Pauline Densham v The Charity Commission for England and Wales
| Jurisdiction | UK Non-devolved |
| Judge | Mrs Justice Falk,Judge McKenna |
| Neutral Citation | [2018] UKUT 0402 (TCC) |
| Court | Upper Tribunal (Tax and Chancery Chamber) |
| Subject Matter | Charity,3 December 2018 |
| Date | 03 December 2018 |
| Published date | 03 December 2018 |
[2018] UKUT 0402 (TCC)
Appeal number: UT/2017/0167
UPPER TRIBUNAL
TAX AND CHANCERY CHAMBER
PAULINE DENSHAM
Appellant
- and -
THE CHARITY COMMISSION FOR
Respondent
ENGLAND AND WALES
TRIBUNAL:
MRS JUSTICE FALK
UPPER TRIBUNAL JUDGE McKENNA
Sitting in public at The Rolls Building, Fetter Lane, London EC4A 1 NL on 15
October 2018
Mark Herbert QC and Christopher McNall for the Appellant, instructed by
Advocate (formerly known as the Bar Pro Bono Unit).
Kate Selway for the Respondent, instructed by the Charity Commission
Litigation and Review Team.
© CROWN COPYRIGHT 2018
DECISION
Background
1. The Appellant is an allotment-holder and local resident of Hughenden,
Buckinghamshire. The Charity Commission considers that certain land held by
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Hughenden Parish Council for local allotments is subject to charitable trusts for the
relief of the poor. The Appellant contends that the land is not so held. The allotments
were originally registered as a charity known as “Allotments for the Labouring Poor”
in 1966. That charity was removed from the register in 2008 for failure to file
accounts. It was then restored to the register in 2011 under number 248607. Both
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Hughenden Parish Council and HM Attorney General were invited to be joined to
these proceedings but neither wished to do so.
2. The Appellant appeals against a decision of the First-tier Tribunal (General
Regulatory Chamber) (Charity) (the “FTT”) dated 14 August 2017 following an oral
hearing on 19 June 2017 (Appeal numbers CA/2015/0011 and CA/2017/0002) (Judge
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Jonathan Holbrook, Ms Helen Carter, Ms A’isha Khan).
3. The FTT by its decision dismissed the Appellant’s appeals against two decisions
of the Charity Commission, namely:
(1) a decision taken on 7 October 2015, to make a fully-regulating Scheme
for “Hughenden Community Support Trust, previously known as
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Allotments for the Labouring Poor” under s. 18 of the Commons Act 1899
and s. 67(2) of the Charities Act 2011; and
(2) a decision taken on 20 December 2016 under s. 34 of the Charities Act
2011 not to remove the Hughenden Community Support Trust from the
register of charities, following the Appellant’s request for its removal.
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4. The dispute between the parties concerns the legal effect of two awards made
under powers conferred by the Inclosure Act 1845 (awards dated 27 March 1855 and
4 August 1862). The FTT was asked to decide whether these awards had created
charitable trusts over the land, and whether subsequent legislation had extinguished
any such trusts. The parties’ opposing interpretations of the awards in turn calls into
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question the Charity Commission’s jurisdiction to maintain the registration of the
charity and to exercise its scheme-making powers in relation to it. The FTT agreed
with the Charity Commission that the awards established charitable trusts, that this
was unaffected by subsequent developments such that a charity continued to exist,
that the Charity Commission had jurisdiction to make the scheme, and that it was not
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obliged to remove the charity from the register.
5. Permission to appeal was initially refused by the FTT but was granted on renewal
by the Upper Tribunal (Judge McKenna) on 22 December 2017. The grounds of
appeal in respect of which she gave permission were summarised as follows:
(i) that the FTT failed to rule on the prior question of whether a charitable trust
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can be established in the absence of a gift;
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