OG 736-1 Decision Reviews

Last reviewed:
1 July 2014
Last updated:
12 February 2016

Policy Statement/Overview

The Commission aims to get its decisions right first time on every occasion, but we know that sometimes we will make decisions which a charity or person affected by our decision disagrees with. This is when a decision review might be appropriate. The decision review process provides the Commission with the opportunity to reconsider its decisions to ensure that those decisions are well founded and further the Commission’s statutory objectives in a way that is consistent with its general duties. The decision review process is intended to produce decisions which the Commission is content to defend.

Summary of the guidance

This guidance provides information about the decision review process and explains the procedures for staff involved in dealing with decision reviews. The series sets out:

  • What types of decisions can be reviewed under the decision review process
  • Who can request a decision review and how they can make their request
  • How the Commission will conduct a decision review
  • The outcomes and remedies which may result from a decision review
  • The alternative remedies which might be available to applicants
  • How we obtain and use feedback to monitor performance and improve our services

 

Index to further related information

OG Contents (Site map)

Casework Guidance

B1 What is a decision review and what are the key points I need to know?

 

B1.1 What is a decision review?

A decision review is a reconsideration of the original decision, wherever possible by a more senior colleague, and will result in a final decision being made. The decision review process enables the Commission to make its final decision using all the existing relevant information held and any new information and legal advice received during the procedure. The review is not limited to the reasons given by the applicant, but the points raised by the applicant should be considered.  

A decision review is intended to be a thorough reconsideration of the decision to ensure that the Commission’s final decision is robust and one which the business is satisfied with.

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B1.2 Which decisions can be reviewed?

The Commission would like the opportunity to reconsider its decisions again before they are considered by the Charity Tribunal. Therefore, all decisions which can be subject to review by, or appeal to, the Charity Tribunal are eligible for the decision review process. These are the decisions which are set out in Schedule 6 of the Charities Act 2011 

Conscious decisions to exercise or not to exercise a legal power which are not listed in schedule 6, for example a decision not to make a scheme or not to open a statutory inquiry, or a decision to make an order are also eligible for review.

The only 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 we are not able to quash or set the decision aside as we have no statutory authority to do so. Once the consent is given, only the tribunal or court can overturn it (depending on the nature of the consent). 

In addition, decisions which do not fall into any of the categories above may be eligible for the decision review process, particularly if the decision:

  • has a significant impact on a charity or its beneficiaries;
  • is likely to be challenged in the Courts (e.g. through judicial review); or
  • is of significant public interest.

 

The decision review process is also applied to reviews of representations received in response to the publication of a draft Order or Scheme.

Further guidance about the types of decision which are eligible for decision review can be found under the Legal/Policy Framework tab.  

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B1.3 Who can request a decision review?

We will usually only accept an application for a decision review of a decision set out in Schedule 6 from someone who is eligible to apply to the Charity Tribunal. The persons who are eligible are set out in column 2 of the table in Schedule 6. 

If the decision is not one that is included in Schedule 6, the following people are eligible to request a decision review:

the charity trustees;

  • (if it is a corporate body) the charity itself; or
  • any other person who is or may be affected by the decision.

 

stopWhen considering who is eligible for a decision review, it is important to consider the existing law and any rulings made by the First-tier Tribunal (Charity) on who is a 'person affected' by a decision of the Commission. There have been contrasting rulings by the First-tier Tribunal and an appeal is pending before the Upper Tribunal (judgment expected mid 2016) that may clarify the approach that should be taken to who is a 'person affected'.

lawyer_referLegal advice should be obtained where there is any doubt about whether the applicant has sufficient standing 

We will also usually conduct a decision review if the applicant is someone who has made representations in response to the publication of a draft Order or Scheme.

An advocate or representative may request a review on an applicant’s behalf, but if they are not a professional representative such as a lawyer, we should ask the applicant for written confirmation that they have appointed an advocate or representative to act on their behalf.

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B1.4 Decisions which will not be considered under the decision review process

Upon receipt of a request for a decision review, the Review and Litigation Manager will check whether the application falls within the decision review procedure. We may decline to conduct a decision review if:

  • the decision we are being asked to review has already been subject to a decision review or the decision has received detailed consideration at a senior level;
  • the decision is not one which falls within the type of decisions which can be reviewed (see section 2 above);
  • the applicant is not a person entitled to request a decision review;
  • an initial assessment indicates that the decision made was correct and that a review would serve no real purpose;
    • 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.

