Babatunde Ojo v The Charity Commission for England and Wales [2025] UKFTT 792 (GRC)

[2025] UKFTT 00792 (GRC)Case Reference: FT/CA/2024/0009
First-tier Tribunal
(General Regulatory Chamber)
Hearing Heard on: 20 June 2025Date 30 June 2025
Charity
Heard by Cloud Video Platform
Before
TRIBUNAL JUDGE DAMIEN MCMAHONJUDGE HARRISMEMBER PETER FREEMAN
Between
BAbatunde OJOAppellantTHE CHARITY COMMISSION FOR ENGLAND AND WALESRespondentThe appellant did not appear and the hearing proceeded in his absence. for AppellantMr Felix Rechtman of the Respondent’s Legal Services. for RespondentDecision: The appeal is Dismissed. The Respondent’s decision to refuse to constitute and register Green Management Solutions Foundation as a community interest organisation dated 13 June 2024 is confirmed.REASONS

Preliminary matters

[1]An issue arose as to the standing of the proposed Appellants. The Notice of Appeal states that the appeal was brought in the names of both Babatunde Ojo and his private limited company Green Management Solutions Limited, (referred to in the substantive discussion below as “the Connected Company”). It was common ground that Mr Ojo has standing to bring the appeal because he is the person who made the registration application. However, it did not appear to the Respondent or the Tribunal that a private limited company, who did not make an application for registration, had any standing to bring an appeal. Under Schedule 6, column 2 of the Charities Act 2011, an appeal under section 319 of the Charities Act 2011 (‘the Act’) may be brought in respect of a decision under section 208 of the Act to refuse an application for the constitution of a CIO and its registration as a charity by the persons who made the application and any other person who is or may be affected by the decision. There was no evidence before the Tribunal that Green Management Solutions Limited fell within the class of persons that may appeal. The Tribunal therefore decided that the only appellant was Mr Ojo and proceeded on that basis.[2]The parties were invited by case management directions dated 20 January 2025 to provide availability within a hearing window of 9 May 2025 to 4 July 2025 by no later than 25 April 2025. On 13 May 2025, the Appellant made an application by form GRC5 to extend time for the hearing window. His application read simply “Not to list the hearing before October 2025” and gave no reasons. The application was refused by a Registrar on 9 June 2025 as the application was late and had provided no reason for the application.[3]The Appellant submitted a review application to a judge dated 11 June 2025 which requested “The matter be adjourned until a later date, as previously requested that it should not be listed before October. This is due to the scheduling committments of the Counsel/Solicitor Advocate, handling the matter, failing to adjourn the matter would no doubt lead to its withdrawal, in the premises.” This application was refused on 12 June 2025 because the Appellant had not complied with the Tribunal’s directions.[4]The Appellant submitted a third application on 19 June 2025, the day before the date fixed for hearing, by CVP, which was identical to the review application dated 11 June 2025, except that it now enclosed two medical certificates from the Appellant’s GP dated September 2024 and February 2025, neither of which suggested that the Appellant was unfit to attend the hearing. No additional reasons were given. The application was refused for the same reason as the previous application and review.[5]At 7.30pm on 19 June 2025, the Appellant submitted a fourth application to adjourn. This gave the following reasons:
“The matter be adjourned until a later date, as previously requested that it should not be listed before October. This is due to the schedule of the Counsel/Solicitor Advocate, handling the matter, failing to adjourn the matter would no doubt lead to its withdrawal, in the premises. In addition and further to the Direction of today, the Appellant has indicated his ill health and the fact that he would not be able to participate in the proceedings to the effect. This point was not considered by the Honourable judge in the said Direction. It would be in the interest for this important issues to be considered. Evidence to the effect has been provided and was provided with the previous application but was never considered and or even mentioned. It is very crucial that this factor is taken into serious considerations in line with the overriding objective and in the interest of justice, more so, when there would be no any prejudice to the Respondent if the matter were to be adjourned and the parties allowed to prepare robustly for the hearing, in the interest of justice.”
