The Queen v The Charity Commissioners for England and Wales and Another
| Jurisdiction | England & Wales |
| Judgment Date | 07 July 2000 |
| Judgment citation (vLex) | [2000] EWHC J0707-8 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 July 2000 |
| Docket Number | CO/2455/1999 |
[2000] EWHC J0707-8
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(THE CROWN OFFICE LIST)
Royal Courts of Justice
Strand
London WC2
Mr Jack Beatson QC
Sitting as a Deputy Judge
CO/2455/1999
MS ELIZABETH APPLEBY QC and MS G KENT (for Judgment MR JASON BARRINGTON BEER) (instructed by Sanders Witherspoon, Brentwood, Essex CM14) appeared on behalf of the applicant.
MR GUY NEWEY (instructed by The Treasury Solicitor, 28 Broadway, London SW1H 9JS) appeared on behalf of the Respondent.
Friday, 7th July 2000
MR BEATSON:In this application for judicial review the applicant, Linda Lucille Baldwin, challenges a decision of the Charity Commissioners for England and Wales dated 17th March 1999 that the decision of the Trustees of the Browne and Winsgrave Almshouse Charities to set aside the applicant's appointment as an almsperson was regular and valid and was made in accordance with a scheme ordered, approved and established under seal by the Charity Commissioners for England and Wales pursuant to section 18 of the Charities Act 1960. The relief sought is an order of certiorari and an order of mandamus requiring the Commissioners to determine, in accordance with law, whether the trustees of the Charities acted regularly and validly and in accordance with the scheme when they set aside the applicant's appointment.
The issues raised in this case are of obvious importance to the applicant since the consequence of her appointment as an almsperson being set aside is that she will lose her home. The submissions before me concerned the conduct that should be required of charitable trustees administering an almshouse scheme, the scope of the supervisory role of the Charity Commissioners and the scope of the power of this Court to review decisions of those Commissioners.
The applicant, Mrs Baldwin, was appointed an almsperson on 23rd December 1997. I was told by Miss Appleby QC, who appeared on her behalf, that at that time her circumstances were difficult. She had recently been widowed, had lost her home, and had a seriously ill daughter. The letter of appointment (which was not signed until 7th January 1998) stated under the heading Terms of Appointment:
"The resident is a beneficiary of the Charity which retains the power to set aside the Residents appointment in the case of serious misconduct or if there is a serious breach of the Residents Obligations as set out below or in the scheme of the Charity Commissioners governing the Charity and any regulations prescribed from time to time by the Charity under the said scheme."
Under the heading, The Residents Obligations residents were required inter alia:
"To occupy the Property in a reasonable and quiet manner and not to cause nuisance or annoyance to neighbours or other members of the public."
The relevant provisions of the scheme are Clauses 38 and 43. Clause 38 deals with setting aside appointments. Paragraph (1) provides:
"The trustees and as regards the said Charity numbered 1 with the approval of the Patron may set aside the appointment as an almsperson of any almsperson who in their opinion
(a) persistently or without reasonable excuse either disregards the regulations for the almspeople or disturbs the quiet occupation of the almshouses or otherwise behaves vexatiously or offensively;"
The other sub-paragraphs of Clause 38(1) are not relevant to the present proceedings.
Following three incidents, which I shall consider later in this judgment, on 20th April 1998 the Chairman of the Trustees, Mrs Ashton, wrote to Mrs Baldwin on behalf of the Trustees stating that the Trustees considered that her appointment should be set aside under paragraph 38(1)(a) of the Scheme and giving her 4 weeks' notice to vacate her almshouse. In view of the importance of this letter I set out the material parts of it:
"On behalf of the Charities' Trustees I have twice given you written notice of the fact that your Letter of Appointment dated 7th January 1998 requires you to occupy your Almshouse in a reasonable and quiet manner and not to cause a nuisance or annoyance to your neighbours. My letter of 29th March 1998, containing a formal written warning, made it clear to you that if the Trustees received any further complaint about your behaviour they would be obliged to take further action.