 

In circumstances where it seems likely that we will decline to conduct a review, the Review and Litigation Manager should discuss the case with relevant SMT members and legal advisors.

If an applicant has also made an application to the Charity Tribunal or to the Courts (for example for judicial review) we will usually decide not to review the decision ourselves and may abandon a review if it has been started unless the applicant agrees to stay the judicial proceedings whilst the review is completed.

If we decide not to conduct a decision review or abandon the review for these reasons, it is the responsibility of the Review and Litigation Manager to explain the reasons to the applicant (or the responsibility may be delegated to a relevant officer).

In all cases, if we decline to conduct a decision review, we should explain our reasons and any alternative remedies which might be available to the applicant.

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B1.5 What are the time limits for requesting a Decision Review?

We will accept requests up to a maximum of 3 months after the original decision. The 3 months will be calculated from the date of the written notification to the applicant regardless of whether it is sent by email or post.

In exceptional circumstances and where we think it would be fair to do so, we will accept requests for a decision to be reconsidered outside the 3 month time limit. We would need to understand the reason for the delay and consider any compelling reasons why we should accept requests outside of the time limit. Examples of reasons include:

  • there may be a proven delay in the applicant receiving written notice, for example as a result of a postal strike;
  • for charities without permanent staff they cannot access legal advice within the timeframe;
  • the applicant or a close relative may have been seriously ill in hospital; or
  • religious celebrations or festivals mean that the applicant is unable to respond within the time limit.

 

The Review and Litigation Manager is responsible for deciding whether or not to accept an application for a Decision Review outside of the time limit, taking legal advice as appropriate.

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B1.6 Our approach to decision reviews

Fairness will usually require that the decision review process set out in this OG should be followed carefully. 

However, on occasion, it may be appropriate to adopt a different approach. For example, where a request for a decision review is supported by significant relevant material and argument that was not provided to the original decision maker, it may be more expedient in the circumstances of that case for the original decision maker to consider the new information afresh.  

Our published guidance for service users gives the Commission flexibility to consider first whether a decision review is the appropriate course of action in the circumstances. The Review and Litigation Manager will consider whether an alternative course of action is fairer in the circumstances of the case. Relevant considerations should include:

  • the extent of any additional evidence or arguments not previously considered;
  • whether the request for review is in fact a request for a new decision;
  • whether the request for review is a complaint about the service provided rather than the decision made;
  • whether the applicant has commenced legal proceedings in relation to the decision in the Court or Tribunal.

 

A proposal to depart from the procedures set out in this OG must be explained to the applicant and the reasons for doing so must be recorded.

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B1.7 Who is responsible for the decision review?

The Litigation & Review Team is responsible for the effective management and administration of decision reviews and Board level decisions. Responsibility for conducting the case and ensuring its satisfactory and timely conclusion rests with the decision reviewer or the chair of the review panel conducting the review.

The timescales for conducting a decision review are very tight. If you are asked to participate in a decision review, it needs to be one of your top priorities. If you know that you are going to be taking leave during the decision review period which will interfere with your ability to carry out your part of the process, you should let the Litigation and Review Team know as soon as possible so that alternative arrangements can be made.

If you are unsure about any of the steps in the process, you should check with the Litigation and Review Team.

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B2 Our processes for conducting a decision review

 

B2.1 Is the same procedure used to review all types of decision?

No.  Although there are some common aspects within our processes, because there are so many different types of decision which we can take, we have separate procedures to review certain types of decision. These are:

 

Flowcharts showing the procedure for each type of review can be found under the Charts tab. The following sections explain how different types of decision reviews are conducted.

Service users seeking a decision review should read the guidance on our website about the Decision Review service.

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B2.2 Reviews of representations made in response to the publication of a draft Order or Scheme

 

What is a representation?

A representation is any comment made in writing in response to the publication of a draft Order or Scheme within the time limits of the publication period. A representation can include comments in favour of making the Order or Scheme or object to it.

 

Who can make a representation?

Anyone can make a representation following the publication of a draft Order or Scheme.  A decision review will consider all representations made within the time limits of the publication period specified in the notice.

Representations can be made by an advocate or person acting on the applicant’s behalf, but if they are not a professional representative such as a lawyer, we should ask for written confirmation that they are acting on the applicant’s behalf.

 

How the review of representations will be conducted

If representations are received in response to the publication of a draft Order or Scheme, the case working division will set up a new case and send an acknowledgement to the applicant(s).

