Charity HMRC Exempt v Charity as defined in the 2008 Act (SUPPLEMENTARY) Ref FOI 20170620

The request was partially successful.

Dear Neil,

As suggested in my response of 18th July to your letter of 17th July, I would appreciate a clearer understanding and greater certainty in interpreting your answers.
1(a). If the “forcing” process I had referred to is (i) not practiced by the Commission, (ii) not provided for within the Charities Act (NI) 2008, and (iii) you have no records of such processes ever taking place, then in the interests of openness and transparency, could you simply confirm that no organisation on the deemed list that did not want to register [by not applying or by withdrawing its application], was ever treated as a charity against its wishes.
1(b). My original question was a corollary to 1(a), aimed at quantifying the number of organisations on the deemed list which did not want to register being allowed to not register. Whilst the registration list identifies organisations that failed to apply [presumably some at least through choice], it is unclear what consequences then follow. You have tagged some with the phrase “Failed to apply - HMRC informed”. As the published registration list is to inform the public, then in the interests of openness and transparency could you confirm that the public should not regard such organisations as charities. If that interpretation is incorrect or incomplete, could you expand on how the phrase should be interpreted?
2. Noted – but part picked up again in Q.5.
3. Noted
4. Noted
5. I apologise for my original question not being a request for information, so I wish to re-phrase it. How many organisations on the original deemed list with objects to relieve poverty, still passed the test and were treated as charities when:
(a) A majority of their beneficiaries in practice, and for the foreseeable future, were not in poverty [ie in strict charitable need], even if that conflicted with the wording of their governing document.

(b) Significant amounts of their assets had been, and would continue to be, used to provide private benefits to members or trustees at a level that was not incidental.
As each of the circumstances in 5(a) and 5(b) are potential reasons to refuse registration or, if not, breaches of trustee duties, then if you do not hold such information, the natural conclusion must be that no such circumstances exist. In the interests of openness and transparency, please would you confirm or expand on that conclusion.
Yours sincerely,

Yours faithfully,

Trevor McKee

ProbityaacNI

Wilson, Neil, Charity Commission for Northern Ireland

2 Attachments

Dear Mr McKee,

 

The Commission intends to deal with this in the line of business, a
response will be forthcoming within a reasonable time.

 

Kind regards,

 

Neil Wilson

Communications Officer

 

Charity Commission for Northern Ireland

257 Lough Road

Lurgan

BT66 6NQ  

                    

T: 028 3832 0169

[1]www.charitycommissionni.org.uk

 

 

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Ireland. It is for the exclusive use of the intended recipient.

 

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Wilson, Neil, Charity Commission for Northern Ireland

Dear Mr McKee,

 

Please find your questions answered below.

 

As suggested in my response of 18th July to your letter of 17th July, I
would appreciate a clearer understanding and greater certainty in
interpreting your answers.

1(a). If the “forcing” process I had referred to is (i) not practiced by
the Commission, (ii) not provided for within the Charities Act (NI) 2008,
and (iii) you have no records of such processes ever taking place, then in
the interests of openness and transparency, could you simply confirm that
no organisation on the deemed list that did not want to register [by not
applying or by withdrawing its application], was ever treated as a charity
against its wishes.  

 

An institution on the deemed list is there by virtue of having charitable
tax status as at 18 August 2013, which they had applied for and been
granted by HMRC. The The Charities Act 2008 (Transitional Provision) Order
(Northern Ireland) 2013 provides that these organisations are treated as
charities in law and, therefore the charity trustees have a legal
obligation to apply to the Commission for registration pursuant to section
17 of the Charities Act (Northern Ireland) 2008. The Commission will then
register the institution or make a decision not to register it.  

 

1(b). My original question was a corollary to 1(a), aimed at quantifying
the number of organisations on the deemed list which did not want to
register being allowed to not register. Whilst the registration list
identifies organisations that failed to apply [presumably some at least
through choice], it is unclear what consequences then follow. You have
tagged some with the phrase “Failed to apply - HMRC informed”. As the
published registration list is to inform the public, then in the interests
of openness and transparency could you confirm that the public should not
regard such organisations as charities. If that interpretation is
incorrect or incomplete, could you expand on how the phrase should be
interpreted?

