Link: Case Summary Document
Citation: First Tier Tribunal (Charity), General Regulatory Chamber, Ruling by McKenna J
Acknowledgement:The Pemsel Case Foundation thanks The Australian Centre for Philanthropy and Nonprofit Studies for its contribution in the drafting of this Case Note.
This was a ruling on extension of time (not the final decision) for an appeal against a decision of the Charity Commission for England and Wales (the Commission).
Earlier in 2012, the Commission was asked to grant consent to The Prayer Book Society (the Charity), an incorporated charity (as a charitable company), to allow it to change its objects if its members voted to do so. The Charity trustees told the Commission that it wanted to change its objects because it would be undertaking a number of new activities closely related to its existing activities, and rather than amend the objects to include these activities it had decided to simplify them. On 30 August 2012, the Commission granted consent to the Charity to alter its objects under section 198(1) of the Charities Act 2011 (the Act).
Bartley, a member of the Charity, requested administrative review of the Commission’s decision on the grounds that the Charity’s object would no longer be to promote the Book of Common Prayer as the norm in all principal services of the Church of England and other Churches in the Anglican tradition. The member considered that the revised object would allow the charity to promote other forms of service and undermine the foundation of the Charity. He also submitted that the trustees’ decision to seek the change was not made in good faith.
The review at the Commission level was conducted by a senior manager in the Commission’s operations team. The review concluded that the consent to the change of objects was lawful and within the Commission’s policy. It concluded that the proposed change did not go to the foundation of the charity and disagreed with the member’s analysis of the existing object of the charity. There was no evidence to suggest that the Commission gave consent in bad faith or in any other way that would be a breach of its public law duties. Nor was there any evidence that the trustees acted in bad faith in applying for such consent.
The member moved the issue to the First Tier Tribunal for appeal against the Commission’s decision under Schedule 6 of the Act. Her Honour was satisfied that Bartley was a ‘person who is or may be affected by the decision’. Bartley was not the subject of the Commission’s decision, however, as a member of a charitable company, Bartley had standing to appeal the decision.
The Commission’s decision was communicated to the Charity by email on 30 August 2012. It was not otherwise published (although there is now a short summary of the decision on the Commission’s website). Bartley only became aware of the decision after a Freedom of Information request was granted to him. He received the information requested from the Commission on 6 October 2012.
Her Honour seemed surprised that the decision was communicated in this way, and queried the Commission on the matter. The Commission submitted that, as the Charity was a company, it would need to notify its members of the alteration to its Memorandum so that there could be a vote on it at its next general meeting. Members would find out about it at that point. Her Honour said (at ):
It seems to be that such a system of notification relies on the actions of the Charity itself and cannot therefore be said to constitute ‘publication’ within the terms of the Act. The statutory scheme clearly envisages that the Charity Commission itself will ‘publish’ decisions so as to make persons with standing to appeal aware that an appealable decision has been made. The Charity Commission does not appear to have adopted this practice in relation to decisions under s.198(1) of the Act.
Her Honour held that the time for lodging an appeal did not commence until the applicant became aware of the decision (i.e. on 6 October 2012), and she accordingly extended the time for the lodging of his appeal. The case has yet to be decided.
This ruling may be viewed at: http://www.charity.tribunals.gov.uk/documents/decisions/ruling-7-Dec-2012.PDF
Implications of this case
The Charity Commission publishes very short summaries of some of its decisions on its website: http://www.charitycommission.gov.uk/Our_regulatory_activity/Compliance_reports/fdcase.aspx.
These case summaries give very little detail, and do not generally link to further information. This ruling may cause a change in that practice.