On 27 June the Charity Commission launched a consultation on its revised public benefit guidance: the consultation will end on 26 September.
In Independent Schools Council v The Charity Commission for England & Wales  UKUT B27 (TCC) (2 December 2011) – which BAILII, for some unfathomable reason, cites on the relevant web-page as “Independent Schools Council v HMRC” – and the earlier substantive decision in Independent Schools Council v The Charity Commission  UKUT 421 (TCC) (13 October 2011) the Upper Tribunal (Tax and Chancery Chamber) quashed part of the Charity Commission’s existing guidance on public benefit. The result was that the Commission found itself with a gaping hole in its guidance; and the current revision has been undertaken largely as a result of those judgments.
The new guidance, when finalised, will replace both the guidance on Public Benefit and Fee-charging that the Commission withdrew after the ISC judgments and the existing guidance on Charities and Public Benefit. Unlike the previous guidance, which was published both as an HTML document and as a pdf, the latest draft is in HTML only; moreover, the Commission has set up a blog on which responses can be posted. The usual facilities for e-mail comments are also available: more details on how to respond to the consultation are here.
I do not propose to post a detailed critique of the draft, principally because, given its format, it would be extraordinarily difficult to do so. My general criticisms, however, are of the nature of the document itself rather than the detail. First, because of the HTML format the guidance is very repetitive and some of the redundancies could usefully be removed. Secondly, because of its multiplicity of internal hyperlinks it is extraordinarily labyrinthine: I think that I have read and downloaded everything in the draft guidance but I certainly would not swear to that.
The overall problem is that the Commission appears to be in two minds about what the guidance is for. Says the Commission,
“Our new public benefit guidance is not designed to be read in a linear way, but rather to enable trustees to read (and print off if necessary) only those sections that are relevant for their charity”.
Er, yes: but if all trustees are meant to read and take account of the guidance, how can they know which bits they need to read until they have read them? Moreover, if the draft is hard going for people like me who are assumed to know at least a little about charity law, how much harder will it be for the average trustee who knows no charity law whatsoever?
Finally, though the Commission – largely because of severe resource restraints – is anxious to do everything on-line if at all possible, it is likely that there are still a lot of charity trustees who are not very computer-literate. Figures released by the Office for National Statistics on 29 November 2011 estimated that in 2010 “Among retired households, 33 per cent had Internet access at home in two-adult households and 16 per cent in one-adult households”, while the Charity Commission’s own research estimated that in 2010 the mean age of a charity trustee was 57 and that 20.8 per cent of trustees were 70 or older. Put these two things together and the suspicion must be that there will still be a significant number of trustees without Internet access.
The importance of all this for faith-groups cannot be underestimated. Whether their trusts are registered with the Commission or not, charity trustees are obliged to demonstrate that their charities provide public benefit. That statement is in itself a matter of some dispute, since some commentators would argue that (unlike the position in Scotland) the test of public benefit is the charity’s objectives rather than its outcomes: see for example Peter Luxton: Making Law? Parliament v The Charity Commission. But leaving that controversy aside, if trustees do not know precisely what the Charity Commission’s public benefit criteria are, how can they begin to demonstrate that they have satisfied them? And the previous presumption, that something done for the advancement of religion was ipso facto for the public benefit, would appear to have evaporated.