Guidance

Dissatisfied with one of the Charity Commission’s decisions: how can we help you?

Updated 7 March 2024

Applies to England and Wales

1. Introduction

In the course of its day-to-day work, the Charity Commission makes regulatory decisions relating to the exercise of its functions and use of its powers.

This guidance tells you what you can do if you are unhappy with one of the Commission’s decisions and want to apply to the First-tier Tribunal (Charity) or ask the Commission to undertake a review of its decision.

It also sets out how you can comment on, or make representations about, draft Charity Commission schemes.

1.1 What is a decision?

The Charities Act 2011 sets out a range of powers that the Commission can use to enable it to fulfil its statutory objectives to:

• increase public trust and confidence in charity
• promote awareness and understanding of the public benefit requirement
• promote compliance by charity trustees with their legal obligations to exercise control and manage the administration of their charity
• promote the effective use of charitable resources
• enhance the accountability of charities to donors, beneficiaries and the general public

Under the Act the Commission has a range of powers to:

• make decisions, including decisions about whether or not to register charities
• give advice and guidance and directions, which direct charities to take certain actions
• make orders or schemes
• exercise powers of investigation

Decisions include, but are not limited to, making:

Directions

Directions are actions specified of charity trustees and others in the administration of a charity. They may be used during the course of our compliance work and to ensure the proper administration of a charity.

Schemes

Broadly speaking, a scheme can change or replace the trusts of a charity. However, some types of schemes do other things (such as creating a Common Investment Fund).

Orders

Orders can be used in many circumstances; they can authorise trustees to do something that their trusts don’t otherwise allow, or to do something which is in the interest of the charity (such as transfer property to the Official Custodian). They can also be used to appoint trustees and to protect charities and their property.

Where the Commission has made a scheme or an order it may only be able to set it aside if it was made by mistake, or as a result of a misrepresentation, or the relevant requirements of the Charities Act were not carried out. For other types of orders, such as protective orders, the Commission must review the order at intervals and discharge it if it is no longer needed.

Some decisions are decisions not to do something, for example not to register a charity, not to give consent or not to exercise a legal power.

1.2 Decisions - the Commission’s commitment to you

The Commission is committed to making decisions which, taking into account the facts and circumstances of the case, are:

• legally correct
• fair
• proportionate
• consistent

The Commission aims to get its decisions right first time on every occasion, but it knows that sometimes it can make decisions which those who may be affected by the decision disagree with.

If you consider that the Commission has got its decision wrong, you may request that the decision is reviewed through the Commission’s decision review procedure. It will not carry out a review in all cases but this guidance sets out its policies and procedures.

1.3 Challenging a decision of the Commission

Many of the Commission’s decisions can be challenged through its decision review procedure. They may also be challenged directly through the First-tier Tribunal (Charity), which is referred to in this guidance as ‘the Tribunal.’

The law allows only certain types of decisions to be challenged through the Tribunal. However, if it is not possible for you to challenge the Commission’s decision through the Tribunal, you may still be able to challenge it through the Courts.

There is no requirement that you engage the Commission’s decision review procedure before appealing to the Tribunal. You may approach the Tribunal direct.

1.4 The Commission’s decision review service

The Commission is committed to making its procedure a quick, easy and cost-effective way for you to challenge its decision. If it agrees to conduct a review, it will reconsider the original decision to determine whether it is legitimate and justifiable within the facts and circumstances of the case. At the end of the review the Commission will clearly explain its decision and what further action, if any, it will take. The Commission also undertakes to apply learning from reviews conducted.

An advantage of using the Commission’s procedure is that it does not affect your right to take your concerns to the Tribunal. However, you should consider whether asking for a decision review will take you outside of the time limit within which you can make an application to the Tribunal.

If you are unsure if a decision review will disadvantage you in this way, please contact us.

The Commission will not usually review a decision itself once you have referred it to the Tribunal.

Read further information below, including how and when to apply for a decision review.

1.5 Standards of service and Freedom of Information

If you are unhappy about the way in which the Commission has handled your case, or you feel that you have not received the service which you were entitled to, you can complain to the Commission. A member of staff will look into your complaint.

This guidance also explains what to do if you want to complain about the response you have received from the Commission to a Freedom of Information Act request.