The application attached the same two medical certificates as the previous one.[6]This application was considered by the same judge, who was sitting on the Tribunal panel, before the hearing commenced. This application, too, was refused at 10.57am as it did not appear that to grant this fourth application for an adjournment, essentially on grounds that had already been considered in detail, was necessary to deal with this appeal fairly and justly, given that the Appellant had had ample time to prepare, had not provided details of the availability of his representative nor any information in this regard in the several months in which he had opportunity to do so and had not explained why he had been unable previously to prepare for the case. The Tribunal also noted that there was no current medical evidence before it indicating that the Appellant was unable to participate in the hearing: the most recent evidence provided was dated 20 February 2025 and made no reference to the Appellant being unfit to pursue his appeal The overriding objective of the Tribunal set out in Rule 2 states that the Tribunal must deal with a case fairly and justly and this includes avoiding delay so far as is compatible with the proper consideration of the issues. The Tribunal considered it had sufficient material to consider the issues in this appeal. Accordingly, it was in the interests of justice to refuse this fourth application for an adjournment.[7]The Appellant did not appear at the hearing. The Tribunal decided that it was in the interests of justice to proceed in the Appellant’s absence because it considered it had sufficient material to consider the issues in the appeal properly and the Appellant had not indicated that he wished to give evidence by filing a witness statement so there would be no material prejudice to the Appellant by proceeding.[8]The Tribunal considered the hearing bundle (‘HB’) (385 pages), supplemental hearing bundle (‘HBB’) (104 pages) and a separate authorities bundle (‘AB’) (773 pages). Background to the appeal[9]This appeal dated 14 June 2024 (HB4-20) was against a decision of the Respondent dated 13 June 2024 to refuse to constitute and register Green Management Solutions Foundation (“the Organisation”) as a Community Interest Organisation (“CIO”) pursuant to section 208 of the Act with charitable status on the grounds that the Respondent was not satisfied that the Organisation, if constituted and registered, had exclusively charitable purposes for the public benefit. The decision under appeal, refusing to constitute and register the Organisation, followed three previous unsuccessful applications by the Appellant for registration. The grounds of appeal appear in full at HBB2-4. Each application was, essentially, identical to its predecessors, despite guidance and advice being offered to the Appellant by the Respondent.[10]The Response of the Respondent was filed on 14 February 2025 (HB31-48). In summary, the application was again refused because the Respondent considered the Organisation had not demonstrated that it would be established for exclusively charitable purposes for the public benefit if it were constituted and registered as a CIO This was because, it was submitted, the stated objects were not expressed in terms that were unequivocally wholly charitable and the Organisation have stated that one of its purposes was to promote the purposes of (and in turn confer non-incidental private benefit to) a non-charitable entity in the form of a connected company[11]The Respondent filed a skeleton argument, in accordance with Tribunal Directions, which assisted the Tribunal. The Appellant did not file a skeleton argument failing, therefore, to comply with Tribunal Directions Issues[12]The issues to be decided in this appeal were as follows:a. what were the purposes (Objects) of the Organisation?b. in the context of this appeal, were those purposes exclusively charitable; that is, did they fall within the 13 descriptions of charitable purposes set out in s.3 of the Act into which a purpose must fall if it is to be charitable in law and, in addition, for the public benefit as that term is understood in charity law in England and Wales?c. accordingly, should the Respondent constitute and register the Organisation as a CIO with charitable status? Nature of appeal[13]These proceedings were not a review of the Respondent’s decision-making process. The role of the Tribunal was, standing in the shoes of the Respondent, to consider the Appellant’s application de novo, but to which regard had to be taken of the views of the Respondent as the statutory authority tasked by Parliament to make decisions such as that made in this case, it being central to the Respondent’s statutory objectives, functions and duties in the exercise of its statutory power to register, or not, an institution as a charity.[14]The burden of proof that the Organisation’s purposes were exclusively charitable and for the public benefit rested with the Appellant: Hipkiss v Charity Commission (CA/2017/0014).