Property Law - Charitable Trusts Flashcards
Why did G enact Section 4 and 17 CA 11 (two reasons)
To improve clarity and political objective of reassessing charitable status of fee-charging charities (e.g. private schools)
Catholic Care v Charity Commission general
Homosexual adoption
Why do courts and Commission look to the purposes and activities of charitable trusts?
Difference between purpose and activities can simply be one of degree
Section 4 and 17 CA 11
G wanted to settle common law presumption that relieving poverty and advancing education and religion were for the public benefit
What is a criticism of CA 06?
Overlap within section 3 may mean the objective of clarity is not reached
What case outlined what sections 3 and 4 CA2011 are actually asking?
ISC Case
What section of what Act enshrines the method of making analogy with existing charitable purposes?
Section 3(1)(m)(ii) CA 2011
How did the CC justify their departure from previous court decisions on charitable status?
Courts have done it as well
What case enforced that Ts can decide nature and extent of benefits to the public?
R (ISC) v Charity Commission
What two sections of what Act took the Pemsel heads of charity further than common law?
Section 3(1) CA 06 and section 3(2)(a)(ii) CA 06
National Anti-Vivisection Society v IRC on political purposes
Political purpose cannot be charitable as court can’t usurp the legislature and AG shouldn’t have to enforce it
What section of what act allows charities to restrict benefits to class defined by a ‘protected characteristic’?
Section 193(2) Equality Act 2010
What case shows a court accepting fiscal implications of charitable status, but in order to deny such status?
Amateur Youth Soccer v Canada Revenue
What two cases show courts getting around the exclusively charitable requirement?
Guild v IRC; Royal College of Surgeons v National Provincial Bank
Section 3(1) CA 06
Prevention of poverty recognised as charitable, not just relief
Dingle v Turner on significant section of community
Obiter agreement with MacDermott in Oppenheim
Section 3(1)(m)(ii) CA 2011
‘Reasonably be regarded as analogous to, or within the spirit of’ s.3(1) charitable purposes definition
What judge argued it should be a question of degree in all circumstances, NOT based on personal nexus test, when asking if there is a significant section of community?
Lord McDermott in Oppenheim.
Section 3(1)(h) CA 11
Advancement of human rights is charitable, so closer to seeing political campaigning as charitable
What section of what Act introduces a ‘wait and see’ rule for gifts from a charity to a non-charity or vice versa?
Section 3 Perpetuities and Accumulations Act 1964
Who argued Courts should look to conceptual ‘ideal’ of charity, not fiscal considerations
Parachin
What section of what Act disables the 6 year limitation period for private trusts in regard to charitable trusts?
S.2(3) Limitation Act 1980
Morice v Bishop on Statute of Charitable Uses 1601
Starting point for judicial examination of a charitable purpose trust
Purpose cannot be for public benefit if it does more harm than good
National Anti-Vivisection Society v IRC
Independent School Council Case on section 3 and 4 CA 2011
Section 3 is asking that the nature of the purpose itself must benefit the community, but section 4 is asking if those that benefit are sufficiently numerous to constitute a section of the public
what is an example of decision-making bodies deciding charitable status as a ‘pure’ question of law?
Courts determining charitable testamentary purpose
Ulturn UK v Charity Commission general
‘Street associations’
S.193(2) Equality Act 2010
Allows charities to restrict benefits to class defined by ‘protected characteristic’ if proportional or to prevent/compensate resultant disadvantages
What did National Anti-Vivisection say about significant section of community?
Purpose cannot be for public benefit if it does more harm than good
What wide powers does the Charity Commission have?
To inquire into charities, remove/replace corrupt officers and enforce obligations of Ts through the courts
In what year did the Commission decide rifle clubs were no longer charitable?
1993
What types of tax do charitable bodies not pay?
Income, corporation and capital gains tax on properly for solely charitable ends
Who said the difference between the purpose and the activity of a body is simply one of degree
Garton
Section 14 Perpetuities and Accumulations Act 2009
Power of charitable Ts to accumulate income for more than 21 years ceases to have effect, so that privilege of indefinite duration now only applies to endowment capital
what is a positive of the personal nexus test?
Conducive to legal certainty, unlike McDermott’s approach
Section 3(2)(a)(ii) CA 06
‘Religion’ includes no belief in a God
Section 2 Charities Act 2011
Purpose is legally charitable if in section 3 and satisfies public benefit in section 4
What is the 4-part classification of charitable objects?
(1) relief of indigent, (2) advancement of learning, (3) advancement of religion and (4) advancement of objects of general public utility
Dingle v Turner
Only Lord Cross admitted courts have regard to charitable fiscal privileges
What section of what Act states the advancement of human rights is charitable?
Section 3(1)(h) CA 11
Special Commissioners for Purposes of Income Tax v Pemsel’
‘Pemsel heads of charity’
What judge in what case admitted courts have regard to fiscal privileges in deciding charitable status?
