The final outcome of the Kidd Legacy case, announced by the charity tribunal on Wednesday, looks like a very satisfying one – but you can’t help fearing that there might not be many more where that came from.
In many ways the Kidd Legacy appeal is a shining example of what the tribunal was set up to do. In a classic David versus Goliath case, two local residents, without legal representation, were able partly to overturn to Charity Commission’s response to Dartford Borough Council’s inadvertent sale in breach of trust of charitable land to a developer associated with the Tesco supermarket giant.
It also looks as if the result will be a model code of conduct on conflicts of interest for councils that act as sole trustees of charities. Given all the recent controversy surrounding council administration of charities, that must be seen as a very welcome development for the entire charity sector.
But the question that demands to be asked is whether this might also be the tribunal’s last hurrah. It is resourced for 50 cases a year and, after a slow start in 2008, its workload was expected to have picked up by now. But that has singularly failed to happen. After last week’s decision to strike out African Aids Action’s appeal against the findings of a commission inquiry, the tribunal currently has precisely zero cases on its books.
Not only that, but the word about the value of the tribunal does not seem to be getting out. The commission’s decision to reject the Gnostic Centre’s application for charitable status was “begging” to be appealed to the tribunal, according to third sector columnist and charity lawyer Rosamund McCarthy. But the charity preferred to submit a revised application, fearing the cost and possible negative publicity of a tribunal appeal. Nor did the commission see fit to “refer” any of the highly nuanced points of law involved in that case to the tribunal for clarification, as it is permitted to do – provided the Attorney General agrees.
Charity lawyers are holding their breath to see whether any of the fee-charging schools that failed the commission’s public benefit assessment last summer refuse to comply with regulator’s directions to pull their socks up, triggering an order that they could then appeal against to the tribunal.
Such a case would certainly thrust the tribunal well and truly into the media spotlight, but so far, the schools have indicated that they are prepared to do as they are told.
Besides, such an appeal would not be heard until the end of the year at the earliest – by which time the bell may already have tolled for the tribunal. The Scottish Government has already decided to chop the tribunal’s Scottish equivalent, the Scottish Charity Appeals Panel, after it heard just one case in three years, and we all know that the next government, whatever its colour, is likely to seek out things it can cut without attracting huge, negative headlines. An obscure, over-resourced tribunal that has only heard three full cases in nearly two years seems like an obvious target. So – alas for the sector – the Kidd Legacy case might well become the symbol of what might have been for the charity tribunal.