R. (Independent Schools Council) v. The Charity … · The Charity Commission for England and Wales ... different heads of charity and has, ... it must be recalled that „poor‟

R. (Independent Schools Council) v. The Charity Commission for England and Wales

H. M. Attorney General v. The Charity Commission for England and Wales

AN OVERVIEW OF THE DECISION

MARK MULLEN

11 New Square

Lincoln‟s Inn

London

WC2A 3QB

DX 319 London

Telephone: 020 7831 0081

Email: [email protected]

www.radcliffechambers.com

[2011] UKUT 421 (TCC)

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1. The Upper Tribunal (Tax and Chancery Chamber) released its decision on 14th

October 2011 and it is available on the judiciary website:

http://www.judiciary.gov.uk/media/judgments/2011/independent-schools- council-

charity-commission-decision. References to paragraphs in square brackets are

references to paragraphs of that decision.

2. This paper is intended as a brief summary of the decision. Any views expressed as to

the meaning of any aspect of the decision are my own and not necessarily those of

the Attorney General‟s Office.

In brief…

3. The decision concludes that the Charity Commission‟s Guidance on the operation of

the public benefit requirement is in certain respects wrong or unclear and should be

revised. The parties have been invited to attempt to agree the relief that should flow

from the judgment in the judicial review element of the proceedings. As to the

Attorney General‟s Reference, the Tribunal have provided some answers to the

questions in that reference. While the questions have not in general yielded „yes‟ or

„no‟ answers, the Tribunal‟s approach to the questions highlights that whether an

institution is operating for the public benefit is fact sensitive and difficult to answer in

the abstract. The bright line test as to what will amount to sufficient public benefit, and

what will not, that many hoped the decision would provide is absent.

Summary of the decision

4. The Tribunal noted that the law on this area has developed differently in relation to

different heads of charity and has, unsurprisingly, expressly limited their consideration

to the public benefit requirement in the context of educational charities, declining to

consider its operation in charity more generally [para. 15]. It declined to consider the

Strategy Unit‟s review which led to the 2006 Act or the records of parliamentary

debates during the passage of the Act. The Tribunal noted that these materials

showed the deeply held opposing views about the place of private education. This

had led to the Charities Act 2006 being [para. 18]:

‘something of a compromise capable of meaning different things depending on the

point of view of the reader’.

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Determining charitable status

5. The decision usefully makes it clear that whether or not an institution is a charity is to

be determined by reference to its objects as set out in its constitution, not its activities

(although where the constitution is unclear, or lost in the midst of time its activities will

be relevant to the question of what its objects are). While this is a long-standing rule,

it is often forgotten.

6. An institution which as a matter of its constitution is a charity will remain so, whether or

not it is operating as such as a matter of fact. It is assessed on the basis of what it is

established to do, not on the basis of what it does. It must however operate for the

public benefit, or it is not operating in accordance with its constitution.

What is „public benefit‟?

7. The 2006 Act requires a purpose, if it is to be a charitable purpose, to be for the public

benefit. „Public benefit‟ is to be understood as it was prior to the coming into force of

the 2006 Act. The Tribunal have analysed public benefit as having two aspects [para.

44] –

7.1. The nature of the purpose itself must be such as to be a benefit to the

community. In other words, it must be „a good thing‟. The Tribunal calls this

„public benefit in the first sense‟.

7.2. Those who may benefit from the carrying out of the purpose must be

sufficiently numerous, and identified in such manner as to constitute what is

described in the authorities as „a section of the public‟. The Tribunal refers to

this as „public benefit in the second sense‟.

„Abolition‟ of the „presumption‟ of public benefit by the 2006 Act

8. The 2006 Act provides that there is to be no „presumption‟ of public benefit. The

Tribunal concluded that there never had been any presumption, properly so called, of

public benefit, either in the first sense or the second sense. The 2006 Act makes little

difference to the legal position of the independent schools sector, but highlights what it

is that the pre-existing law already required, and the law still requires, by way of the

provision of benefit and to whom it must be provided [para. 88].