 

An institution on the deemed list is there by virtue of having charitable
tax status as at 18 August 2013. The The Charities Act 2008 (Transitional
Provision) Order (Northern Ireland) 2013 provides that such an institution
is to be treated as a charity in law until it is either registered in the
register or a decision not to register is made. While as institution is to
be treated as a charity, its trustees have duties under the Charities Act
(Northern Ireland) 2008, including the duty to apply to be registered
pursuant to section 17.   

 

5. I apologise for my original question not being a request for
information, so I wish to re-phrase it. How many organisations on the
original deemed list with objects to relieve poverty, still passed the
test and were treated as charities when:

(a)          A majority of their beneficiaries in practice, and for the
foreseeable future, were not in poverty [ie in strict charitable need],
even if that conflicted with the wording of their governing document

 

The Commission holds no records relating to this question.  The Commission
has published a supporting document on poverty that may be useful to you.
([1]http://www.charitycommissionni.org.uk/me...))

 

(b)          Significant amounts of their assets had been, and would
continue to be, used to provide private benefits to members or trustees at
a level that was not incidental.

As each of the circumstances in 5(a) and 5(b) are potential reasons to
refuse registration or, if not, breaches of trustee duties, then if you do
not hold such information, the natural conclusion must be that no such
circumstances exist. In the interests of openness and transparency, please
would you confirm or expand on that conclusion. 2.             

 

The Commission holds no records of private benefit, attributable to
activities carried out by the charity in the furtherance of its
objectives. Information on the Commission’s approach to registration and
the public benefit requirement is available on the Commission’s website
[2]http://www.charitycommissionni.org.uk/ma...

 

 

 

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Dear Charity Commission for Northern Ireland,

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 Northern Ireland's handling of my FOI request 'Charity HMRC Exempt v Charity as defined in the 2008 Act (SUPPLEMENTARY) Ref FOI 20170620'.

Mr Wilson has obviously tried very hard to answer as best he can, however I believe that the questions have not been answered as fully as they could have been, e.g. the Charities Act does not appear to allow for a registration of a company as a charity against its will, however this appears to have occurred on a number of evidenced occasions. Mr Wilson has not released recorded information in respect of those decisions. I would be grateful for a full review of my application for information as I believe the Charity Commission still holds recorded information in relation to my application.

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,
Trevor McKee
ProbityaacNI

Kernan, Shirley, Charity Commission for Northern Ireland

2 Attachments

Dear Mr McKee

 

Thank you for your correspondence, requesting an internal review of your
FOI request (ref: FOI20170620). This was received by the Charity
Commission for Northern Ireland on Monday 4 September 2017.

 

In order to proceed with your review, please provide the following
clarification of your request so that the Commission may consider your
request in full.

 

You have requested recorded information in respect of decisions made by
the Commission as relating to, as quoted by you, “registration of a
company as a charity against its will.”

 

Please provide the full names of the charities you are referring to.

 

The Commission aims to respond to all Freedom of Information internal
reviews within 20 working days. Please note that this timescale is on hold
while we await your clarification.

 

Kind regards

 

Shirley Kernan

Communications Officer

 

Charity Commission for Northern Ireland

257 Lough Road

Lurgan

BT66 6NQ  

                    

T: 028 3832 0169

[1]www.charitycommissionni.org.uk

 

 

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subject to public disclosure under the Freedom of Information Act 2000.
Any views or opinions presented are solely those of the author and do not
necessarily reflect the views of the Charity Commission for Northern
Ireland. It is for the exclusive use of the intended recipient.