 

  • Initial considerations

At the end of the publication period, the case working division that is making the Order or Scheme will look at all the representations to decide if they can deal with them informally. In most cases a decision review will be the most appropriate course of action, but there may be circumstances that merit a different course of action, for example if it is clear to us that further work will be needed before the draft Order or Scheme could be approved.

If the case working division decides that changes are required to the draft Order or Scheme, consideration must be given to whether the trustees should be consulted about the proposed changes and if further publication is appropriate.

If it is not possible to deal with representations informally, a decision review will be conducted.

 

  • Decision Review

If the representations cannot be dealt with informally, or attempts to deal with them informally fail, the case working division will assign the case to the Litigation & Review Team to conduct a decision review. The Review and Litigation Manager will then arrange for a Decision Review to be conducted in accordance with the decision review procedure explained in sections 9 - 11 below.

The reviewer in representation cases will usually be a more senior member of the team which initially dealt with the case. As such, whilst Legal SMT and other relevant staff members will be notified of the review, the Review and Litigation Manager will liaise directly with the head of the relevant function to nominate a reviewer.

 

Outcomes

There are four possible outcomes following a review of representations received in response to the publication of a draft Order or Scheme:

      • The Order or Scheme is authorised without making any changes. The Order or Scheme will ordinarily be authorised no later than the working day following the date of the final decision.
      • The Order or Scheme is authorised after making some changes. In most cases the Order or Scheme will be amended by the reviewer or the lawyer advising the review panel, but in some cases this task may be delegated to another officer or the case working division which proposed to make the Order or Scheme. The Order or Scheme will ordinarily be authorised within 3 working days of the date of the final decision.
      • The reviewer or review panel may decide that further work is needed before a decision can be made. In most cases the case working division which proposes to make the Order or Scheme will be asked to undertake the further work and refer the matter back to the decision maker(s) for a final decision. In some cases, the further work will be conducted in Legal Services under the management of the Litigation & Review Team. 
      • A decision is taken not to make the Order or Scheme.

 

The final decision is the end of the decision review process. If the applicant is not satisfied with the decision reached, their next step will be to proceed to the Charity Tribunal, or to the Courts if the decision is not one which can be considered by the Tribunal.

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B2.3 Reviews of temporary protective Orders

 

What is a temporary protective Order?

Orders that we make to protect a charity under section 76 of the Charities Act 2011 are temporary and will be discharged when no longer needed. For example, an Order freezing a charity’s assets under section 76(3)(f) or appointing an Interim Manager under section 76(3)(g).  Under section 76(6) we are legally required to review these temporary Orders on a regular basis. 

 

Temporary protective Order reviews

Temporary protective Orders are usually made in our Investigation & Enforcement Division and reviews are automatically carried out in accordance with divisional procedures.

Each time a temporary protective Order is reviewed a fresh decision will be made about whether the temporary protective Order should remain in place, be amended or be discharged. The 3 month deadline for requesting a review of a temporary protective Order will start from the date the Order was made or the date of the section 76(6) review, whichever is the later.

 

  • Initial considerations

If we receive a request to review a temporary protective Order, the division which made the Order will look at the application to decide if circumstances have changed and the Order should be discharged or varied. If the Order is not discharged or varied, a Decision Review will be conducted.

 

  • Decision Review

If the temporary protective Order is not varied or discharged, the case working division will assign the application to the Litigation & Review Team to conduct a Decision Review. The Review and Litigation Manager will then arrange for a Decision Review to be conducted in accordance with the standard decision review procedure explained in sections 7 - 10 below. 

A Decision Review of a temporary protective Order is a review for the purposes of section 76(6) of the Charities Act 2011.

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B2.4 Reviews of decisions to register an organisation

Under section 319(1) and Schedule 6 of the Charities Act 2011 an appeal may be brought to the First-tier Tribunal (Charity)

      •  (a) against a decision to enter or not to enter an institution in the register of charities under section 30 of the 2011 Act; or
      •  (b) against a decision to remove or not remove an institution from the register made under section 34 of the 2011 Act.

 

Such appeals may be brought by

(1) the charity trustees (or those who would be charity trustees if it was registered)

(2) if a body corporate, the institution itself and

(3) a person who is or may be affected by the decision.

Under section 36 of the Charities Act 2011, any person who is or may be affected by the registration of an institution as a charity may, on the ground that it is not a charity, apply to the Commission for it to be removed from the register.

The Commission’s view is that the requirements to be a person who (i) is or may be affected by the decision to enter an institution on the register or (ii) is or may be affected by a decision not to remove an institution from the register are the same as the requirements to be a person who is or may be affected by the registration of an institution as a charity.

