Jurisdictional challenges in the Charity Tribunal

Below, we explore the key takeaways from the judgments in:

Madris Ali v The Charity Commission for England and Wales
City Doctoral Researchers’ Association v The Charity Commission for England and Wales

Case summaries

Madris Ali v The Charity Commission for England and Wales

In this case, the appellant sought to challenge the Charity Commission’s decision not to open a statutory inquiry into governance failures within a religious charity. The statutory gateway for appeals is in section 319 of the Act against decisions, directions or orders of the Charity Commission. Section 319 cross refers to a fixed list in Schedule 6 of Act of the types of decision, direction or order which can be appealed to the Tribunal, and who can bring the appeal. A decision to open an inquiry is listed. Failing to open an inquiry is not listed.

The Tribunal confirmed that it lacked jurisdiction to hear the appeal. The Tribunal emphasised that the Commission’s refusal to act was not a decision, direction, or order as defined under section 319 of the Act.

City Doctoral Researchers’ Association v The Charity Commission for England and Wales

This case involved an appeal against the Charity Commission’s handling of a complaint concerning another charity. The appellant argued that the Commission’s inaction constituted a breach of its statutory duties. However, the Tribunal found that the Commission’s email correspondence did not constitute a decision, direction, or order within the meaning of section 319 of the Act.

In contrast to appeals, sections 321-322 of the Act are the statutory gateway for reviews, a slightly different flavour of legal challenge in the Tribunal. They refer to a decision or order and, like section 319, cross refer to the list in Schedule 6. The Tribunal confirmed that for a matter to be reviewable under section 321 of the Act, this means there must be a specific decision or order, which was absent in this case.

Key lessons

These cases underline the importance of understanding the limits of the Tribunal’s jurisdiction. Under the Act, only certain decisions, directions, or orders by the Charity Commission can be appealed or reviewed. Stakeholders should be mindful of the following points:

Not all actions by the Charity Commission are appealable. The statutory framework defines specific circumstances where appeals or reviews are permitted.
Under section 319 of the Act, only specific actions by the Charity Commission qualify as a "decision, direction, or order" that can be appealed to the First-tier Tribunal. These are explicitly listed in column 1 of Schedule 6 of the Act and include formal actions such as instituting an inquiry, making or refusing certain orders, or removing a charity from the register. Importantly, correspondence or informal assessments by the Charity Commission that do not constitute one of these specified actions will not give rise to a right of appeal under this provision.
Where the Commission declines to act, this does not automatically constitute a decision that can be appealed to the Tribunal.
Be careful if using the Commission's internal remedies, such as the Commission’s complaints process or decision review. Time limits for bringing your appeal or review could be running against you. If there has been a decision, direction or order covered in schedule 6, even if you are pursuing the Commission's internal remedies, consider bringing the appeal to stop the clock and get disclosure.

The Commission's approach

In our experience, it is not unusual for the Charity Commission to frame its resolution of an application as a non-decision, thereby avoiding the scope of appealable or reviewable matters under the Charities Act 2011. For instance, there are cases where the Commission declines to register a charity, not by issuing a formal refusal, but by stating that the application was incomplete. Similarly, when complaints or concerns are raised, the Commission may categorise its response as an 'assessment' rather than a decision, direction, or order. This approach is likely influenced, at least in part, by the Commission’s limited resources, which may constrain its ability to engage fully with all matters brought to its attention. However, this can leave individuals and organisations without a clear route to challenge the Commission’s stance, highlighting the importance of understanding the limitations of appealable actions under the current legislative framework.

Practical insights

It can be challenging to obtain the desired response from the Charity Commission without framing your query in the right legal terms. Carefully consider whether your concern is likely to require the Commission to make a formal decision, and if possible, present it in a way that encourages or compels them to take such action. This approach can make it harder for the Commission to categorise their response as a non-decision, which would otherwise limit your options for appeal. If your query falls outside this framework, or if you are unsure how to proceed, your usual contact in the Charity Law and Governance team will be able to help you navigate the process and ensure your concerns are addressed effectively.

These cases serve as a reminder of the importance of understanding the boundaries of the Tribunal’s jurisdiction and the need for a well-informed approach when addressing disputes or complaints within the charity sector.

Jurisdictional challenges in the Charity Tribunal - what do you need to know?