Despite my letters to you warning you of the implications of your behaviour, you are aware that the Charities' Trustees received further complaints that you caused nuisance and annoyance on Sunday, 5th April 1998, to Mrs Edwards of No. 12, The Almshouses and others in the village.
… The Trustees have considered the matter further and have consulted with the Patron. They consider that your appointment should be set aside under paragraph 38(1)(a) of the Scheme because you have persistently and without reasonable excuse disregarded the regulations for the Almspeople and disturbed the quiet occupation of the Almshouses and otherwise behaved vexatiously and offensively, which is contrary to the requirements of the Scheme and your Letter of Appointment."
The applicant then consulted solicitors who tried to persuade the Trustees to reconsider their decision. They were unsuccessful and on 30th June 1998 they submitted an application to the Commissioners pursuant to Clause 43 of the Scheme. This provided:
"Any question as to the construction of this Scheme or as to the regularity or the validity of any acts done or about to be done under this Scheme shall be determined by the Commissioners upon such application made to them for the purpose as they think sufficient."
The letter of 30th June stated that the trustees erred in the decision which they had made. The solicitors relied on three points (albeit not in this order). First, that the decision to set aside the appointment had been taken in the absence of representations from Mrs Baldwin. Secondly, that the decision was taken before she had been served with a final written notice. Thirdly, that there had been no serious misconduct or serious breach of the residents obligations as required by the letter of appointment and the residents handbook.
The first reply on behalf of the Commissioners was made by a Mr Robert Scott. This was not a determination. But then, following submissions, Ms Karen Lawson wrote first on the 11th September 1998 and, after further submissions, on 6th October 1998. The penultimate paragraph of the second letter states:
"… Documentary evidence provided shows that your client was given a final written warning. In the circumstances, we are satisfied that the Trustees acted in accordance with the provisions of the scheme."
The applicant's solicitors, reasonably I might say, took this as a determination by the Commissioners and after a letter before action dated 18th January 1999, on 25th January applied for leave to move for judicial review of the decision of 6th October. Those proceedings were abortive for two reasons. First, on 12th February Mrs Holt wrote stating that she would determine the issues referred to the Commissioners under Clause 43 and asking if there was any further evidence the applicant's solicitors wished her to consider. She also requested submissions on the legal basis on which it was said that Mrs Baldwin should have received a final written warning and the procedure the solicitors considered the Trustees were required to follow. Secondly, leave was not given.
In a further letter dated 5th March 1999 Mrs Holt stated that Ms Lawson did not purport to exercise the powers given to her under the Scheme. In any event, the further submissions requested were made, and Mrs Holt made her determination on 17th March 1999. At this stage it is sufficient to set out the summary of the determination on page 1 of the letter. This stated:
"We find that:
There may have been a deficiency in the Trustees' decision making procedure, in that they did not invite representations from Mrs Baldwin;
Nonetheless, that deficiency was not such as to render their decision irregular or invalid under the Scheme."
Judicial Review proceedings challenging this determination were launched on 16th June 1999 and permission to move was granted by Forbes J on 25th August 1999. The evidence before me consists of three affidavits; two sworn by the applicant on 17th June 1999 and 19th August 1999 respectively, and one by Mrs Holt for the Respondent on 19th October 1999.
The three incidents
I now return to the three incidents which led to the letter of 20th April. The evidence concerning the incidents is obtained from letters sent to the applicant on 1st January 1998 and 29th March 1998, the minutes of meetings of the Trustees on 26th March 1998 and 29th of April of that year, and a letter dated 16th June, after the appointment had been set aside, from the Trustees' solicitors to the applicant's solicitors following a request by the latter that the conduct constituting serious misconduct be set out. The applicant's solicitors had previously written setting out Mrs Baldwin's concern and her side of the story in detail.
The first incident occurred on 27th December 1997, the day Mrs Baldwin moved into the almshouse. The solicitors to the Trustees summarised this incident in the following way in their letter of 16th June 1998:
"In the very late hours of 27 December 1997 Mr and Mrs Hurley who live in number 6 were disturbed by alarming noises caused by [Mrs Baldwin] banging on the door of the Chapel which abuts Mr and Mrs Hurley's bedroom window. Mr and Mrs Hurley were very alarmed and having got...
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