[15]Since the Tribunal, in deciding this appeal, was obliged to ‘stand in the shoes of the Respondent’, it too, had to have regard, in deciding this appeal, to the statutory objectives, functions and general duties placed upon the Respondent in carrying out its functions, pursuant to ss.14-16, respectively, of the Act.[16]The Respondent and, therefore, the Tribunal, on appeal, must, pursuant to s. 208 of the Act, refuse an application for constitution and registration as a CIO if it is not satisfied that the organisation would be a CIO with charitable status and for the public benefit at the time of registration or, the proposed constitution of the CIO does not comply with one or more of the requirements set out in s.206 of the Act and any Regulations made thereunder. Purposes (Objects) of the Organisation – are these exclusively charitable and for the public benefit?[17]The Organisation’s purposes or Objects were stated in the draft Governing Document of the Organisation (HBB15) as follows:
“1. To advancing such charitable Educational purposes as the trustees see fit from time to time in particular but not limited to advancing the education of the less privileged groups and or individuals by developing their mental, physical and moral capabilities through various educational activities with reasonable and available means the trustees deem fit. 2. To promote the conservation, protection and improvement of the physical and conservation of the natural environment, generally as the trustees see fit from time to time in particular but not limited to advancing the educational awareness of relevant issues such as the Climate Change to the less privileged groups and or individuals to enabling them enjoy the peace/serenity of the environment via reasonable, affordable and available means the trustees deem fit. 3. To promote human rights (pursuant to the provisions of the Universal Declaration of Human Rights and subsequent United Nations conventions and declarations) throughout the world.”
[18]The Appellant included in his application form dated 26 March 2024 some additional material about the purposes of the Organisation (HB71). However, the Respondent submitted at the hearing that when determining what the purposes of an organisation in the context of an application under section 207, it has regard to the purposes as they are set out in the draft Governing Documentonly. The Tribunal accepted this submission and adopted the same approach because, for the purposes of this appeal, it is standing in the Respondent’s shoes. The legal framework[19]The Decision of the Upper Tribunal in Independent School’s Council v. Charity Commission [2011] UKUT 421 (TCC) (hereafter ‘the ISC Decision’), a decision that is binding on the Tribunal, ruled that the ‘particular purpose(s)’ of the institution [the Appellant’s Organisation in this case] in the context of the institution’s constitution must be identified, that is, ‘what it is that the institution was set up to do, not how it would achieve its objects or whether its subsequent activities are in accordance with what it was set up to do’, while construing the institution’s declared purposes in accordance with the accepted rules of construction.[20]This concept inevitably strays into consideration of whether the institutions purposes or Objects are exclusively charitable and, even if so, whether they are for the public benefit and not, therefore, be further considered separately.[21]The Upper Tribunal in Helena Partnerships Limited v. Revenue and Customs Commissioners [2011] S.T.C 1307, another Decision that is also binding on the Tribunal, identified principles in determining when extrinsic evidence and relevant factual background information may be taken into account in, inter alia, ascertaining the purposes of an institution, namely, where there is a doubt or ambiguity in assessing whether the implementation of an institution’s purposes or objects would achieve a charitable end result, by examining the activities of an institution, relying on the High Court decision in Incorporated Council of Law Reporting for England and Wales v. Attorney-General [1972] Ch 73. This authority was concerned not with the motives and intentions of the founders of the institution, matters that were held to be irrelevant, but that it might well be necessary, in the case of an institution established to promote the Christian religion (therefore a prima facie charitable purpose), but if established to propagate a particular doctrine, to consider whether such propagation would be a charitable activity.[22]Specifically, on the question of whether an institution’s activities, purposes or Objects are capable of being, and will actually be, for the public benefit, judicial authorities such as the decision of the First-tier Tribunal in Full Fact v. Charity Commission (Ref. CA/2011/000), while not binding on the Tribunal, confirmed that considering the activities of an institution may be relevant to a proper understanding of its true purposes in assessing that question.