City Doctoral Researchers’ Association v The Charity Commission for England and Wales [2025] UKFTT 654 (GRC)

[2025] UKFTT 00654 (GRC)Case Reference: FT/CA/2025/0003
First-tier Tribunal
(General Regulatory Chamber)
Date 10 June 2025
Charity
Decided without a hearing
Before
JUDGE HARRIS
Between
CITY DOCTORAL RESEARCHERS’ associationAppellantTHE CHARITY COMMISSION FOR ENGLAND AND WALESRespondentDecision:1.Having considered the matter afresh pursuant to Rule 4(3) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009, I have decided that there is no jurisdiction for this Tribunal to consider this appeal and I confirm that this appeal remains struck out under Rule (2)(a) for want of jurisdiction.2.The order of Registrar Bamawo dated 22 April 2025 is confirmed.REASONS
[1]The Appellant filed a Notice of Appeal by way of form GRC1 dated 6 January 2025. The grounds of appeal concerned the Respondent’s handling of a complaint which the Appellant had made to the Respondent concerning the European Academy of Optometry and Optics. They stated that the Respondent’s failure to act on the complaint “disregards evidence of harmful and discriminatory practices by the charity’s Fellow, along with the broader impacts on the charity, its members, beneficiaries and the public.” The grounds of appeal also alleged that the Respondent’s handling of the complaint demonstrated procedural failures, manipulation, obfuscation and broader systemic failings in its ability to address serious misconduct within charities.[2]The decision against which the Appellant purported to appeal was an email dated 25 November 2024 from Kelly Clarke, the Respondent’s (Acting) Head of Customer Relations. I reproduce this in full because the content and status of this correspondence is key to the question I need to determine. It read as follows: “I am writing in response to your latest emails sent to my colleague, Amanda Rees. You have requested that we address the correspondence to City Doctoral Researchers Association. I have responded to you directly as the General Secretary, as you approached the Chief Executive. When we are handling complaints about the Charity Commission (‘the Commission’) we respond directly to the individual. Then, if you decide to escalate your complaint to the Parliamentary and Health Service Ombudsman (PHSO we can confirm that you have been through the Commission’s complaint process. I have reviewed your recent correspondence with the Commission. Our records show you emailed the Chief Executive directly on 18 September 2024 and said you had attached a formal letter expressing your concerns about the Commission. There was no letter attached. I am aware that Ms Rees requested you to send the letter, but to date, this has not been received. You have repeatedly stated that you want a decision review to be completed about the Commission’s decision not to take forward your concerns about the charity. As Ms Rees explained only certain decisions can be challenged through the Commission’s decision review process and ultimately the Tribunal. Our assessment on whether to take forward your concerns about a charity does not fall within that remit. When an individual is not happy with the assessment reached it is open to them to follow the Commission’s complaint process. This is why Ms Rees started the stage two complaint process. As you do not wish to proceed with the stage two complaint, I have closed the complaint. If you change your mind, please email me, within one month of this email and we can arrange for a stage two review to be completed”.[3]The Appellant then engaged in email correspondence with the Respondent to obtain the reference number for this decision, apparently so it could escalate the decision. The Respondent confirmed in an email dated 10 December 2024 that it had not made a decision in this case and repeated that its assessment of whether to take forward the Appellant’s concerns about a charity did not fall within the remit for the Respondent’s decision review process or the Tribunal.[4]The Tribunal issued case management directions on 20 February 2025 requiring the Appellant to state under what provisions in Schedule 6 of the Charities Act 2011 (“the Act”) it considered the Tribunal had the jurisdiction to consider the matter.[5]The Appellant responded by a letter dated 6 March 2025. This stated “The Respondent’s persistent failure to exercise its statutory powers constitutes a reviewable and appealable matter, in breach of several statutory provisions, including, but not limited to: Section 30 and 34 of the Charities Act 2011; Section 83(2) of the Charities Act 2011; Section 76 of the Charities Act 2011 and Sections 2, 3 and 4 of the Charities (Protection and Social Investment) Act 2016. The Appellant and its Members have been directly affected by the Respondent’s inaction and therefore unequivocally fall within the scope of “any other person who is or may be affected” under column 2 of Schedule 6 to the Charities Act 2011. The provisions cited, along with all of the other provisions that apply to “any other person who is or may be affected” empower the Appellant to challenge the Respondent’s inaction, confirming the Tribunal’s jurisdiction.” The Appellant requested that the Tribunal “proceed with a thorough review of the Respondent’s inaction under Section 321 of the Charities Act 2011, applying judicial review principles, and hearing the appeal regarding this matter as appealable decision, directions or orders under Schedule 6 column 1”.