The Charity Commission Publishes Revised Public Benefit Guidance

Under section 14 of the Charities Act 2011 ('CA 2011'), one of the Charity Commission's objectives is 'to promote awareness and understanding of the operation of the public benefit requirement'. Section 17 CA 2011 provides that the Commission must issue guidance in pursuance of this objective, and that charity trustees must have regard to any such guidance when exercising any powers or duties to which the guidance is relevant.

The Commission originally published its public benefit guidance in January 2008. However, following the 2011 decision of the Upper Tribunal in the Independent Schools Council case, in which the Independent Schools Council successfully challenged aspects of the guidance in relation to fee-charging, the Commission withdrew certain passages from the guidance in December 2011. Interim advice relating to fee-charging charities was published, and the Commission subsequently carried out a consultation on its new public benefit guidance between June and September 2012.

The final version of the revised public benefit guidance has now been published, which replaces all previous guidance. The guidance is divided into three short guides, which are all available online: (1) Public Benefit: the public benefit requirement (PB1); (2) Public Benefit: running a charity (PB2); and (3) Public Benefit: reporting (PB3). These guides explain what is required to show that an organisation is a charity; what trustees' duties are in carrying out those purposes for the public benefit; and how trustees should report on the public benefit their charity provides in their Annual Report.

The new guidance reflects the law as set out by the Upper Tribunal in the Independent Schools Counsel case and is significantly shorter then previous guidance, meaning trustees should find it accessible.

The public benefit requirement

The guidance in PB1 now refers to the 'two aspects' of public benefit as the 'benefit aspect' and the 'public aspect'. It explains that in order to satisfy the 'benefit aspect', the purpose must be beneficial and any detriment or harm that results from the purpose must not outweigh the benefit. In order to satisfy the 'public aspect' of public benefit, the purpose must benefit the public in general, or a sufficient section of the public, and must not give rise to more than incidental personal benefit. The guidance also refers to the Upper Tribunal's view that charitable purposes may not exclude the poor but sets out that the meaning of...