[23]S.4 of the Act provides that there can be no presumption that a purpose of an institution of any particular description is for the public benefit: any reference to ‘public benefit’ is a reference to how that term is understood for the purposes relating to charity law in England and Wales. This then relates back to the ISC Decision. What is clear, however, is that an institution’s ‘particular purpose’ is charitable only if it falls within one or more of the categories listed in s.3(1) of the Act and is for the public benefit pursuant to s.4 of the Act and that what is for the public benefit is not fixed but may change over time and can vary between the different categories of ‘charitable purpose’ Evidence and submissions[24]The Respondent submitted that the purposes of the Organisation as drafted could potentially be charitable, but as they were generic and non-specific, the Respondent could not be satisfied that such purposes were exclusively charitable or for the public benefit without considering the supporting documents filed and identifying what the proposed charity will actually be doing. There was also no specific information as to how beneficiaries would be selected.[25]In relation to the first purpose, the Respondent submitted that this appeared to potentially fall within the purpose of advancement of education but was stated in very general terms, without clarity as to what the activities would be, how such activities would be exclusively charitable and how those activities were for the public benefit. Much of the information, it was submitted, was very generic or vague and did not explain how the legal test was met. There was also no explanation how all the activities would be funded.[26]In relation to the second purpose, the Respondent submitted that this appeared potentially to fall into advancement of environmental protection, but was, again, very general. It stated in its Skeleton Argument that, for example, “there is no clear identifiable link between enabling individuals to enjoy the peace/serenity of the environment and promoting the conservation, protection and improvement of the physical and conservation of the natural environment which suggests a wider and potentially non-charitable purpose”.[27]Similarly, the Respondent submitted that the third purpose appeared potentially to fall within advancement of human rights, but as it did not specify the means and definition specific to the Organisation, the Respondent could not be satisfied the legal test was met.[28]The Respondent also noted that the Appellant had declared a company connected to the Organisation, namely, Green Management Solutions Limited, a private company owned by the Appellant (hereafter ‘the Connected Company’). The Respondent noted that in his application form the Appellant stated in respect of the Connected Company, “We believe that this could be in many different ways and or means complementary of each other. In effect, the connection would provide: a source of funding for your charity other valuable resources which help to save money opportunities to strengthen the quality, reach and impact of the charity’s work which is a way of managing risk. It provides an effective trading structure to raising funds for the charity – a direct way of furthering the charity’s purposes. The Charity as well serves to promoting the Company via various activities and or events”.[29]The Respondent concluded that the Appellant intended the Organisation to promote and benefit his private business, which, it submitted, was evidence that the Organisation was not established for exclusively charitable purposes and could not be for the public benefit.[30]The Appellant was not present at the hearing, but the Tribunal considered his written evidence and written submissions, in particular, the contents of his grounds of appeal.. The Appellant drew the Tribunal’s attention to a number of cases (which were duly included in the Authorities Bundle by the Respondent) but the Tribunal noted that the Appellant did not explain why he considered these authorities to be relevant to his appeal. This limited the weight, if any, that the Tribunal could attach to them.[31]The key points made by the Appellant in his grounds of appeal were, in summary:a. that his application had demonstrated that the Organisation met the requirement to be established for exclusively charitable purposes, for the public benefit and expressed disappointment that “despite explanatory emails and discussion that you [the Respondent] still could not figure out what the organisation would do” He stated, “this is after several consultations and yielding to the advice of your own organisation and including reading through the avalanche of literature and or references provided and or pointed to”. He further stated that he was not clear or sure of the type of evidence that would demonstrate this;b. that his application provided more than mere generic information, emphasising that “the information provided were never generic and based purely on extensive independent research, advice provided by your organisation, links and literature/brochure;c. That no conflict of interest would arise