Charities U3 Tutorial
Charities U3 Tutorial
This Tutorial is broken up into stages, which include learning blocks and activities
that work as knowledge checkpoints. We recommend you complete this online
session in chronological order.
By the end of this Tutorial, you will be able to:
Contents
Charities...................................................................................................................................1
Stage 1: Introduction................................................................................................................2
Stage 2: The Charity Commission...........................................................................................2
Stage 3: Beneficial Treatment of Charities...............................................................................3
Stage 4 - Establishing a valid trust (Activity)............................................................................4
Stage 5: A valid charitable Trust..............................................................................................5
Stage 6: Charitable Status.......................................................................................................7
Stage 7: Public Benefit.............................................................................................................9
Stage 8: Benefit to a Section of Public...................................................................................10
Stage 9: Activity.....................................................................................................................11
Stage 10: Activity...................................................................................................................12
Stage 11: Conclusion ………………………………………………………………………………14
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Stage 1: Introduction
In this Tutorial, we will be looking at charities and the role of their legal
advisers. We will also be examining why charities, and particularly charitable trusts,
are such effective vehicles for carrying out good work.
Charities are often in the media spotlight, whether it is making emergency appeals,
adverts requesting donations or announcements about charitable organisations
funded or supported by the rich.
While most of us are not in a position to benefit charity to the same degree as the
world’s wealthiest philanthropists, we may well have a favourite charity to which we
give our support. Sixty per cent of us are reported to give to charity at least once a
month.
If you have ever bought a poppy or tickets for a charity event, or responded to
an emergency relief appeal, then you’ve been actively engaging in charitable
giving.
Whatever our personal experience of charities, there is no doubt that they
play an important part in the lives of many people today.
Of course, the lawyers who act for them also have an important part to play.
Their responsibilities are wide-ranging.
If you are setting up a charity, the starting point is to register with the Charity
Commission.
The Commission is responsible for the on-going regulation of the charity. As of
January 2021, there are over 169,000 charities in England and Wales registered with
the Commission.
The Commission's objectives include:
1. Increasing public trust and confidence in charities;
2. Promoting compliance by charity trustees with their legal obligations; and3
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3. Enhancing accountability of charities to donors, beneficiaries and the general
public.
The Commission requires charities to file information each year. A lot of the
information then becomes publicly available on the Charity Commission’s website.
https://www.gov.uk/government/organisations/charity-commission
Take a moment to see the kinds of information it records and the guidance it offers.
Try doing this for a few charities before you continue with the Tutorial.
Stage 3: Beneficial Treatment of Charities
A charity is a very effective vehicle for carrying out good works. This is because of
the beneficial treatment they receive.
Why do charities receive this preferential treatment?
Because of the public benefit they provide. It is considered beneficial to society that
we have organisations researching treatments for heart disease and cancer, and
bodies protecting children, the elderly, and the homeless.
What benefits do charities get?
One of the main benefits that charities receive relates to tax. They are exempt from
paying tax on their income and capital gains. The combined annual income of
charities registered with the Charity Commission amounts to many billions of
pounds, so this is an extremely significant relief.
Click on/select the link to the Charity Commission’s website below
https://www.gov.uk/government/organisations/charity-commission
You can see the level of income for any registered charity, by following the steps
detailed below:
1. Click on/Select Find Charities and Search the Charities Register.
2. Then enter/type the name of the charity in the Charity Search box and click
on/select the link.
Try doing this for The British Heart Foundation or The Save the Children Fund, or
indeed any charity in which you have a particular interest.
Other tax benefits arise when people make gifts to charities.
Gift Aid
If an income taxpayer makes a donation to a charity out of their income, this
payment is being made out of taxed income.
If they claim gift aid, then their gift becomes effectively free of income tax. The
charity can claim back the income tax that the donor has already paid on their
donation.
