Last August, the Charity Commission consulted on changes to its decision review service and in April this year some of those changes were made. The service, established in 2008, allows charities that are unhappy with commission decisions to have them reviewed internally by the regulator.
Since 2008, charities wishing to challenge decisions have also been able to appeal to the charity tribunal. The types of decision that the tribunal can consider are listed in Schedule 6 of the Charities Act 2011. Before the recent changes, the commission’s decision review service would refer only to the same list of decisions, except in exceptional circumstances.
One of the changes is that the service can now review commission decisions to exercise, or not to exercise, its legal powers – something not listed in Schedule 6 – providing these decisions are capable of judicial review. This change, the commission says, will be assessed after a six-month trial period.
The regulator can also now refuse to carry out a review in certain “appropriate” circumstances – for example, if the decision has already been reviewed or was made at a senior level.
Another change is that applicants are no longer automatically entitled to speak to the person reviewing the decision. They will be able to do so only if the decision directly affects the rights of the applicant, or when the reviewer requests it.
The person reviewing a decision is now allowed to have previous knowledge of or involvement in the case, but cannot be the person who made the original decision.
Michael King, chairman of the charity solicitors Stone King, is concerned that, by widening the scope of the service, the commission is creating a rod for its own back. “Increasing the proportion of decisions it reviews sounds good, but where are the resources?” he says.
King says that preventing large numbers of people speaking to the reviewer might speed up the process. On the other hand, he says that allowing people with an interest in the case to speak to the reviewer can avert litigation further down the line.
Stephanie Biden, a partner at the charity law firm Bates Wells & Braithwaite, says that giving the commission the power to refuse to review decisions in certain cases is not new. For example, she says, in the case of the Preston Down Trust, a Plymouth Brethren congregation in Devon, the commission refused to review its decision not to register the trust as a charity on the basis that the decision had been made at a senior level. “If that is the commission’s practice, it is helpful that the formal policy acknowledges this,” she says.
But Biden says charities should not be forced to go straight to the tribunal just because a registration decision has been made at a senior level. “Sometimes decisions, even those made at a senior level, can be based on a misunderstanding about the proposed charity that can be resolved quickly and cost-effectively through the decision review process.”
In cases that involve a particularly unusual aspect of charity law, she says, the commission often prefers charities to go directly to the tribunal. “That is likely to hinder the development of charity law and the evolution of new charitable purposes, because it is expensive to go to the tribunal in those circumstances,” Biden says. “The tribunal also doesn’t allow for the same degree of negotiation to reach a compromise position as a decision review meeting with the commission.”
