“Selling Charity”

Publication Date01 Nov 1983
DOIhttp://doi.org/10.1111/j.1468-2230.1983.tb02554.x
AuthorRichard Nobles
782
THE MODERN LAW REVIEW
[vol.
46
It is to be hoped that the charge of incitement to attempt can be
used in this country to prevent
Fitzmaurice
from presenting too glaring
an anomaly until such time
33
as incitement can be put
on
a
statutory
basis alongside conspiracy and attempt.
R.
D.
TAYLOR*
SELLING
CHARITY
THE provision by
a
non-profit making body of accommodation specially
designed to meet the needs of elderly people
is
a charitable activity,
even where the accommodation is provided on long leaseholds at full
cost.’
So
held Gibson
J.
in
Joseph
Rowntree Memorial Trust
Housing
Associufion
v.
Attorney-Generul,2
a case brought by the Trust to test the
charitable status
of
their leasehold schemes for the elderly. Gibson
J.
took the view
on
the evidence that
the
sale of long leases
of
accom-
modation specifically adapted to the physical or psychological require-
ments of the eldtxly filled
a
real need not met by the state or private
enterprise. He was particularly concerned with the needs
of
elderly
owner-occupiers, a group which do not qualify,
or
else have
low
priority, for the special housing for the elderly provided by local
authorities. It was not enough to benefit persons who happened to be
aged, but where there was a need attributable to their aged condition,
then relief of that need was a charitable purpo~e.~
This judgment marks a further retreat from the principle stated by
Lindley
L.J.
in
Re
Macduf4:
I am quite aware that
a
trust may be
charitable, and yet not confined to the poor; but
1
doubt very much
whether a trust would be declared charitable which excluded the
poor.”
It
is
important to realise the regressive implications
of
leasehold
schemes. They provide an opportunity for elderly people to maintain
a large capital
sum,
secured against property, for transfer at death to
their relatives. Some of the elderly live in very reduced circumstances
in order to be able to make such bequests, avoiding the temptation to
33
The Law Cominiission had intended to deal with incitement in their planned report
on
Complicity (See Law Com.
(No.
102),
para,
1.6).
However, they have
now
formally
set aside work on that topic (see Law Com.
(No.
11
3) 16th Annual Report, para. 2.32),
preferring to leave it to the
S.P.T.L.
project
on
codification, with the unfortunate result
that incitement will ‘continue to be governed by the common law, including
Fltzmaurlce,
for rather longer than might otherwise have been the case.
*
Senior Lecturer in Law, Preston Polytechnic.
This proposition is implicit in Gibson
J.’s
approval
of
the schemes in
Joseph
Rowntrre
[1983] 2
W.L.R.
284.
Although Gibson
J.
referred to the special needs
of
the elderly, the needs which these
schemes are designed to meet are shared by many others in the community: loneliness,
mild disabilities, and the desire to invest capital in small properties which are easily
maintained and conveniently located. There is no reason in principle why younger persons
with milder
or
greater disabilities should not benefit from similar schemes under the
heading
relief
of
the disabled.” Non-profit making bodies prepared to administer such
schemes would benefit from charitable tax status.
(18961 2 Ch.
451,
464.
See
also
Jones
v.
Wflliams
(1767) Amb.
651;
27
E.R.
422; and
Taylor
v.
Taylor
(1910)
10
C.L.R.
218.
Trrcsr
v.
Art.-Gm.,
note 2, below.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT