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.

When 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'.

Legal 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:

• reviews of our response to a request for information made under the Freedom of Information Act 2000 or Subject Access Request (see OG 736-2 Reviews of Freedom of Information Act (FOI) Requests and Data Protection Act Subject Access Requests (SAR) );
• reviews of representations made in response to the publication of a draft Order or Scheme;
• reviews of temporary protective Orders; and
• reviews of all other types of decision.

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.

When 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'.

Before 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:

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 six 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?

When 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'.

Legal 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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