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Check the Green Cross Code before considering a tribunal

The Green Cross code – that’s ‘Stop, Look, Listen, Think’ for the daredevil types among you – has served me pretty well in life. I wonder if the same maxim could stand charity trustees considering a charity tribunal appeal in good stead.

The First-tier Tribunal (Charity) in England and Wales, and its Northern Irish and Scottish counterparts, were created to be a low-cost, accessible, non-legalistic paths to charity justice. Unfortunately, in some cases it seems the option of lodging a tribunal appeal is unjustifiably attractive to charity trustees, whose decision then comes back to bite them.

For example; the Charity Commission for Northern Ireland opened a statutory inquiry into the USPCA – the Ulster equivalent of the RSPCA, albeit entirely separate – in December. The charity  appealed against this in June, bit now appears to be regretting it, having asked for the case to be paused for three months to allow it to sort out the issue in private with the commission. The judge rejected this, pointing out that they have been failing to do this since last summer.

The charity’s line to me has consistently been that they want to work with the commission. For that, read between the lines: “We regret this appeal, it’s become a faff, and more trouble than it’s worth.”

Take, too, the tangled tale of the very descriptively-named church charity the Ethiopian Orthodox Tewahedo Church, St Mary of Debre Tsion. The Charity Commission opened a statutory inquiry into it, and then closed it after the charity appealed to the First-tier Tribunal (Charity). Even with an apparent victory, the church still decided it wanted to test the legality of the decision itself.

With no legal precedent in this area, a counter appeal by the regulator  has now been referred to the Upper Tribunal. Is this use of time and money really the best way of advancing the Ethiopian Orthodox religion, which is what this charity is legally bound by its objects to do?

See also the Augustine Housing Trust, which also wants to shut down a commission statutory inquiry. A directions document published last month shows that Kevin Gregory, a trustee of the charity, had come into the appeal as something of a crusader on behalf of the sector as a whole – something against which he was politely warned by judge Alison McKenna.

The document also shows Gregory claiming he had been misadvised about the tribunal’s powers – not much stopping, looking, listening or thinking there. One charity lawyer told me that his reaction was to feel sorry for Gregory.

When I interviewed Charity Commission legal chief Kenneth Dibble in May, he alluded to the fact that people relish the prospect of having their day in court. The reality of what happens when they lodge a tribunal appeal is much less gratifying and dramatic than they might expect – administrative processes take ages, and decisions, which often end up being of very limited application, are frequently arrived at on the papers rather than in a live hearing.

It’s all very well stamping your feet and getting angry and deciding you’re going to open a can of legal whoopass, but there’s no point exhausting yourself and your coffers on something that could have been sorted out without recourse to the tribunal.

A year ago the government introduced fees for individuals who bring employment tribunals. Predictably unpopular with unions, although enjoying support from some businesspeople, this has resulted in the number of claims plummeting. Do we need the same thing for the charity tribunal? To be honest, I don’t think anything more complex than referring back to the Green Cross Code is in order.