If someone asks the Commission to review its decision to enter an institution in the register of charities, this application should only be accepted if the person is a charity trustee or is the organisation itself (where this is a corporate body) or is a person who is or may be affected by the registration. It is important to note that in such cases the acknowledgement of the request should make clear that we can only deal with such a request from a person who is or may be affected by the registration of the organisation as a charity. Any correspondence with the applicant should only be about whether they have standing to make the request.

 

stopWhen considering who is eligible for a decision review, it is important to consider the existing law and any rulings made by the First-tier Tribunal (Charity) on who is a 'person affected' by a decision of the Commission. There have been contrasting rulings by the First-tier Tribunal and an appeal is pending before the Upper Tribunal (judgment expected mid 2016) that may clarify the approach that should be taken to who is a 'person affected'.

lawyer_referBefore responding to the request or corresponding with the applicant in any way the decision maker should seek the advice of the Legal team to determine whether the applicant has standing to make the application, that is whether they are “affected by the registration of the institution as a charity”. There is no direct authority on what counts as being “affected by the registration” however case law suggests that a person who is no more affected by the decision than any other member of the public will not be a person “affected by” the decision.

 

If the Legal team confirm that the applicant has sufficient standing then the decision maker should consider in the usual way whether the decision to enter the organisation in the register of charities should stand or whether the charity should be removed from the register.

If the applicant has standing but, after considering the application, we decide not to remove the institution that decision would not be subject to further decision review.

If the Legal team confirm that the applicant does not have standing to make the request then this should be confirmed to the applicant. A decision will then be made as to whether the Commission will look into any of the issues raised under its own powers. The original applicant should not be sent any details of any investigations undertaken by the Commission under its own powers.

Where the applicant does not have standing, no details of a decision not to remove should be sent to the applicant. The only decision communicated should be that they are not a person affected. The decision that a person is not a person affected will be subject to decision review under the usual decision review considerations at B2 section 6.  If we subsequently made a decision not to remove a charity and the applicant found out about this she or he could appeal to the Tribunal against the decision not to remove (and it would be up to the Tribunal to decide whether that person has standing). There is no specific appeal to the Tribunal against a decision that a person is not a person affected although it is possible that arguments may be presented that such a decision where the charity in question remains on the register amounts to a decision not to remove.

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B2.5 Reviews of all other types of decisions

All other requests for a decision review will be conducted in accordance with the decision review procedure explained in the following sections.

The Decision Review procedure has 5 distinct steps:

  • Step 1 - Assessing eligibility
  • Step 2 - Risk assessment
  • Step 3 - The Assessment Group
  • Step 4 - The decision review
  • Step 5 - The final decision

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B2.6 Step 1 - Assessing eligibility

After any initial considerations have been completed, the application for a Decision Review will be considered by the Litigation & Review Team. 

The first step is to check whether the decision that the applicant wants reviewed falls within our procedure and is suitable for review. This initial decision about eligibility will be made by the Review and Litigation Manager, after taking appropriate advice from the Head of Legal Policy and Litigation.

The second step is to consider whether the applicant has standing to request a review as either the subject of our decision or a person who is affected by it. In straightforward cases this decision will also be made by the Review and Litigation Manager, after taking appropriate advice from the Head of Legal Policy and Litigation.

In most cases, these steps will be completed within 2 working days. 

Where the issue of standing is not clear cut, the decision as to whether the applicant is a person affected by the decision will be made by the reviewer who should take advice from the nominated advising lawyer. As such, this step will then be completed after the application has been considered by the Assessment Group (step 3).

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B2.7 Step 2 - Risk assessment

The Review and Litigation Manager will undertake a risk assessment in accordance with the Commission’s Risk framework.

The Review and Litigation Manager might ask the original case officer or decision maker for a summary note before completing the risk assessment.  In most cases, the summary note should include:

      • a background of the issues leading to the original decision being made;
      • the reasons why the decision was made and what alternatives were considered;
      • which documents or authorities were relied upon to make the decision;
      • which part of the Charities Act 2011 the original decision was made under; and
      • who made the original decision.

 

The outcome of the risk assessment will influence the depth of the review conducted.

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B2.8 Step 3 - The Assessment Group

The Review and Litigation Manager will be responsible for writing a briefing note for the Assessment Group which highlights the background to the case, the decision to be reviewed and any key risks which have been identified. The briefing note should also contain recommendations for how the review will be conducted and by whom.

