Free Advice

Beware of “public disbenefit”

http://www.oscr.org.uk/news-and-events/latest-news/adoption-charity-unlawfully-discriminates/

The Office of the Scottish Charity Regulator (OSCR) has recently upheld its previous finding that St. Mary’s adoption agency fails the charity test because it fails the public benefit test. (By not allowing children to be adopted by homosexuals who co-habitate).

“OSCR found that the charity does not provide public benefit because the way it provides benefit involves unlawful discrimination, which causes detriment to the public and to particular groups of people, the effect of which outweighs the other positive effects of the charity’s work. OSCR also found that access to the benefits the charity provides is unduly restricted.”

While the charity argued that the exception for religious belief in the Equality Act 2010 ought to apply, OSCR did not agree with this:

“whilst the religious exception may apply where organisations are conducting activities such as acts of worship or devotion, it is unlikely that it will apply where a religious organisation is providing services to the public or carrying out functions of a public nature. In terms of the relevant case law, religious belief by itself cannot justify discrimination on grounds of sexual orientation when an organisation is providing a public facing service, such as the provision of a voluntary adoption agency, which is the charity’s function in terms of adoption law.”

OSCR then looked at what this means in terms of the charity test, and found that the disbenefit of discrimination outweighed the public benefit of providing an adoption service.

It considered the benefit provided by the charity to children, prospective adoptive parents and the public in general, and considered this to be substantial. It weighed this against the disbenefit (or harm) resulting from its unlawful discrimination, in undermining the principle of non-discrimination established by Parliament. It also considered the disbenefit likely to be incurred by individuals who were or might be discriminated against. On balance, OSCR felt the disbenefit from unlawful discrimination outweighed the benefit provided by the charity.

So, a charity’s benefit provided to the community is not determined by the beliefs of the charity, but by parliament. In this case, OSCR took the lead from the parliament, that the DISBENEFIT outweighed any benefit.

(I notice that in Australia who has just established a charity regulator called “Australian Charities and not-for-profits Commission” (ACNC), are looking at “enhancing public trust and confidence in the sector through increased accountability and transparency”. It seems there is an agenda to tax charities in future; particularly making charities pay land tax, or council rates.)

Charities will need to walk the tightrope of “disbenefit” (as defined by law), and their beliefs. However, Governments must know that charities are doing there best to reduce reliance on Government funding, and all charity profits go back into the charity.

It’s getting interesting.

Peter