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Public benefit in the first sense

9. A particular purpose may prima facie be „a good thing‟, but this is not a legal

presumption which will require evidence to rebut. The judge, on hearing argument, or

from his own consideration, may decide that evidence is needed to support the

purpose. The way a judge will approach it is this [para. 67] –

‘He would start with a predisposition that an educational gift was for the benefit of the

community; but he would look at the terms of the trust critically and if it appeared to

him that the trust might not have the requisite element, his predisposition would be

displaced so that evidence would be needed to establish public benefit. But if there

was nothing to cause the judge to doubt his predisposition, he would be satisfied that

the public element was present. This would not, however, be because of a

presumption as that word is ordinarily understood; rather, it would be because the

terms of the trust would speak for themselves, enabling the judge to conclude, as a

matter of fact, that the purpose was for the public benefit.’

10. There is thus no presumption that any of the purposes listed in s. 2(2) of the 2006 Act

are, of themselves, for the public benefit in the first sense, nor that any particular

purpose within those categories is for the public benefit. Although the Tribunal

disclaimed any intention to consider the operation of the requirement outside the

context of education, it used an example the advancement of religion. Not only is

there to be no presumption that religion generally is for the public benefit but there is

no presumption at any more specific level and thus no presumption that Christianity or

Islam are for the public benefit and no presumption that the Church of England is for

the public benefit [para. 84].

Public benefit in the first sense in relation to fee charging schools

11. There is therefore no „presumption‟, in the legal sense, that education according to the

curriculum commonly adopted across schools is for the public benefit and there is to

be no presumption even that specialist education for physically or mentally disabled

children at no cost to them or their parents is for the public benefit [para. 85].

12. The Tribunal, however, concluded that the provision of the sort of mainstream

education under consideration was for the public benefit in the first sense [para. 113]

and declined to consider the „political‟ arguments as to the benefits or dis-benefits of

the independent sector in general. They did, however, state that the purposes of a

5

particular school are not to be assessed in abstract or in isolation from society as a

whole [para. 97]. A clear case would, however, have to be made out to show that an

object which would ordinarily be charitable is not charitable because of the

consequences which it has for society [para. 105]. Before the alleged disadvantages

can be given much weight, they need to be clearly demonstrated. There is a

considerable burden on those seeking to change the status quo [para. 106]. The

evidence of the Education Review Group on the point came nowhere near this [para.

108].

Public benefit in the second sense

13. It is here that the requirement to benefit the „poor‟, or „those who cannot afford to pay

the fees‟ is located. A trust which excludes the „poor‟ from benefit cannot be a charity.

The Tribunal accepted that there was no case which decides that point, but thought it

„right as a matter of principle‟, given the underlying concept of charity from early times

[para. 178]. Of course, it must be recalled that „poor‟ is a relative concept. It does not

mean destitute. It can include those of „modest means‟ or „some means‟. An

institution may be a charity even though it charges, without any element of subsidy at

all, for its services where the cost is nevertheless within the ability of the „not very well

off„ to meet. In an appropriate case „poor‟ can mean the „quite well off‟ [para. 179].

14. The concept of the „poor‟ being, in some circumstances, „quite well off‟ is not at first

particularly easy to grasp. This is derived from the Tribunal‟s analysis of two cases in

which charities have charged fees for their services: Re Resch [1969] 1 A.C. 514 and

Joseph Rowntree Memorial Trust Housing Association Ltd. v. Attorney-General [1983]

1 Ch. 159. In the latter case the Tribunal reasoned that the fact that the beneficiaries

of the charity had to have sufficient resources to pay the reasonably substantial cost

of the leases of the social housing provided by the charity did not prevent them from

being „poor‟ in the context of the social need that the charity addressed.

15. They stated that the case, however, lent no support for the proposition that that an

institution with purposes available only to the rich can be charitable and that a charity

could not merely provide at full cost a service which was readily available elsewhere,

however beneficial to the community the provision of the service may be. A „flexible

approach‟ has to be taken to what level of resource it would be necessary to require of

potential beneficiaries in order to disqualify the trust from charitable status [paras 173-

174].

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16. What this seems to mean is that is if there is a pressing social need for a particular

service and an organisation has to charge a substantial fee for the provision of the

service in order to provide it at all, the fact that this may exclude „the poor‟ as

understood in everyday language, will not necessarily amount to the exclusion of „the

poor‟ as understood for the purposes of charity law. The need for the service will be a

factor deciding who the „poor‟ are in the context of a particular charity.

Public benefit in the second sense in relation to fee charging schools

17. In the case of fee charging schools the Tribunal did not consider that persons able to

meet substantial school fees, certainly those in the region of £12,000 per annum,

could be regarded as „poor‟ [para. 180] and found that a school established for the

purposes of educating only those who could pay such fees would not be charitable.