The Assessment Group consists of the Commission’s Chief Legal Adviser and the SMT member of the business area within which the original decision was made. If the original decision was made in one of the Operations Teams, the Assessment Group will consist of the Chief Legal Adviser and the Operations SMT members. The Board and Governance Manager should be informed if Board members are likely to be involved in the Decision Review. 

The Assessment Group will appoint a reviewer or recommend a review panel which may, where appropriate, include one or more Board members. Unless exceptional circumstances apply, the reviewer should be a more senior staff member in the same business area as the original decision maker. If one or more Board members are to be appointed, then the Assessment Group can recommend which Board member(s) are nominated, but the recommendation must be agreed by the Chair of the Commission.

All decision reviews will require legal advice. The Chief Legal Adviser will decide who the advising lawyer will be.

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B2.9 Step 4 - The Decision Review

The decision reviewer is responsible for conducting the decision review with the assistance of advice from the advising lawyer. At the outset of the review, the lawyer should expressly advise about the legal framework if it is a review of a decision which is limited by section 337 or the review is contentious, high risk or otherwise high profile.

To ensure that the procedure is as fair as possible, the original decision maker is not able to determine the outcome of the Decision Review.  However, they may be asked to attend meetings or provide information to help the process, for example by highlighting which documents were relied upon in the original decision.

The Litigation & Review Team will advise the applicant of the likely timeframe and who is conducting the review. In most cases, if the applicant is not the charity or the charity trustees, it will be necessary to inform the charity trustees about the review. The Review and Litigation Manager will decide, in consultation with the reviewer or review panel members, if it is not appropriate to notify the charity trustees about the decision review.

In most cases, the Litigation & Review Team will send a delegation memo to the reviewer or review panel members, copied to the advising lawyer. The delegation memo will contain instructions for conducting the review and details of relevant cases and information relating to the review, including the scope of the review. In low and medium risk cases the review will not usually be a full reconsideration of the matter but an examination of our application of the law to the facts of the case to ensure the decision is one that the Commission is happy to defend.

The Litigation & Review Team will monitor the progress of the decision review case and provide an ad-hoc administrative support service to reviewers and review panel members as resources allow. The Litigation & Review Team is also responsible for keeping applicants and, where relevant, charity representatives informed about the process and timescales.

 

Board level decision reviews

Decision reviews involving Board members are handled slightly differently. To ensure that Board members can participate in the Decision Review within the relevant timeframe, the Litigation & Review Team will liaise closely with the Board and Governance Manager to identify suitable panel meeting dates.

The Litigation & Review Team is responsible for preparing the paperwork for the panel in consultation with the advising lawyer. The advising lawyer is responsible for drafting the review papers which includes an agenda and a decision tree where appropriate. 

The agenda needs to be detailed and have cross references to the decision tree so that the panel are led through the decision. The level of detail and information needed will be dependent on the circumstances of the case and the level of expertise of the panel members.

A meeting of the panel will be arranged by the Litigation & Review Team. The panel chair will lead the meeting, ensuring that all information is considered and the agenda followed. The advising lawyer should keep an aide-memoir of the discussion to assist in writing the decision. It is usual practice to hold the oral component (if applicable) during the panel meeting.

Following the panel meeting, the chair of the panel will decide whether a further panel meeting is needed or if the decision can be agreed by email. Further meetings will be arranged by the Litigation & Review Team on an ad-hoc basis.

The Litigation & Review Team will monitor the progress of the decision review case and provide an ad-hoc administrative support service to the advising lawyer and panel members as required.

 

What if further information is needed before a decision can be made?

After the first read through of the papers, the decision reviewer or panel members may be able to identify where further information is required.  The decision reviewer is responsible for obtaining any relevant additional information themselves, although the Litigation & Review Team may be able to help as part of the ad-hoc administrative support service. The responsibility rests with the advising lawyer for Board level reviews and the chair of the panel should initiate this by email. 

The correspondent should be given 14 days to reply.

 

The oral component

In cases where the Commission’s decision directly affects the rights of an individual or an organisation (such as a decision to remove a trustee or remove a charity from the register) or imposes obligations on a charity (such as a direction to produce documents or attend a meeting) the applicant will usually be offered the opportunity to speak with the reviewer or panel members as part of the Decision Review procedure. This is an opportunity for the reviewer or review panel members to check that they have understood the points raised by the applicant. It is also an opportunity for the applicant to expand on any points they have made in their written submission, unless the review is considering representations received in response to the publication of a draft Order or Scheme.

