CTN response to the Draft Charity Tribunal Rules 2007 Consultation

Submitted 6 November 2007 

Charity Trustee Networks is a registered charity, which aims to support trustees from across the voluntary and community sector in order to improve the governance and therefore the effectiveness of their organisations.

Charity Trustee Networks is an organisation which is continuously developing its reach to trustees through its face to face and online networks for trustees. We have considered the consultation document and have highlighted the consultation on our website at www.trusteenet.org.uk.  We seek in this response to highlight the trustee perspective generally and the practical implications of the proposals on a trustee and a board.

Charity Trustee Networks welcomes the introduction of the Charity Tribunal which will provide trustees with an appropriate opportunity to challenge Charity Commission  decisions without the expense and complexity of going to the High Court.

Our comments on the draft rules are numbered below.
1. CTN welcomes the establishment of the Tribunal and believes it has the potential to contribute to the development of charity law in important areas as well as providing a cheaper and more flexible means of appeal and review of Commission decisions.

2.  We recognise that any Rules need to provide a proper legal framework for the work of the Tribunal and these need to bear some relationship to the procedural rules adopted by other Tribunals. No doubt some adjustment to the Rules will be required if and when functions of the Charity Tribunal are transferred to the new tribunal framework established by the Tribunals, Courts and Enforcement Act 2007.

3. The Rules are not an easy read for non lawyers. Many of the likely users of the Tribunal will not be lawyers nor able to pay the cost of legal representation. It would be helpful if in due course a "Person on the Street’s Guide" could be produced covering the full appeal and review processes (starting with the Commission's decision review processes and ending with the Courts) so that prospective users of the appeal/review processes will be able to see the full picture.

4.  Rule 3 (question 1). Under Charity Commission proposals for their Decision Review processes there will normally be three months from the date of the particular decision during which an appeal can be lodged by an affected "interested person". The Decision Review has to be completed within a further three months (except some registration cases which could take longer). The whole process could take up to six months. As a detailed analysis of the issues is likely to have taken place during the Decision Review process, a shorter timeframe than 3 months for launching an appeal to the Tribunal would be justified. However, taking a case to the Tribunal is likely to cost something and absorb a good deal of management time. Before appealing, a decision of the trustees will be required. They will need sufficient time to assess their reaction to the final written Commission decision and to consider the implications for their organisation (and if there are any other options than an appeal to the Tribunal). Many trustee boards are quite large and calling meetings quickly may not be practical. External advice may be needed before any decision can be taken.  On the other hand, any "person interested" who has taken their case to a final Decision of the Commission will have needed to prepare carefully so they should be fully aware of the issues and implications. Nevertheless we feel that the period during which appeals to the Tribunal would be allowed could, with advantage, be extended to 6 weeks without unduly extending the whole process. There are so many issues capable of being referred to the Tribunal - some very short and some potentially of considerable significance with wide ramifications (eg novel registration applications). Whilst it might be possible to identify a different timeframe for differing issues we do not recommend this because it has the potential to cause great confusion (with the possible exception of registration cases).

5.  We question whether it is reasonable for an appellant to be assumed to have had notice of the Commission's decision once it has been published on the Commission's website. Rule 3(2)(b) states that time starts running  from the earlier of this date or the date an appellant receives written notification of the decision. Many charity trustees/charities do not have web access  - but even if they did have access they will not necessarily check every day during the 3 months the Commission has to complete its process whether or not a final decision has been taken. In the Decision Review consultation the Commission proposes to inform the "customer" of its final decision and its reasons for it. Even though the Commission proposes to publish its final decisions (with some exceptions) in our view it would be better for time only to run from the time the applicant (for the Commission review) has received notification of the result. There may be other persons (not directly involved in the Commission's processes) who may be entitled to launch an appeal or seek a review by the Tribunal.  In such cases it may not be known who might have such an interest - for such persons the date of web publication might be a suitable date from which time might run.

6. In Rule 4(3)(a) the Commission is required to state the statutory base for its decision. In some cases the decision will be based on case law - should the Commission not disclose the full list of cases on which it relies?

7.  In view of the likely inexperience of many people invoking the appeals/review procedure, the operation of  Rule 9 (about directions)  and 11 (Pre-hearing review) will assume great importance - as presumably through these mechanisms applicants will become aware of precisely what is required of them and how the hearing will be managed?  In particular, applicants will know they have to supply lists of documents (Rule 7) and copies of the documents to "the other party" if requested, but what about providing copies to the Tribunal? A “Person on the Street's Guide” would be particularly helpful here.

8.  We had some difficulty with Rule 26(3)(b) unless it was intended to state "..sent to the party making that application" rather than "...sent by..."

9.  Rule 37 (question 2).  It is not entirely clear how the Tribunal will "select" from persons (likely to be affected) who request to be parties to a reference from the Commission or Attorney General to the Tribunal.  If a person demonstrates that they could be affected will they automatically be selected as a party (this could make some cases unmanageable)  - but if not, what criteria will be used for selection and what rights would someone have to appeal against a decision by the Tribunal not to select them as a respondent?  There is no indication in the rules as to how long people have to make up their mind to request to be a party - whilst the publication of details of the reference will no doubt say what the period is, should not the rules lay this down? We do not think that web publication should be the only means of "publication" of details of a reference. To some extent the means of publicity should be appropriate to the subject matter to which the reference relates. A national newspaper and a "special interest journal" likely to reach those most interested in the issue could be appropriate in some cases. Could the Tribunal be asked to give directions on this on a case by case basis?