For this purpose, one can look to the resources of a pupil‟s family. Similarly, one can

look at third party funding. Funding by an employer as a private benefit would be

brought into account when assessing whether a pupil was „poor‟, but funding from a

grant making charity would not [paras 183-184]. A „poor‟ person in receipt of a grant

is still „poor‟. What „family‟ might mean is not clear. Evidently one can see the sense

in taking into account the resources of a child‟s parents, but whether the payment of

school fees by a benevolent uncle or more distant relative or friend would mean that

the pupil was no longer to be regarded as „poor‟ was not decided. Suppose the recent

Euromillions winners decided pay school fees for the children of their 10 closest

friends, who couldn‟t otherwise afford it, to attend the local private school. Are those

children still „poor‟?

18. Providing that the „poor‟ are not excluded, in the sense that „more than de minimis or

token provision‟ for them is made, the range of direct, indirect and identifiable wider

benefits that the school provides to the community can be taken into account in

assessing whether it meets the public benefit requirement in the second sense. This

will, in principle, include the fact that an independent school reduces the burden on

local authorities, although such benefits are of very little weight and speculative [para.

231]. It will not be sufficient to make more than de minimis provision for the poor and

then rely the education of the fee paying students as constituting sufficient public

benefit [para. 214] although providing education to children whose families can afford

the fees is itself part of the educational purpose of the charity.

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19. The test is to look at what a trustee, acting in the interests of the community as a

whole, would do in all the circumstances of the particular school under consideration

and to ask what provision should be made other than the provision of education to

fee-paying students once the threshold of benefit going beyond the de minimis or

token level had been met [para. 215]. This will include provision of –

19.1. scholarships and bursaries (including those which offer only a partial

remission in fees for the „not-so-well-off‟);

19.2. arrangements under which students from local state schools can attend

classes in subjects not otherwise readily available to them;

19.3. sharing of teachers or teaching facilities with local state schools;

19.4. making available (whether on the internet or otherwise) teaching materials

used in the school; and

19.5. making available to students of local state schools other facilities such as

playing fields, sports halls, swimming pools or sports grounds.

20. Opening the facilities set out at 19.5 above to the community at large (assuming the

school‟s constitution permits this) however will not be taken into account. This does

not constitute the advancement of education. Why this is so is not clear. One might

think that if sports and similar activities can be regarded as educational for the

children of the school (and local state schools), why should it not be so for the

community at large? Identifiable benefits to the community at large flowing from

education at the school, such as those arising from a school‟s citizenship education

programme, may be taken into account [para. 204].

21. The trustees will of course be influenced by the resources available to the school.

Schools at the „luxury‟ end of the market must consider „gold-plating‟. The same

considerations apply to such schools but it will be even more incumbent on a school

which can afford and provide extravagant facilities to demonstrate a real level of public

benefit [para. 219].

Reasonableness

22. The Tribunal states that both the level of public benefit and how it is provided is a

matter for the charity‟s trustees and it is not for the court or the Commission to impose

8

its view as to how the trustees should comply with their obligations [para. 220]. One

should not „second guess‟ the trustees‟ decisions. Once the „low threshold‟ of making

more than de minimis provision for the „poor‟ has been met, what more the trustees do

is a matter for them, subject to acting within the range within which trustees can

properly act. In an appropriate case, very modest provision beyond more than de

minimis provision for the poor might be proper.

23. The Tribunal states that this is not a question, however, of „reasonableness‟ [para.

229]. Unfortunately the Tribunal themselves nonetheless still use the language of

„reasonableness‟. For example, there will be a minimum level of public benefit below

which no „reasonable trustees would go‟ [para. 220]. Elsewhere the language of „the

rational and justifiable in the promotion of the public interest‟ is employed [para. 218].

24. The Tribunal appears to have introduced a test of what is „proper‟ for the trustees to

do rather than what is „reasonable‟. There must be more than a de minimis level of

provision for the poor, because the poor cannot be excluded, but it is not for the

Commission, as suggested in its Guidance, to require a „reasonable level‟ of provision

for the poor or, still less, a reasonable or optimum level of public benefit [para. 229].

Providing that the trustees are acting within the ambit of a properly exercised

discretion, that is enough.