2. First-tier Tribunal (Charity)

The Tribunal is an independent legal body which has the power to look again at some of the decisions made by the Commission and to quash, change or add to them. In some cases the Tribunal may direct the Commission to take further action or rectify its decision.

An application to the Tribunal must be received by the Tribunal within 42 days of the date on which the notice of the Commission’s decision was sent to you. If you are not the subject of the decision, an application must be received by the Tribunal within 42 days of the date on which the decision was published. Weekends and bank holidays are included in the 42 days.

There are some limitations about which types of decision can be considered by the Tribunal and who can apply. Decisions which may be considered by the Tribunal, and who can apply, are listed in Schedule 6 of the Charities Act 2011 You can use the table in Annex A to check if the decision you disagree with may be considered by the Tribunal.

You do not need to use the Commission’s decision review procedure before applying to the Tribunal, but you may wish to consider the advantages and disadvantages of using its decision review process before doing so.

It is free to make an application to the Tribunal. If you decide to take professional advice to help with your application you will have to pay your own costs. However, details about pro bono (free) advice can be found on the Tribunal website.

The Tribunal has a power to make a costs order if it concludes that a party has acted unreasonably in bringing, defending or conducting the proceedings, or if it considers that the Commission’s decision, direction or order was unreasonable.

If you pay for professional advice or are concerned about costs that might otherwise be incurred as a result of bringing proceedings before the Tribunal, it may be possible to apply to the Tribunal for an ‘authorised costs order.’

An authorised costs order is an order made in respect of proceedings brought, or proposed to be brought, before the Tribunal or on appeal from it.

An application for an authorised costs order can be made by either the charity or the charity trustees.

If your application is successful, an authorised costs order will authorise payment out of the charity’s funds of costs incurred (or to be incurred) in connection with proceedings brought by:

• the charity
• its charity trustees, or
• any other person

so far as the charity or its trustees are ordered by the Tribunal or the court hearing the appeal to bear them.

For further information about the Tribunal, or on how to apply for an authorised costs order, please see the Tribunal website or contact the Tribunal.

3. Requesting a review of one of the Commission’s decisions

This section tells you how to ask for a review of one of the Commission’s decisions and how it will handle your application.

Use this procedure if you have recently been notified of a decision that the Commission has made and you wish it to be reviewed.

3.1 What decisions can be challenged?

A decision is any decision that the Commission makes using its powers as set out in Schedule 6 of the Charities Act 2011.

You can use the Commission’s procedure to request a review of:

• any decision which is set out in Schedule 6 (see Annex A and
• any decision to exercise a legal power which is not listed in Schedule 6
• a protective order that the Commission has not discharged or varied

Exceptions to this rule are:

• that the Commission will not offer a review of a decision to grant consent to a charity (whether the type of consent granted is listed in Schedule 6 or not). This is because the Commission is not able to quash or set the decision aside as it has no statutory authority to do so. Once consent is given, only the Tribunal or Court can overturn it (depending on the nature of the consent)
• decisions to refuse consent to an audit dispensation do not fall within the decision review process as they are subject to a separate review procedure
• decisions to refuse consent related to s.115, such requests are dealt with in paragraph 5.39 of Charities and litigation: a guide for trustees (CC38)

In addition, the Commission will usually refuse to conduct a review where:

• the decision has already been subject to a decision review or has been made after detailed consideration at a senior level (this will usually be notified to you at the time the decision is sent)
• the decision is not one which falls within the type of decisions which can be reviewed (see above)
• the applicant is not a person entitled to request a decision review
• there is a more appropriate procedure available for dealing with the issues raised (for example our complaints process)
• where the matter is subject to ongoing litigation proceedings
• on an initial look at the application the Commission is satisfied that the decision made is correct and a review would serve no real purpose

If your request for decision review is declined, you may still be able to challenge the original decision in the Tribunal or the Courts.

The Commission may also, at its discretion, agree to review decisions to exercise a legal power which are not set out above but which:

• have a significant impact on a charity or its beneficiaries
• are likely to be challenged in the Courts (for example through judicial review), or
• are of significant public interest

3.2 Who can ask for a decision review?

The Commission will only normally accept an application for a decision review from someone who is eligible to apply to the Tribunal. You can use the table in Annex A to see if you are eligible to request a decision review.

An advocate or representative may request a decision review on your behalf, but if they are not a professional representative such as a lawyer, the Commission may need to ask you for written confirmation that they are acting on your behalf.

