Charity Commission England Wales Handling & Investigation of Complaints - Public Trust

The request was refused by Charity Commission for England and Wales.

Background

This FOI relates to the Disposal of Land held in Trust by a Local authority appointing itself as a Sole Corporate Trustee.

Disposal Of POS , Land Gifted In Trust and Heritage Assets Under the Charity Act 2011 Wibsey Park 1042146 Charity exemplar

This request deals with the Charity Commissions alleged failure in regulating the same when allegedly it is believed , clear statutory breeches are evident. The concern against the Charity Commission is twofold (i) whether correct advice was given and by virtue negligence allowed a process to occur that should not and (ii) more importantly in not providing a decision to a complaint obstructed , for whatever reason, the pursuance of justice to a first Tier Tribunal , whether in the issuing a null response in its own right for avoidance of doubt constituted a decision within the meaning of the law

The Request

In the matter of concern in the handling of Complaint

All information relating to the Risk Framework undertaken by DR (RAU Team ) in respect of taking no further action on a complaint duly made and falling within the regulatory framework as acknowledged of the commission. ie a full and documented assessment of what is proportional , what is in the public interest and how the commsion arrived at the same Ref 20190319 - No Further Action - 1042146 CRM:0114880

Whether such a framework would preclude the furtherance of complaint in the event of any vicarious liability arising out of poor advice or information given by the Commission to a Corporate Trustee acting as a sole Trustee

Whether in failing to provide a response to a Complaint, duly , made the Charity Commission , have obstructed the Complainants Right to take the matter to the First Tier Charity Tribunal

In the matter of Schemes please to provide a full and considered SOP Standard Operating Procedure as to how the Commission would check and process the same , outwith any complaint

In the matter of Complaint

All information inherent in the Governance document that the Charity Commission take as having lawful authority to sell the land ( without provision of a scheme)
All information for avoidance of doubt , that which Charity Commision , relies upon under the Charities Act 2011 to exempt itself from any regulation or point of general law were statutory breeches have occurred other than its own policy view which is not the law
In the matter of schemes , all documents and information exchanged between you and the City of Bradford Metropolitan Council relating to whether the a Scheme would need to be applied for , for avoidance of doubt any initial letter stating a scheme would be required and thereafter a letter alleged to bein circulation stating a scheme would not need to be applied for
Clarification on the appointment of Trustees , as to whether the Council exists as the sole Trustee Guided by a Management Committee or as to whether the Trustees were appointed in an individual capacity. For avoidance of doubt the term Trustee has been used throughout y the Council
Whether the Charity Commission by informed response Accepts on the basis of Separation that the Regulatory & Appeals Panel which can act on behalf of Full Council (in Normal circumstances ) can do so when Trustees also act as members ( – conflict of interest ) when the advice of Chief Officers across the UK is to present to “ Full Council “
In the matter of TLAT (1996)
All documents indicating that under the Governance Document the said Corporate Trustee ( Bradford Council) had the right to sell the Land outwith an application of a scheme
By informed response , Whether under the General Power of TLAT the Trustees could arguably redact a statutory use by right which would be that which would interfere with the rights of beneficiaries
By informed response For avoidance of doubt , regardless , that the required process in any case to redact the same ( S122 LGA ) Process by the Council was never advertised or carried out , and likely could not have been in any case
All documents emails or exchanges between the council and the Charity Commission relating to the

(i) Matter of Disposal

(ii) Matter of Complaint

(iii) Confirmation of the first date of contact with council in respect of complaint and the Contact in question

(iv) Please distinguish that which the Commission relies upon to be the Independent Solicitor for the Trustees and the Solicitor Acting on Behalf of the Council
Confirmation of the Commissions Policy on provision of FOI and whether it is normal practice for an officer allegedly , making an error , act or commission to be dealing with such matters

(v) whether as required under the Charities Act the Notice on title is in its correct form in respect of the Statutory Instrument Required of it for avoidance of doubt it appears not to be in the form of the Statutory Instrument and given the wrong way round as provided in the complaint )

In conclusion I request review to provide an informed and reasoned response providing a decision to the complaint duly made as required under the regulatory role of the commission so that application can be made to the first tier tribunal or in the alternative Judicial Review in respect to any obstruction to justice. Please therefore provided a reasoned decision as requested by way of informed responce

Yours faithfully,

Colin Duke

FOI Requests, Charity Commission for England and Wales

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Colin Duke left an annotation ()

Your reference to Risk Framework returns {"_response_info":{"status":"not found"}} at https://www.gov.uk/government/uploads/sy...

RIGA FOI (Queue), Charity Commission for England and Wales

3 Attachments

Dear Mr Duke

Thank you for your email dated 20 March 2019. 

 Your email contained a mixture requests to provide explanations,
questions concerning the Commission’s view about particular matters and
specific requests for information under the provision of the Freedom of
Information Act 2000 (“The Act”).

 

As the Act only applies to information we hold this email is the
Commission’s response to the specific requests for information we
identified in your email as requests falling to be responded to under the
provisions of the Act. 

