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POVERTY: AN ESSENTIAL ELEMENT IN CHARITY AFTER ALL?

Published online by Cambridge University Press:  17 November 2011

Mary Synge
Mary Synge
Affiliation:
LLB, Solicitor, Associate Teacher and PhD student, University of Bristol.
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Extract

In 1951, an argument that schools should be charitable only if they offer free or reduced tuition was dismissed by the court as a “startling proposition”.1 Yet, in 2010, an independent school was assured of its charitable status only when it agreed to offer means-tested bursaries.2 So did the law change with the Charities Act 2006 (‘the Act’)?

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Articles
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The Cambridge Law Journal , Volume 70 , Issue 3 , November 2011 , pp. 649 - 668
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Copyright © Cambridge Law Journal and Contributors 2011

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References

1 The Abbey Malvern Wells Ltd. v. Ministry of Local Government and Planning [1951] Ch. 728, 737 per Danckwerts J.

2 Highfield Priory School initially ‘failed’ the Commission's public benefit assessment but later passed, having submitted a plan to offer means-tested bursaries in addition to (unchanged) opportunities for public access etc: Emerging Findings report, July 2009, and subsequent decision, July 2010, both published by the Commission.

3 In guidance published to promote awareness and understanding of the public benefit requirement; notwithstanding the complex legal subject, the guidance was written by the Commission's Policy Division, but with assistance from legal staff.

4 Section 3(3).

5 Though not conclusively: a school for pickpockets or prostitutes might be educational but not beneficial: Re Pinion [1965] Ch. 85, 105. Once accepted as charitable under the fourth head (see note 13), other purposes were also treated in this way.

6 Ibid.; Coats v. Gilmour [1948] Ch. 340, 347 and 357.

7 National Anti-Vivisection Society v. I.R.C. [1948] A.C. 31, 65; Re Macduff [1896] 2 Ch. 451, 474.

8 Unless, perhaps, there was no question of any private class or section of the public (Funnell v. Stewart [1996] 1 W.L.R. 288, 197). Where it appears to be assumed, it is always subject to contrary evidence (Oppenheim v. Tobacco Securities [1951] A.C. 297, 315).

9 Picarda QC: Memorandum to Joint Committee (DCH 297): “Mere reversal of the ‘presumption’ of public benefit cannot change the declared law on this point”; HL Deb. vol. 669 col. GCGC112.

10 This is the test applied by the Commission, even though case law prescribes a purposes (rather than activities) test, as acknowledged by the Commission in its publications (e.g. Analysis of the Law Underpinning Charities and Public Benefit, December 2008, part 4); cf. Charities and Trustee Investment (Scotland) Act 2005 which requires a charity to provide public benefit.

11 The provision may lead to a court openly addressing the various aspects of public benefit in each case and not just when evidence in rebuttal is presented.

12 Verge v. Somerville [1924] A.C. 496.

13 At 499–500, referring to the four heads of charity (relief of poverty, education, religion and other purposes beneficial to the community) outlined in The Commissioners for Special Purposes of the Income Tax v. Pemsel [1891] A.C. 531, 583 (“Pemsel's case”).

14 Ibid., p. 503. See too Re Compton [1945] Ch. 123, 139.

15 Pemsel's case [1891] A.C. at 581, per Lord Macnaghten.

16 Thus avoiding the inevitably tortuous problems of scope and definition which the Commission fails to resolve: since the law does not rule out rich beneficiaries, there is no need to address any other class on the sliding scale between the wealthy and the impoverished.

17 For example, the services offered by a charitable lifeboat organisation are available to all distressed seamen, without regard to their means.

18 Some judicial dicta (below) which suggest that charitable status would be denied if the poor were excluded appear to be limited to such an express exclusion (it is submitted that this covers any exclusion of persons less rich than those included (so that, again, there is no need to consider various degrees of wealth)).

