proportionate
• consistent

The Commission aims to get its decisions right first time on every occasion, but it knows that sometimes it can make decisions which those who may be affected by the decision disagree with.

If you consider that the Commission has got its decision wrong, you may request that the decision is reviewed through the Commission’s decision review procedure. It will not carry out a review in all cases but this guidance sets out its policies and procedures.

1.3 Challenging a decision of the Commission

Many of the Commission’s decisions can be challenged through its decision review procedure. They may also be challenged directly through the First-tier Tribunal (Charity), which is referred to in this guidance as ‘the Tribunal’.

The law allows only certain types of decisions to be challenged through the Tribunal. However, if it is not possible for you to challenge the Commission’s decision through the Tribunal, you may still be able to challenge it through the Courts.

There is no requirement that you engage the Commission’s decision review procedure before appealing to the Tribunal. You may approach the Tribunal direct.

1.4 The Commission’s decision review service

The Commission is committed to making its procedure a quick, easy and cost-effective way for you to challenge its decision. If it agrees to conduct a review, it will reconsider the original decision to determine whether it is legitimate and justifiable within the facts and circumstances of the case. At the end of the review the Commission will clearly explain its decision and what further action, if any, it will take. The Commission also undertakes to apply learning from reviews conducted.

An advantage of using the Commission’s procedure is that it does not affect your right to take your concerns to the Tribunal . However, you should consider whether asking for a decision review will take you outside of the time limit within which you can make an application to the Tribunal

If you are unsure if a decision review will disadvantage you in this way, please contact us.

The Commission will not usually review a decision itself once you have referred it to the Tribunal.

Read further information below, including how and when to apply for a decision review.

1.5 Standards of service

The Commission aims to ensure that it complies with all aspects of the Parliamentary and Health Service Ombudsman’s ‘Principles of Good Administration’ in all aspects of service delivery which can be viewed at www.ombudsman.org.uk.

If you are unhappy about the way in which the Commission has handled your case, or you feel that you have not received the service which you were entitled to, you can complain to the Commission. A member of staff will look into your complaint.

2. First-tier Tribunal (Charity)

The Tribunal is an independent legal body which has the power to look again at some of the decisions made by the Commission and to quash, change or add to them. In some cases the Tribunal may direct the Commission to take further action or rectify its decision.

An application to the Tribunal must be received by the Tribunal within 42 days of the date on which the notice of the Commission’s decision was sent to you. If you are not the subject of the decision, an application must be received by the Tribunal within 42 days of the date on which the decision was published. Weekends and bank holidays are included in the 42 days.

There are some limitations about which types of decision can be considered by the Tribunal and who can apply. Decisions which may be considered by the Tribunal, and who can apply, are listed in Schedule 6 of the Charities Act 2011 (as amended). You can use the table in Annex A to check if the decision you disagree with may be considered by the Tribunal. The Tribunal aims to complete all of its cases within 30 weeks.

You do not need to use the Commission’s decision review procedure before applying to the Tribunal, but you may wish to consider the advantages and disadvantages of using its decision review process before doing so.

It is free to make an application to the Tribunal. If you decide to take professional advice to help with your application you will have to pay your own costs. However, details about pro bono (free) advice can be found on the Tribunal website.

The Tribunal has a power to make a costs order if it concludes that a party has acted unreasonably in bringing, defending or conducting the proceedings, or if it considers that the Commission’s decision, direction or order was unreasonable.

If you pay for professional advice, or are concerned about costs that might otherwise be incurred as a result of bringing proceedings before the Tribunal, it may be possible to apply to the Tribunal for an ‘authorised costs order’.

An authorised costs order is an order made in respect of proceedings brought, or proposed to be brought, before the Tribunal or on appeal from it.

An application for an authorised costs order can be made by either the charity or the charity trustees.

If your application is successful, an authorised costs order will authorise the payment out of the funds of the charity of costs incurred (or to be incurred) in connection with proceedings brought by the charity, its charity trustees or any other person, so far as the charity or its trustees are ordered by the Tribunal or the court hearing the appeal to bear them.

