Wednesday, 2 October 2013

Charity Commissions revised guidance.

From Third Sector 24/9/13

The Charity Commission's revised guidance is intended as a simplification, but the subject remains fiendishly complicated, writes Stephen Cook

There has been a general welcome for the new guidance from the Charity Commission about public benefit, which has been amended in the light of the Upper Tribunal ruling on fee-charging schools. The principal change it spells out is that it is for trustees of fee-charging charities, rather than the commission or the courts, to decide how they should comply with the legal requirement to make a more than minimal provision for the poor to benefit from their services. The Independent Schools Council has declared that the new guidance avoids "the confusion and errors" of the previous guidance and gives precise and helpful pointers to trustees.

Whether it succeeds in its aim to be simpler is a moot point. A single document of general guidance, withdrawn after the Upper Tribunal case, is now replaced by three documents, which deal with "aspects" rather than "principles" of public benefit. One of those three now incorporates guidance for fee-charging charities that was previously in a separate document. Clear so far? If not, there is an eight-page tabulation showing how the pack has been reshuffled. There are already as many documents as before and revisions to three others are still pending. The truth is that public benefit - a tangle of case law with no definition in statute - is a fiendishly complicated lawyers' playground where attempts at simplification are like wrestling with an octopus.

Suffice to say that we now have a formulation that has placated the warring parties on fee charging, and attention can shift to the next battle - public benefit and religious charities. The Plymouth Brethren's appeal to the charity tribunal against refusal of charitable status for one of its congregations by the commission is in effect a test case that arouses strong feelings, not least among Tory backbenchers. The appeal has three times been stayed for three months while the parties try to reach agreement. But haven't they already had long enough? The experience of the schools case suggests that, at the end of the day, the tribunal is more likely than the commission to produce a decision that can be generally accepted.

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