25. This might appear to introduce a subjective test of whether the charity is operating for

the public benefit, but the test of whether a school is, or is not, operating for the public

benefit must remain objective. The school either is operating for the public benefit, or

it is not, and it cannot be a question of whether the trustees think they are providing

sufficient public benefit. Perhaps what is meant is that the objective test of whether a

charity is or is not acting for the public benefit is now satisfied by the trustees

providing for such public benefit as is within the ambit of a properly exercised

discretion and that there is a minimum standard of provision of public benefit which

both marks:

25.1. the lower threshold of the discretion; and

25.2. the point at which the school can be said to be operating for the public benefit

at all.

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This seems to leave open the opportunity to challenge the decision of the trustees of,

say, a relatively wealthy school which, after making more than de minimis provision for

the poor, did nothing else for the public at large, on the basis that the were acting

outside the range within which they could properly act.

26. The Tribunal therefore declined to lay down hard and fast rules or boundaries, but

they were able to apply their reasoning to some of the questions asked in the Attorney

General‟s questions –

26.1. A charitable educational institution which performs its objects solely by

providing services for which it charges fees which cannot be afforded by a

significant proportion of the population of England and Wales is not

necessarily operating otherwise than for the public benefit providing it does

not exclude the poor altogether1. A not insignificant number of persons funded

by other charitable sources would suffice [para. 237]; and

26.2. An institution established for the sole purpose of the advancement of the

education of children whose families can afford to pay fees representing the

cost of the provision of their education is not established for a charitable

purpose [para. 238].

27. The Tribunal expressed some tentative views as to what comparative weight might be

given to certain activities of the hypothetical schools posited in the remaining

Reference questions [paras 239-258]. Making exam papers available on line,

providing limited teaching to children at local state schools and making playing fields

available, in addition of course to educating the fee paying pupils, were probably not

enough on their own to satisfy the public benefit test in the second sense. Substantial

contribution to an associated academy would be.

28. The provision of exam-based scholarships and means-tested bursaries will be

significant factors and the provision of latter might be weighed more heavily in the

balance than the former. In the case of the posited school with an intake of 70

children a year, the provision of full scholarships to 10% of them would probably be

enough, but 1% would probably be too few. A specialist music school providing

1 The judgment later noted that the poor could not be excluded on more than a temporary basis (and what is

„temporary‟ is not explained) [para. 241].

10

education not generally available faces the same enquiry, but it might be significant

that such a school was more expensive to run.

Conclusion

29. There is no substitute for reading all 260 paragraphs of the 109 page decision but, as

the concluding paragraph notes –

‘Our Decision will not, we know, give the parties the clarity for which they were hoping.

It will satisfy neither side of the political debate.’

It remains to be seen how the Charity Commission‟s Guidance, to which charity

trustees are obliged to have regard, might be recast in the light of the decision, and

whether that revised Guidance will make any further progress towards providing the

clarity that the Tribunal felt unable to give.

MARK MULLEN Radcliffe Chambers

Lincoln‟s Inn

11

„INTERVENING IN THE SCHOOLS CASE‟

FRANCESCA QUINT

11 New Square

Lincoln‟s Inn

London

WC2A 3QB

DX 319 London

Telephone: 020 7831 0081

Email: [email protected]

www.radcliffechambers.com

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RADCLIFFE CHAMBERS RESOURCE SEMINAR ON PUBLIC BENEFIT

THE ROYAL COLLEGE OF SURGEONS

19 OCTOBER 2011 630 pm

„INTERVENING IN THE SCHOOLS CASE‟

Francesca Quint

Who were the parties to the „Schools Case‟? ISC (Claimant) and CC (Defendant) - JR proceedings AG and (subsequently) CC and ISC - AG‟s Reference Two interveners in JR proceedings:

- NCVO – charity involved in reform of charity law, umbrella body for voluntary sector

- Education Review Group – unincorporated association of academics and others interested in education

NCVO and ERG also permitted by Upper Tribunal to submit evidence and representations in relation to the AG‟s Reference What does Intervention mean?