If you pay an entrance fee to view an historic house and gardens which are run
through a charity, or if you sponsor someone for a charitable cause, you may well
be asked, if you are an income tax payer, to claim gift aid as it makes your
donation worth more to the charity.
Inheritance Tax
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Gifts to charities are also exempt from Inheritance Tax. So if someone makes a more
significant gift to a charity out of their capital, there will be no Inheritance Tax
charged to the donor on the gift.
Beyond tax, another way charities receive beneficial treatment is that the rules on
setting up charitable trusts are more relaxed than on the establishing of a standard
non-charitable trust.
Stage 4 - Establishing a valid trust (Activity)
Declaration: In order for a trust to be valid, there must be a declaration which
satisfies the three certainties – certainty of intention, of subject, and of object.
It must also comply with the beneficiary principle – in other words you must be able
to identify someone to enforce the trust, and it must satisfy the rules against
perpetuities that the trust cannot last indefinitely.
Formalities: In addition, any formalities for setting up the trust must be observed.
So, for example, if the settlor appoints persons other than themselves to be trustees,
they must ensure that the trust property is correctly transferred to these trustees.
Have a go at this activity. It will get you thinking about the requirements for a valid
trust.
There are three scenarios. In each scenario, decide whether the trust would be valid
or not. Think about the reasons for making your selection.
Follow the instructions on screen to complete the activity.
Select the appropriate option and then Submit.
Question 1
Andy leaves £80,000 in his will on trust to be used for as long as the law allows to
promote the benefits of independent thought and meditation in the world. Consider
whether this trust would be valid.
Answer: No, Trust fails as it lacks certainty of objects and has no beneficiary to
enforce it.
Scenario 1: The trust set up by Andy is a trust to do something, rather than a trust
for particular individuals. Here the objects are expressed as a purpose. Do we have
certainty of objects? Can we say with certainty what it means to promote
independent thought and meditation? No, we can’t.
So the trustees do not know how to give effect to the trust, and the court is not able
to supervise the trust. It must, therefore, be void for lack of certainty of objects.
It will also be void for a second reason - it offends the beneficiary principle.
There must be someone who can enforce the operation of the trust; it is impossible
to say in this scenario who that could be.
Question 2
Ben, a local playwright, leaves £50,000 in his will on trust to be used to publish a
book of his works after his death. Consider whether this trust would be valid.
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Select the appropriate option and then Submit.
Answer: No, Trust fails as it lacks a beneficiary to enforce it.
Scenario 2: Ben's trust is another purpose trust, but here there may be certainty of
objects. The purpose is clear - Ben’s plays are to be published. However, again, the
question arises, who would enforce this trust?
Since there is no beneficiary to enforce it, the trust will fail.
Question 3
Callum gives £100,000 in his will on trust to use the income to provide a Christmas
party each year for employees at the factory where Callum worked for 20 years.
Consider whether this trust would be valid.
Select the appropriate option and then Submit.
Answer: No, Trust fails as it offends the rules against perpetuities.
Scenario 3: Callum’s trust presents a different problem. In the context of purpose
trusts, the rules against perpetuities require that such a trust cannot exist for more
than 21 years. If it is not clear that the trust will come to an end within 21 years from
creation, it will be void. The wording of Callum’s trust enables the trust to carry on
indefinitely.
Only the income from the £100,000 can be used for the specified purpose, so the
capital will remain intact.
This being so, the trust will be void for offending the rule against perpetuities.
In all these trusts, the objects are expressed as a purpose.
They are not trusts to benefit particular individuals, but rather for a purpose to
be carried out.
Stage 5: A valid charitable Trust
Now let us look at the rules for creating a charitable trust, and see how they differ
from those which govern ordinary non-charitable trusts.
We will start with the three certainties.
Certainty of Intention: We still need certainty of intention, as it must be clear that
the settlor is intending to create a trust.
Certainty of Subject: We must also have certainty of subject as we need to know
exactly what is going into the trust.