from the fact that all the prospective trustees were part of the same family. In the application form at HB98, the Appellant stated “Please note that the members of trustee are of course related but definitely no any conflict of interest whatsoever. The main aim of this organisation is purely for charitable purposes nothing else and irrespective of the people involved/the trustees the goal is to be charitable and so shall it remain at all times;d. That in respect of the Connected Company, “Grants are part of the charitable purposes we intend to be able to carry out, our intentions are not to be acting as a subsidiary of a private enterprise. No it was presented to us that if the company is a trading harm [sic] of the proposed charity there was no problem”. Discussion and Conclusions[32]Having regard to the entirety of the written and oral evidence and submissions of the parties, the Tribunal found that, essentially, the purposes of the Organisation were worded in such a way that it was not clear exactly what the purposes were or what activities the charity would actually do and how these would be done. Accordingly, the Tribunal, standing in the shoes of the Respondent, could not be satisfied, even on the balance of probabilities, that any of the purposes as stated in the Organisation’s draft constitution were exclusively charitable.[33]In relation to the Appellant’s comments about the Respondent not being able to understand the Organisation’s purposes after all the discussions which had taken place, the Tribunal noted that prior to the application which is the subject of this appeal, the Appellant had submitted three previous applications for the Organisation to be registered as a CIO. After each of these applications was unsuccessful, as well as before and during the applications, the Respondent provided feedback and guidance to the Appellant as to what needed to be different for the applications to succeed. The Appellant’s engagement with this guidance appears to have been limited, because each successive application was identical to the previous ones to a material extent, without substantial changes being made. This lack of engagement with the Respondent in the process is mirrored in the Appellant’s successive applications for adjournment to the Tribunal during the week before the appeal hearing and in his failure to comply with Tribunal Directions.[34]If the purposes of an Organisation are not exclusively charitable, then arguably the Tribunal must dismiss the appeal for that reason alone. However, even if its conclusion on exclusively charitable purposes was wrong, for completeness the Tribunal went on to consider whether the statutory requirement of there being a public benefit in the Organisation pursuing its stated purposes would be satisfied. This would have permitted the Tribunal to have regard to extrinsic evidence if there was any doubt in this regard. The Tribunal considered all the information before it, including the various applications made by the Appellant and the documents attached to those. There was no extrinsic evidence provided beyond this, and the Tribunal decided that there was no extrinsic evidence that might have been of benefit to the Appellant in this appeal.[35]The lack of information about the Organisation’s public benefit provided in the application and supporting documentation means that the Tribunal is not in a position to evaluate the public benefit of the Appellant’s purposes. Further, if the public benefit of a purpose is incapable of proof, then it cannot be charitable.[36]The Tribunal considered that the connection with a private limited company also caused concern when considering public benefit, particularly the statement “The Charity as well serves to promoting the Company via various activities and or events” and the lack of clarity around the connection in dealing with grants and other financial matters. Put simply, if a charity is used, even in part, to promote a private company its purposes cannot be exclusively charitable nor exclusively of public benefit.[37]The Tribunal also noted what the Appellant said about the Connected Company being a trading arm of a charity. In the Tribunal’s view, there is a clear difference between a trading arm set up by a charity specifically to support it and a separate private company which has been in existence for many years before the charity, which would not be such a trading arm.[38]The Tribunal also noted the Appellant’s comments about conflict of interest raised by the trustees being family members. This was not determinative of the issues in this appeal, but was nevertheless of concern.[39]For these reasons the Tribunal concluded that was not, on the balance of probabilities, satisfied by the Appellant that the purposes of the Organisation were for the public benefit.[40]As the Tribunal was not satisfied that the Organisation’s purposes were exclusively charitable and for the public benefit, it must therefore dismiss the appeal pursuant to s. 319(5)(a) of the Act. Signed Date: 26 June 2025 Judge McMahon (Lead Judge) Judge Harris