 

You have asked the Commission:

 

1.       “All information relating to the Risk Framework undertaken by DR
(RAU Team) in respect of taking no further action on a complaint duly made
and falling within the regulatory framework as acknowledged of the
commission. ie a full and documented assessment of what is proportional ,
what is in the public interest and how the commission arrived at the same 
Ref 20190319 - No Further Action - 1042146 CRM:0114880”

 

2.       “In the matter of schemes, all documents and information
exchanged between you and the City of Bradford Metropolitan Council
relating to whether the a Scheme would need to be applied for, for
avoidance of doubt any initial letter stating a scheme would be required
and thereafter a letter alleged to bein circulation stating a scheme would
not need to be applied for”

 

3.       “All documents indicating that under the Governance Document the
said Corporate Trustee (Bradford Council) had the right to sell the Land
outwith  an application of a scheme”

 

4.       “All documents emails or exchanges between the council and the
Charity Commission relating to the
(i) Matter of Disposal
(ii) Matter of Complaint
(iii)  Confirmation of the first date of contact with council in respect
of complaint and the Contact in question

 

I can confirm your request has been managed in accordance with the
provision of the Act.  Further to this I can confirm the Commission does
hold some information falling within scope of your request.

 

For your ease of reference we have responded to each of your questions in
turn as above.

 

1 This information is exempt under section 21 of the Act as the
information is reasonably accessible to you by other means.  The
Commission’s Risk Framework can be viewed on the following link:
[1]https://www.gov.uk/government/publicatio...
  

It may be helpful if I clarify that this is the document on which the
assessment process is based and outlines how the Commission operates as a
risk led, proportionate regulator and how and when we engage. 

2 Please find attached information falling within scope of this part of
your request.  Some information has been redacted under section 40 of the
Act as it constitutes the personal data of third parties.

Section 40(2) provides that personal data about third parties is exempt
information if one of the conditions set out in section (3) is satisfied. 
Namely whether any of the data protection principles would be contravened
by the disclosure.  

Under the Act, disclosure of this information would breach the fair
processing principle contained in the DPA where it would be unfair to that
person and/or is confidential.

3 We do not hold the information requested.

4 (i) Please see attached information in connection the Commission’s
response to question 2      

   (ii) We do not hold this information

   (iii) We do not hold this information

Outside of the Act I can advise you regarding you query about Schemes I
would refer you to the Commission's Commission's Operational Guidance
[2]http://ogs.charitycommission.gov.uk/g500...

Yours sincerely

Katherine O’Hare

Information Rights and Complaints Manager

Charity Commission

 

If you think our decision is wrong, you can ask for it to be reviewed. 
Such requests should be submitted within three months of the date of our
response and should be addressed to the Charity Commission at PO Box 211,
Bootle, L20 7YX (email: [3][email address]).  More
information about our Freedom of Information Act review service can be
found on the following link to our website:
[4]https://www.gov.uk/government/organisati....

If you are not satisfied with the internal review, you can appeal to the
Information Commissioner.  Generally, the ICO cannot make a decision
unless you have exhausted our review procedure.  The ICO  can be contacted
at the Information Commissioner’s Office, Wycliffe House, Water Lane,
Wilmslow, Cheshire SK9 5AF (email: [5][email address]).

W: [6]https://www.gov.uk/charity-commission

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show quoted sections

RIGA FOI (Queue), Charity Commission for England and Wales

3 Attachments

Dear Mr Duke

Thank you for your email dated 20 March 2019. 

 Your email contained a mixture requests to provide explanations,
questions concerning the Commission’s view about particular matters and
specific requests for information under the provision of the Freedom of
Information Act 2000 (“The Act”).

 

As the Act only applies to information we hold this email is the
Commission’s response to the specific requests for information we
identified in your email as requests falling to be responded to under the
provisions of the Act. 

 

You have asked the Commission:

 

1.       “All information relating to the Risk Framework undertaken by DR
(RAU Team) in respect of taking no further action on a complaint duly made
and falling within the regulatory framework as acknowledged of the
commission. ie a full and documented assessment of what is proportional ,
what is in the public interest and how the commission arrived at the same 
Ref 20190319 - No Further Action - 1042146 CRM:0114880”

 

2.       “In the matter of schemes, all documents and information
exchanged between you and the City of Bradford Metropolitan Council
relating to whether the a Scheme would need to be applied for, for
avoidance of doubt any initial letter stating a scheme would be required
and thereafter a letter alleged to bein circulation stating a scheme would
not need to be applied for”

 

3.       “All documents indicating that under the Governance Document the
said Corporate Trustee (Bradford Council) had the right to sell the Land
outwith  an application of a scheme”

 

4.       “All documents emails or exchanges between the council and the
Charity Commission relating to the
(i) Matter of Disposal
(ii) Matter of Complaint
(iii)  Confirmation of the first date of contact with council in respect
of complaint and the Contact in question

 

I can confirm your request has been managed in accordance with the
provision of the Act.  Further to this I can confirm the Commission does
hold some information falling within scope of your request.

 

For your ease of reference we have responded to each of your questions in
turn as above.

 

1 This information is exempt under section 21 of the Act as the
information is reasonably accessible to you by other means.  The
Commission’s Risk Framework can be viewed on the following link:
[1]https://www.gov.uk/government/publicatio...
  

It may be helpful if I clarify that this is the document on which the
assessment process is based and outlines how the Commission operates as a
risk led, proportionate regulator and how and when we engage. 

2 Please find attached information falling within scope of this part of
your request.  Some information has been redacted under section 40 of the
Act as it constitutes the personal data of third parties.