Lord Cross in Dingle v Turner
What section of what Act gave that the power of charitable Ts to accumulate income for more than 21 years ceases to have effect?
Section 14 Perpetuities and Accumulations Act 2009
Guild v IRC general
‘Or some similar purpose in connection with sport’
What act used to invalidate gifts of land for charitable ends?
Mortmain and Charitable Uses Act 1736
What is the 4 part classification of charitable objects called?
‘Pemsel heads of charity’
From what jurisdiction is Aid/Watch v Federal Commission?
High Court of Australia
Ulturn UK v Charity Commission judgment
If trust property CAN be used for non-charitable purposes, it is a non-charitable trust
How do decision-making bodies generally decide on charitable status, overarching?
As a ‘pure’ question of law divorced from fiscal considerations, e.g. courts determining charitable testamentary purpose
What is the responsibility of S in charitable trusts?
Represent charities in disputes and enforce Ts obligations
Re Greenpeace of New Zealand
courts need to assess if achievement enures to public good, so political purpose could be charitable
Statute of Charitable Uses 1601
Preamble gave charitable objects that courts started to use to draw analogy with other cases
Hayton and Mitchell on advice/guidance of Charity Commission
Retrenchment could result in ‘under-confident’ Ts and unregulated market of advice providers
Re Clarke
Charitable objects need to be sufficiently well-defined to reveal a general charitable intention
Scottish Burial v Glasgow Corp
HoL found operation of crematoria charitable by analogy with provision of burial grounds, by analogy with upkeep of churchyard etc
Thornton v Howe
Expansive view of religion used to invalidate gifts, but now works to advantage as Mortmain and Charitable Uses Act 1736 no longer invalidates gifts of land for charitable ends
courts need to assess if achievement enures to public good, so political purpose could be charitable
Re Greenpeace of New Zealand
Garton on charitable trusts
Purpose and activity is simply a question of degree
Lord MacDermott in Oppenheim
Should be a question of degree in all circumstances - concerned with subject matter, not form
HoL found operation of crematoria charitable by analogy with provision of burial grounds, by analogy with upkeep of churchyard etc
Scottish Burial v Glasgow Corp
Amateur Youth Soccer v Canada Revenue
Supreme Court of Canada accepted fiscal implications of charitable status but in order to deny status - ‘best left to Parliament’
What is the issue with section 4 and 17 CA 11?
There was no common law rule that first 3 Pemsel heads were ‘for the public benefit’ in the second sense in ISC
What was the value of tax relief to charitable bodies in 2013/14?
£3 billion
What happens if T has to apportion property between charitable and non-charitable objects?
Charitable objects need to be sufficiently well-defined to reveal a general charitable intention
What guidance does the Charity Commission give now?
Generic online guidane - one-to-one is only in very limited circumstances
What three specific points do decision-making bodies look at in order to determine charitable status?
Analogy with existing charitable purposes, changing social and economic circumstances and purposes and activities of the organisation
When is certainty of objects satisfied in a charitable trust?
If S had a clear charitable intention to enable a cy-pres schemes to be formulated
What was the 2001 decision of the Commission on charitable status?
General Medical Council is a charity
S.2(3) Limitation Act 1980 imposes what?
6 year limitation period for private trusts
What case is a good example of how the expansive view of religion and the use of analogy now works to the advantage of religious charities?
Thornton v Howe
What judge dissented in Oppenheim?
Lord MacDermott
In what year did the Commission decide the General Medical Council was charitable?
2001
Section 2 CA 06
Tried to codify ‘Pemsel heads’ of charity - 13 charitable purposes by separating (4) into 10 heads
R (ISC) v Charity Commission general
Fee paying schools, means-tested bursaries, public facilities
What is legal orthodoxy in regard to considering the purposes and activities of charitable trusts?
Decision should be based solely by reference to the document
Parachin on changing social/economic cirumstances
Courts should look to conceptual ‘ideal’ of charity, not fiscal considerations
National Anti-Vivisection Society v IRC
Purpose cannot be for public benefit if it does more harm than good
A gross income over what requires a Charity to submit annual accounts to the Charity Commission?
£250,000
ISC Case on s.4 CA2011
ASKING if those that benefit are sufficiently numerous to constitute asection of the public
Guild v IRC judgment
Benignant construction in doc that can be interpreted as exclusively charitable may pass - ‘SIMILAR PURPOSE’ found to also be charitable purpose
What suggests UK is closer to seeing political campaigning as charitable?
Section 3(1)(h) CA 11
R (ISC) v Charity Commission judgment
Duty owed to those who cannot afford fees, but Ts can decide nature and extent of benefits. If charity fails PB requirement, Ts are in breach - they do not lose charitable status
What was the 1993 decision of the Commission on charitable status?