For further information about the Tribunal, or on how to apply for an authorised costs order, please see the Tribunal website or contact the Tribunal.

3. Requesting a review of one of the Commission’s decisions

This section tells you how to ask for a review of one of the Commission’s decisions and how it will handle your application.

Use this procedure if you have recently been notified of a decision that the Commission has made and you wish it to be reviewed.

Don’t use this procedure if you want to:

• tell the Commission your views about a draft order or scheme which it is considering and giving public notice to
• request that the Commission reconsiders its response to a freedom of information request or data subject access request in which case, see the guidance on how to complain about an FOI

3.1 What decisions can be challenged?

A decision is any decision that the Commission makes using its powers as set out in the Charities Act 2011 (as amended).

You can use the Commission’s procedure to request a review of any decision which is set out in Schedule 6 of the Act (see Annex A and any decision either to exercise or not to exercise a legal power which is not listed in Schedule 6.

Exceptions to this rule are:

• that the Commission will not offer a review of a decision to grant consent to a charity (whether the type of consent granted is listed in Schedule 6 or not). This is because the Commission is not able to quash or set the decision aside as it has no statutory authority to do so. Once consent is given, only the Tribunal or Court can overturn it (depending on the nature of the consent)
• decisions to refuse consent to an audit dispensation do not fall within the decision review process as they are subject to a separate review procedure
• decisions to refuse consent related to s.115, such requests are dealt with in paragraph 5.39 of Charities and litigation: a guide for trustees (CC38)

In addition, the Commission will usually refuse to conduct a review where:

• the decision the Commission is being asked to review has already been subject to a decision review or has been made after detailed consideration at a senior level (this will usually be notified to you at the time the decision is sent)
• the decision is not one which falls within the type of decisions which can be reviewed (see above)
• the applicant is not a person entitled to request a decision review
• there is a more appropriate procedure available for dealing with the issues raised (for example our complaints process)
• where the matter is subject to ongoing litigation proceedings
• on an initial look at the application the Commission is satisfied that the decision made is correct and a review would serve no real purpose

If your request for decision review is declined, you may still be able to challenge the original decision in the Tribunal or the Courts.

The Commission may also, at its discretion, agree to review decisions which are not set out above but which:

• have a significant impact on a charity or its beneficiaries
• are likely to be challenged in the Courts (e.g. through judicial review), or
• are of significant public interest

3.2 Who can ask for a decision review?

The Commission will only normally accept an application for a decision review from someone who is eligible to apply to the Tribunal. You can use the table in Annex A to see if you are eligible to request a decision review.

An advocate or representative may request a decision review on your behalf, but if they are not a professional representative such as a lawyer, the Commission may need to ask you for written confirmation that they are acting on your behalf.

If the review is not of a matter which is capable of challenge in the Tribunal the Commission will use its discretion whether to undertake the review and usually only accept an application for review from:

• the charity (or its trustees)
• the subject of the decision, or
• any person who has a ‘sufficient interest in the matter to which the application relates’

When considering whether a person has a sufficient interest in the matter to which the application relates, the Commission will apply the same test used by the Courts.

3.3 Temporary protective orders

Some orders that the Commission makes to protect a charity are temporary and will be discharged when no longer needed. For example, an order appointing an interim manager, suspending a trustee or freezing a charity’s assets. It is a legal requirement that the Commission reviews these temporary orders on a regular basis.

Temporary protective order reviews are automatically carried out by the relevant Charity Commission team. The Commission will write to the charity to let it know the outcome on every occasion.

If you are unhappy with the outcome of one of the Commission’s temporary protective order reviews, you can ask it to review its decision. In the first instance, the team will look at your application to decide if circumstances have changed and the order should be discharged or varied. If the order is not discharged or varied, the Commission will initiate a decision review.

3.4 How to request a decision review

You may challenge some of the Commission’s decisions directly through the Tribunal. You do not need to use the Commission’s own decision review procedure before applying to the Tribunal.

However, the Commission will not usually review a decision itself once you have referred it to the Tribunal or the Courts.

Apply here to ask us to review a decision we’ve made.