Certainty of Object: But for certainty of objects, the rules are relaxed. The usual
rule that the wording must be adequately clear for the trustees to give effect to the
trust does not apply.
In the case of a charitable trust, provided the purpose is clearly charitable, it does not
matter how vaguely it is expressed.
If a trust in a will vaguely states that the money left on trust is to be used for
“charitable purposes”, that does not give a great deal of direction to the trustees as
to how to carry out the trust, but the purpose is clearly charitable.
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So the trust, although vaguely expressed, will be valid, the money will be dedicated
to charity, and it will fall to the Charity Commissioners to work out with the trustees
exactly what to do with it.
What about the Beneficiary Principle?
The Beneficiary Principle requires identifiable beneficiaries who could, if necessary,
enforce the trust. There is no problem with private trusts for individuals. The
beneficiaries of the trust could take any necessary action against the trustees to
enforce the terms of the trust.
Before you continue this Tutorial look at a few illustrations on the Charity
Commission’s website.
https://www.gov.uk/government/organisations/charity-commission
Take a look at the objects for a few charities, such as ‘The British Heart Foundation’
or ‘The Save the Children Fund’, or any other charity in which you have a particular
interest.
Follow the instructions on screen to find the objects of your chosen charity.
1. After selecting/clicking on the link for the Charity Commission, select/click on
"Find Charities - Search the Charities Register".
2. Enter/type in the name of a charity in the Charities Search box.
3. Select/click on the link to the charity you have selected.
4. Select/click on Charity Framework and this will take/redirect you to the
Charity's Objects.
You will see that the objects always tend to be expressed as a purpose. It would be
very hard to work out exactly who would be in a position to enforce the trust if the
trustees were failing in their duties.
But this does not matter. Even though we may not be able to ascertain individuals to
enforce the trust, charitable trusts are valid. If a charitable trust should need
enforcing, then the Attorney General (a member of the Government) will step in to do
it.
Rule Against Perpetuities
What about the application of the rule against perpetuities?
The terms of a purpose trust must make it clear that the trust cannot last more
than 21 years, otherwise the trust is void.
But there are different rules for charities. Due to the public benefit they
provide, charities can continue indefinitely.
So a charitable purpose trust is not rendered void if there’s nothing in its terms
limiting its duration to 21 years.
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If someone sets up a trust to use the income from the trust fund to provide a
Christmas party for, say, sick or disabled children, this would be charitable. It does
not matter that the trust could go on indefinitely. The trust would be valid.
As we have seen, the rules relating to the validity of a trust are relaxed for a
charitable purpose trust in several respects. It need not satisfy the certainty of
objects rule, the beneficiary principle or the rule against inalienability.
There are also special rules to try to prevent failure of gifts to charities, but these are
beyond the scope of this Tutorial.
Stage 6: Charitable Status
The tax breaks and the relaxation of validity rules for charities mean that, if you are
consulted about setting up some sort of philanthropic organisation, you ought to be
doing everything possible to ensure the organisation can acquire charitable status.
To do this, the organisation must demonstrate to the Charity Commission that certain
requirements are satisfied. The organisation’s purposes must not just be charitable;
they must also be exclusively charitable; and for the public benefit. We will consider
each of these requirements in turn.
Charitable Trust
For a trust to be charitable, it must be for a purpose which is considered in law to be
charitable.
What is Charitable Purpose?
Prior to 2006, there was no statutory definition of a "charitable purpose". Decisions
made as to what was charitable were based on case law over the years, and
guidance from the Charity Commission.
The traditional, pre-2006 categories of charity were the relief of poverty, the
advancement of education, the advancement of religion and other purposes of
benefit to the public.
Charities Act 2011
The Charities Act 2006 provided an initial statutory definition of charitable purposes.
We now have section 3 of the Charities Act 2011 providing this statutory definition of
charity. Section 3 sets out 13 charitable purposes. The Act keeps the traditional pre-
2006 heads of charity, but also aims to recognise and reflect modern charitable
giving.