19 E.g. a school for the sons of gentlemen: Attorney General v. Earl of Lonsdale (1827) 1 Simons 105, 57 E.R. 518.

20 Spiller v. Maude (note), 1864. S. 22; Re Lacy [1899] 2 Ch. 149.

21 [1946] Ch. 194.

22 Ibid., p. 203.

23 Ibid., p. 210; nor will restricting a non-charitable purpose to a particular locality: Williams' Trustees v. I.R.C. [1947] A.C. 447, 456.

24 57 E.R. 518 (in 1827).

25 Ibid., p.520 (referring to the Charitable Uses Act 1601).

26 R v. Special Commissioners of Income Tax ex p. University College of North Wales (1909) 78 L.J.K.B. 576, 578.

27 Including Eton and Winchester.

28 See, for example, I. Williams, The Alms Trade (London 1989).

29 Brighton College v. Marriott [1926] A.C. 192; Abbey Malvern [1951] Ch. 728.

30 The courts have interpreted ‘education’ widely but not without limitation: Re Pinion [1965] Ch. 85; Re Shaw [1957] 1 W.L.R. 729.

31 E.g. Re Gott [1944] Ch. 193; Re Koeppler Will Trusts [1986] Ch. 423; Smith v. Kerr [1902] 1 Ch. 774; Inland Revenue Commissioners v. McMullen [1981] A.C. 1.

32 Re Compton [1945] Ch. 123; Oppenheim v. Tobacco Securities Trust Co. Ltd. [1951] A.C. 297, 306; Inland Revenue Commissioners v. Educational Grants Association [1967] Ch. 993.

33 [1891] A.C. 531.

34 Ibid., p. 532.

35 Ibid., p. 571 per Lord Herschell.

36 E.g. Re Manser [1905] 1 Ch. 68; Re Hood [1931] 1 Ch. 240; Farley v. Westminster Bank [1939] A.C. 430; Cocks v. Manners (1871) L.R. 12 Eq. 574.

37 [1891] A.C. 531, 583.

38 Recognised by Lord Wrenbury in Verge v. Somerville [1924] A.C. 496, 503.

39 [1955] A.C. 572.

40 Ibid., 604.

41 [1969] 1 A.C. 514, 542.

42 E.g. Re Good [1905] 2 Ch. 60; Scottish Burial and Cremation Society Ltd v. Glasgow Corporation [1968] A.C. 138.

43 E.g. National Anti-Vivisection Society v. I.R.C. [1948] A.C. 31; I.R.C. v. City of Glasgow Police Athletic Association [1953] A.C. 380 (likewise the ‘animal cases’ contain no consideration of poverty: Re Wedgwood [1915] 1 Ch. 113; Re Grove-Grady [1929] 1 Ch. 557).

44 Perhaps because the preamble to the 1601 Act includes the relief of the “aged, impotent and poor people”, without indicating whether a conjunctive or disjunctive interpretation was intended.

45 Or “great disinclination”: Re Lewis (Deceased) [1955] Ch. 104, 107.

46 (1951) 67 L.Q.R. 164.

47 (1945) 61 L.Q.R. 268; see too Attorney General v. Duke of Northumberland (1877–78) L.R. 7 Ch. D. 745, 749.

48 Echoed by Peter Gibson J. in Joseph Rowntree Memorial Trust Housing Association Ltd. v. Attorney-General [1983] Ch. 159, 171.

49 61 L.Q.R. at p. 272. See too Atiyah, P.S., “Public benefit in charities” (1958) 21 M.L.R. 138CrossRefGoogle Scholar, at 140.

50 Briefly, but helpfully, reviewed in the Joseph Rowntree case, note 48 above, at pp. 172–173.

51 Re Lucas [1922] 2 Ch. 52.

52 Re Glyn's Will Trusts [1950] 2 All E.R. 1150 (note).

53 [1951] Ch. 198. See too Re Neal (1966) 110 S.J. 549; Re Bradbury [1950] W.N. 558.

54 [1983] Ch. 159. This emphasis on need is also discernible in Re Resch.

