Kenneth Dibble, head of legal services at the Charity Commission, has said there is a problem with the range of individuals who can bring an appeal to the Charity Tribunal, and that “frivolous cases” must be weeded out.

Speaking last week in a debate on the Charity Tribunal at the Charity Commission’s annual general meeting, Dibble complained that appeals were costly and that the regulator could get overwhelmed by even a small number of cases.

“The problem is the width of individuals who can bring an appeal,” he said. “It would be better if it was not just a person ‘affected’ by a decision, but someone ‘interested’, so you can narrow down who can bring an appeal.”

The debate on the Charity Tribunal heard representation from Dibble, barrister Francesca Quint from Radcliffe Chambers and Dominic Fox from the Association of Charitable Organisations.

During the debate, Quint said it was a problem that anybody could seek a Charity Tribunal hearing if they were ‘affected’ by a decision.

“There is a danger that people sometimes use the Tribunal to further an argument they have with a charity, not the Charity Commission. For example, appealing against a scheme where they disagree with the trustees' decision, not that of the Charity Commission, which may be justified in law.

“There is scope for abuse in the fact that people who can seek an appeal includes anyone ‘affected’ by a decision. This enables people to find a way to hang on to an argument which could have been going on for years, as they can go on arguing a case which they may have lost with trustees and would have otherwise have had to go to the High Court.

“It should be necessary that if there is any reason one is appealing that one has an interest in the charity. So there will be more discipline about who can bring an appeal.”

Dibble agreed with Quint saying that “frivolous cases” needed to be “weeded out”.

Overall, Dibble said, the Charity Tribunal was a very helpful vehicle for developing charity law, but the range of people "affected" by a Charity Commission decision was open-ended.

Quint added that there was a question around who was bound by a reference made by the Charity Tribunal: “The question of law is theoretical. You put it to the Tribunal and the Tribunal decides question of law and only parties to that reference are bound by the decision. A court decision in the Tribunal is not the end of the story.

Benevolent funds case

“It would not be impossible to reopen the benevolent fund issue,” she suggested.

The Charity Commission had referred a case to the Tribunal to look at the public benefit of benevolent funds. Dominic Fox, whose umbrella body represents benevolent funds, told the meeting that his members had been “unsettled, alarmed and perplexed” by the move.

He said that although organisations and individuals could give evidence before the Tribunal without legal representation, “to suggest that an organisation would not do anything to protect their mission when threatened” was wrong.

“My members spent a lot of time and money to defend their interest,” said Fox. “The figure was about £500,000 of charitable funds.”

However, Fox also said that the Charity Tribunal case had done the sector and benevolent funds a great service by confirming their charitable status.

Evolution of law

During questions at the debate, Julian Smith, a partner at Farrer & Co, argued that Charity Tribunal references might not move charity law forward, and questioned if this needed to be addressed. “The Charity Tribunal is a tool to force the evolution of law. The references are a tool for this – but one thing they might not be able to do is move the law forward.”

Dibble said the Charity Tribunal's upper tribunal was the equivalent to the High Court so it settled the law at the level of the High Court. He added that the Charity Commission was bound by any case brought by a reference.

But Smith argued that the system was “unusual and unique”: “I have concerns about the opaqueness of judgments,” he said.

Quint agreed, saying she was not satisfied from readings that the law was clear about what status decision references had.