LAW211 EQUITY AND TRUST

SEMINAR 4 ASSESSMENT
GROUP D
KOOY WEI NEE (201128600), ROXY ONG JING XIAN (201135894),
JOSHUA HO FUNG LYM (201128630), TENG YUN LIN (201143263),
KARPAGARASEE RAMAKSIHNAN (201142536), BOK CHONG ALVIN TAY (201051874)

The statutory definition of charity, now finally in force, will

make little difference in practice.
Discuss this statement by reference to both the new
statutory definition of charitable purposes and also by the
previous definition derived from the case law.

A. PRE-CHARITIES ACTS

Historically, the Church played an important role both in dealing with poverty and providing
education to people who were not wealthy enough to afford private tutors. Prior to the
codification by the Charities Act, there exist a debate on whether charity should take its
everyday meaning or if there ought to be a legal definition of charity distinct from. With the
enactment of Charities Act 2006, a statutory definition of charity was introduced 1 alongside
other major changes to the law of charity.

This modern legal definition had its beginning in Lord Macnaghtens speech in Income Tax
Special Purposes Commissioners v Pemsel.2 Here, his Lordship concluded that trusts for the
relief of poverty; trusts for the advancement of education; trusts for the advancement of
religion; and, trusts for other purposes beneficial to the community, falling under any of the
preceding heads were accepted by the law as charitable. The heads of poverty, education, and
1 Charities Act 2006, s 1.
2 [1891] AC 531 (HL).
1

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religion operated as dogmatic assumptions which could not be challenged [in court] instead
of being rebuttable presumptions.3 The only elbowroom the judiciary had then lied in
exercising judicial discretion in deciding whether a purpose truly relieved or advanced
poverty or education and religion, respectively.

Lord MacNaghtens fourth catch-all category was one to permit the court greater discretion
as to what beneficial activity could constitute a charitable purpose; granting the court the
ability to take into account the ever-changing social needs. On this head, Lord Wilberforce
explained its broad use in Scottish Burial Reform and Cremation v Glasgow City Corp 4 when
he held:

first that, since it is a classification of convenience, there may well be purposes

which do not fit neatly into one or other of the headings; secondly, that the words
used must not be given the force of a statute to be construed; and thirdly, that the
law of charity is a moving subject which may well have evolved even since
1891.5

B. CURRENT LAW

3 Jeffrey Hackney, Charities and public benefit (2008) LQR 347, 348.
4 [1968] AC 138 (HL).
5 ibid, 223.
2

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The new list of charitable purposes now in force is laid out in the Charities Act 2011 6 which
essentially extends Lord Macnaghtens initial list of classifications. This statutory extension
means that, in practice, there is no need to prove a certain classes of purpose 7 that did not use
to fit within the three dogmatically-assumed heads (for examples, amateur sporting and
animal welfare) are charitable. Further, the heads of poverty, education, and religion are also
given statutory footing. Finally, the catch-all head is similarly featured within the same
statute.8 However, procedurally speaking, there remains the crucial test of public benefit that
must be fulfilled prior to qualification as charity.9

As neither the 2006 Act nor 2011 Act contained a definition clause pertaining to the
definitions of heads of charitable purposes, the common law remains relevant in this field.
There is therefore no material difference in the understanding of what constitutes heads that
existed prior to the Act. The head of poverty, for example, would still take the same
interpretation of Sir Raymond Evershed MR in Re Coulthurst is a person who has to go
short.10

The Charities Act 2011 added that purposes which is for the prevention or poverty. Prevention
of poverty has been considered by the Charity Commission in their current guidance, the
prevention of poverty includes preventing those who are poor from becoming poorer and
6 s 3(1).
7 Charities Act 2011, s 3(1)(d) (l).
8 ibid, s 3(1)(m).
9 ibid, s 4; Robert Pearce and Warren Barr, Pearce & Stevens Trusts and Equitable Obligations (6th
edn, OUP 2015) 377.
10 [1951] Ch 661 (CA) 666.
3

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preventing people who are not poor from becoming poor. 11 Blackburne J in Cawdron v
Merchant Taylors School held that relief could only be given to those who were in financial
need.12 This shows continued judicial flexibility in deciding whether each claim would fall
within a prescribed head, before and after the Act.