Rifle clubs were no longer charitable
What case enforced that if a charity fails PB requirement, Ts are in breach - they do not lose charitable status?
R (ISC) v Charity Commission
ISC Case on S.3 CA2011
asking that the nature of the purpose itself must benefit the community
What was the rule for gifts from a charity to a non-charity or vice versa before Section 3 Perpetuities and Accumulations Act 1964?
Subject to remoteness
Give an example where a court made analogy with existing charitable purposes to determine charitable status
Scottish Burial v Glasgow Corp
Royal College of Surgeons v National Provincial Bank
Incidental non-charitable activities as a result of effective promotion keeps the trust charitable
What are the trust law advantages of charitable status?
Limited exemption from rule against remoteness and not subject to inalienability. Certainty of objects satisfied as long as clear charitable intention and T can act by a majority rather than unanimously
Lord Eldon in Morce v Bishop
4-part classification of charitable objects - (1) relief of indigent, (2) advancement of learning, (3) advancement of religion and (4) advancement of objects of general public utility
Oppenheim v Tobacco Securities Trust Xo general
For education of employee’s children - personal nexus
Name three overarching advantages of charitable status
Tax advantages, trust law advantages and policing and advice from the Charity Commission
Describe the framework of the Charity Commission
Independent regulator and corporate body, accountable to Home Secretary for efficiency but not the way it pursues its objectives
Incidental non-charitable activities as a result of effective promotion keeps the trust charitable
Royal College of Surgeons v National Provincial Bank
What tax relief can charitable bodies get?
80% relief for non-domestic rate for premises for charitable purposes and discretionary relief on the rest
What section of what act states Purpose is legally charitable if in section 3 and satisfies public benefit in section 4
Section 2 Charities Act 2011
Charitable objects need to be sufficiently well-defined to reveal a general charitable intention
Re Clarke
Who argued that in response to ISC that you can describe purpose as for PB AND exclude the poor still, e.g. by describing a class of B only the rich could fall into
Synge
S.2(3) Limitation Act 1980 on trusts
No application of 6 year period for private trusts, allowing AG to enforce for the benefit of the public past 6 years
In what case did the HoL refer to a personal nexus test as not allowing charitable purpose?
Oppenheim v Tobacco Securities Trust
What is the issue with decision-making bodies of charitable status?
They have no democratic mandate to justify choice in state expenditure
What two years did the Commission show a departure from previous court decisions on charitable status?
1993 and 2001
Aid/Watch v Federal Commissioner
‘Encouragement of public debate’ is charitable for contribution to free political expression
Who are the decision-making bodies of charitable status?
Various unelected bodies without a democratic mandate which would justify choice in state expenditure
Section 3 Perpetuities and Accumulations Act 1964
Statutory ‘wait and see’ rule for gifts from a charity to a non-charity or vice versa
What was the value of tax relief to individual donors in 2013/14?
£1.1 billion
Synge on R (ISC) v Charity Commission
Can describe purpose as for PB AND exclude the poor still, e.g. by describing a class of B only the rich could fall into
Who gave a 4 part classification of charitable objects and in what case?
Lord Eldon in Morice v Bishop
Vancouver Regional FreeNet v MNR
Analogy between provision of free access to ‘information super-highway’ and repairing bridges/ports/highways
What Canadian case shows the formalistic charade of making analogy with other cases?
Vancouver Regional FreeNet v MNR
Catholic Care v CC judgment
Couldn’t prove proportionality under s.193(2) Equality Act 2010 - ‘weighty and convincing reasons’ needed
From what jurisdiction is Vancouver Regional FreeNet v MNR?
Canada
What section of what Act enforced that privilege of indefinite duration in charitable trusts only applies to endowment capital?
Section 14 Perpetuities and Accumulations Act 2009
What irony does Garton highlight in National Anti-Vivisection Society v IRC?
They said judges can’t decide if a law is for PB, and yet said the law was ‘greatly to the public disadvantage’
Garton on National Anti-Vivisection Society v IRC
Judges do decide if a law is for PB, e.g. in IRC itself they found purpose ‘greatly to the public disadvantage’
what section of what act gives the definition of charitable purpose?
Section 3(1) CA 2011
What two cases seem to challenge the decision in National Anti-Vivisection on political purposes?
Aid/Watch v Federal Commissioner; Re Greenpeace of New Zealand
Analogy between provision of free access to ‘information super-highway’ and repairing bridges/ports/highways
Vancouver Regional FreeNet v MNR?
Political purpose cannot be charitable as court can’t usurp the legislature and AG shouldn’t have to enforce it
National Anti-Vivisection Society v IRC
Oppenheim v Tobacco Securities judgment
If only linking quality of Bs is a relationship to a particular person, not a class of Bs UNLESS ‘poverty’ case
Who said Judges do decide if a law is for PB, e.g. in IRC itself they found purpose ‘greatly to the public disadvantage’
Garton