55 [1983] Ch. at p. 171. See too McGovern v. Attorney General [1982] Ch. 321, 333 where the principle was reiterated without question.

56 [1955] Ch. 104.

57 Ibid., p. 107.

58 In In Re Glyn's Will Trust and Re Robinson, note 52 and 53 above.

59 In the Joseph Rowntree case, note 48 above.

60 [1969] 1 A.C. 514.

61 Ibid., p. 542.

62 As indeed did his later dicta, see below p. 666.

63 41 E.R. 602; Howse v. Chapman (1799) 4 Ves. 542; Re Mann [1903] 1 Ch. 232.

64 41 E.R. at p. 605.

65 27 E.R. 422.

66 The reference to the poor in Jones v. Williams may have been to make clear the charitable nature of gifts of general public utility as an alternative to the usual relief of poverty (P. Luxton, “Making Law? Parliament v The Charity Commission” Politeia 2009, p. 21); later references to this definition, which omit the sub-clause concerning rich and poor, also suggest that the significance of it was to emphasise the public nature of the gift: Pemsel's case [1891] A.C. 531, 543; Nightingale v. Goulburn 67 E.R. 1003, 1006 and Taylor v. Taylor [1910] 10 C.L.R. 223, 237, where Isaacs J. described the words as “merely explanatory”.

67 (1881–82) L.R. 7 App. Cas. 633; applied in Peggs v. Lamb [1994] Ch. 172.

68 An implied exclusion on the terms; Cross calls the case a “stumbling block to anyone who wishes to reduce the law of charity to some semblance of order” but not because of the wealth of the beneficiaries: “Some recent developments in the law of charity” (1956) L.Q.R. 72, 187 at 201.

69 L.R. 7 App. Cas. at p. 668.

70 Re Christchurch Inclosure Act (1888) L.R. 38 Ch. D. 520.

71 Ibid., p. 533.

72 Re Diplock [1941] Ch. 253; Houston v. Burns [1918] A.C. 337.

73 [1896] 2 Ch. 451.

74 Ibid., p. 464.

75 Ibid.

76 Note 24 above.

77 Note 67 above.

78 Provided the charitable purposes are other than the relief of poverty.

79 [1896] 2 Ch. at p. 469.

80 To argue that the purpose is rendered non-charitable only because of the admission of some rich to the grounds would be to suggest that a class must be confined to the poor, a view not supported by authority (nor propounded by the Commission).

81 Attorney-General v. Duke of Northumberland (1877–78) L.R. 7 Ch. D. 745, 752.

82 Joseph Rowntree [1983] Ch. 159, 171.

83 Re Macduff [1896] 2 Ch. at p. 471.

84 At least not unless by charitable means such as circulating religious and virtuous learning: Browne v. Yeall 7 Ves. 50, n.

85 Similarly, Harman J. in Re White's Will Trusts [1951] 1 All E.R. 528, 530 notes that a rest home for millionaires would not be charitable, but he appears to make this comment on the basis that a rest home is not charitable per se unless for the benefit of doers of charity (as in Re Estlin (1903) 72 L.J. (Ch.) 687 and Re James [1932] 2 Ch. 25) or objects of charity (as in Re Chaplin [1933] Ch. 115) and millionaires are neither; H. Picarda's statement that “gifts for the exclusive benefit of rich are not charitable” (The Law and Practice relating to Charities, 4th edn. (Haywards Heath 2010), p. 149), based in part on Rigby L.J.'s dicta and also A-G v Duke of Northumberland (1877) 7 Ch. D. 745 at 752, per Sir George Jessel M.R., appears not to make the distinction, which he goes on to describe, between gifts of money and other purposes, nor to distinguish between express and implied exclusions.

86 Scottish Burial Reform and Cremation Society v. Glasgow Corporation [1968] A.C. 138, 149.

87 I.R.C. v. Falkirk Temperance Café Trust 1927 S.C. 261; Incorporated Council of Law Reporting for England and Wales v. Attorney General [1972] Ch. 73.

