The Charity Commission’s New Public Benefit Guidance

After much consultation, and deliberation on the implications of the decision of the Upper Tribunal in the Independent Schools Council case handed down on 13th October 2011, the Charity Commission has finally just published its revised public benefit 'guides'. The first of the easy-to-read suite of documents gives an overview of the architecture of the three public benefit guides ( click here). It makes clear that it does not form part of those guides, and is not therefore a document to which charity trustees have to have regard when making decisions about their charity.

What it also makes clear is that trustees now only have to have regard to:

The Guide (PB1) on "Public Benefit: the public benefit requirement" i.e. the test for whether an organisation is a charity; The Guide (PB2) on "Public Benefit: running a charity" i.e. the duties of charities trustees to run their charity in accordance with its charitable objects; and The Guide (PB3) on "Public Benefit: reporting" i.e. the duties trustees have to report on how the trustees have carried out the charity's purposes for the public benefit. All previous statutory guidance has been withdrawn. Much of it is likely to be redrafted as guidance, but not guidance to which charity trustees are under a statutory duty to have regard.

For those (especially professionals) interested in the law underpinning this new guidance there is a revised "Analysis of the Law Relating to Public Benefit", which does not form part of anything to which trustees have to have regard ( click here to read).

The guidance, which is written in a clear and simple style, makes it clear that it is not itself the law on public benefit. Rather, it is high level general guidance that reflects the complex law on public benefit that has accumulated over the years and which was exhaustively reviewed in the Decision on the ISC Case.

It also clarifies that "having regard" to these guides in practice means that charity trustees Must

be aware of the guidance (and its contents) take it into account when making any decisions to which it is relevant; and if they decide to depart from it, have good reasons for doing so. PB1 on the public benefit requirement now divides its guidance into two 'aspects' of the requirement and then describes both the 'public aspect' and the 'benefit aspect' in some detail.

The more technical analysis of the previous guidance has been swept away in favour of an explanation of when a purpose can be described as...