Pothecary Witham Weld Solicitors

Today the Upper Tribunal has ruled that certain parts of the Charity Commission’s guidance are wrong in law and will have to be re-written.

The key principles at issue were:

(a) that the opportunity to benefit [from a charity’s provision] should not be unreasonably restricted by ability to pay any fees charged; and

(b) that people in poverty must not be excluded from the opportunity to benefit.

The Tribunal has decided that both of these principles, as stated and applied by the Commission, are wrong and should be corrected.

In brief:

• There must be more than a de minimis or token benefit for the poor but the implication that a school must provide “reasonable” benefits is incorrect: “it is not a question of reasonableness. It is a question of the proper exercise of the trustees’ powers.” (paragraph 234)
• The Tribunal recognises that, whilst subsidised provision (i.e. bursaries) is important, there are many ways in which a particular charity might seek to broaden access. Crucially, it is for trustees to decide what to do and how best to do it.
• The Tribunal rejects the idea that a charity’s failure to abide by its guidance should lead to a removal of charitable status.

The decision is an affirmation of a trustee’s role in the running of a charity.  It is entirely up to trustees how they decide to operate their charity subject only to acting within the range within which they may properly act.

The full text of the decision may be accessed here.

If you would like further information on this subject or have any comments please contact Arthur Byng Nelson or your usual contact at Pothecary Witham Weld.

14th October 2011

Pothecary Witham Weld
70 St George’s Square
London
SW1V 3RD