 

Any dissemination, distribution, copying or use of this communication or
any attachment to it without prior permission of the addressee is strictly
prohibited.  If you have received it in error please inform us by email,
phone or fax (The Charity Commission for Northern Ireland, 257 Lough
Road,, Lurgan, BT66 6NQ; telephone 028 3832 0220; fax 028 3834 5943;
textphone 028 3834 7639: email [5][CCNI request email]; web
[6]www.charitycommissionni.org.uk ) then delete it from your system

 

While the Charity Commission for Northern Ireland has taken reasonable
precaution to minimise the risk of any attachment to this email containing
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Dear Ms Kernan,

Thank you for your swift response to my letter of 1st September. I see no reason to publicly name charities to assist your understanding of my request. However I see that you may be confused and therefore I have elaborated and clarified the request as follows.
As stated in my response , I believe that my requests have not been answered, or at least not as fully as they might have been. However before continuing, I can see where it may be more productive to explain where your answers have been deficient, in the hope that more complete answers can be given and an internal review avoided, this is entirely your choice of course.
To keep this letter reasonably brief I have paraphrased my earlier questions and your replies but hopefully without losing essential content or meaning, leaving in italics, at the end of each section, those questions that remain unanswered and for which a more complete answer is requested.

Q.1(a) – My original request [25th May] was for the number of organisations on the deemed list which had been [or would be] “forced” to register as charities when it was clear they did not want to.
Your response [17th July] gave no numbers but stated that such “forcing” was not practised by the Commission, was not accommodated for within the Act 2008 and you had no record of it ever taking place.
That strongly suggested the number was “zero”, so my follow up request [27th July] asked for that confirmation or, if not, a different number.
Your response [29th August] still gave no number but said that the trustees of organisations on the deemed list on 18/8/13 had a legal obligation to apply, leaving the Commission to register or reject it.
That may well be factually correct, but it did not answer the question clearly aimed at those organisations which, whatever their legal obligations, had made it clear they did not want to be charities.
So the question remains,
• How many organisations on the deemed list have been [or will be] forced to register as charities when they either do not want to register or do not regard themselves as charities. Is it zero or some other number?

Q.1(b) – My original letter [25th May] requested the number of organisations on the deemed list which, having declined to be registered, would not be treated as charities.
Your response [17th July] gave no numbers but did imply that some organisations had withdrawn their application though [surprisingly] you had kept no records. You referred me to the registration list which identified organisations where, having “Failed to Apply”, you had informed HMRC, but the significance of that was unclear. The public relies on your site for its charitable facts. Your site espouses objectives of openness and transparency. We should not be guessing at the full significance of a phrase you choose to use, or kept in the dark as to its meaning, when you know precisely what it means.
So my letter [27th July] again asked for numbers but added a supplementary request as to how the public should interpret the phrase “Failed to Apply– HMRC informed”. For example was their charitable status now in the hands of HMRC? Could the public still treat them as charities to whom their donations could be made on the safe assumption they would be used for charitable purposes? Or did it mean something else?
Your letter [29th August] not only again gave no numbers but totally ignored the supplementary request. It said that an organisation on the deemed list on 18/8/13 will be treated as a charity until the Commission decides whether to register or reject it. I am not challenging the factual correctness of that statement but it does not answer the question.
That still leaves us with the following unanswered requests, and to make the original request easier to understand, I have now split it into two parts:
• How many organisations on the deemed list at 18/8/13 declined to be registered [by whatever means, including failing to apply when invited, withdrawing their application, or showing their reluctance to apply in other ways]

• How many of those that declined [by whatever means] are not being treated by you as charities and will not be registered.

• What implication should the public draw from the phrase “Failed to Apply– HMRC informed”. For instance could it in some cases mean that if on a full review by HMRC, the organisation is found to not be eligible for tax exemption, and from a date prior to 18/8/13, you will not regard them as within S.2(1) of The Charities Act 2008 (Transitional Provisions) Order (NI) 2013 and so will not treat them as if they were a charity within the meaning of S.1 of the Act.