[6]Registrar Bamawo then issued a decision striking the appeal out under rule 8(2)(a) for want of jurisdiction dated 22 April 2025. The decision stated:
“7. Fundamentally, the Charity Commissioner’s email dated 25 November 2024 does not constitute a decision, direction or order mentioned in Colum 1 of Schedule 6 pursuant to section 319 of the Charities Act 2011 (here after referred to as the Act). 8. Further, [the Appellant] submits that the Charity Commission’s failure to exercise its powers pursuant to section 322 of the Act as an appealable (reviewable) ground pursuant to section 321 of the Act…. 9. In fact, section 322(2)(a)to(g) and (3) provide for condition(s) precedent before it is engaged i.e. where the Charity Commission makes a decision or order pursuant to the Act. In this instance no decision or order has been made pursuant to any relevant provision of the Act. 10. [The Appellant] relies on provisions of the Charities (Protection and Social Investment) Act 2017; by way of amendments, this provides the Charity Commission with additional powers in the exercise of its powers under the Act. Once again, any right of appeal is derived from a decision, direction or order of the Charity Commission under the 2011 Act.”
[7]The Appellant wrote to the Tribunal to seek reconsideration of this decision by a judge under Rule 4(3) on 5 May 2025. I have considered the extensive submissions made by the Appellant in support of its application. In summary, the Appellant argued that the Tribunal erred in law by:a. Concluding that the email dated 25 November 2025 was not a decision, direction or order mentioned in Schedule 6 of the Act and accordingly that the Tribunal did not have jurisdiction to intervene. In support of this, the Appellant referred to a number of the decisions not to do things listed in column 1 of Schedule 6.b. Holding that section 322 only applies when the Respondent exercises a power or makes a decision.c. Deciding that the appeal should be summarily struck out, instead of proceeding to a full hearing. The legal framework The Charities Act 2011[8]Section 319 of the Act provides that except in the case of a reviewable matter (see section 322) an appeal may be brought to the Tribunal against any decision, direction or order mentioned in column 1 of Schedule 6. It may be brought by the Attorney General or any person specified in the corresponding entry in column 2 of Schedule 6.[9]Schedule 6 of the Act sets out the decisions, directions and orders which may give rise to a right of appeal together with who may appeal them and what the Tribunal’s powers are on each such appeal. The principal ones which are identified as relevant by the Appellant in its letter dated 6 March 2025 are as follows:a. Section 30, concerning decisions whether or not to register a charity;b. Section 34, concerning decisions to remove charities from the register if the Respondent considers that the institution is no longer a charity or it has ceased to exist or does not operate;c. Section 76, concerning orders and decisions to suspend trustees and make orders in relation to the administration and property of a charity following institution of an inquiry under section 46; andd. Section 83(2) of the Charities Act 2011 concerning orders to suspend trustees from membership of a charity where a suspension order has been made under section 76(3).[10]Section 321 of the Act provides that an application may be made to the Tribunal for the review of a reviewable matter, and the Tribunal must apply the principles which would be applied by the High Court on an application for judicial review in determining such an application.[11]“Reviewable matter” is defined exhaustively in section 322(2) as applying to the following decisions of the Respondent only: a. to institute an inquiry under section 46 with regard to a particular institution; b. to institute an inquiry under section 46 with regard to a class of institutions; c. not to make a common investment scheme under section 96; d. not to make a common deposit scheme under section 100; e. not to make an order under section 105 (power to authorise dealings with charity property etc.) in relation to a charity; f. not to make an order under section 117 (restrictions on dispositions of land) in relation to land held by or in trust for a charity; and g. not to make an order under section 124 (restrictions on mortgages) in relation to a mortgage of land held by or in trust for a charity.