On 23 April 2020, the Charity Commission published its report on its inquiry into the Public Safety Charitable Trust (PSCT), a charitable company which was the centre of widespread media coverage in 2013 after losing 3 test appeals to the High Court over its entitlement to business rates relief.  The report offers a useful reminder to charity trustees of the risks of entering into arrangements to relieve the landlord from their business rate obligations.

Background

The Charity Commission had been engaged with PSCT since 2011 when several local authorities raised concerns with the Commission over the charity’s operating model.  That model was to take leases of empty properties at nominal rents and arrange for Bluetooth equipment to be placed in the properties to broadcast public service messages to the local community in towns and cities across the UK.  PSCT sought charity business rates relief (80% mandatory, 20% discretionary) on each property, on the basis that the charity was using the property wholly or mainly for charitable purposes; the landlord would make a donation to PSCT in recognition of being relieved of the obligation to pay business rates on the property.

However, some local authorities challenged PSCT’s eligibility for relief.  On 14 May 2013, the Court held, applying the decision in Kenya Aid Programme v Sheffield City Council [2013] EWHC 45 Admin, that the extent of use of each property (which was empty save for the Bluetooth equipment) was not sufficient for the property to be “wholly or mainly used” for charitable purposes.

The decision opened up the charity to liability for full business rates on all the properties it used in this way, which by that point was some 2000 properties across 240 local authority areas – a liability of around £17m.

The regulatory investigations

The Charity Commission opened a statutory inquiry in 2013, after the Court decision, and issued a regulatory alert to charities.  The inquiry was put on hold soon after, when the Insolvency Service petitioned for compulsory liquidation of PSCT and launched an investigation into the conduct of the charity trustees, who were directors of the charitable company.  As a result of the investigation, both charity trustees were disqualified as directors (for 9 years and 5 years from 2017) under the Company Directors Disqualification Act 1986.  The disqualification means they are also disqualified from acting as charity trustees or holding positions that have senior management functions within a charity for the same period.

The Charity Commission resumed its inquiry in January 2020.  Not surprisingly, it found that there was mismanagement and/or misconduct in the running of the charity, not least because it appeared that the charity trustees had effectively delegated management to a services company under which 95% of the money received by PSCT from landlords was paid to the services company.  In particular, while the Court appeal was ongoing, the trustees had continued taking on leases, incurring the risk of potential significant liabilities which the charity did not have resources to pay.  In interviews with the Commission, the trustees suggested that the services company had agreed to pay the legal costs and any liability arising from the business rates issue, but were not able to demonstrate any agreement to this effect.  Overall, in almost every respect, the trustees were not able to demonstrate that they were making decisions in the best interests of the charity.

Conclusion

The PSCT case is extreme, but it is still a useful reminder that charities should take care that they satisfy the legislative test (s43(6) Local Government Finance Act 1988 in England and Wales) when applying for charity rates relief – cash-strapped local authorities can be expected to refuse or challenge applications.

Charities should also beware of being drawn into a rates relief avoidance scheme.  There is a clear incentive for a landlord facing business rate costs on a hard to let empty property to offer a deal to a charity to occupy.  However, if the charity does not need the property for its purposes it may find it difficult to satisfy the test for charity rates relief, with potentially catastrophic financial consequences for the charity, and the charity trustees are likely to face questions why it was in the charity’s interests to take on the property.  The PSCT case and that of Kenya Aid Programme, which both resulted in significant director disqualifications, show the potential personal cost to charity trustees.

Nicola Evans is Charities Counsel at BDB Pitmans