First published by Solicitors Journal on 2 July 2013, and reproduced by kind permission
When the newly established Charity Tribunal opened its doors in 2008, its President, Alison McKenna, said she hoped it would provide “swift, low cost access to justice”. The Tribunal was established by the Charities Act as a way for charities and others affected to challenge Charity Commission decisions in a cost neutral accessible environment without going to the High Court.
Since then, however, it has been criticised for being anything but a cheap or accessible option. This view was highlighted, for example, in a recent report by the Public Administration Select Committee on the impact of the Charities Act 2006. The report quotes the Charity Law Association, which has described the Tribunal as seeming ‘slow and expensive’ to appellants. And indeed, some charities have spent significant sums on their appeals or responding to references in the Tribunal.
But does this reflect on the workings of the Charity Tribunal, or does it say more about the types of cases that have reached the Tribunal, the complexity of charity law and the way in which charities have approached their cases? An analysis of the cases that have gone to full hearing since 2008 – of which there have been 12 – reveals that only two charities asked for the case to be heard on the papers, as opposed to at an oral hearing, a facility which is offered in the Tribunal process when both parties agree. In most cases, a hearing on the papers is a quicker and considerably more cost effective option which the Commission, except in the most difficult cases, will agree to.
Similarly, few charities have represented themselves; most instruct solicitors or barristers, including QCs. This is perhaps understandable. Where charities disagree with Commission decisions they understandably feel they need to ensure they are successful, and feel they must get the best legal representation. They might not feel confident asking trustees or staff members to represent them in an environment that may feel a lot like a ‘normal’ court of law. This point was stressed by Lord Hodgson in his review of the Charities Act. His report highlighted the perception that the atmosphere at Tribunal hearings is not always ‘layman friendly’.
But the evidence suggests that charities can achieve success without the use of professional legal advice. In an early case, The Kidd Legacy, two members of the public brought an appeal against a Commission scheme. They represented themselves. Although the scheme was upheld, the appeal was successful in having the scheme amended. And this year, the Tribunal heard the case of Llanfair Waterdine, which saw the appellant, a trustee, challenge our decision to authorise a trustee benefit. The appellant did not instruct a lawyer but argued the case himself, and won.
The Charity Tribunal remains an important element in charity regulation. It provides a welcome avenue of redress for charities and performs a valuable service for us as regulator by aiding understanding of the law and the regulatory framework. The challenge is to encourage charities to use the Tribunal in a cost effective way. The Commission can only do this in general terms. We would not want to be seen to influence individual charities who are appealing our decisions on how they handle their cases.
The National Council of Voluntary Organisations (NCVO) has produced a guide on how to take a case in the Tribunal without the need for lawyers. For our part, we would encourage that approach. Our experience has shown that the Tribunal is well able to provide an environment where even some of the more difficult points of charity law can be discussed and adjudicated on in a non-legalistic manner with support for those choosing not to be legally represented. We continue to endorse its use in appropriate cases.