[12]Section 322(3) also states that an order made under section 147(2) (investigation and audit) in relation to a charitable company will be a reviewable matter. TheCharities (Protection and Social Investment) Act 2016[13]The Appellant also relies on sections 2, 3 and 4 of this Act, which insert amendments into sections 76 and 79 of the Charities Act 2011.[14]The most significant change is to section 76(1)(a) which is amended to read “that there is or has been a failure to comply with an order or direction of the Commission, a failure to remedy any breach specified in a warning under section 75A, or any other misconduct or mismanagement in the administration of the charity”. However, this remains subject to the fact that in order to take action under section 76(3), the Charity Commission must have instituted an inquiry under section 46 with respect to the charity and be satisfied of the failure. Discussion and conclusions[15]I agree with Registrar Bamawo’s decision that the email from the Respondent dated 25 November 2024 was not a decision, direction or order within the meaning of section 319 of the Act. I consider that on the face of the Respondent’s email dated 10 December 2024 it is clear that there was no intention by the Respondent to make any decision, direction or order and the email states explicitly that the Respondent has made no decision.[16]Even if I am wrong on this, in order for it to have been such a decision, direction or order giving rise to an appeal to the Tribunal, it must be set out in Schedule 6 of the Act. The provisions on which the Respondent stated it wishes to rely in Schedule 6 were all decisions or orders which do not apply in the circumstances of this case. In particular:a. Section 30 will not apply because there has been no decision by the Respondent following a formal application for registration, which is not the circumstances here;b. Section 34 will not apply because there is no evidence the Respondent considers that the institution is no longer a charity or it has ceased to exist or does not operate, none of which are the case here;c. Section 76 will not apply because it is only available following institution of an inquiry under section 46, whereas no such inquiry has been commenced; andd. Section 83(2) will not apply because a suspension order has not been made under section 76(3).[17]Similarly, the provisions of the Charities (Protection and Social Investment) Act 2016 will not assist the Appellant, because they concern amendments to section 76, which does not apply because there is no statutory inquiry under section 46.[18]I therefore do not consider that the Tribunal erred in law in concluding that the email dated 25 November 2024 was not a decision, action or order within the meaning of section 319.[19]I agree with Registrar Bamawo that in order for a right to apply for review to the Tribunal under section 321 of the Charities Act 2011, there must be a “reviewable matter” as defined in section 322. All the reviewable matters listed in section 322(2)(a) to (g) require that there must be a decision by the Respondent and the matter set out in section 322(3) requires that there must be an order.[20]I therefore do not consider that the Tribunal erred in law in holding that there must be a decision or order for section 321 to be engaged.[21]Whilst I note that the Appellant argues in its submissions that “where jurisdictional issues are finely balanced or hinge on contested facts, these matters should not be summarily struck out but instead proceed to a full hearing”, this is not a matter where jurisdictional matters are finely balanced or hinge on contested facts. I do not agree that the facts are disputed or require detailed legal examination. Instead, this is a matter where the limited jurisdiction of the Tribunal to deal with those decisions, orders and directions set out in Schedule 6 to the Act is simply not engaged.[22]This is consistent with the Respondent’s own guidance on the Gov.uk website which states “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”.[23]For all these reasons, I do not consider that the Tribunal erred in law in determining that the matter should be summarily struck out under Rule 8(2)(a). This rule, which is the prescribed procedure for this chamber of the First-tier Tribunal, provides that “The Tribunal must strike out the whole or a part of the proceedings if the Tribunal—(a) does not have jurisdiction in relation to the proceedings or that part of them”. Registrar Bamawo acted, in my view, correctly and in accordance with the relevant procedural rule in striking out the appeal summarily for want of jurisdiction.[24]I therefore agree with and uphold Registrar Bamawo’s decision dated 22 April 2025 in its entirety.