Section 40(2) provides that personal data about third parties is exempt
information if one of the conditions set out in section (3) is satisfied. 
Namely whether any of the data protection principles would be contravened
by the disclosure.  

Under the Act, disclosure of this information would breach the fair
processing principle contained in the DPA where it would be unfair to that
person and/or is confidential.

3 We do not hold the information requested.

4 (i) Please see attached information in connection the Commission’s
response to question 2      

   (ii) We do not hold this information

   (iii) We do not hold this information

Outside of the Act I can advise you regarding you query about Schemes I
would refer you to the Commission's Commission's Operational Guidance
[2]http://ogs.charitycommission.gov.uk/g500...

Yours sincerely

Katherine O’Hare

Information Rights and Complaints Manager

Charity Commission

 

If you think our decision is wrong, you can ask for it to be reviewed. 
Such requests should be submitted within three months of the date of our
response and should be addressed to the Charity Commission at PO Box 211,
Bootle, L20 7YX (email: [3][email address]).  More
information about our Freedom of Information Act review service can be
found on the following link to our website:
[4]https://www.gov.uk/government/organisati....

If you are not satisfied with the internal review, you can appeal to the
Information Commissioner.  Generally, the ICO cannot make a decision
unless you have exhausted our review procedure.  The ICO  can be contacted
at the Information Commissioner’s Office, Wycliffe House, Water Lane,
Wilmslow, Cheshire SK9 5AF (email: [5][email address]).

W: [6]https://www.gov.uk/charity-commission

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Dear Charity Commission for England and Wales,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Charity Commission for England and Wales's handling of my FOI request 'Charity Commission England Wales Handling & Investigation of Complaints - Public Trust'.

https://www.whatdotheyknow.com/request/c...

Ref Parallel Request made To the Council

https://www.whatdotheyknow.com/request/d...

Disposal Of POS , Land Gifted In Trust and Heritage Assetts Under the Charity Act 2011 Wibsey Park 1042146 Charity exemplar

1. “All information relating to the Risk Framework undertaken by DR (RAU Team) in respect of taking no further action on a complaint duly made and falling within the regulatory framework as acknowledged of the commission. ie a full and documented assessment of what is proportional , what is in the public interest and how the commission arrived at the same Ref 20190319 - No Further Action - 1042146 CRM:0114880

I consider the request in part 1 not to be met for the following reasons , the request seeks to understand , how , if at all , you the , commission , arrived by way of applying the framework , to the material concerns raised by the complaint such as to come to a conclusion , in an objective manner based on reasoned facts of the case and the weightings given accordingly to each component of the concerns arising . For avoidance of doubt , I do not consider you have supplied me with a reasoned test to demonstrate how you concluded on risk and such specific and express information and contrary to your view would not be contained on any general process link nor wiuld it be in the public domain being specific to the site and circumstances and would not be available elsewhere . Within the meaning of the Act I am not asking you to provide me a generalised document but expressly that which is relevant on the case work file to which you have concluded to date . I therefore request this information as an Internal review as outlined above
(i) In the Public Interest that being , Charitable Land Gifted in Trust
(ii) And in accordance with the commissions own guidelines ,on openness and transparency ( embedded from the Open and Transparency of Government Regulations)
(iii) Under Wednesbury it would be unreasonable to expect anyone to accept an understanding of an outcome in the absence of fact , and facts which you arrived at by way of a conclusion in respect to your perceived view to a level of risk and the right to challenge the same under a First Tier Tribunal .

I do not consider the request to be exempt and I therefore give you opportunity to internally review the matter within the meaning of the Act FOI

2. “In the matter of schemes, all documents and information exchanged between you and the City of Bradford Metropolitan Council relating to whether the a Scheme would need to be applied for, for avoidance of doubt any initial letter stating a scheme would be required and thereafter a letter alleged to bein circulation stating a scheme would not need to be applied for”
I have considered your response to Part 2 and find that
you have supplied the first communication dated 18 /09 /18 ( indicating a scheme ) and a secondary communication some days later ( advising a scheme )
I am generally minded to comment that there was significant persistence on the part of the Legal , Subject of concern to accept a view that would allow the demise of the Land , he being the Porperty and Commercial Development Manager for Asset Management ( by virtue of his signatory document ) . In the outstanding parallel request it will be determined as whom and how he was instructed and on what basis he acted , that given the law as applied to the view put forward
Consistent with the advise of Chief Officers throughout the UK , such matters should be presented before Full Council and the relevant Legal Officer, for avoidance of doubt , The City Solicitor .
In the delegation of this matter , Independent Legal Advise should have been sought , and directed to be sought from the Trustees , whom , in their own right failed to maintain the necessary separation to avoid a conflict of interest and bias in any outcome to the detriment of beneficiaries. The Commsion appears to have responded to a view , based on the information provided . I urge you to read the parrarle requests which identifies multiple failings to the view
Notwithstanding that this area of regulation would benefit from urgent review by the commission which in general accepts a view as being prima facia without objective assessment until and up to a post event . It cannot be assumed , in general , that a corporate Trustee will act with diligence particularly when there is material benefit in not having to maintain a gift in trust or fiscal benefit offsetting statutory duty of care to maintain parks in general . It can not be assumed that corporate trustees get it right in all instances and that clear separation has been maintained