- Not a party

- Written submissions invited

- Oral submissions may be permitted (in this case 1 hour 30 minutes for each)

- No power to appeal

13

Why intervene? NCVO

- to ensure the Tribunal took account of implications for other charities

- to argue the need for guidance to be clearer

- to provide information about the background to the 2006 Act ERG

- to express strongly held views about o the detriment to state schools o excesses in the independent sector

- to provide a broader viewpoint about schools generally for the Tribunal to consider

Outcome for Interveners NCVO

- Tribunal accepted that there may be implications for other charities

- Tribunal agreed that every case should be considered individually

- Tribunal agreed that it is up to the trustees to decide how to benefit the public

- Tribunal held that benefits must extend to the poor as well as the rich

- Tribunal held that providing sports facilities etc to the community does not count

- Tribunal agreed that there is a wide range of educational benefits which can count

- Tribunal agreed that the current CC guidance is unclear

But

- Implications for other charities not spelled out - No acceptance of single public benefit test - No simple solution

14

ERG

- Arguments given attention though held o on general detriment to state education, political not judicial o on „gold-plating‟, not proved specifically

- „Day in court‟

- Raised profile for ERG

11 New Square Lincoln‟s Inn London WC2A 3QB DX: LDE 319

Tel: 020 7831 0081 Fax: 020 7405 2560 [email protected] www.radcliffechambers.com

CHARITABLE SCHOOLS LITIGATION 2011

ORIGINS AND OUTCOMES

ROBERT PEARCE Q.C

11 New Square

Lincoln‟s Inn

London

WC2A 3QB

DX 319 London

Telephone: 020 7831 0081

Email: [email protected]

www.radcliffechambers.com

16

Charitable Schools Litigation 2011 – Origins and Outcomes

Robert Pearce QC

1. Historical dimension

Statute of Charitable Uses 1601

Brougham Commission 1816

Charitable Trusts Acts 1853, 1855, 1860

Charities Act 1960

September 2002 “Private Action Public Benefit”

Recommendation that “the Charity Commission would identify charities likely

to charge high fees and undertake a rolling programme to check that provision

was made for wider access”: para 4.28

Charities Bill 2004

The “concordat”, August 2004

Joint Scrutiny Committee Report, September 2004

Charities Act 2006

2. Statutory concepts

Charities Act 2006 ss 1 – 4

Charities Act 1993 s 1B

“the public benefit requirement”, “the public benefit test”, “the public benefit

objective”

Objects and activities

To what extent are activities included in these concepts?

3. Trustees‟ discretions

The difference between making the “right” decision and making a decision that is not

a breach of trust

Recognition of the difference in the general law

Surrendering discretion to the court

The Tribunal‟s decision -

“The public benefit requirement … does not mean that there is any legal

requirement to act in a way which the Charity Commission or anyone else

would consider “reasonable” or “appropriate” [meaning] something which the

Commission or anyone else would consider as the most sensible way to act)

rather than in accordance with their own considered assessment in the

circumstances pertaining to the charity”: para 221 (b)

“The test of reasonableness runs throughout both Public Benefit and Fee

Charging. With some hesitation, we have taken the Guidance to require

provision of a level of benefit which the Charity Commission or the court

considers to be reasonable and which goes beyond that which it is necessary

17

to provide in order for the benefit to be more than de minimis or simply a

token benefit. But that is not, on our analysis, a requirement. Although it is

necessary that there must be more than a de minimis or token benefit for the

poor, once that low threshold is reached, what the trustees decide to do in the

running of the school is a matter for them, subject to acting within the range

within which trustees can properly act. That is something entirely different

from imposing on the trustees the view of anyone else about what is

“reasonable””: para 229.

The permissible scope of guidance under CA 2006 s 4

4. Excluding the poor

The general principle that it is not possible to create a charitable purpose that

excludes the poor

Qualification of that principle to accommodate:

Exclusion of “the undeserving poor”

Duplication of welfare benefits

Re Campden Charities2; Re Clarke3; R e Carteret4

Difficult cases:

Joseph Rowntree Memorial Trust Housing Association Ltd v AG5

5. The core duty of charity trustees

Possible formulation:

“to further its charitable purposes for the public benefit”6

Relevant amplifications:

Not to administer the charity for the benefit of a class which cannot exist

as a charitable class

“[To decide in favour of the appellants and in conformity with the decision

in the Oppenheim case7 ] would involve the absurdity of holding that what

the trust is in fact doing is being done for charitable purposes only,

although if the trust had been established to do that very thing it would not

have been established for charitable purposes only”: Salmon LJ in IRC v

Educational Grants Association [1967] Ch 993 at 1015.

To have regard to the duty of charity trustees to consider applying for a

scheme to alter the purposes of a charity: Charities Act 1993 s 13.