For example, it recognises among other things, the advancement of human rights
and the advancement of environmental protection as charitable.
Take a moment to look at the full list of charitable purposes in section 3 of the
Charities Act by selecting/clicking on the PDF. You can see how wide-ranging these
are.
Document Available Online
The aim of this extended statutory list was not to change the existing law, but rather
to reflect purposes which would have been charitable under the traditional fourth
head of “other purposes of benefit to the public”. Note also that there is still a general
“catch – all” provision at the end – section 3(m).
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You will need to select "Click to flip" to find out more.
Religion
The Act also provides useful guidance on how some of these purposes are to be
construed. For example, it states that a religion which involves belief in more than
one god and a religion which doesn’t involve belief in a god at all may be
charitable.
This statutory guidance expands on the traditional approach to religion, which
required the worship of a single god to qualify as a charity.
The new statutory guidance reflects the approach which had been taken anyway for
many years by the Charity Commission. For example, there are over 200 Buddhist
charities registered with the Charity Commission, Buddhism being a religion that
doesn’t involve belief in a god.
Sport
Sport is an area which has caused difficulties in the past. For many years sport, of
itself, was not recognised as charitable.
Sporting bodies could only gain charitable status if they could show that they also
satisfied another charitable aim, such as the advancement of education.
The meaning of amateur sport, the advancement of which may be charitable under
section 3 (g), is clarified. Today, organisations for the advancement of sports or
games which promote health through physical or mental skill or exertion may be
charitable. This clarification of the meaning of sport means that almost any
competitive health-giving activity is likely to be regarded as charitable.
For example, charities are not permitted to be profit making, nor are they allowed to
have political objects. So an organisation which furthers the interests of a political
party, or seeks to change the law, could not be charitable.
That is not to say that charities can’t seek to influence the decisions of Parliament on
subjects relevant to them. Recent guidance issued by the Charity Commission states
that some political activity is acceptable, provided:
1. It is undertaken to further the other charitable purposes of the charity,
2. It does not dominate the other activities of the charity, and
3. Any views are expressed in a responsible way.
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It is a question of degree whether a non-charitable purpose will prevent a body from
gaining charitable status. Charities are permitted to engage in activities which are
ancillary to the main charitable purposes-activities which are a means of achieving
the main purposes of the charity. For instance, a University’s student union voicing
disagreement with and lobbying against Government policy regarding tuition fees
would be acceptable. However, the same student union support of a campaign
against the Government’s military activities could jeopardise the union charitable
status as such political activity is not related to the main purpose of a student union
(Webb v Doherty 1991).
Stage 7: Public Benefit
For an organisation to be charitable its purposes must benefit the public, or a section
of the public.
Public benefit for some charitable purposes used to be presumed. But, under the
Charities Act 2011, this is no longer the case.
Even if an organisation can show that it has a charitable purpose within the meaning
of section 3 of the Charities Act, it still has to demonstrate the additional requirement
that its purposes benefit the public, or a section of the public.
So what does it mean, to benefit the public, or a section of the public?
This has changed over time, to reflect changing needs and circumstances in
society.
An illustration of the Commission changing its opinion is the way it has adapted its
approach in the light of advances in medical science.
The 20th Century
In the earlier part of the twentieth century, the supply of cigarettes to sick people in
hospital was regarded as charitable. The cigarettes were apparently useful as a
sedative.
The 21st Century
Nowadays, the Commission would not regard the supply of cigarettes to hospital
patients as being for the public benefit.
Whatever benefits as a sedative the cigarettes might provide, they would be far
outweighed by the dangers to the patients’ health, about which, of course, much
more is known now than in the early part of the twentieth century.
The Charity Commission’s guidance from 2013 sets out the principles of the public
benefit requirement. These principles include the following:
Benefit: It must be clear what benefits to the public arise from the carrying out of the
charity’s aims. For example, the provision of emergency aid to the victims of a
natural disaster is clearly beneficial to the public; but if an organisation wants the
preservation of a particular building to be regarded as charitable, the public benefit
here could be more debatable.