In most cases, this part of the review will be conducted by telephone. However, we may decide to offer a face to face meeting if the circumstances mean this is more appropriate. It is the responsibility of the reviewer or review panel members to decide whether the oral component should be held by telephone or face to face and who from the panel should attend. The lawyer should usually be in attendance for all discussions with the applicant, unless this is impractical.

The applicant can be represented legally, but we would usually like to speak with the applicant and not just their legal adviser. However, the process is not intended to be adversarial or a cross examination of their case.

If the applicant is not the charity or one or more of its trustees, the reviewer or review panel should also speak with a charity representative during the Decision Review process.

In all other cases, the applicant will not automatically be offered the opportunity to speak with the reviewer. If, on reviewing the papers, the reviewer feels that the review would benefit from further communication with the applicant or any other person then the reviewer should either telephone or write to the relevant person. When considering whether to contact an individual the reviewer should note that to do so may give the person standing to challenge the decision in the Charity Tribunal as a “person affected” which they may not otherwise have had (see 3.2 below).

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B2.10 Step 5 - The Final Decision

The review process enables the Commission to make its final decision. Therefore the review should usually include looking at all the relevant information available, including the original decision and the legal advice on which it was based. Further information provided during the decision review, including the discussion with the applicant and charity representative(s), if they were spoken to, will also inform the decision.

After taking into account all the relevant available information, the reviewer or review panel should take a decision based on the facts of the available information. 

 

Documentation Relied Upon by the Reviewer When Making the Final Decision

The reviewer should make a note of any documentation they relied upon when reaching their final decision. This may include Commission Guidance, correspondence with the applicant or other parties and other documentation. "Relied upon" does not mean only documents which support the reviewer's decision but should include any documentation which was considered to have information relevant to the review. This note should be saved into the relevant case folder on CeRIS ("supporting papers for Commission decision"). 

 

Decision Notices

A written Decision Notice must be prepared in all cases, which can be in the form of a letter to the applicant or a separate document. The reviewer is responsible for writing the Decision Notice, although this responsibility rests with the lawyer advising the review panel in Board level reviews. The reviewer is responsible for notifying the applicant(s) of the decision, although this may be delegated to the advising lawyer or Litigation & Review Team. If the applicant is a third party and the charity’s representative(s) have been told about the review, a copy of the Decision Notice should also be sent to the charity.

There is no set format for Decision Notices because the circumstances of our decisions can vary so widely. The amount of detail contained in the Decision Notice will depend on the nature of the decision and the risks involved. Decision Notices in higher risk decisions will generally need to explain our decision in more detail than if the decision is low risk.

The Decision Notice should in all cases contain to the following information:

      • A summary of the issues and the nature of the decision being challenged;
      • A summary of the applicant’s case or representations received;
      • The decision;
      • The statutory provisions upon which the decision is based;
      • An explanation of the decision;
      • The name and position of the person who made the final decision;
      • The date of the final decision;

 

If the decision can be challenged in the Charity Tribunal, the Decision Notice must always contain information about how to challenge the decision and the timeframe (see model wording under Model letters & Orders tab). However, this wording may need to be adapted if only part of the decision order or direction can be challenged in the Charity Tribunal (see Policy/Legal Framework section 4).

In contentious, high risk or high profile reviews, the decision notice should be checked with a member of Legal SMT prior to being issued.

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B2.11 Outcomes

There are three possible outcomes of decision reviews (other than reviews of representations following the publication of a draft Order or Scheme): 

      • The original decision is upheld;
      • The original decision is partially upheld or varied;
      • The original decision is overturned.

 

In some cases, it may be necessary to undertake further casework before a decision can be taken. This may be delegated to the original case-working division or to the advising lawyer if the review panel consists of one or more Board members. In such cases, when the further casework is complete, the case papers must be referred back via the Litigation & Review Team to the reviewer or review panel to make the final decision.

The final decision is the end of the decision review process. If the applicant is not satisfied with the decision reached, their next step will be to proceed to the  Tribunal, or to the Courts if the decision is not one which can be considered by the Tribunal.

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B3 Alternative remedies

 

B3.1 How does the decision review process fit with the Applicant Complaints and Feedback process?

The decision review process looks at whether a decision was the right one in the circumstances. By contrast, the applicant complaints process looks at the quality of the service that we have provided in the course of dealing with the case. 