While it used to be the case that advancement of religion applied to the conversion of
heathens and heathen nations to Christianity,13 the Charities Act 2011 has included
polytheistic and atheistic faiths within the understanding of advancement of religion. 14 In
terms of not involving in belief in a God, the Charity Commission cited Jainism which
inspires followers to lead a better life instead of idolatrous worship, as an example.15

C. CONCLUSION: A PRACTICAL DIFFERENCE?

The codification of heads into the 2011 Act has made a difference in the interpretation of the
law. Scopes are wider now that more classifications have been added to the initial Pemselheads which ranges from health to the environment. It has also widened the scope of what
constitutes religion for the purposes of charity, i.e. the inclusion of faiths other than
Christianity.
11 The Charity Commission, Charities for the Relief of the Poor (HM Charity Commission 2008) 8.
12 [2009] EWHC 1722 (Ch), [2010] PTSR 507 [33].
13 Pemsel (n 2) 563 (Bramwell LJ).
14 s 3(2)(a).
15 The Charity Commission, The Advancement of Religion for the Public Benefit (HM Charity
Commission 2008), 11.
4

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SEMINAR 4 QUESTION 1

However, it has also, in the realm of public benefit, increased some requirements that did not
use to be. Charities must now prove on the balance of probabilities that there is a genuine
public interest before being accorded the status of a charity. This has served, as parliament
had intended, as roadblocks to sham charities that seek to exploit fiscal benefits of a
charitable status.

It must be noted that the statutory definition of charitable purposes can be said to only act as a
guideline for the judiciary to determine the validity of charities due to the powerful and broad
catch-all Section 3(1)(m) of the 2011 Act. There is also no explicit mention of what each of
the Section 3(1) heads specifically refer. Therefore, case law continue to serve a fundamental
role in adjudicating charitable purposes.

In summary, although there is an academic difference behind whether the principle lies
in the common law or statute law, both these sources are primary sources of law. The fact
that neither Charities Acts of 2006 nor 2011 had negatived the preceding common law
heads of charitable purposes, further bolsters the view that the application of the 2011
Act that is currently in force would work in the shadow of the case law. Judicial remains
the mainstay feature in the determination of charitable in each case. Therefore, it would
be safe to draw a conclusion that there is negligible practical difference after the halfhearted attempt at statutorily defining charity.

WORD COUNT: 1,090

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SEMINAR 4 QUESTION 1

65
This is a really good answer to the essay question and is well-written. Good use of case law and
legislation. Good explanation of prevention and evidence of further reading. In order to
improve, you could develop your arguments more. For example, has the new definition made a
big difference? The case law already supported polytheistic religions before the legislation came
into place. Does the statute not just consolidate the cases that already existed?

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SEMINAR 4 QUESTION 1

BIBLIOGRAPHY
PRIMARY SOURCES
STATUTES
Charities Act 2006
Charities Act 2011

CASE LAW
Cawdron v Merchant Taylors School [2009] EWHC 1722 (Ch), [2010] PTSR
507
Coulthurst, Re [1951] Ch 661 (CA)
Income Tax Special Purposes Commissioners v Pemsel [1891] AC 531 (HL)
Scottish Burial Reform and Cremation v Glasgow City Corp [1968] AC 138
(HL)

SECONDARY SOURCES
Hackney J, Charities and public benefit (2008) LQR 347
Pearce R and Barr W, Pearce & Stevens Trusts and Equitable Obligations (6th
edn, OUP 2015)
The Charity Commission, Charities for the Relief of the Poor (HM Charity
Commission 2008)
The Charity Commission, The Advancement of Religion for the Public Benefit
(HM Charity Commission 2008)

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Group B METHODOLOGY
1.
2.
3.
4.
5.
6.

Kooy Wei Nee (201128600)

Roxy Ong Jing Xian (201135894)
Joshua Ho Fung Lym (201128630)
Teng Yun Lin (201143263)
Karpagarasee Ramaksihnan (201142536)
Bok Chong Alvin Tay (201051874)

On the first meeting (20 February 2016), the group had a discussion regarding the question
and everyone contributed their views in order to form a draft answer at the same time
appointing each person to account some parts of work:
Wei nee and Roxy- the first part of the question
Joshua (and Karpagarasee, after joining the group later) - the second part of the
question
Yun Lin- third part of the question
Alvin- assistance in consolidating and editing the groups work
On 22 February 2016, we gathered at Sydney Jones Library in order to share our findings. We
went through our final essay together on our last meeting on 25 February 2016 and made
final edits. This log was made accordingly.