If the review is not of a matter which is capable of challenge in the Tribunal, the Commission will use its discretion whether to undertake the review and usually only accept an application for review from:

• the charity (or its trustees)
• the subject of the decision, or
• any person who has a ‘sufficient interest in the matter to which the application relates’

When considering whether a person has a sufficient interest in the matter to which the application relates, the Commission will apply the same test used by the Courts.

3.3 Protective orders

Some orders that the Commission makes to protect a charity will be discharged when no longer needed. For example, an order appointing an interim manager, suspending a trustee or freezing a charity’s assets. It is a legal requirement that the Commission reviews these orders on a regular basis.

Protective order reviews are automatically carried out by the relevant Charity Commission team. The Commission will write to the charity to let it know the outcome on every occasion.

If you are unhappy with the outcome of one of the Commission’s protective order reviews, you can ask it to review its decision. In the first instance, the team will look at your application to decide if circumstances have changed and the order should be discharged or varied. If the order is not discharged or varied, the Commission will initiate a decision review.

3.4 How to request a decision review

You may challenge some of the Commission’s decisions directly through the Tribunal. You do not need to use the Commission’s own decision review procedure before applying to the Tribunal.

However, the Commission will not usually review a decision itself once you have referred it to the Tribunal or the Courts.

Apply here to ask us to review a decision we’ve made.

Be sure to:

• identify the specific decision you wish to challenge and the date of the decision
• tell the Commission why you think its decision is wrong
• provide the Commission with any new information or evidence you have that may help it when the decision is reviewed (you do not need to resend information already provided)
• tell the Commission why a different decision is in the best interest of the charity
• tell the Commission what your interest is in the charity and your connection to it

Requests need to be in writing so that the Commission has a full and accurate understanding of the decision you want it to review. If for any reason you cannot apply in writing, please contact us as soon as possible and a member of the team will help you.

3.5 Time limits

You should apply for a decision review within 3 months of the date on which the notice of the decision was sent to you.

If you are not the subject of the decision, an application should be made within 3 months of the date of publication of the decision.

If, for any reason, you are unable to apply for a decision review within the time limit, tell the Commission as soon as possible. In exceptional circumstances it may be able to extend the time limit. You will need to let the Commission know why you need more time so that it can decide whether it is possible to give you an extension.

3.6 What happens next?

Once the Commission has received your application it will start the formal process to consider your application for review.

Step 1 – eligibility

We will check:

• whether the decision can be reviewed
• whether you qualify as a person who meets the eligibility criteria
• whether there are any reasons why the review should not go forward

The Commission aims to complete this stage within 10 working days.

Step 2 – decision review

If accepted for review the Commission will then appoint someone to review the decision. This will not be the person who made the original decision.

All reviews are ordinarily carried out by a member of the Commission’s staff. Some are conducted by a single reviewer. The seniority of the people involved varies from case to case and is dependent on the nature of the decision to be reviewed and the level at which the original decision was made.

You may, at the reviewer’s discretion, get the chance to speak to the reviewer to ensure that they have a clear understanding of the facts and issues. Or the reviewer may contact you to clarify anything that is not clear in the information you have provided.

You do not have to speak to the reviewer if you do not wish to.

The amount of time a review takes can vary a great deal, depending on the characteristics of the case and its complexity. The Commission may also need to speak to the trustees or other parties who have information or whose views it is necessary to take into account before a decision is reached. It aims to complete this step within 3 months of receiving your completed application, but in many cases the Commission is able to complete its reviews more quickly. The Commission will tell you at the outset how long it thinks the review will take and will let you know if that timescale changes.

Step 3 – the decision

The reviewer will take into account all of the information that they have to decide whether the original decision was correct or whether it should be changed or discharged either in full or part.

You will receive a written response with the outcome and the reasons.

Step 4 – outcome

When the Commission reviews decisions, it may decide that:

• the original decision was correct and appropriate in the circumstances, or
• the original decision should be changed or discharged, either in full or in part

The Commission may decide to change or discharge its decision, in full or in part. This does not necessarily mean that it was wrong; circumstances may have changed or new information come to light which has changed the Commission’s perspective.

If the Commission decides that its decision will be varied or discharged, it will let you know what steps are required and what action it will take; these are usually taken forward by one of the Commission’s case-working teams.