Be sure to:

• identify the specific decision you wish to challenge and the date of such decision
• tell the Commission why you think its decision is wrong
• provide the Commission with any new information or evidence you have that may help it when the decision is reviewed (you do not need to resend information already provided)
• tell the Commission why a different decision is in the best interest of the charity
• tell the Commission what your interest is in the charity and your connection to it

Requests need to be in writing so that the Commission has a full and accurate understanding of the decision you want it to review. If for any reason you cannot apply in writing, please contact us as soon as possible and we will consider other ways for you to make your application.

3.5 Time limits

You should apply for a decision review within three months of the date on which the notice of the decision was sent to you.

If you are not the subject of the decision, an application should be made within three months of the date of publication of the decision.

If, for any reason, you are unable to apply for a decision review within the time limit, please tell the Commission as soon as possible. In exceptional circumstances it may be able to extend the time limit. You will need to let the Commission know why you need more time so that it can decide whether it is possible to give you an extension.

3.6 What happens next?

Once the Commission has received your application it will start the formal process to consider your application for review.

If for any reason the Commission thinks that the decision review process is not an appropriate way forward, it will tell you and explain what alternatives are available to you.

Step 1 – eligibility

The first step will be to check whether the decision you want reviewed falls within the Commission’s procedure and that you qualify as a person who meets the eligibility criteria. It will also take into account any reasons why the review should not go forward. The Commission aims to complete this stage within 10 working days.

Step 2 – decision review

Once the Commission has decided that a decision review should take place, it will appoint someone to review the decision. All reviews are ordinarily carried out by a member of the Commission’s staff. Some are conducted by a single reviewer. The seniority of the people involved varies from case to case and is dependent on the nature of the decision to be reviewed and the level at which the original decision was made.

However, to ensure that the review is carried out objectively, the reviewer will not be the person who made the original decision.

In cases where the Commission’s decision directly affects the rights of an individual or an organisation (such as a decision to remove a trustee or remove a charity from the register) or imposes obligations on a charity (such as a direction to produce documents or attend a meeting), the applicant will (unless exceptional circumstances apply) get the opportunity to speak to the reviewer to discuss any information deemed relevant and to ensure that the reviewer has a clear understanding of the facts and issues before making a decision. In other cases the Commission may also find it helpful to check that it has understood the points raised by decision review applicants and to clarify anything that is not clear from the information provided. Therefore the reviewer or panel members may contact you by telephone or in writing. You do not have to speak to the reviewer or panel if you do not wish to.

The amount of time a review takes can vary a great deal, depending on the characteristics of the case and its complexity. The Commission may also need to speak to the trustees or other parties who have information or whose views it is necessary to take into account before a decision is reached. It aims to complete this step within three months of receiving your completed application, but in most cases the Commission is able to complete its reviews more quickly. The Commission will tell you at the outset how long it thinks the review will take and will let you know if that timescale changes.

Step 3 – the decision

The decision maker(s) will take into account all of the information that they have, to decide whether the original decision was correct or whether it should be changed or discharged either in full or part.

You will receive a written response with the outcome(s) and the reasons.

Step 4 – outcomes

When the Commission reviews decisions, there may be a number of outcomes. It may decide that:

• the original decision was correct and appropriate in the circumstances, or
• the original decision should be changed or discharged, either in full or in part

The Commission may decide to change or discharge its decision, in full or in part. This does not necessarily mean that it was wrong; circumstances may have changed or new information come to light which has changed the Commission’s perspective.

If the Commission decides that its decision will be varied or discharged, it will let you know what steps are required and what action it will take; these are usually taken forward by one of the Commission’s case-working divisions.

Very occasionally, the Commission may decide that further work is needed before it can make a decision. If this is the case, it will refer the case back to the original case-working team who will, once their work is completed, pass the case back to the reviewer to make the final decision.

3.7 Application to the First-tier Tribunal (Charity)

If you are dissatisfied with the Commission’s decision at the end of the review, depending on the decision reviewed, you may be able to apply to the Tribunal. Your application should be made to the Tribunal within 42 days of the date on which the notice of the Commission’s decision was sent to you. If you are not the subject of the decision, you have 42 days from the date when the decision was published. In both cases weekends and bank holidays are included in the 42 days.