The applicant complaints process offers the option of a two stage review when an applicant disagrees with the final conclusion of the case or the overall direction of the case as it was worked. If it is not clear whether an application for review should be conducted as a decision review or under the applicant service procedure, it is the responsibility of the Review and Litigation Manager, in consultation with the Head of Complaints & FOI, to decide where the case will be allocated.

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B3.2 The First-tier Tribunal (Charity)

The Charities Act 2006 established the Charity Tribunal, the functions of which were transferred to the First-tier Tribunal (Charity) on 1 September 2009 following reforms of the Tribunal system by the Tribunals Courts and Enforcement Act 2007. It is administered by the Tribunals Service, an executive agency of the Ministry of Justice.

For ease of reference, we continue to refer to the First-tier Tribunal (Charity) in this guidance as the Charity Tribunal.

The Charity Tribunal provides an independent route of appeal for charities and other persons who are dissatisfied with some of our decisions. It has the power to quash, change or add to our decisions and in some cases may direct us to take further action or rectify our decision.

It is free to make an application to the Charity Tribunal and an applicant does not need to exhaust our decision review process first. However, there are limitations about which types of decision can be considered by the Charity Tribunal and who can apply. 

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Charts

C1 Flowcharts illustrating the process of reviewing a decision relating to an order or direction of the Commission

 

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C2 Flowcharts illustrating the process of reviewing representations in response to a published scheme or order 

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Legal / Policy / Accountancy Framework

E1 Which decisions can be appealed to or reviewed by the Charity Tribunal?

Schedule 6 of the Charities Act 2011 lists all the Commission’s legal decisions which can either be appealed to or reviewed by the Charity Tribunal.

The following decisions and Orders will be reviewed by the Tribunal rather than treated as an appeal (all other decisions listed in Schedule 6 will be appealable):

  • To institute an inquiry under section 46 with regard to a particular institution;
  • To institute an inquiry under section 46 with regard to a class of institutions;
  • Not to make a common investment scheme under section 96;
  • Not to make a common deposit scheme under section 100;
  • Not to make an Order under section 105 in relation to a charity;
  • Not to make an Order under section 117 in relation to land held by or in trust for a charity;
  • Not to make an Order under section 124 in relation to a mortgage of land held by or in trust for a charity;
  • An Order made by the Commission under section 147(2) in relation to a company which is a charity.

 

This means that the Tribunal will review whether the decision has been made properly by the Commission. It will look at the process rather than the substantive decision taken. Although the Tribunal will decide the case differently, the decision review will not be conducted differently by the Commission.

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E2 What legislation governs the decision review process?

There is no unified statutory provision which authorises the Commission to conduct decisions reviews. The legal basis on which we conduct decisions reviews depends on the nature of the decision in question.

 

E2.1 Interim remedial orders (Temporary Protective Orders)

The Commission can make the following interim Orders under section 76 of the Charities Act 2011: 

  • By Order suspend any trustee, charity trustee, officer, agent or employee of the charity from the exercise of his office or employment pending consideration being given to his removal (whether under this section or otherwise);
  • By Order vest any property held by or in trust for the charity in the Official Custodian, or require the persons in whom any such property is vested to transfer it to him, or to appoint any person to transfer any such property to him;
  • Order any person who holds any property on behalf of the charity, or of any trustee for it, not to part with the property without the approval of the Commission;
  • Order any debtor of the charity not to make any payment in or towards the discharge of his liability to the charity without the approval of the Commission;
  • By Order appoint an interim manager in respect of the property and affairs of the charity.

 

Under section 76(6) these Orders must be reviewed at regular intervals, which is generally every two months. If a request for a decision review is received, it will be considered under the decision review procedure described in section B2 of this guidance. A review conducted under the decision review procedure is a review for the purposes of  section 76(6). The review can consider all the information including new information and is not limited by section 337 (see section 2.2 below).  

Once a decision review of an interim Order has been carried out, if there are no material differences in the circumstances, the next regular review does not need to be carried out under the decision review procedure.  

A person who wanted us to review an order could in principle ask us to do so at any time. Both the original order under section 76(1) and the review under section 76(6) be challenged in the Charity Tribunal.

 

E2.2 Orders (including Schemes)

Our ability to discharge or vary Orders is governed by section 337 of the Charities Act 2011:  

Section 337(4) enables us to discharge an Order (in whole or in part) if it was made by mistake, or on misrepresentation, or not in conformity with the 2011 Act.  This power can only be exercised within twelve months of the Order being made. For practical purposes, an application for review would have to be made well within that time (not least because, usually, the longer an Order is relied upon, the stronger the case will be for not discharging it).  

