How do I show my charity is for the public benefit?

England and Wales: This page sets out the position in full: there is no statutory definition of public benefit. The presumption that certain purposes automatically qualify has been abolished, and the content of the test is left to case law. Scotland: covered, with a genuinely different test. Scotland abolishes the same presumption and then goes further, setting out statutory factors you must weigh, including whether a fee you charge is unduly restrictive — see below. Northern Ireland: the same structure as England and Wales since a 2013 retrospective change, but Northern Ireland defers to its own body of case law, not the England and Wales one.

How the three nations’ public benefit tests differ

Founders demonstrate public benefit in their application to register with the Charity Commission, OSCR or CCNI. It is shown purpose by purpose, so write your purposes first. The test is not the same in each nation, as public benefit in the three jurisdictions explains.

England and Wales and Northern Ireland both say “no presumption” and then leave the rest to case law. The test’s content comes from judges, not from the statute.

Scotland says “no presumption” too, and then does something neither of the others does. It tells you, on the face of the Act, what has to be weighed. Most UK-wide guidance misses this. It starts from England and Wales and assumes Scotland works the same way under another name.

What the abolition of the presumption left standing

All three UK nations have ended the old presumption of public benefit. So each purpose must now show public benefit, rather than have it presumed. Before the modern Acts, the purposes of relieving poverty, advancing education and advancing religion each carried a rebuttable presumption. An application that assumes otherwise will be queried.

The England and Wales Act does not define public benefit itself. It refers straight back to case law, in these words:

“the public benefit as that term is understood for the purposes of the law relating to charities in England and Wales.”

So the substance of the test remains case law, not statute.

Older sources and older assumptions get Northern Ireland wrong. Here is the position. The first 2008 wording differed from England and Wales and was widely criticised. A 2013 Act replaced it, with retrospective effect.

The current test has the same structure as the England and Wales one, word for word. Anyone using a pre-2013 Northern Ireland source, or one that was never updated, will state the old test. One difference survived the 2013 change.

Northern Ireland looks to its own charity law. That body of case law is not the English one, even though the words of the statute now match. Do not assume an English case is automatically good law in Northern Ireland because the wording matches.

What Scotland’s statutory factors ask you to weigh

Scotland’s test asks two things the England and Wales test does not put into words at all. First, it is a net benefit test. Any private benefit gained by members or others is weighed against the public benefit. So is any public disbenefit that the body’s work causes.

Harm the body causes counts against it within the test itself, not as a separate matter.

Second, the benefit may reach only a section of the public. If so, the test asks in terms whether any condition on getting that benefit is unduly restrictive. That includes any charge or fee. In England and Wales, the closest match is the case law on fee-charging schools.

In Scotland the rule is on the face of the Act. It applies to every charity, not only educational ones. A Scottish applicant that charges for its services should expect to justify the charge in its application, before being asked. That means covering the fee, any concession or waiver, and who is left out.

Both limbs: what the benefit is and how it is delivered

Address both limbs of public benefit, or expect the Commission to query the application. Its own stated reason for querying an application goes beyond the purposes. It names both limbs: how the purposes are for the public benefit, and how they will be carried out for it.

Some applications cover only what the charity plans and say nothing concrete about how it will carry them out. That gets half an answer’s worth of scrutiny. What you write here also sets the pattern for the trustees’ annual report, which covers public benefit each year. The impact hub explains how to write the public benefit statement for your annual report. Write with that in mind, even though this page is only about the founding statement.

You now have a public benefit case for each purpose. The next step is to decide which jurisdictions to register in.

Common mistake: assuming certain purposes are presumed to be for the public benefit

They used to be. Relief of poverty, advancement of education and advancement of religion each carried a rebuttable presumption before the modern Acts. Older sources still describe it that way.

All three nations have ended the presumption. Each purpose must now show public benefit, rather than have it presumed. An application that assumes otherwise will be queried.

Common mistake: addressing the purposes but not their delivery

The purposes are what is being judged, so they get the attention. The regulator’s stated reason for querying applications covers both limbs.

One is how the purposes are for the public benefit. The other is how they will be carried out for it. Half an answer gets a query.

Common mistake: applying English public benefit reasoning to a Scottish application

England and Wales has far more case law on public benefit, and far more is written about it. Scotland’s test is in statute, with named factors that England and Wales does not have. In particular, the Act says in terms that a fee can be an unduly restrictive condition for any Scottish charity, not only educational ones.

Worked example

A charity that charges for its services is registering in Scotland. The Scottish test asks in terms whether the charge is unduly restrictive. So the application deals with the fee, any concession or waiver, and who is left out, before being asked.

The result is a statement that answers the statutory question before it is asked.