33: Charitable rates relief, multiple site occupation and trading – Court of Appeal decision

The Court of Appeal gave judgment on 28 May 2021 confirming the established position on the application of ratings law to a trading charity which occupies multiple sites (Nuffield Health v London Borough of Merton [2021] EWCA Civ 826). BDB Pitmans acted for the charity.

Background

Nuffield Health (the Charity) is a registered charity with a charitable purpose to advance, promote and maintain health and healthcare and prevent, relieve and cure sickness and ill health, all for the public benefit. The Charity operates a number of hospitals, medical centres and fitness and well-being centres across multiple sites nationwide.

Where a charity occupies and uses a site wholly or mainly for charitable purposes, it qualifies for mandatory charitable relief (at 80%) from business rates on the site.

The Charity applied for charity relief on its fitness and well-being site in Merton. The London Borough of Merton (the council) refused and the Charity applied to court for a declaration of its entitlement to the relief. The court granted the declaration at first instance and the council appealed to the court of Appeal.

Ratings law v charity law

At trial at first instance, the council had raised an argument that the test for relief (requiring that the Charity’s use of the hereditament be ‘wholly or mainly for charitable purposes’) meant that the Charity had to satisfy the council that its use at the hereditament was for the public benefit, ie a local public benefit test applied by the council for the purpose of ratings law, distinct from the charity law test applicable across the charity’s operations overall and regulated by the Charity Commission. That argument formed the main ground on appeal to the Court of Appeal.

The majority of the Court of Appeal (Peter Jackson and Nugee LJJ, David Richards LJ dissenting) dismissed the argument. After extensive and detailed analysis set out in the judgment, they found that, in the case of a registered charity whose purposes are (by definition) exclusively charitable, it was sufficient for a ratings billing authority to enquire if the hereditament was being used (wholly or mainly) by the charity for those purposes (in contrast to some other purpose, eg for investment or fundraising). The majority reached this decision notwithstanding that, on the facts before them, they would not have found that the use of the site was for the public benefit.

Charity trading and fundraising

The council also advanced an argument that the Charity’s use of the site was mainly for fundraising. It was argued that the Charity occupied the site for two purposes – to carry out its purposes and to raise funds by trading. The Court of Appeal did not agree – the fact that the Charity is a trading charity did not mean that it occupied mainly for fundraising.

Conclusion

The decision offers a helpful clarification of the law in this area where ratings law might have clashed with charity law. It supports a simpler test which can be applied consistently across billing authorities and would not risk distortion of activities by charities operating over multiple sites. The decision also keeps the difficult question of public benefit within the jurisdiction of the Charity Commission.

The decision on trading is also helpful, making clear that a charity which is carrying out ‘primary purpose’ trading onsite should not, for that reason, be regarded as using the site for a purpose other than carrying out its charitable purposes.