Evidence: The organisation would have to produce evidence to show that, in the
particular circumstances, there would be benefit to the public in preserving this
building.
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A proposed charitable purpose may create both benefit and detriment. In this
situation, the Charity Commission has to balance the two, and, provided the benefit
outweighs the detriment, the purpose can still be regarded as being for public
benefit.
The Commission's guidance illustrates this by reference to the provision of motorised
transport for people with a disability. This has some harmful effect on the
environment, but the benefit of giving mobility to people with a disability is
considered far greater than the consequential environmental harm.
The provision of cigarettes to sick people in hospital, which we looked at a moment
ago, is an illustration of the reverse situation. Here the detriment outweighs the
benefit. Any beneficial sedative effect is easily outweighed by the effect on the health
of the patients and others.
In many cases an organisation’s purposes will not benefit every member of the
public in the United Kingdom.
But it is enough that the purposes benefit a section of the public. There is a limit to
this, however.
Take the case of a fund set up for a specific child with a serious illness or disability.
However benevolent the purposes of an organisation like this, which benefits only
named individuals, it cannot be charitable.
We even need to take care where a fund does appear to benefit a section of the
public.
Personal Nexus
Unless the purpose of the charity is to relieve poverty, if the class of beneficiaries is
defined by a personal connection to an individual, this “personal nexus” will prevent
the beneficiaries from being regarded as a section of the public, and the fund cannot
have charitable status.
This nexus arises where those benefiting from the purpose are related to an
individual or are linked by contractual relationship to a particular company.
For example, if you have a purpose which benefits the employees of a company,
even if there are thousands of employees, they cannot be regarded as a section of
the public because they are all connected by a contractual relationship with the
company (Oppenheim v Tobacco Securtiries Trust Co Ltd).
Where charitable purposes benefit a section of the public, the opportunity to
benefit must not be unreasonably restricted
You will need to select "Click to flip" to find out more.
Restricting benefits by reference to geography or personal characteristic (such as
religion or gender) is acceptable if the benefits are specifically linked to the aims
of the charity, for example a home for children under 18 or a charity addressing
men’s health issues. These would provide sufficient public benefit despite
limitations on those likely to benefit.
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This is particularly relevant where there is a charge for the benefit
provided. There is no problem in itself with charging fees. Many charitable bodies
do charge for the benefits they provide. But they must not profit from their
activities. The fees must be used to cover the expense of providing the service,
and any surplus should be ploughed back into the charity.
Let us look more closely at how this requirement might impact on fee paying schools.
These come under the charitable head of the advancement of education, for which,
public benefit used to be presumed. Now, these schools have to prove that they
benefit a sufficient section of the public.
In Independent Schools Council v The Charity Commission for England and Wales,
the Upper Tribunal confirmed that a trust which excludes the poor from benefit
cannot be a charity. It was held that a school which operates solely for the benefit of
its fee-paying pupils cannot be charitable.
So how can a fee paying school show public benefit, when they charge thousands of
pounds per annum for each pupil?
1. The key thing here is that, while fees may be charged, charities must also
show that there are opportunities from which a wide range of the public,
including those in poverty, may benefit.
2. In reality, this means that, the higher the fees charged, the more those
charities may have to do to show a benefit to the wider public.
Stage 9: Activity
Let us have a look at what a fictional public school might do to demonstrate its public
benefit in the light of Charity Commission guidance.
Complete the activity by following the instructions on the screen.
Scenario
You are the legal advisor to Cranford School, a registered charity which educates
children aged 11 to 18. Cranford charges £6,000 per term. It is renowned for its
sport, especially rowing, due to its modern purpose built rowing lake. It is also known
for its modern languages expertise, particularly Russian and Arabic, which its pupils
can study to A level. You are aware that there is one state secondary school 2 miles
from Cranford School.