3. “All documents indicating that under the Governance Document the said Corporate Trustee (Bradford Council) had the right to sell the Land outwith an application of a scheme”
Response We do not hold the information requested.
In Part 3 , your response is noted , for avoidance of doubt , the Governance document “ The Wibsey Slack and Low Moor Act contains NO power to sell the land and this is reflected in the key document of 14th May 2018
It therefore begs the question, as to how with due diligence , you assessed whether a scheme was necessary or not , other than accepting the view , of a legal , Head of Property and Commercial Development to whom , it is believed , was instructed by the Principle Technical Officer Parks , the disposing directorate . In the parralell request highlight above , it is contended that such advice was not independent and that the degree of separation in the disposal , ( Parks requesting the demise of the property to Councillors on a Regulatory and Appeal Panel based on their delegated statutory authority at the behest of the Directorate making the request )

4. “All documents emails or exchanges between the council and the
Charity Commission relating to the

(i) Matter of Disposal

(ii) Matter of Complaint

(iii) Confirmation of the first date of contact with council in respect
of complaint and the Contact in question

I have considered your response and consider you have responded to Part 4 (i) providing me with the necessary documents in redacted form , to which the council failed to so do in a parrarelel request made to them and to which they are obliged to in context of The Charity Act (2011) that not being exempt information . To that effect I thank you .

(ii) I take by assumption , and seek for confirmation that to date 15th April 2019 , you have not , communicated the complaint in its entirety to the Council
(iii) or in the third part not yet contacted the legal , subject of concern to date, given my view now were necessary to proceed to the City Solicitor

I conclude by thanking you for your effort to date and look forward to clarification on review on Part 1 in due course

A full history of my FOI request and all correspondence is available on the Internet at this address:
https://www.whatdotheyknow.com/request/c...

Yours faithfully,

Colin Duke

FOI Requests, Charity Commission for England and Wales

Thank you for submitting your Freedom of Information (FOI) request to the
Charity Commission. We will respond within 20 working days.
 
If you have used this email address for a query that is not an FOI
request, we will not reply.
 
Please contact [1]Charity Commission to resubmit general enquiries.
 
This is an automated email. Please do not reply to this email.
 
 
  ________________________________  
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use our online services.

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RIGA Casework (Queue), Charity Commission for England and Wales

1 Attachment

Dear Mr Duke,

Please see attached our review of the response to your FOI request.

Yours sincerely,

Lucy Breakspere

Information Rights and Complaints Manager

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Dear RIGA Casework (Queue),

For the purpose of Clarity I note your response below and respond to it in the next field

Charity Commission
By email: request-563293-
PO Box 211
[email address]
Bootle

L20 7YX

Your ref:

Our ref: C-497692

Date: 13 May 2019
Dear Mr Duke,

REQUEST FOR REVIEW OF FREEDOM OF INFORMATION ACT RESPONSE

Thank you for your email of 20 April 2019, asking for an internal review of the response that you received to your request under the Freedom of Information Act 2000.

I have taken forward your request for a review.

Background

In your email of 20 March 2019, you asked the Commission for all “information relating to the Risk Framework undertaken by DR (RAU Team) in respect of taking no further action on a complaint duly made and falling within the regulatory framework as acknowledged of the commission. ie a full and documented assessment of what is proportional, what is in the public interest and how the commission arrived at the same Ref 20190319 - No Further Action - 1042146 CRM:0114880.”

You also made other requests for information which were considered under the Freedom of Information Act 2000, but you have asked only for the Commission’s response to the above request to be reviewed.
The Commission responded on 15 April 2019, stating that the information was exempt under section 21 of the Freedom of Information Act as the information was reasonably accessible to you by other means. You were sent a link to the Commission’s Risk Framework on its website, with an explanation that this was the document on which the assessment process is based and it outlined how the Commission operated as a risk led, proportionate regulator and how and when it engaged.

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0300 066 9197 (General enquiries)

0300 066 9219 (Textphone)
Visit www.gov.uk/charity-commission for help
on filing your annual return and accounts
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You requested a review of our decision in your email of 20 April 2019. You argue that the response to your request was incorrect as you were trying to understand how the
Commission had reached its conclusions on your specific case, rather than a generalised document on the Risk Framework.

Decision Review

Whilst I consider that the Commission’s initial response was not unreasonable in the
circumstances, I have considered the request again in light of your further comments.

I can confirm that the Commission does hold information that is relevant to your request. However, we are withholding this information from disclosure under the exemption in section 31 of the Freedom of Information Act 2000. This exemption refers to circumstances where the disclosure of information would or would be likely to prejudice the exercise by any public authority of its functions for any of the purposes specified in section

31(2) of the Freedom of Information Act.

These purposes include the following:

 ascertaining whether any person has failed to comply with the law;

 ascertaining whether any person is responsible for any conduct which is improper;

 ascertaining whether circumstances which would justify regulatory action in
pursuance of any enactment exist or may arise;

 protecting charities against misconduct or mismanagement (whether by trustees
or other persons) in their administration;

 protecting the property of charities from loss or misapplication;

 recovering the property of charities.