A decision to discharge an order under section 337(4) is not capable of being appealed in the Charity Tribunal.  

Section 337(6) enables us to discharge or vary an Order by making a fresh Order but only on an application by the trustees under the Order-making provisions of the Charities Act 2011. For example, having made a Scheme, we might subsequently vary it by making a fresh Scheme containing different provisions. We would not need to be satisfied that we had made a mistake etc.  We would need simply to be satisfied that the provisions of the new Scheme were preferable to the provisions that they replaced. There is no time limit in the exercise of this power. However, the longer the original Scheme is in force, the less attractive it is likely to be to upset it.  

A decision to make a fresh Order will be appealable to the Charity Tribunal if the original Order was appealable. This is because the power under section 337(6) is a power to vary or revoke by a subsequent order so made. For example, by invoking section 337(6) on review, the fresh Scheme to discharge part or all of the original Scheme is made under section 69 (not under section 337) and Schemes made under that section can be appealed to the Tribunal.  

If the outcome of the decision review is that the order should not be discharged or varied, it is the original decision to make the order that will stand as our final decision. The decision not to discharge an order under section 337 cannot be appealed in the Charity Tribunal. Having completed the decision review process and determined that the original decision to make the order is our final decision, publication of that fact will start time running for an appeal to the Charity Tribunal (unless the decision to make the order was previously published or the applicant was previously notified of the decision to make the order).

 

E2.3 Decisions which do not take the form of an Order

Decisions which do not take the form of an Order will usually be reviewable on the basis that, if it is open to us to decide upon a course of action, it will also be open to us to bring that course of action to an end. For example, if we decide not to enter an institution in the register of charities, we might subsequently be persuaded to do so. Or, if our decision to open an inquiry is challenged, it is open to us to decide to close the inquiry.

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E3 Who is a person affected by a Commission decision?

stopWhen considering who is eligible for a decision review, it is important to consider the existing law and any rulings made by the First-tier Tribunal (Charity) on who is a 'person affected' by a decision of the Commission. There have been contrasting rulings by the First-tier Tribunal and an appeal is pending before the Upper Tribunal that may clarify the approach that should be taken to who is a 'person affected'.

lawyer_referLegal advice should be obtained where there is any doubt about whether the applicant has sufficient standing.  

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E4 Explaining the right to appeal or seek a review

We have agreed with the Charity Tribunal that we will inform applicants of their right to appeal in our Decision Notices. If the decision is listed in the table in Schedule 6 of the Charities Act 2011 as a decision order or direction which can be appealed to or reviewed by the Tribunal it is important that the right of challenge is explained in the Decision Document. A standard form of wording can be found under the Model letters and Orders tab.  

If only part of the decision order or direction can be challenged in the Charity Tribunal, it will be necessary to adapt the wording so that it is clear which part of the decision order or direction may be challenged. For example, an order to appoint trustees and directing them to take specific actions will be made under sections 80(2) and 105(1) of the Charities Act 2011. A decision to make an order under section 80(2) may be appealed in the Charity Tribunal. However a decision to make an order under section 105(1) is not listed as a decision order or direction which can be challenged in the Tribunal.   

In such cases it will be essential to clearly explain which elements of the decision may be challenged in the Tribunal and which elements are not listed in Schedule 6.

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Model Letters and Orders

G1 Model Wording to be included following a Freedom of Information Decision Review

If you remain unhappy with the decision you may apply to the Information Commissioner for a decision. The Information Commissioner can be contacted at:

 

The Information Commissioner’s Office
Wycliffe House
W
ater Lane
W
ilmslow
Cheshire SK9 5AF

 

Tel: 01625 545 745 

Fax:01625 524510

email: enquiries@ico.gsi.gov.uk

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G2 Model Wording to be included if the decision can be challenged in the Tribunal

 

The Commission’s decision was made under section [please complete] of the Charities Act 2011 (the 'Act'). Decisions under this section are listed in schedule 6 to the Act as having a right of [appeal to/review in] the First-tier Tribunal (Charity) (the 'Tribunal').

 

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 us to take further action or rectify our decision.

 

Your application to the Tribunal should be made 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 when the decision was published. In both cases weekends and bank holidays are included in the 42 days.

 

If you wish to appeal against our decision you may find it helpful to visit the Tribunal's website for more information about time limits, form of notice of appeal and how to make an application:

 

http://www.justice.gov.uk/tribunals/general-regulatory-chamber   

 

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