Q5 – My letter [27 July] requested the number of organisations on the deemed list with sole objects to relieve poverty that had passed the test and were treated as charities when:
(a) A majority of their actual beneficiaries were not in poverty in the strict charitable sense, or

(b) Significant assets had been, and would continue to be, used to provide private benefits to members or trustees at a level that was not incidental.
The request went on to infer that as either activity should be a reason to refuse registration or breach trustees’ duties, to not hold related information would suggest no such circumstances existed, with a request that you confirm or explain.
Your response [29th August] gave no numbers and stated that you held no records for either but then caveated it with “attributable to activities carried out in the furtherance of its objectives” which meant you had sidestepped the question as if its objects allowed it to give non-charitable benefits, it would never be on the deemed list, it would not be a charity, you would not be involved and no records would be kept. The question was clearly aimed at material activity taking place outside the objects and the extent to which that would hinder registration.
That leaves us with unanswered requests:

• How many organisations on the deemed list with exclusive objects to relieve poverty were still treated as charities [ie passed the test] when:

a. a majority of their actual beneficiaries were, and would continue for the foreseeable future to be, not in poverty in the strict charitable sense, or

b. significant assets had been, and would continue to be, used to provide private benefits to members or trustees at a level that was not incidental.

• As a supplementary question – can you confirm that an organisation on the deemed list [where you can assume all other charitable credentials pass the test] would not be rejected in the registration process even when the full facts of (a) or (b) or both apply.

Yours sincerely,

Trevor McKee

ProbityaacNI

Kernan, Shirley, Charity Commission for Northern Ireland

2 Attachments

Dear Mr McKee

 

Thank you for your correspondence (ref: FOI20170620A), which was received
by the Charity Commission for Northern Ireland on Monday 11 September
2017.

 

The Commission aims to respond to all Freedom of Information reviews
within 20 working days. Please note that this timescale has recommenced
following receipt of your latest correspondence.

 

Kind regards

 

Shirley Kernan

Communications Officer

 

Charity Commission for Northern Ireland

257 Lough Road

Lurgan

BT66 6NQ  

                    

T: 028 3832 0169

[1]www.charitycommissionni.org.uk

 

 

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Any views or opinions presented are solely those of the author and do not
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Ireland. It is for the exclusive use of the intended recipient.

 

Any dissemination, distribution, copying or use of this communication or
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prohibited.  If you have received it in error please inform us by email,
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Road,, Lurgan, BT66 6NQ; telephone 028 3832 0220; fax 028 3834 5943;
textphone 028 3834 7639: email [5][CCNI request email]; web
[6]www.charitycommissionni.org.uk ) then delete it from your system

 

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Charity Commission Communications DfC-cccomm, Charity Commission for Northern Ireland

2 Attachments

Dear Mr McKee

 

Thank you for your correspondence, which was received by the Charity
Commission for Northern Ireland on the morning of 11 September 2017.

 

It is noted the Commission previously provided a range of assistance and
advice, and that you declined a request to provide information to assist
our handling of your request. Therefore please find the Commission’s final
response to your request (ref: FOI20170620A) below.

 

How many organisations on the deemed list have been [or will be] forced to
register as charities when they either do not want to register or do not
regard themselves as charities. Is it zero or some other number?

 

No information is held. 

 

By way of assistance, the Commission would advise that an organisation’s
views on whether or not it wishes to register as a charity is not required
by the Commission and is not requested at any point during the charity
registration process. Therefore the Commission does not collect and
collate information in this way.

 

How many organisations on the deemed list at 18/8/13 declined to be
registered [by whatever means, including failing to apply when invited,
withdrawing their application, or showing their reluctance to apply in
other ways]

 

No information is not held.

 

By way of assistance, the Commission would advise that under the Charities
Act (Northern Ireland) 2008, charity trustees have a statutory duty to
apply to register their charity with the Commission.

How many of those that declined [by whatever means] are not being treated
by you as charities and will not be registered.

 

No information is held. Please see the Commission’s response above.

 

What implication should the public draw from the phrase “Failed to Apply–
HMRC informed”. For instance could it in some cases mean that if on a full
review by HMRC, the organisation is found to not be eligible for tax
exemption, and from a date prior to 18/8/13, you will not regard them as
within S.2(1) of The Charities Act 2008 (Transitional Provisions) Order
(NI) 2013 and so will not treat them as if they were a charity within the
meaning of S.1 of the Act.     

