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02nd October 2012

Public Benefit Consultation

Chris Knight was part of the Charity Law Association's working party on this consultation which has just submitted its response to the Charity Commission.

Chris Knight was part of the Charity Law Association's working party on this consultation which has just submitted its response to the Charity Commission. The Commission has substantially changed the guidance and attempted in many places to follow the reasoning of the Upper Tribunal’s decision in the independent schools case earlier this year, which necessitated this revision. Nevertheless, significant problems remain. The new guidance is in a radically different format to the Commission’s standard guidance, comprising the principal guidance on public benefit together with an intricate series of on-line links to various other pieces of guidance. If this remains as drafted this will not be to everyone’s taste and will not be accessible to all. However that was not the working party’s principal concern. The most problematic issue is that the Commission has persisted in assuming a greater role than that which is required or authorised under the Charities Act. The Act requires the Commission to publish guidance to fulfil its statutory public benefit objective “to promote awareness and understanding of the operation of the public benefit requirement”, which is itself also set out in the Act, though in very basic terms. The Commission has interpreted this to include telling trustees how to run their charity, something which the Upper Tribunal case specifically stated was a matter for trustees, rather than sticking to guidance as to the constitutional purposes of charities. Whilst it is helpful to use the guidance to link constitutional purposes and activities, by muddling the two consistently it is likely trustees will not understand which parts of the guidance are mandatory and which are best practice. Lastly, the guidance is still far too long, with the inevitable risk that those who consult it will become lost, bored or distracted by the detail. Some traffic lights, a route-map or some other device to assist trustees and others locate the relevant parts of the guidance for their charity would definitely help. For further information, please contact Chris Knight on 01604 233233 or email chrisknight@hewitsons.com

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