Question 1
What steps would you advise Cranford School to take, to ensure it maintains its
charitable status.
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D. Raise money for charity
Answers: A, B, D
The class of people who can benefit from Cranford School’s facilities is limited by the
substantial fees that it charges. So the school needs to consider what it can do to
widen the section of the public which can derive benefit from its facilities.
Keeping in mind that the opportunity to benefit must not be unreasonably restricted,
and must not prevent people in poverty from being able to benefit, what could the
school do?
Facilities: The school could open up its facilities to the wider public. It could allow
the local secondary school access to its sports facilities for P.E. lessons. It could also
perhaps host tournaments for local schools or clubs, and allow access to its rowing
facilities for lessons or practices. It could offer the expertise of its language teachers
to the local secondary school.
Fund Raising: The school could adopt the practice of supporting local charities and
entering into fund raising activities.
These are just some suggestions for the school to widen the section of the public
that can benefit from its facilities. You can maybe come up with others. It is hard to
say exactly what will suffice in a given situation to show sufficient public benefit.
The requirement will vary from one organisation to another, but, whatever course of
action is adopted, the onus is very much on each individual charity to demonstrate
that it satisfies the requirements.
Stage 10: Activity
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Scenario 1: In the first scenario, the assistance to countries affected by famine is a
charitable purpose. It could fall under several section 3 purposes:- advancement of
health or saving of lives; relief of poverty; or relief of those in need by reason of,
among other things, ill health, financial hardship or other disadvantage.
But part of the purpose of the organisation is to lobby parliament, and we know that
political purposes cannot be charitable. However, since the political aspect is a small
part of what the charity does, and is to be undertaken to further the other charitable
purposes, it should not prevent the organisation having charitable status.
Question 2
A provision of sporting facilities to the employees of Sportyco Ltd.
Will this trust have charitable status?
Select the appropriate option and then Submit.
Answer: No, Class is defined by means of a personal nexus.
Scenario 2: In the second scenario, provision of sports facilities to a section of the
public looks like it could be charitable. But when we look more closely at who is to
benefit, the class is defined by reference to a contractual link - they are all
employees of the same company.
This personal nexus prevents the class from being considered as a section of the
public, so this can’t be charitable.
Question 3
A trust for a religious order, whose lives are devoted to prayer and contemplation
and who have no contact with the community.
Will this trust have charitable status?
Select the appropriate option and then Submit.
Answer: No,
No public benefit (Gilmour vs Coats [1949] AC 426)
Scenario 3: In the third scenario, a gift to a religious order looks like it should be
charitable, under advancement of religion. But is there any public benefit?
In the case of Gilmour v Coats it was held that, where a religious order was devoted
to prayer, but had no contact with the public, the necessary element of public benefit
was missing. And so this would not be viewed as charitable.
Question 4
A trust for the relief of lawyers and former lawyers suffering from cancer by the
provision of a Marie Curie/Macmillan cancer nurse for North Northumberland and the
provision of transport to attend hospital appointments.
Will this trust have charitable status?
Select the appropriate option and then Submit.
Answer: No, Insufficient public benefit (IRC v Baddeley [1955] AC 572)
Scenario 4: In the last scenario, the relief of those in need by reason of, among other
things, ill-health is another charitable purpose under the CA 2011. However, the
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group intended to benefit is a class within a class and therefore, may not be
considered a section of the public for the public benefit requirement. There are too
many restrictions - geographical (North Northumberland), patients with a particular
illness and lawyers or former lawyers. The last restriction is unrelated to the health
purpose of the trust. An insufficient section of the public will benefit (IRC v
Baddeley). As a result, the trust is likely to fail as a charitable trust.
Stage 11: Conclusion
That brings us to the end of this Tutorial.
Having worked through this Tutorial you should now be able to:
END OF DOCUMENT
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