In this case, the information requested is exempt from disclosure because the
Commission’s view is that it would be likely to prejudice our function of ascertaining
whether circumstances which would justify regulatory action in pursuance of any
enactment exist or may arise (section 31(2)(c)).
The Commission’s statutory functions include encouraging and facilitating the better administration of charities, identifying and investigating apparent misconduct or mismanagement in the administration of charities and taking remedial or protective action in connection with misconduct or mismanagement in the administration of charities.

Page 2 of 4

Under the Charities Act 2011, in carrying out its functions the Commission must, so far as relevant, have regard to the principles of best regulatory practice (including the principles under which regulatory activities should be proportionate, accountable, consistent, transparent and targeted only at cases in which action is needed). As part of its work in being proportionate and targeting cases where action is needed, the Commission has published its Regulatory and Risk Framework. The purpose of this Framework is to outline: how the Commission operates as a risk-led regulator; how it decides when and how to engage and the possible outcomes of its engagement.

However, disclosing how the Framework is actually applied in an individual case regarding each element would be likely to be prejudicial to the efficient and effective operation of the Commission. Such information goes into more detail than that contained in the Framework. This has the potential to undermine the Commission’s ability to collect accurate information from complainants and charities and could be used to help trustees in the future delay or avoid regulatory action and this would be prejudicial to the Commission’s ability to regulate effectively.

Section 31 is subject to the public interest test. This means that before the information can be withheld, the public interest in preventing that prejudice must outweigh the public interest in disclosure.

Public interest in favour of disclosure –


There is a public interest in the Commission being open and transparent regarding
our regulatory activities. Such transparency helps to promote public awareness and
understanding of our regulatory functions and this factor weighs in favour of
disclosure.

Public interest in favour of maintaining the exemption –


There is a public interest in having an effective and efficient regulator of charities to
ensure compliance with the relevant law and to increase public trust and confidence
in charities.

We consider that if we disclosed the detail about the Commission’s assessment measures
to decide whether or not to either engage or not engage with a charity would be likely to
prejudice the Commission’s ability to carry out its functions effectively.

This is because it would be likely to cause charities, other organisations and individuals to be aware of the level of risk by which the Commission would become involved. This would therefore be likely to prejudice our ability to exercise our powers in order to protect charitable assets and, if necessary, hold trustees to account for their actions and decision
making in relation to a specific issue.

Page 3 of 4

The Commission is therefore of the view that the greater public interest is in withholding the information.

Next Steps

If you remain unhappy with our decision made under the Freedom of Information Act, you may apply directly to the Information Commissioner (ICO). The ICO can be contacted at the Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF (email: [email address].)

Yours sincerely,

Lucy Breakspere

Information Rights and Complaints Manager

Yours sincerely,

Colin Duke

Dear RIGA Casework (Queue),

I have considered your response and the context of your refusal under ss31 of The Act and the balance of the Public Interest Test to which we are in disagreement

In general Terms , it is not for the Charity Commission to obstruct access to a first tier tribunal and were you are obliged to make a clear and reasoned decision to a complaint duly made , that being properly the , remit of the First Tier Tribunal based on the material facts inherent in the Information Request and in regard to your role in the matter as Regulator. I put it to you that you appear to be applying the exemption in order to protect your failure to act and and not the protection of the Public Interest and to which you , the Commission must be accountable to

In the presentation of this matter agents of the Charity Commission provided unclear contradictory advice to the local authority in respect of whether or not a scheme would be required when pressurised by an asset management legal not independent of the council . Under Wednesbury , it is not reasonable to withhold information which would be relevant to any consideration made or given to a first tier tribunal who would in effect be the regulator of the Charity Commission , I also put it to you that the failure to provide material facts as per Request for Review and for the delay in providing the same has significantly obstructed any decision that you the Charity Commission would be obliged to provide in the matter of any complaint duly made

1.Finally , I reflect on the disparity in your communications in the first instance you advised under the Risk Framework Assessment by DR that , the matter was not significant or sufficient to proceed upon on the basis of proportionality and expressly stated your position to be one of No Further Action

2.By the Stage of Internal Review you then claimed exemption to the view on information on the more serious grounds inherent under ss31 of the Act , but yet in the handling of complaint has acknowledged no Further Action and to which you now imply you are aware and have not acted

I put it to you and remind you that you cannot obstruct access to your effective regulator which is as you are aware The First Tier Charity Tribunal Court, which will decide any relevant failures to the demise of a charitable asset impacting on the Charity to which you the regulator are vicariously responsible . I remind the charity commission again of the term Exemplar in respect of Local Authorities maintaining Separation required of the Charity Act and avoiding Conflict of Interests in respect bias as a result of disposing of a Charitable Asset or Land Asset which as a gift in Trust belonging to the beneficiaries such as to provide clearer Standard Operating Procedures in respect of Corporate Trustees . In the making of Complaint , the failure of the commission to provide information on schemes and general advisory failures such as to obstruct the making of concerns was noted and now that of the Risk Frameworks Assessment . The charity commission appear to take the view that you the sole principle in the pursuance of justice and that as a result you may choose to act in whatever way you choose in the denial or provision of information and fact

I have considered YOUR Public Interest Response and comment as follows since the Office of Information Commissioner will restrict their view only to whether the Information should or is required to be provided in the Context of the Information Act and not any other points and with particular regard to the Public Interest which I set out as follows

(1) You the Charity Commission - We consider that if we disclosed the detail about the Commission’s assessment measures to decide whether or not to either engage or not engage with a charity would be likely to prejudice the Commission’s ability to carry out its functions effectively.