88 The Commission's requirement that fees are “reasonable and necessary” is not founded in law, nor does the Commission offer any authority for it (although it seems possible that it may have misconstrued the words of Isaacs J. in Taylor v. Taylor, below).

89 Abbey Malvern [1951] Ch. 728.

90 Brighton College v. Marriott [1926] A.C. 192.

91 See too Falkirk case, note 87 above.

92 The Commissioners of Inland Revenue v. The Trustees of the Roberts Marine Mansions 11 T.C. 425; Re Neal (1966) 110 S.J. 549.

93 Re Cottam [1955] 1 W.L.R. 1299; Re Clarke [1923] 2 Ch. 407.

94 Cawse v. Nottinghamshire Lunatic Hospital Committee [1891] 1 Q.B. 585.

95 Roberts Marine Mansions, note 92 above.

96 [1972] Ch. 73, 90 per Sachs L.J.

97 H. Picarda identifies the destination of profits as the relevant issue where fees are charged and does not address high fees in particular: op. cit. (note 85), p. 25; by contrast J. Warburton (Tudor on Charities, 9th edn. (London 2003), p. 11) states that if charges are “set at a level which deters or excludes a substantial proportion of the beneficial class the public benefit requirement will not be met”, although also saying that “charges may be set at a level which generates a surplus to assist the funding of a charity's other current or future activities”: regrettably only Re Resch is cited (where ‘a substantial proportion’ of the public were presumably ‘deterred’ by the hospital's charges) without analysis and reference is made to the Commission's publication RR8 (although it did not have force of law and was superseded by the guidance); also J. Warburton makes no particular mention of fees charged by schools (despite being very likely to deter or exclude a substantial proportion of the public) in the context of education and public benefit (ibid. p. 72, although fee-paying schools are mentioned in relation to bounty (ibid. p. 33).

98 But see GPDS v. Ereaut [1931] A.C. 12, 24 (where the possibility of profit was held not to be conclusive against finding that a school was a ‘public school’ within tax legislation). Note too that the fact that there is no intention to make profits for private gain does not necessarily mean that something is a charity: Re Bushnell, Decd. [1975] 1 W.L.R. 1596.

99 Abbey Malvern [1951] Ch. 728, 738; payment of dividends or an entitlement to a return of capital may be critical (The Birkenhead School Ltd v. Dring 11 T.C. 273) unless they have to be reapplied to charitable purposes (Abbey Malvern, supra; Scottish Burial Reform and Cremation Society v. Glasgow Corporation [1968] A.C. 138) or do not amount to a purpose of the school (GPDS v. Ereaut, note 98 above; cf. GPDS v. Minister of Town and Country Planning [1951] Ch. 400.

100 [1972] Ch. 73, 104.

101 Italics added. See too I.R.C. v. Falkirk Temperance Café Trust, 1927 S.C. 261, 268 (Lord Sands insisting that “all private gain must be eliminated”).

102 [1962] 1 W.L.R. 763, 768.

103 Ibid., 769. See too Taylor v. Taylor, below, where absence of private gain was critical.

104 [1910] 10 C.L.R. 218, 239.

105 The Commission appears to disregard the context of the judge's comments in this case.

106 See the decisions in Brighton College v. Marriott, Abbey Malvern, notes 90 and 99 above; also counsel's argument in Re Resch [1969] 1 A.C. at p. 531, that “the educational cases stand on their own” in not requiring gratuitous or means-tested services to be provided to the poor.

107 Inland Revenue v. Peeblesshire Nursing Association 1927 S.C. 215, 222 per Lord Sands: “It is not fatal to the charitable character of an institution that the beneficiaries should pay for the benefits they get, always provided that they pay less than the market price of that benefit, and that the difference is made up to them from benevolent sources.”

108 Incorporated Council of Law Reporting for England and Wales v. Attorney-General [1972] Ch. 73, 104. Note that a diversion of profits to charitable purposes alone does not render non-charitable purposes charitable: Oxfam v. Birmingham City District Council [1976] A.C. 126.