 

No information is held. 

By way of assistance, the Commission would advise that an organisation has
three months to submit its registration application to the Commission from
the date it is called forward to apply, with all applicants urged to use
the Commission’s free registration support to assist them.

When an organisation fails to meet the registration deadline the
Commission will, in the first instance, issue a warning letter to the
organisation, will publish the organisation’s details on its website as
being non-compliant with the law (ie it has “failed to apply”) and will
inform HMRC, if applicable, that the organisation has failed to apply.
HMRC do not determine whether or not an organisation is a charity in law.
Any decision to remove charitable tax benefits will be assessed by HMRC.

 

As part of our commitment to openness and transparency, the Commission
publishes the names of organisations which have failed to apply on its
registration list. This is aimed at allowing the public to make informed
decisions, as well as a means of alerting any such organisations to the
fact they have failed to meet their legal duty.

 

How many organisations on the deemed list with exclusive objects to
relieve poverty were still treated as charities [ie passed the test] when:

 

a.     a majority of their actual beneficiaries were, and would continue
for the foreseeable future to be, not in poverty in the strict charitable
sense, or

 

b.     significant assets had been, and would continue to be, used to
provide private benefits to members or trustees at a level that was not
incidental.

 

No information is held.

By way of assistance, the Commission would advise it does not
specifically collect information on the charitable purposes of deemed
charities therefore the comparisons you have requested are not available.
Once registered, information on charitable purposes are made public on the
register of charities. The charity is then no longer considered to be
deemed or non-deemed, but has the status of registered charity.

 

As a supplementary question – can you confirm that an organisation on the
deemed list [where you can assume all other charitable credentials pass
the test] would not be rejected in the registration process even when the
full facts of (a) or (b) or both apply.

 

No information is held.

 

By way of assistance, the Commission would advise each registration
application is considered against the legal criteria, as defined by the
Charities Act (Northern Ireland) 2008.  The Commission will not answer
hypothetical scenarios. However, there is a vast range of information and
guidance on the registration application process available on the
Commission’s website, which you may find helpful.

 

The Commission is satisfied it has dealt with your request appropriately.
If you are not satisfied with the outcome of this internal review, you
have the right of appeal to the Information Commissioner’s Office:

 

Information Commissioner’s Office

Wycliffe House

Water Lane

Wilmslow

Cheshire SK9 5AF

 

Please note any other correspondence that you send about this particular
FOI issue will be read and filed without acknowledgement, unless the
Commission decides that it requires our attention.

 

Yours sincerely

 

Aubrey McCrory

Head of Corproate Services

 

Charity Commission for Northern Ireland

257 Lough Road

Lurgan

BT66 6NQ  

                    

T: 028 3832 0169

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This email is from the Charity Commission for Northern Ireland.  It
contains information which is confidential and which may be privileged or
subject to public disclosure under the Freedom of Information Act 2000.
Any views or opinions presented are solely those of the author and do not
necessarily reflect the views of the Charity Commission for Northern
Ireland. It is for the exclusive use of the intended recipient.

 

Any dissemination, distribution, copying or use of this communication or
any attachment to it without prior permission of the addressee is strictly
prohibited.  If you have received it in error please inform us by email,
phone or fax (The Charity Commission for Northern Ireland, 257 Lough
Road,, Lurgan, BT66 6NQ; telephone 028 3832 0220; fax 028 3834 5943;
textphone 028 3834 7639: email [5][CCNI request email]; web
[6]www.charitycommissionni.org.uk ) then delete it from your system

 

While the Charity Commission for Northern Ireland has taken reasonable
precaution to minimise the risk of any attachment to this email containing
computer viruses, we can not accept any liability for any damage which you
sustain as a result of any such viruses.  You should carry out your own
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Dear Charity Commission Communications DfC-cccomm,

Thank you for your reply which I interpret as a request for further clarification. It is noted that you appear confused as to the range and scope of the request. I will be happy to assist your understanding.
I note by law you should have responded to my request for recorded information.

Yours sincerely,

Trevor McKee

ProbityaacNI