This is because it would be likely to cause charities, other organisations and individuals to be aware of the level of risk by which the Commission would become involved. This would therefore be likely to prejudice our ability to exercise our powers in order to protect charitable assets and, if necessary, hold trustees to account for their actions and decision making in relation to a specific issue.

I do not agree with your assessment which contradicts your requirement to undertake a public function in effectively regulating , expressly , in the case before you the complaint identified areas of breaches in statutory instruments such as to amount to significant concern allegedly in the compliance of Charity and General Law, and to which the Charity Act is clear and provides no exemption for. ( and to which would apply to potentially a number of other Charitable Assets held in Trust -substantive exemplar in the Public Interest ) . The Commission can not impose an arbitrary bar on which laws or component of the Law it chooses to act upon or ignore . It is my understanding that the Powers the Charity Commission can invoke are fit for purpose . In the making of your test , you have failed to consider it in the context of The Information Act , that is to say that you the Commission must provide such information openly , transparently and in the public interest , the basis of such information is an important basis of the decision arising from complaint which you are obliged to provide reason , and to which others have a right to challenge . I put it to you , that the SS31 exemption to which you claim applies to the Public Authority , is merely a rouse to limit risk or adverse consequence to you the commission as a result of a poor advisory chain

2. I the Complainant - In the making of the request I too considered with due diligence the Public Interest Test set out to you in my complaint document provided to you and for avoidance of doubt I again reiterate

It is the the Charity Commissions Duty to effectively Regulate ,in accordance with the duties , required of them and were applicable ensure clear SOP ( Standard Operating Procedures are in place ) and that the requirements of the Charity Act are met. Your view to allowing a Corporate Institution to Act ultra vires is concerning given the purpose of regulation

In respect of the case per se and the implications as an Exemplar to Corporate Trustees, given the authority holds multiple Parks and Heritage Assets it is therefore important to determine whether as required of the Charity Act whether sufficient separation was maintained in the administration of this matter to have avoided bias and conflict of interest and to ensure the Corporate Trustees acted in the interest of the beneficiaries and not as agents of the Council misusing any delegated power for any form of fiscal gain which should have otherwise bee directed at the beneficiaries . As you are aware the complaint given to you in substantive eviidential detail provided detailed reasons for the commission to act (now in the public domain)

In the making of the request in the Public Interest , effecting multiply all members of the Public and specifically the beneficiary , the Poor of North Bierley , and their derived pleasure from a Gift Held In Trust In a Public Park Held as a Charity for the purpose of recreation and given to include the lodge now demised

In the outcome of such concerns , were there are adverse consequences , the commission has the power to regulate with hold suspend where maladministration effects an outcome which has adverse consequences to the beneficiary or reputation or work of the Charity . It is of particular importance and relevance in respect of the Public Interest not only to make reasoned response to the individual complaint ( and indeed all other assets held as Legacies , Gift In Truste etc by the same authority administered under the procedure employed by the authority in this case subject of concern )

Contrary to your assertion on the Public Interest Test limiting your ability to effectively regulate - The case is sufficiently express in breeches of Statutory Instruments and adherence to the Act to set a clear exemplar which is directly relevant to the message in the Public Interest Test The Charity Act requires Corporate Trustees to make a decision in the interest of the Charity Independent of the Local Authority without conflict of interest , with required separation and without bias . There is no threshold test here , that is the law , and the charity commission can not redefine it through a Risk Framework.

It is therefore , in terms of lessons learned important to embody and improve the curent position in the National Interest so the public may have the required confidence in process and consistent standards. It does not follow because a Local Authority holding a port folio as a Corporate Trustee , particularly in times of austerity or were the direction is to remove any budgetary responsibility or were land holdings belonging properly to the Charity as a Gift in Trust are abused for the purpose of offsetting budgets required under statutory duty of care to maintain the Park, that being already afforded to the beneficiary will act consistent with what the Charity Act Requires and not as a beneficial owner in its own right . By its own admission the Governance document in its own right contains no power of sale

In concluding , it is therefore necessary for the Information Commissioner , in the light of all facts , to which you appear to be withholding to conclude on the Public Interest Test on this matter and whether or not your claim to exemption under ss31 is valid

Yours sincerely,

Colin Duke

Dear RIGA Casework (Queue),

Thank you for your attention . I now advise that I have referred the matter of ss 31 Exemption to rule on the Public Interest Test as whether the request is exempt or whether it is in the Public Interest to disclose

I am asking the ICO to rule on a ss31 Exemption Claimed by The Charity Commision . Whilst I appreciate the Commisioner will only consider the issues around the FOI Act as relevant . It is important to set the complaint in context to understand why the Charity Commisions Public Interest Test Fails and how in doing so it obstructs good practice or process .

In doing so I understand for the exemption to be valid it will be dependent on a Public Interest Test upholding the exemption, therefore for ease of convenience I have Included the Charity Commission’s Response on the Test below with my own Test to which we are in contention over

In order to assist the ICO a full Audit is available on the What Do They Know Site on this link and sent by way of additional attachment
https://www.whatdotheyknow.com/request/c...

It is necessary to set into context the concern and why it is a very important decision to rule on .

