Legal update
The ‘bright line’ approach could also reduce the delay in the provision of benefits and provide clear and transparent rules that could be applied accurately and consistently. It eliminated the need for ‘invidious comparisons of individual cases in all their variety’. The Court went on to say a charity is a private body that does not have the same responsibility as the state for ensuring equal treatment of citizens. Therefore, if the state was entitled to use bright line criteria for distributing social welfare benefits, then still more would the same be true for a charity. The leading judgment also goes on
to say charities do not have the same resources as the state, so it is in the public interest that charities should be able to minimise their costs of administration to ensure maximum resources are made available to address problems charities seek to alleviate. Also, donors to a charity might feel less willing to make donations if they felt that excessive amounts of their money was spent on administration rather than helping people in need.
Conclusion
In summary, policies that are potentially discriminatory, and which could be
classed as ‘blanket policies’ can still be held lawful, provided they meet a legitimate need. This judgment should give charities and other organisations the confidence to provide housing to those sharing a protected characteristic. However, it is very important to remember that each case will turn on its own particular facts. For those charities that already favour a group sharing a protected characteristic - whether that characteristic is based on religion or another characteristic protected by the law - it is absolutely essential to should check their governing documents very carefully.
There will be some charities whose governing documents do not expressly permit such a restricted group to receive those benefits. A charity in such a position may find itself exposed to risk, since the exemption in Section 193(2) does rely on the charity being able to ‘act in pursuance of a charitable instrument’ and the view of the Charity Commission echoes that position.
Charities whose constitutions do not adequately mirror policies that favour a group sharing a particular protected characteristic should seek professional advice, and consider whether a change to the governing instrument is required. TCHE
Disclaimer The above article is not intended as legal advice and must not be relied upon as such.
Tom Lumsden
Tom Lumsden is a partner at CooperBurnett LLP in Tunbridge Wells in Kent. The law firm specialises in commercial property. Tom has particular expertise in the sale and purchase of care homes, including acquiring land for care home developments.
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www.thecarehomeenvironment.com • January 2021
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