If the outcome of a decision review cannot be viewed as a fresh decision, the 42 day period will run from the date of the publication of the original decision.

Consequently, if you wish to have the decision reviewed by the Commission and this is likely to take the period beyond 42 days you are advised to make a protective application for appeal or review, pending the outcome of the Commission’s review. With those temporary and protective orders falling within paragraph 3.3, a further opportunity for appeal or review will arise as a result of any internal periodic review as referred to in that paragraph.

Decisions which may be considered by the Tribunal, and who can apply, are listed in Schedule 6 of the Charities Act. You can use the table in Annex A to check if the decision you disagree with may be considered by the Tribunal.

3.8 Publishing decision review outcomes

The Commission’s decision reviews often have a wider interest and may have far-reaching consequences for charities in general. For this reason the Commission may publish a summary on gov.uk. In some cases it will also publish the whole decision document if it thinks that it will serve a public interest.

3.9 Help the Commission to help you

You can help the Commission to review its decision effectively, by:

• telling the Commission within three months if you are dissatisfied with one of its decisions, and straight away if you think a temporary protective order should be discharged or varied
• completing the online form or email litigationandreview@charitycommission.gov.uk telling the Commission why you think its decision is wrong
• providing the Commission with all the information you have that supports your view and that may help it to reconsider its decision

4. Making representations about draft orders and schemes

This section tells you how to make representations in response to the publication of a draft order or scheme and how the Commission will handle your comments.

Use this procedure if you wish to give the Commission comments about a draft order or scheme which it has published.

Don’t use this procedure if you wish to request a review of an order or a scheme which the Commission has already authorised. In that case, see part 3 , Requesting a review of one of the Commission’s decisions.

4.1 What are ‘published draft orders and schemes’?

The Commission gives publicity to some orders and schemes before they are made – these are known as draft orders and schemes. It will publish a draft order or scheme if the law says it should, or if it decides that it would like to invite people to tell the Commission their views because it considers that the order or scheme may create a great deal of interest, is high profile or might be contentious.

The Commission does this in the form of a notice which is designed to inform the public about the proposals and invite comments or representations. The notice, which could be posted at the charity’s premises, on local notice boards or in a newspaper, will also appear on gov.uk.

When the Commission considers making an order or scheme this will usually be because the trustees of a charity have asked it to do so. The Commission would normally expect the trustees to have consulted with people who might object to the order or scheme before making an application.

4.2 What is a representation?

A representation is when you tell the Commission your views about a draft order or scheme which it has published. You may wish to tell the Commission whether you are in favour or opposed to it.

4.3 Who can make a representation?

Anyone can make a representation. The Commission will consider all representations that are made within the time limits of the publication period, which will be specified in the notice.

Representations can be made by an advocate or a representative on your behalf, but if they are not a professional representative, such as a lawyer, the Commission may need to ask you for written confirmation that they are acting on your behalf.

4.4 How to make a representation

You can make your representation by following the instructions in the Commission’s guidance on how to view and make representations on draft schemes and orders. You may wish to tell the Commission:

• why you support – or disagree with – the order or scheme
• what impact you think it will have on the charity, and
• what your particular interest is in the charity and why

Representations need to be in writing so that the Commission has a full and accurate understanding of the points you want it to consider. If for any reason you cannot provide your views in writing, please contact us and we will consider other ways for you to make your representation.

4.5 Time limits

Normally the Commission is only able to consider representations which have been made during the publication period.

The notice will clearly specify the publication period within which the Commission will need to receive your comments or representations. Most commonly, it will publicise draft orders and schemes for one calendar month, but the period of notice might be shorter or longer depending on the circumstances.

If the Commission does not receive any representations during the publication period it will usually authorise the order or scheme the first working day after that publication period has ended. It is essential, therefore, that you check when the publication period ends and make sure that the Commission has received your representation on or before the last day.

If for any reason you wish to make a representation, but cannot do so within the publication period, please tell us as soon as possible so we can consider whether it is possible to give you an extension.