Background

The Charity Commission Operate a Risk Framework Assessment RFA and apply this to each individual case the circumstances of which are widely diverse
In this instance the complaint summary is whether a local authority acting as a sole Corporate Trustee maintained the degree of separation required of the Charity Act and acted solely in the interest of Beneficiaries of a Gift In Trust and , whether the processes were adequate , omitted or incorrectly applied . Such as to avoid failure of separation , conflict of interest, bias resulting in an asset disposal that was protected and properly did not belong to the local authority and were independent advise should have been sought . Put simply the authority disposed of an asset outwith the interest of beneficiaries because it did not want to maintain the upkeep of which it has a statutory duty of care to do out with the correct procedures resulting in failures to comply with the Charity Act . A copy of that complaint is attached FYI , mindful that its is on the basis of the Information Act that the ICO will rule
In respect of this case The matter is therefore one of Regulation by the Charity Commsion based on the material facts already in the Public Domain regarding Corprate Trustees ( Guidance on Separation , Requirements of Trustees under cc28 Disposal of Property by Trustees CC23 ) In the Charity Commissions determination there is nothing specific in this case in respect of risk that would not otherwise be expected to have been complied with and therefore nothing in any intervention that would compromise a level of risk

Critically, The outcome of such an RFA is taken to be synonymous to be that of a decision but contains no reason as to how that conclusion based on the information provided by a complainant which in this case reflect the existing SOP Standard Operating Procedures clearly ascribed in the Public Domain and the requirements made of Charities in whatever form
.
The Generic Response is “ There will be cases where the Commission determines that a matter falls within its regulatory remit but it decides not to engage following its assessment of the nature and level of risk relating to the issue(s) involved. We have examined the issue that you have raised, but I wanted to inform you that, at this stage we will not be taking any further action “

Additionally such Assessments are not transparent and I set out why it is beneficial to be able to disclose such information as an internal bench mark to the organizations own outcomes and quality in this case example , on day 30 the complainant called the Charity Commision on day 30 the prescribed period for dealing with it and was told it had not been assigned to a case worker and was not Risk Assessed by 10:00 am the following day the generic conclusion on RFA was provided . I put it to the ICO that the Complaint document could not have properly been assessed due to its complexity and volume and validation of content

Critically , In such determinations a standard generic view to reason is provided by the commision which prevents a clear decision being given . This in turn prevents access to the next stage of process which is the right to challenge in the first tier Charity Tribunal. ( in this respect the principle of matter could be judicially reviewable not unlike the recent supreme court ruling on access to Employment Tribunals )

Under the general Principles of Wednesbury , it is unreasonable not to provide the basis of any decision (information) which affects an outcome particularly when sharing of information in the form of a decision prevents the reasonable action of others with the Charity Commision taking the view that they are Principleand are the only stakeholder in any outcome . The Charity Commision must discharge their public function by way of regulation , they must do so instilling Public Confidence and they must do so transparently and in relation to s31(2) they must do so in respect of the Statutory Instrument which they must effectively regulate and not use the same to excuse accountability , act or ommision

I therefore ask the ICO to rule on whether in case before you is exempt and perhaps to extrapolate a view or direction on RFA disclosure as a whole to contribute to current practice

The Charity Commission acknowledge they are holding information which they are not releasing under exemption under ss31 . In effect in regard to that information the Commission are with holding how they acted which only became evident on Internal Review

Despite the complexity of the matter the test appears to me , to be a simple one as to whether in this case, exemption applies based on the information directly relevant to it, is exempt as a result of the Public Interest Test and whether the Charity Commission has correctly applied it in these specific circumstances

Critically, I believe , subject to the view of the ICO , to be an important ruling in respect of Transparency of the Charity Commission as to whether in General Terms the Charity Commission are with holding such RFA’s and therefore decisions on assessment such as to prevent access to Tribunal which effectively ensures the decisions of the Charity Commission are compliant with what is required of them

Firstly In general Terms , the Commision are seeking to apply a generic exemption to all cases on all RFA’s (this is their position on RFA disclosure not just this case) at the very least it should be specific to the circumstances of each case

Secondly , as acknowledged within the explaination on the What Do they Know Response , the Officer acknowledges , “ that in principle…..it might effect the way in which the regulator relates to….and their ability too….” I put it to the ICO that this is not an evidence based assertion and likely the first time the Charity Commsion have applied a test to the same

Thirdly , in regard to the 31 (2) this complaint and its assessment, it is a process based complaint not specific to any individuals which ultimately seeks to ensure that the correct decision making protocols are applied by Regulation and by way of exemplar to ensure that they are practiced accordingly by the local authority which hold circa 30 -40 similar Gifts , covenants or other heritage assets in Trust

Fourthly , such circumstance appears to be prevailed by group think and when asked does the RFA also inherently contain an assessment of risk as regard to any act or omission the Charity Commission may have made (in this instance there was a disparate view in the advisory chain in regard to determining whether a scheme would be necessary )

Fiftly A Risk Assessment is dictated by its structure form , outcome and overall interpretation and is merely a framework to hang the facts on . Information , is the business of the ICO , and based on my understanding usually is express , and generally obliged to be fact or data . The basis in favour of disclosure is at the least a right to interpret the material facts . For example We do not know if they applied the test to a single issue in regard to the case or weighted it as ongoing or applied a weighting to the overall proportionality of process affecting all other gifts in trusts held , how such information is presented to achieve an outcome is a key factor , we do not know if the test factors any acts and ommision on the part of the Charity Commsion as a result of poor advisory chain. In summary the Charity Commission have produced a system useful to their work but what is relevant to the concern is the Information requested