Very occasionally, the Commission may decide that further work is needed before it can make a decision. If this is the case, it will refer the case back to the original case-working team who will, once their work is completed, pass the case back to the reviewer to make the final decision.

3.7 Application to the First-tier Tribunal (Charity)

If you are dissatisfied with the Commission’s decision at the end of the review, you may, depending on the decision reviewed, be able to apply to the Tribunal. Your application should be made to the Tribunal within 42 days of the date on which the notice of the Commission’s decision was sent to you. If you are not the subject of the decision, you have 42 days from the date when the decision was published. In both cases weekends and bank holidays are included in the 42 days.

If the outcome of a decision review cannot be viewed as a fresh decision, the 42 day period will run from the date of the publication of the original decision.

Consequently, if you wish to have the decision reviewed by the Commission and this is likely to take the period beyond 42 days you are advised to make a protective application to the Tribunal and ask for it to be stayed while the Commission conducts its decision review. With those protective orders falling within paragraph 3.3, a further opportunity for appeal or review will arise as a result of any internal periodic review as referred to in that paragraph.

Decisions which may be considered by the Tribunal, and who can apply, are listed in Schedule 6 of the Charities Act. You can use the table in Annex A to check if the decision you disagree with may be considered by the Tribunal.

3.8 Publishing decision review outcomes

The Commission’s decision reviews often have a wider interest and may have far-reaching consequences for charities in general. For this reason the Commission may publish a summary on gov.uk. In some cases it will also publish the whole decision document if it thinks that it will serve a public interest.

4. Representations about draft schemes

The Commission can make schemes for a charity. Schemes are legal documents. We do not often make schemes but when we do, we can give public notice to the scheme before it comes into force. This section is about what happens when we receive representations about draft schemes.

Anyone can make a representation about a draft scheme. The Commission will consider all representations made within the time limit specified in the notice, which is usually one month.

4.1 What happens after the public notice period comes to an end

If the Commission does not receive any representations, it will usually authorise the scheme the first working day after the publication period has ended.

Where we receive representations, the relevant team will consider them and how best to deal with the issues raised.

If it is considered that the representations can be dealt with informally, we will do this. If it is not possible to deal with representations informally, the Commission will carry out a review of the representations using its decision review process. It will tell you if it decides to do this.

4.2 Decision review

The Commission will appoint someone to complete the review. This person will not be the person who made the original decision to draft a scheme.

If the reviewer needs to check that they have understood the points raised, they may contact those who made representations. You do not have to speak to the reviewer if you do not wish to.

Before making their decision, the reviewer may also need to speak to the trustees of the charity and/or other parties who may have relevant information or whose views are important to take into account.

The Commission aims to complete the review within 3 months of the end of period of public notice.

You will be informed of the outcome of the decision review, the reasons for it, and the next steps.

There are several possible outcomes. The Commission:

• may decide to authorise the scheme without making any changes. This will usually happen the next working day after the decision is made
• may decide to authorise the scheme after making some changes to it. It can make these changes without a further publication period. However, if it thinks it would be helpful, it will publicise the changes for a further publication period and you will have the chance to make further representations
• may decide that further work is needed before it can make a decision
• may decide not to go ahead with the scheme. This may be because the circumstances have changed or the Commission has new information which has changed its view

4.3 Application to the First-tier Tribunal (Charity)

If you are dissatisfied with the Commission’s decision at the end of the review, you may be able to apply to the Tribunal. You should make your application to the Tribunal within 42 days of the date on which the notice of our decision was sent to you. If you are not the subject of the decision, you have 42 days from the date the decision was published. In both cases weekends and bank holidays are included in the 42 days.

Decisions which may be considered by the Tribunal, and who can apply, are listed in Schedule 6 of the Charities Act 2011. You can use the table in Annex A to check if the decision you disagree with may be considered by the Tribunal.

Where you do appeal to the Tribunal, the 42 day time limit starts from the date the scheme is made. The action that you can appeal is the fact of the scheme being made, not the decision to make the scheme (though these will usually happen at the same time).

4.4 Publishing outcomes

These type of decisions often have a wider interest and may have far-reaching consequences for charities in general. This is why the Commission may publish a summary of its decisions, and in some cases the whole decision document, on GOV.UK.