109 Although an endowment in particular (for the whole or partial maintenance by charity) was required for tax allowances purposes in Blake v. City of Mayor of London [1887] 19 Q.B.D. 79 and Needham v. Bowers (1888) 21 Q.B.D. 436; cf GPDS v. Ereaut [1931] A.C. 12, where the approach of the House of Lords was to weigh up a number of factors, each described as non-conclusive.

110 On the other hand, of course, the existence of a benevolent source does not necessarily mean that the organisation will be charitable, any more than the absence of profit will render something charitable.

111 GPDS v. Ereaut, [1931] A.C. 12; cf. Blake v. Mayor and Citizens of the City of London, supra, 82 per Lopes L.J. (although his words regarding gratuitous provision can be taken to refer to a reduced cost for all, in the light of the absence of evidence of free or reduced fees for some and the school's endowment; also his words are cited in Cawse v. Nottingham Lunatic Hospital Committee, apparently, to refer to ‘reduced’ fees for all due to a charitable endowment, rather than reduced or nil fees for some).

112 (1939) 39 S.R. (NSW) 408, 419.

113 Ibid., 421 (in what seems a sensible and pragmatic approach that avoids the myriad of problems created by the Commission's approach); it seems neither evidence of reduced or waived charges (Falkirk case 1927 S.C. 261) nor an express power to reduce and waive charges (Roberts Marine Mansions 11 T.C. 425) are critical in establishing charitable status; see too Cawse v. Notts Lunatic Hospital [1891] 1 Q.B. 585, where the existence of endowed funds was treated as preserving the original eleemosynary character of the hospital notwithstanding the paying patients and absence of free or reduced services; equally, generous gratuitous provision will not be conclusive in favour of charity: Needham v. Bowers (1888) 21 Q.B.D. 436.

114 [1969] 1 A.C. 514.

115 As one might have expected if the law had established this to be a necessary element of charitable status.

116 Ibid., at 539 (“from time to time patients have been treated free of charge or at reduced fees”) and, at 544 (patients who “cannot get a reduction of or exemption from the charges” being some of those excluded from benefiting).

117 Nor does it appear in the headnote to the case; C. Buckley calls the weight attached to this evidence “negligible”: “The Charities Act 2006: Consolidation or reform?” C.L. & P.R. 2009 vol. 11 issue 1, 1.

118 See too Perpetual Trustee Co v. St Luke's Hospital (1939) 39 S.R. (NSW) 408, where the hospital was held to be charitable even though there was no free treatment and it was a ‘great objective’ but not a requirement of the hospital to provide some services at less than cost price.

119 Ibid., 544 (italics added). It should be noted that Lord Wilberforce suggested that to the extent that the poor could be said to be excluded, that would mean that the services were not open to all and not that they were non-charitable.

120 Whether or not the case can be seen as illustrating an implied exclusion on the terms must be open to debate, given Lord Wilberforce's comment that the poor were not excluded (because some poor might obtain gratuitous services or have contributed sufficiently to a medical benefit scheme (although counsel's argument that anyone who contributes to such a scheme cannot be poor has some merit)); however, it would appear to do so to all intents and purposes (and Perpetual Trustee Co v. St Luke's Hospital, note 118 above, would appear to represent an implied exclusion on the terms and was nonetheless charitable).

121 [1969] 1 A.C. at p. 544.

122 Re Good [1905] 2 Ch. 60. See too Albery, M., “Trusts for the benefit of the inhabitants of a locality” (1940) 56 L.Q.R. 49 at 51–52Google Scholar suggesting that certain cases should be interpreted as conferring charitable status because of relief to the public purse rather than as purposes for the general inhabitants of a parish or town.

