In a recent decision the Upper Tribunal has provided some helpful clarity regarding the Charity Commission's power under section 42(2)(a)(ii) of the Charities Act 2011 to direct a charity to change its name.
The Charity Commission has discretion to direct a charity to change its name if it considers the name of a charity is in its opinion 'the same as' or 'too like' the name of another charity. It can then exercise its discretion to direct one of those charities to change its name under section 42(2)(a)(ii) of the Charities Act 2011.
In 2016 the Charity Commission used its powers to direct Cambridge Islamic College ('CIC') to change its name, following a complaint made by Cambridge Muslim College ('CMC').
CIC appealed the Commission's decision to the First Tier Tribunal which held that the test for determining whether charity names were 'too like' so that the Charity Commission could make a direction was 'a simple visual and aural test'.
The tribunal considered that if the names failed this test there was then no reason for the Charity Commission to consider its discretion in-depth and so adopt a broader 'multi-factorial approach'. On this basis it held that the names of the respective charities were not 'too like' one another and therefore the Charity Commission had no jurisdiction to direct a change of name.
The Charity Commission appealed this decision to the Upper Tribunal, where its appeal was also dismissed.
However in doing so the Upper Tribunal accepted the Charity Commission's argument that the previous decision applied an 'unduly narrow test' and the words 'too like' under section 42(2)(a)(ii) should in fact be given their 'ordinary meaning'.
The Upper Tribunal held that the words 'too like' should be given a more open-ended interpretation rather than one focused entirely on visual or aural similarity, in deciding whether section 42(2)(a)(ii) was engaged. It was, for example, legitimate to consider the similarity in meaning of the words used and possible 'conceptual similarity'.
Applying this interpretation it still held that the charity names were not similar enough in meaning in order for them to be considered 'too like' for the purposes of the Act, even when a wider range of factors were considered, including that:
- the words 'Cambridge' and 'College' were commonly used words which would not draw the reader's focus - the fact that these words were identical was not enough to determine that the names were 'too like' one another;
- the words 'Islamic' and 'Muslim' were considered to be conceptually different; and
- a large numbers of charities co-exist where the only difference in their name was the same difference as in this case.
The Upper Tribunal's decision provides helpful guidance and interpretation for how to determine if a charity's name is 'too like' a pre-existing charity's name.
Charities should be aware that the Charity Commission's discretion to direct a change in name extends to names which ordinarily mean the same things, not just those which sound or look the same.