The Charities and Trustee Investment (Scotland) Act 2005 gives the Office of Scottish Charity Regulator (OSCR) several powers to regulate charitable activity in Scotland.
Most decisions made by OSCR, or a body to which OSCR’s powers have been delegated, are open to review and appeal.
When OSCR makes a decision, it will notify the party concerned. In the decision letter, OSCR will inform that party of its right to seek a review of the decision within 21 days of having received it. OSCR will complete the review within 21 days of the party’s request for a review. OSCR can confirm, vary, reverse or revoke the original decision. Only when a decision has been confirmed at the review stage can it then be appealed to the First-tier Tribunal.
Starting an appeal to the First-tier Tribunal
You can only appeal a decision if it is of the type referred to in Charities and Trustee Investment (Scotland) Act 2005 section 71. When you receive your review letter from OSCR, it will clearly state whether or not you have a right of appeal to the First-tier Tribunal.
The First-tier for Scotland General Regulatory Chamber Charity Appeals (Procedure) Regulations 2017 sets out the procedure for appeals ('the Rules of Procedure').
The overriding objective
While the procedure for appealing decisions is intended to be less formal than cases that are heard by the ordinary civil courts (ie the sheriff courts and the Court of Session), parties and their representatives are reminded of the overriding objective set out in Rule 2 of the Rules of Procedure, which provides:
The overriding objective of the Tribunal is to deal with the proceedings fairly and justly.
Dealing with proceedings fairly and justly includes:
- dealing with the proceedings in a manner which is proportionate to the complexity of the issues and resources of the parties;
- avoiding unnecessary formality and seeking flexibility in the proceedings;
- ensuring so far as practicable that the parties are able to participate fully in the proceedings;
- using any special expertise of the First-tier Tribunal; and
- avoiding delay, so far as compatible with proper consideration of the issues.
Parties and their representatives are expected and required to follow the overriding objective in their dealings with each other and with the First-tier Tribunal to assist the First-tier Tribunal in meeting the overriding objective. Parties are expected to co-operate with each other and with the First-tier Tribunal and to behave reasonably. A failure to do so may lead to the First-tier Tribunal making an award of expenses against them.
The First-tier Tribunal will actively case manage your appeal in accordance with the overriding objective. This includes issuing case management orders which you must follow.
You have the right to be represented or to ask a person to help them (known as a 'supporter'). Any person may represent a party at a hearing before the First-tier Tribunal. The representative does not need to be legally qualified. A non-legally qualified representative is known as a lay representative.
If you choose to be represented, you must notify the First-tier Tribunal of your representative’s details prior to the hearing.
The First-tier Tribunal may order that a lay representative is not to represent a party if it thinks that person is unsuitable to act or if it is satisfied that to do so would not be in the interests of efficient administration of justice.
You may also ask someone to accompany you to act as a supporter. A supporter is not the same as a representative. They do not have the same powers as a representative. A supporter can help you by:
- Providing moral support
- Helping to manage First-tier Tribunal documents and other papers
- Taking notes of the proceedings
- Quietly advising on points of law and procedure and issues which you might wish to raise with the First-tier Tribunal
A supporter may not ask a witness any questions and may not answer questions on behalf of the party that they are supporting. A supporter may not make closing representations or submit written representations.
You must start your appeal within 28 days of the confirmation of the decision by OSCR and you must submit your appeal to the First-tier Tribunal within that time.