4.6 What happens next?

Step 1 – considering your representations

At the end of the publication period, the relevant team will look at all the representations made to understand how best to deal with the issues raised. If the team considers that it can deal with the representations informally it will do so, for example if it is clear to the Commission that it needs to do further work with the charity before the draft order or scheme can be approved. If the Commission thinks that it can deal with your representation informally, it will contact you to tell you how it will handle the points you have raised.

If the Commission decides that changes are required to the draft order or scheme at this stage to enable it to go ahead, it is usually able to proceed without the need for further publication. Very occasionally, the Commission may decide to publicise it if it would like to invite further comments before making a final decision.

If it is not possible to deal with your representations informally, the Commission will carry out a decision review. It will tell you if it decides to take this step.

Step 2 – decision review

If the Commission decides that a decision review should take place, it will appoint someone to review the decision. All reviews are ordinarily carried out by a member of the Commission’s staff. Some are conducted by a single reviewer. The seniority of the people involved varies from case to case. They will not be the person who made the original decision.

In most cases the Commission will rely on the written representations submitted to it. However there may be circumstances where it needs to check that it has understood the points raised by people who have made representations and to clarify anything that is not clear from the information provided. Therefore the reviewer may contact you by telephone or in writing. You do not have to speak to the reviewer or panel if you do not wish to.

The Commission may also need to speak to the trustees and/or other parties who may have relevant information or whose views are important to take into account before any decision can be made.

The amount of time a review takes can vary a great deal, depending on the characteristics of the case and its complexity. The Commission aims to complete this step within 3 months of the end of the publication period, but in most cases it is able to complete its reviews more quickly. It will tell you at the outset how long it thinks the review will take and will let you know if that timescale changes.

Step 3 – the decision

The reviewer will take into account all of the information that they have. Once the Commission’s decision has been made it will write to you and let you know the result of the review. When it writes it will let you know exactly what the decision is and the reasons for it. It will let you know if any further action is required and whether there are any further steps it will be taking.

Step 4 – outcomes

Several outcomes are possible. The Commission:

• may decide to authorise the order or scheme without making any changes. This will usually happen the next working day after the decision is made
• may decide to authorise the order or scheme after making some changes. It can make these changes without a further publication period. However, if it thinks it would be beneficial to do so, it will publicise the changes for a further publication period and you will have the opportunity to make further representations
• may decide that further work is needed before it can make a decision.
• may decide not to proceed with the order or scheme

The Commission may decide not to proceed with or to change the draft order or scheme. This does not necessarily mean that it was wrong; circumstances may have changed or new information come to light which has changed its perspective.

4.7 Application to the First-tier Tribunal (Charity)

If you are dissatisfied with the Commission’s decision at the end of the review, you may be able to apply to the Tribunal. Your application should be made to the Tribunal within 42 days of the date on which the notice of our decision was sent to you. If you are not the subject of the decision, you have 42 days from the date the decision was published. In both cases weekends and bank holidays are included in the 42 days.

There are some limitations about which types of decision can be considered by the Tribunal and who can apply. Decisions which may be considered by the Tribunal, and who can apply, are listed in Schedule 6 of the Charities Act 2011 (as amended). You can use the table in Annex A to check if the decision you disagree with may be considered by the Tribunal. If so, you may be able to apply to the Tribunal to have the decision you disagree with reconsidered.

Please note that if the outcome is that an order or scheme should be made, the action which is appealable to the Tribunal is the making of the order or scheme and not the decision to make the order (though these will usually occur at the same time). The 42 day time limit starts to run from the date the order is made.

4.8 Publishing outcomes

These type of decisions often have a wider interest and may have far-reaching consequences for charities in general. For this reason the Commission may publish a summary of its decisions on gov.uk. In some cases it will also publish the whole decision document, if it thinks that it will serve a public interest.

4.9 Help the Commission to help you

You can help the Commission to review your representations effectively, by:

• using the ‘Make Representation’ button from the publication notice online
• providing the Commission with any information you have that supports your view and that will help it to decide whether or not the draft order or scheme should go forward