123 Cf. Atiyah, P.S., “Public benefit in charities” (1958) 21 M.L.R. 138CrossRefGoogle Scholar; and no amount of indirect benefit will render charitable what is otherwise non-charitable: Re Compton [1945] Ch. 123; Gilmour v. Coats [1949] A.C. 426; I.R.C. v. City of Glasgow Police Athletic Association [1953] A.C. 380.

124 Sub-principles 2b and 2c respectively: Charities and Public Benefit, December 2008.

125 E.g. Public Benefit and Fee Charging, para. B4.

126 Arguably putting trustees in potential breach of their duty to carry out the organisation's charitable purposes in the best interests of its beneficiaries.

127 [1969] 1 A.C. 514.

128 Analysis of the law underpinning Public Benefit and Fee Charging: Commission, December 2008; in addition to the cases mentioned here, the Commission also refers to Re Coulthurst [1951] Ch. 661 regarding the definition of ‘poor’ and various other cases to support the (uncontested) principle that charities are permitted to charge fees.

129 Re Resch (Privy Council) and Taylor v. Taylor (High Court of Australia), both of persuasive authority only.

130 Luxton accuses the Commission of having “cobbled together an assortment of legal justifications which, on further analysis, do not effectively support the Commission's general stance”: op. cit. p. 28.

131 27 E.R. 422 (discussed above).

132 [1891] A.C. 531 (discussed above).

133 [1896] 2 Ch. 451, 464 (discussed above).

134 [1910] 10 C.L.R. 218, 226: again it appears that Griffith C.J. had in mind profit-making institutions and his view that a gift to a non-profit making but fee-charging institution like the one in Cawse v. Notts Lunatic Hospital Committee would be charitable, “unless, perhaps, if the poor were excluded from its benefits” suggests that he envisaged only an express exclusion rendering it non-charitable.

135 [1951] A.C. 297.

136 Poverty could only be said to be relevant in this case in the sense that only if the purpose had been the relief of poverty rather than the advancement of education, would the private character of the trust have been capable of being charitable.

137 Op. cit., para. 3.59.

138 [1969] 1 A.C. at p. 544.

139 [1896] 2 Ch. 451.

140 Although it should be noted that the example was given in the context of considering the poor being excluded and not in relation to considerations of commercial profit (the second and first ‘disqualifying indicia’ respectively).

141 Re Smith [1962] 1 W.L.R. 763.

142 Ibid., p. 766.

143 Ibid., p. 768.

144 Legal analysis, para. 3.58.

145 Sub-principles 2b and 2c.

146 Emerging Findings, Commission July 2009, Section I2.

147 It was also said to fail sub-principle 2d (no private benefits) due to a potential conflict of interest faced by parent-governors (arguably more a matter for regulatory action than impinging on questions of charitable status).

148 Charities Act 1993, s. 3(4)(a) provides that the Commission ‘shall’ remove such an institution from the register.

149 There could be no question of a cy-pres application of the school's assets; the consequences of failing the public benefit requirement are of utmost importance but not adequately explained by the Commission and are beyond the scope of this article.

150 The Commission's willingness to accept projections and expressions of hope and intent, without any apparent conditions attached as to the plan becoming a reality, suggests that it is not keen to test the consequences of a registered charity failing to meet its test of public benefit.

151 Interestingly, the guidance presents a quite different interpretation of the law from the Commission's previous publication, RR8 The Character of Charity, published February 2001 (notwithstanding the three decades that Re Resch had already spent on the case books), perhaps lending weight to the argument that the Commission is (or was) intent “on making law … in order to further the political intentions of the government”' (P. Luxton, op. cit., p. 28).

152 Emerging Findings, foreword; and yet the courts have been careful to separate consideration of fiscal privileges from determinations of charitable status (note the distancing comments of Viscount Dilhorne and Lords MacDermott and Hodson in response to Lord Cross's comments in Dingle v. Turner [1972] A.C. 60).

153 The Supreme Court's scope for law reform is limited, not least by the dearth of cases before the courts.

154 Both applications were heard by the Upper Tribunal in May 2011 (and, at the time of writing, no judgment has been delivered).