Earlier this week I went to the charity tribunal to watch a day-long hearing on a case brought against the Charity Commission by a group of four local residents from the Surrey village of Dunsfold.
It was a textbook example of how charity law can complicate what seem to be the most straightforward of matters.
At its heart, the dispute is a simple one. The village school closed in 2004 because of dwindling pupil numbers – but the building is bound by a 1957 legal requirement that it must be used as a Church of England school.
With all sides agreed that a church school is no longer feasible, the diocese of Guildford, the sole trustee of the charitable trust that governs the land, wants permission from the Charity Commission to sell or lease the building and use the money for charitable educational purposes. This was granted by the regulator earlier this year, in the scheme that the residents are now challenging.
The residents’ incentive is clear: they want to form a charity to buy the land and use it to house a private nursery school currently based in a sports pavilion. They want the commission to rule that the diocese must first try to use the building as a non-church school, and should only consider other uses if this is not possible.
This is where things get complicated. In making their case the residents, using the services of a well-respected barrister, have trawled back through the building’s history to the foundation of the school in 1839.
They say a nineteenth-century will made by a Miss Katharina Woods, considered in conjunction with a plaque on the school building, form a charitable trust that says the building must be used as a school. They argued during the hearing that the commission’s scheme “is mistakenly predicated on an assumption that the original trusts of the charity are contained in a conveyance made on 1st March 1957 rather than those evidenced in 1839.”
In response, the barrister representing the diocese devoted some time during the hearing to reading out the other provisions in Miss Woods’ 1839 will. His case was that religious beliefs were so central to her bequests that it would be wrong to prioritise a non-religious school over other uses for the building.
The commission’s head of legal services, Kenneth Dibble, said after the hearing that the regulator wanted a system that gave the school’s trustee as much freedom as possible to decide how the building should be used – without adding the onerous requirement that they should first have to think about using it as a school.
Given the emphasis the tribunal placed on the importance of trustees’ freedom to make their own decisions in its most recent judgement – on public benefit and fee-charging schools earlier this year – it seems unlikely to diverge too far from Dibble’s view.
In this case the charity tribunal, which was set up to provide quick, low-cost access to justice, has been complicated and presumably expensive, and it looks unlikely to result in a big win for the villagers. But at least it’s better that than the previous set-up, where the High Court was the only external way to challenge the commission’s decisions.