Sixthly , If the Charity Commision are of the belief , that any of the transgression have been met in 31(2) or associated parts and that a crime or responsible individuals have been identified they have a duty to refer the matter to the CPS , such circumstances are not that which are presented and not that which are indicated in their general decision view . The position on 31(2) in respect of the specific case is contradictory and in no way based on evidential fact that disclosure would impact on the commissions ability to regulate which is deemed to be fit for purpose by virtue of the instrument Charity Act 2011 or any amendment making it so

Seventh, I therefore deal with this section in detail as it is a central assertion the commision state expressly In this case,
“ the information requested is exempt from disclosure because the Commission’s view is that it would be likely to prejudice our function of ascertaining whether circumstances which would justify regulatory action in pursuance of any enactment exist or may arise (section 31(2)(c)).

My Response

I deal with the assertion in 3 parts below . (a) to (d) and summarise it simply “ The meaning of the assertion is unclear and in context ambigous to the original response were low Risk and No Further Action was put forward. In simple terms I read we are confused and don’t know if the threshold of the law has been crossed but if we gave you the information we might have got it wrong and be caught with our pants down”

The syllogy can be deconstructed in three parts the first part being a view that is incorrectly asserted as a fact (likely prejudice) a linkage to a fact that is required ( to regulate ) and finally a conclusion ( based on Enactments believed to meet the threshold test but not determined and concluded on - Ignorantia juris non excusat or ignorantia legis neminem excusa. ) in order justify no action

(i) The assertion is a view , one of three in the circumstances including the ICO ‘s ruling

a. It is for the Charity Commsion to take the appropriate level of legal guidance on the basis of the legal principle of Ignorantia juris non excusat or ignorantia legis neminem excusa. Ignorance is no excuse in the eyes of the law

b. The effect of that guidance would indicate if the thresh hold of public law or procedure is crossed ( I believe the difficulty to be lack of expertise in the understanding Of Public and General Law .) That being the case there is a duty on the Charity Commision to regulate and reflect that in its decision making

c. If the circumstance are contentious then the Charity Commsions decision should be sufficient to reflect the role of the First Tier in determination of Lawful Breeches . The Charity Commision in effect are saying because you have told us of the lawful breeches we can not act . the law is the Law and Compliance to the same is that which is regulated. If the threshold of the law has been crossed then the commission can not claim prejudice to upholding it and they too , in as much as Trustees must have regard the Statutory Instrument which is clear in the adherence to the Charity Act 2011 and General law . Not to do so would be a failure to Regulate but to be complicit to an act

d. The commision have not expressly set out how a Complaint of Fact made , technically by a beneficiary would prejudice the ability to determine the Lawful requirement of any General or Public Act defining procedure which is generally overt in its meaning and relevant to a duty , a duty being that required . How else would the Commsion Regulate if they were not told ? In effect the commsion are saying if someone tells us what is going on we can not regulate it. (i) The Charity Commisions function is clear (ii) their capacity to ascertain lawful requisites separate and independent (iii) the conclusion by independently assigned and experienced case worker under correct legal guidance their own conclusion to which they are obliged to provide in the first instance as a decision

I therefore set out the Public Interest Test , subject to the direction of the ICO , for your convenience I include , that given by the Charity Commission below and on the relevant link cited

The Complainant / Requestors View To Public Interest

For exemption
• That the disclosure of information might identify specific individuals
• That the knowledge of certain facts (information) could prejudice the work of the Charity Commision
• That it might interfere with the recovery of assetts

For Disclosure

• The Commission are obliged in law to act with openness and transparency ( Openness and Transparency of Government Regulations )
• That it is in the Public Interest in respect of the Regulator , the Charity Commsion to ensure in this case that the correct protocols and procedures advocated in the public domain are followed by the Public Authority and that given the exemplar such processes should be applied to all other assets in the Public Interest (impacting on the weighting of proportionality) .
• That in not making a clear decision by virtue of the information withheld it is to the benefit of Public Interest to be able to check and validate the outcome or correct errors , or understanding .
• That in not making the disclosure it prejudices the Public from seeking an independent validation by the Charity Commission Tribunal in maintaining checks and balances to compliance
• An RFA is an Interpretation given by others on the nature and restriction of a Framework upon which the facts and information are placed . It is in the Public Interest to consider and have a right to access interpret and understand material facts of the data subject for an abundance of reasons , outcome , monitorring and compliance etc or in the alternative it contravenes the public interest to only provide information in part (precedent) or not at all
• The Regulatory Subject , Charity Trustees , are publically accountable . It is therefore detrimental in the Public Interest by way of policy to undermine the principle
• As a public body, the Commission must also have regard to best regulatory practice, public law principles, obligations under both the Human Rights Act 1998 and the Equality Act 2010, and other duties relating to public bodies. The Commission failed to distinguish between criminal law and public law in their view to exemption and arguable the right of an individual to acquire , test or otherwise act in accordance with the ECHR . It is detrimental the Public interest to disregard what is required of them or to fail to instill confidence In respect of their regulatory role

Yours sincerely,

Colin Duke