2 (1881) 18 Ch D 310 3 [1923] 2 Ch 407. 4 [1933] 1 Ch 103. 5 [1983] Ch 159 6 Charities Accounts and Reports Regulations 2008 SI 2008/629 Reg. 40. 7 [1951] AC 291.

18

Suggested legislative enhancement:

“It shall be the duty of any charity trustee so to execute the trusts of his charity

as to secure the fullest public benefit consistent with the terns of his trust and

furthermore to seek a scheme for the modification of any term which may

reasonably be regarded as preventing him from securing that benefit to a

material degree” (Christopher Mcall QC, 2004)

Possible judicial enhancement

5. Fee charging

A matter of administration

Possible approaches to the duty of the trustees of charities that charge high fees:

To neutralise the effect of charges

An unfettered discretion to further the charity‟s objects

The Commission‟s approach:

“Principle 2: Benefit must be to the public, or a section of the public

2b Where benefit is to a section of the public, the opportunity to benefit

must not be unreasonably restricted

• by geographical or other restrictions; or

• by ability to pay any fees charged

2c People in poverty must not be excluded from the opportunity to benefit”

The Tribunal‟s approach:

It is necessary to provide a benefit to the poor which goes beyond the de

minimis or token (para 222)

The correct approach is to “look at what a trustee, acting in the interests of

the community as a whole, would do in all the circumstances of the

particular school under consideration and to ask what provision should be

made once the threshold of benefit going beyond the de minimis or token

level had been met” (para 215 b).

6. Questions arising from the Tribunal‟s formulation

What is the source of the legal obligation to provide a benefit to the poor which goes

beyond the de minimis or token level?

Do the poor for this purpose constitute all those who cannot afford to pay the full

fees?

If not, and if there is an obligation to provide a benefit to the poor which goes beyond

the de minimis or token level, why is there not a similar obligation to provide a benefit

to those who are not poor but cannot afford the full fees?

Charities Act 1993 1B The Commission's objectives (1) The Commission has the objectives set out in subsection (2). (2) The objectives are–

1. The public confidence objective. 2. The public benefit objective. 3. The compliance objective. 4. The charitable resources objective. 5. The accountability objective.

(3) Those objectives are defined as follows–

1. The public confidence objective is to increase public trust and confidence in charities. 2. The public benefit objective is to promote awareness and understanding of the operation of the public benefit requirement. 3. The compliance objective is to promote compliance by charity trustees with their legal obligations in exercising control and management of the administration of their charities. 4. The charitable resources objective is to promote the effective use of charitable resources. 5. The accountability objective is to enhance the accountability of charities to donors, beneficiaries and the general public.

(4) In this section “the public benefit requirement” means the requirement in section 2(1)(b) of the Charities Act 2006 that a purpose falling within section 2(2) of that Act must be for the public benefit if it is to be a charitable purpose. Charities Act 2006 2 Meaning of “charitable purpose” (1) For the purposes of the law of England and Wales, a charitable purpose is a purpose which–

(a) falls within subsection (2), and (b) is for the public benefit (see section 3).

3 The “public benefit” test (1) This section applies in connection with the requirement in section 2(1)(b) that a purpose falling within section 2(2) must be for the public benefit if it is to be a charitable purpose. (2) In determining whether that requirement is satisfied in relation to any such purpose, it is not to be presumed that a purpose of a particular description is for the public benefit. (3) In this Part any reference to the public benefit is a reference to the public benefit as that term is understood for the purposes of the law relating to charities in England and Wales. (4) Subsection (3) applies subject to subsection (2).

4 Guidance as to operation of public benefit requirement (1) The Charity Commission for England and Wales (see section 6 of this Act) must issue guidance in pursuance of its public benefit objective. (2) That objective is to promote awareness and understanding of the operation of the requirement mentioned in section 3(1) (see section 1B(3) and (4) of the Charities Act 1993 (c. 10), as inserted by section 7 of this Act). (3) The Commission may from time to time revise any guidance issued under this section. (4) The Commission must carry out such public and other consultation as it considers appropriate–

(a) before issuing any guidance under this section, or (b) (unless it considers that it is unnecessary to do so) before revising any such guidance.

(5) The Commission must publish any guidance issued or revised under this section in such manner as it considers appropriate. (6) The charity trustees of a charity must have regard to any such guidance when exercising any powers or duties to which the guidance is relevant.

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