Charity trading subsidiaries as charities – the New Lanark decision
On 29 January 2021, the Inner House of the Court of Session in Scotland refused appeals made by the Scottish Charity Regulator OSCR against decisions of the Upper Tribunal in respect of two wholly owned subsidiary trading companies of the charity, the New Lanark Trust (NLT). Both trading companies had applied to OSCR to register as charities and OSCR had refused. The Upper Tribunal had quashed those decisions and directed OSCR to register the trading subsidiary companies on the Scottish charities register.
Although the decision is one of charity status, under Scottish charity law, there may be wider implications as, for example, the withdrawal of charity rates relief by South Lanarkshire Council from non-charitable subsidiaries was said to be a factor in the decision to apply to register.
The trading companies
NLT is the charity responsible for managing the UNESCO World Heritage Site at New Lanark. It was accepted in the case that it is crucial feature of the New Lanark site that it is not merely preserved, but maintained as a living village so that visitors may, so far as is practicable, experience the original concept which has led to its World Heritage designation.
To help it do this, NLT has two wholly-owned subsidiary trading companies, New Lanark Trading Limited (NL Trading) and New Lanark Hotels Limits (NL Hotels). NL Trading operates the visitor attraction and related trading activities, including a café, shop and the production and sale of ice cream. NL Hotels operates a hotel, hostels and self-catering lodges within the village, including a conference centre, wedding venue, bar, restaurant, leisure club, pool and beauty treatment facilities.
Both companies were formed with the principal purpose of producing income to donate by gift aid to NLT. They occupied as tenants buildings owned by NLT and were operated on a commercial basis. The purposes of both companies were only charitable, falling within the advancement of education and the advancement of the arts, heritage, culture or science. The issue before the court was whether they “provided public benefit” within the second limb of the charity test in s7(1) of the Charities and Trustee Investment (Scotland) Act 2005.
Were the trading companies charitable?
OSCR considered that NL Trading did not provide public benefit on the basis that a significant part of its activities, such as the shop, café and ice cream manufacturing, were neither in furtherance of its charitable purposes nor incidental to them, hence there was no public benefit arising from its activities as a whole. Similarly, in respect of NL Hotels, OSCR considered that operating the hotel, hostel and self-catering lodges were not in furtherance of its charitable purposes or a by-product of doing so. In each case, OSCR considered these activities to be non-charitable activities undertaken with the aim of generating profits to be applied for charitable purposes (i.e. fundraising) rather than activities which directly advanced a charitable purpose.
The First-tier Tribunal upheld OSCR’s decisions. Before the Upper Tribunal, it was accepted that the trading companies could not pass the charity test merely on the basis that each donated its surplus to NLT for charitable purposes. Similarly, the charitable activities of NLT could not be attributed to its trading companies. The issue was whether when carrying out their own commercial activities, they were each providing public benefit.
The Upper Tribunal found that OSCR’s approach had missed the point – in the overall setting of New Lanark the commercial activity in itself amounted to a public benefit. The question to ask was: did the commercial activities carried on contribute to the furtherance of the entity’s charitable purposes of advancement of education and heritage? On the evidence, the answer was yes. In the case of New Lanark, which was offered to the public as an inhabited, economically active settlement with facilities for visitors, the nature and size of the site necessitated provision of facilities for visitors. Providing those facilities and accommodation contributed to the objectives of maintaining the village as a living entity and to satisfying the needs and expectations of visitors.
While it was acknowledged that some elements of the services provided, such as a spa and beauty rooms, would seem to have little to do with advancement of education or heritage if considered on their own, the activities as a whole advanced the charitable purposes. The key point at the heart of both decisions was the presentation of the village as a functioning entity. The Inner House concluded that another tribunal might have reached a different decision, but the Upper Tribunal was entitled to make the findings which it did.
Primary purpose trading is not “fundraising”
It is also worth noting that, before the Inner House, OSCR objected that the Upper Tribunal had erred in not carrying out what OSCR considered to be a necessary balancing exercise, to identify which was the dominant purpose where an applicant for registration had dual purposes (of raising funds and contributing to its charitable purposes). However, the Inner House considered that such a balancing exercise was only needed where some activities had advanced the charitable purposes and some had not – in this case, the Upper Tribunal had found that all the activities furthered the charitable purposes. Where the trading activity is all “primary purpose trading”, the fact that it also raised money would not of itself deprive it of public benefit or mean that it had to fail the charity test. The court noted that “while simply raising funds for a charitable purpose does not meet the test, it would be odd if the mere fact that primary purpose trading activity generated funds destined for the same public benefit deprived it of charitable status”.
Guidance vs statute
OSCR also argued that the Upper Tribunal had mis-characterised its guidance and “should have interpreted the charity test consistently with that guidance”. The Inner House found that the Upper Tribunal was concerned instead to “make it clear that any guidance issued by OSCR could not be determinative of the legal interpretation of the statute”. The court added that this was a “proposition which seems to have been at the very least floated before the tribunals, although quite properly disavowed in this appeal”. The Upper Tribunal had not rejected the guidance or found it to be wrong, the decision was in fact in accordance with the guidance.
Comment
Both companies have now been entered on the Scottish charities register and, as identified in some of the accompanying press coverage, will be making applications for relief from non-domestic rates on the sites they occupy.
Other charities may look to this example and consider whether a similar model would work for them (whether under the Scottish test of providing public benefit or the English and Northern Ireland tests of the purpose itself being for the public benefit). Inevitably, any such example would turn on its facts. It was noted, for example, in this case that New Lanark was “considered almost to be unique”. It was crucial to the court’s finding that the trading companies’ activities enhanced the presentation of New Lanark as a “living village, contributing to the visitor experience which has given the site its reputation”. It is useful, however, that the court has provided clear guidance that charities can (and do) carry out “commercial” activities in furtherance of their purposes and that doing so need not detract from the charity’s public benefit.