The Independent Schools Council, R (on the application of) v The Charity Commission for England and Wales

Permission for judicial review should not be refused merely because a related reference to the Tribunal may resolve overlapping legal issues. The court must consider whether the judicial review claim retains potential utility, including the relief sought and the risk that the reference may not address every disputed issue. Where unlawful guidance may have continuing effects, there is a strong public interest in determining its validity and, if appropriate, quashing it. Delay may be excused where the claimant responsibly investigates the practical operation of the guidance before bringing proceedings.

The Independent Schools Council challenged guidance issued by the Charity Commission concerning the public benefit test for independent schools. The Attorney General subsequently referred related questions concerning charity law and fee-paying educational institutions to the Tribunal under Schedule 1D to the Charities Act 1993. The Commission argued that the judicial review claim was otiose because the reference would resolve the dispute, or alternatively that it should be transferred without permission being determined. The court considered utility, delay and the appropriate procedural course.

1. Permission granted. The existence of the Attorney General’s reference did not deprive the judicial review claim of potential utility. Questions A1 and A2 did not cover all the issues raised, and the questions in sections B, C and D adopted a fact-specific methodology which might not resolve the parties’ more general legal disagreement.
2. Allowing the claim to proceed alongside the reference would reduce the risk of sterile arguments about the scope of the reference and would maximise the prospect that all issues between the parties would be resolved. Judicial review also provided a concrete route to relief by which unlawful guidance could be quashed.
3. Permission should be granted despite delay. The guidance had continuing and important effects on charities and trustees, particularly in light of section 4(6) of the Charities Act 2006. There was therefore a strong public interest in clarifying its legal status. The approach in R v Warwickshire County Council, ex parte Collymore [1995] ELR 217, at 228 to 229, was applicable: if continuing guidance is unlawful, it should prima facie be quashed and discontinued.
4. The claimant had acted responsibly by waiting to assess the practical effect of the guidance, considering the assessment reports, engaging with the Commission and then issuing proceedings.
5. The court granted permission on the whole claim, not merely on the issues identified in the claimant’s shorter submission, directed transfer of the claim to the Upper Tribunal under section 31A of the Senior Courts Act 1981, and reserved the costs of and relating to the hearing to the Tribunal.

First-instance judicial review permission decision. The judgment records that Charles J directed an oral hearing of the permission application, but no prior judicial decision is identified.