The Charity Commission

The Charity Commission is a ‘quango’ charged with regulating all registered charities. Among other things it is the repository of their governing ‘schemes’. Every charity has a scheme which sets out what it can and cannot do in pursuit of its purposes.

The Charity Commissioners, in their turn, now echo the appeal judges’ opinion, viz.:

http://www.charity-commission.gov.uk/about_us/ogs/g065b001.aspx

 “It is the trustees who are responsible for deciding who to appoint to an almshouse dwelling (and occasionally, for removing residents who have infringed the terms and conditions of their licence).”

 And, in more detail:

 “If the charity is not a Registered Social Landlord, currently or formerly registered with the Tenant Services Authority, the charity is not obliged to progress the complaint further than the trustee body.”

 Most almshouse charities will not be RSL or TSA registered. So there the matter will rest. If you complain to the Charity Commissioners about harassment by trustees they will simply tell you that it is ‘an internal matter’ and beyond their remit.

The ‘visitatorial function’ of the Charity Commissioners

A later case, R v The Charity Commissioners for England and Wales ex parte Baldwin [2000], determined that their ‘visitatorial function’ – which in actuality translates as their abnegation of responsibility – was not amenable to judicial review. This later case, ex parte Baldwin, was a heroic last ditch effort to get a case into court via the side door so to speak. Unfortunately for us, it failed. So you see, it’s a vicious circle. No day in court for us.

Update on ex parte Baldwin, August 2015: in the light of the judgment in Datafin we now contend that the above-mentioned ‘visitatorial function’ of the Charity Commissioners is no longer immune to judicial review. Go to the News page for the rationale…

Here’s more from the Charity Commission website:

 “Trustees can only resolve difficulties and improve the service offered, if they are aware of difficulties or genuine complaints. It is important, in building upon the trust between Trustees and Residents, that Residents are encouraged to speak up when things go wrong without fear of prejudice or recrimination.”

 Prejudice and recrimination? Now why would they feel a need to say that? How prescient! They go on to say:

” It is equally important that the individual acts solely in his/her own interest and does not act as self-appointed spokesman or spokeswoman allegedly on behalf of some or all of the other residents.”

 As well as being insufferably patronising, those words could well come into collision with European Convention Articles 10 (freedom of expression) and 11 (freedom of assembly and association) as written into the UK Human Rights Act 1998.

 The Charity Commission publishes a series of Operational Guidances (OG’s). OG 65 A1 dated June 2009 reads as follows:

 Status of residents:

 The status of residents of an almshouse charity was clarified by a reported legal case [Gray v Taylor [1998] WLR 1] settled in the Court of Appeal. It confirmed that residents are licensed to occupy their home; they are not tenants, because they have no legal interest in their accommodation. Moreover, their licence to reside is not a ‘contractual licence’ because it does not depend on an agreement made between the trustees and the individual resident, but derives from the trusts of the charity and the trustees’ duty under those trusts to appoint a beneficiary of the charity. The appointment of a beneficiary may be set aside if he or she no longer qualifies to be such under the terms of the trusts.

We take the view that such a licence need not necessarily be in writing.

Specific advice should not be given without consulting a lawyer.

 Well we, that is, the Almshouse Residents Action Group, take the view that, until we win back our day in court, such a license should mandatorily be in writing. We also take the view that such a license should only be issued conditional upon the applicant(s) themselves having consulted their own lawyer as to the dangers inherent in the terms on offer. We take these views because it has happened that in Letters of Appointment and ancillary literature such as Residents’ Handbooks the crucial word ‘almshouse’ does not appear and unsuspecting applicants have thereby been inveigled into an arrangement from which they otherwise would have run a mile!

 The Charity Commission also field a model Letter of Appointment [OG 65 C1 – 25 November 2008] originally promulgated by the Almshouse Association. Unbelievably, the matter of the prospective residents’ degraded legal status is relegated to the obscurity of item 7 in a list of 21 items in the fifth paragraph, viz.:

 7. Neither the Resident(s) nor any relation or guest of his/hers/theirs will be a tenant of the charity, or have any legal interest in his /hers/their almshouse.

 Well we take the view that, until we win back our day in court, the crucial matter of legal interest – or rather the lack of it – should unequivocally be set out in the leading paragraph of any such letter.

 

Reverting to the Gray-v-Taylor judgement:

Go now to A Flawed Judgement