In August we reported that the Charity Commission had told the Parochial Church Council of St Eadburgha’s, Broadway, that it would not be obliged to enforce chancel repair liability. We also reported that there was no sign of any written statement from the Commission either on the Internet or elsewhere. The Commission has now posted Parochial Church Councils and chancel repair liability which sets out its current thinking.
The Commission concedes that it is not expert in this area of the law and suggests that
“… PCCs should read the opinion of the Legal Advisory Commission of the General Synod for further information. Key questions and answers are also available on the Church of England’s website. A PCC may wish to consult its diocesan registrar and/or take its own professional advice. Diocesan websites can also offer valuable guidance”.
The Commission does, however, set out a useful framework for trustee decision-making which, in the Commission’s opinion, should help PCC members to act in accordance with their legal duties. Under the Commission’s framework PCC members must:
- act within their powers, which means:
- only making decisions which advance, or support activities that advance, their charity’s purpose for the public benefit;
- using the correct procedures, whichmay be those set out:
- under the general law
- specifically in the charity’s governing document
- under the established rules and procedures for dealing with issues of the kind under consideration;
- act in good faith and only in the interests of the charity;
- adequately inform themselves;
- take into account all relevant factors (their ‘duty of consideration’) and
- disregard any irrelevant factors;
- make decisions that are within the range of decisions that a reasonable trustee body would make; and
- avoid conflicts of interest (eg where members of a PCC themselves live in properties which are subject to chancel repair liability).
The Commission concludes by pointing out that the decision about whether or not to register and enforce chancel repair liability is ultimately a matter for the trustees of the PCC in question and that PCCs are able to take that decision without involving the Commission. However, the Commission is prepared to offer advice to individual PCCs under s 110 of the Charities Act 2011 and that that can provide additional reassurance for PCC members that they have acted correctly and in accordance with their duties by protecting them against the possibility of any subsequent legal challenge to their decision. The Commission says that it is
“… willing to consider providing such advice where PCCs consider there is a real likelihood of their decision being challenged and they are able to present us with a substantive case explaining how they have reached their decision”.