CASCAIDr’s story in podcast form
In 2017, our voluntary CEO broke her leg – and whilst laid up, pondered a central conundrum in adult social care:
- How does one make it viable to get good legal framework advice out to a person, at a formative moment, if he or she is struggling with the council about legal rights to care funding?
- If the person is applying for public funding for care, he or she probably hasn’t got enough money to PAY for specialist public law legal advice.
- Decent legal advice is always going to cost money because of the expertise required to have learned it, and applied it.
- If advisers couldn’t earn money from the expertise, they’d have no incentive to acquire the knowledge!
- But if the person with the legal problem, has sufficiently little to qualify for legal aid, they would then have to FIND a legal aid lawyer with a community care certificate, and enough capacity to take their case on….in less than 3 months of the action or omission causing the problem…
- …Which is no mean feat, if one is on one’s knees with disability or illness or mental ill-health in the first place, and if one doesn’t know whether one has got a legal problem or just a complaint….
- And if the person’s got just a bit too much money to qualify for legal aid, and fears the loss of services for rocking the boat, then they’ll probably just do nothing…and teeter into an even worse situation.
So she thought and thought, and she researched crowd-funding for public interest litigation.
She discovered that charities can crowd-fund for people’s litigation causes.
She discovered that charities can engage contractors, rather than employers, just like any other business – and pay them, if the charity has the money to do so.
She discovered that charities can even charge for services that are central to their charitable objects, without losing a claim to be acting for public benefit, as long as the charges are low enough.
And she discovered that they can own trading companies in order to trade in services that are not central to their objects, but designed to support the financial resources for the charity itself.
So, having had her A-ha! moment, she then applied for charitable status for the corporate vehicles that make up CASCAIDr and CASCAIDr Trading Ltd.
She spent her own money on legal advice to contend with the Charity Commission’s many and varied difficulties in grasping what the charity was setting out to do, and how it might work, and why it wasn’t politically motivated.
Its aim was to uphold the existing legal framework, not change the law. That is, to help people access their existing legal rights under the Care Act – a statute passed as recently in 2014, by this government, through a sovereign Parliament made up of democratically elected MPs who presumably knew what they were doing when committing the state’s tax base to funding what the Act says should happen in every single case….
Whilst exercising the minds of the Charity Commission, she managed to find a group of interesting and skilled trustees to support the charity’s operation. She created a structure whereby she has no control over the Charity as a board member, and earns no money for running it. She simply earns a case work fee which is the same as any other case worker can earn, and she has ceased to provide consultancy in her own private capacity, in order to avoid conflict of interest.
CASCAIDr now has trustees, case workers, volunteers, and ambassadors promoting CASCAIDr for free; it has writers and case note creators, reflective practice mentors, IT and social media and SEO support – and a growing number of case referrals and positive outcomes to point to. It has a business plan, a remote book-keeper, bankers, accountants, insurers, a raft of policies, ICO registration, GDPR compliance, and software renewal dates, coming out of the woodwork.
But CASCAIDr is still solvent, because we don’t have to spend all our time applying for grants from benefactors that aren’t sustainable.
We are completely independent, unlike many charities these days, who have become service providers to public bodies, delivering services at fees that enable the council to make the very same cuts that central government requires, in the name of austerity.
Our CEO’s leg has mended and although she is exhausted, she reports that the impact of doing battle for people as ‘better than HRT’.
You can listen to podcasts about the experience of giving birth to this baby, here:
Why are we telling you this?
The point is that anyone can do this too, if the essence of your offer is advice and information and advocacy.
There is no charitable object listed in the Charities Act of ‘giving legal advice’ away, however cheaply you might be prepared to do this and however obviously the normal beneficiaries of charities are going to find your advice, useful.
And you cannot be politically motivated, although most charities’ aims touch on politics in the broadest sense.
But you CAN copy this model above, by using the charitable object of ‘the sound administration of the law’. It’s not specifically listed, and charity solicitors, being lawyers, ought to know about it. But it does exist, by analogy, having been established under the old law before the Charities Act was passed.
And there’s a case on it which made all the difference to our application in the end – called HDT.
If you think about it, many registered charities’ core purpose is to give advice about people’s legal rights against governmental bodies, without it being seen as engaging in political activity. It’s often called advocacy, but the thrust is always the same – upholding welfare or human rights related law.
- Housing charities in relation to local authorities’ statutory homelessness decisions, such as SHELTER are an example. Shelter’s charitable objects are the relief of hardship, poverty and distress of those in need, in adverse housing conditions, and the education of the public concerning homelessness and to make available the useful results of research to the public, and its activities specifically include advocacy, advice and information.
- The Prisoners’ Advice Service and the Howard League for Penal Reform are charitable organisations one of whose main focuses is inevitably advice about rights where the defendant or respondent is a governmental body, the Prison Service;
- Asylum Justice is another – its objects are legal advice and representation to asylum seekers, necessarily challenging governmental body decisions;
- Citizens’ Advice Bureaux are advising every day, in relation to public sector child care decisions;
- and many of the advice charities that advise in relation to social security decisions made by the DWP, such as the FRU, provide legal representation; others are RAISE or
- The Public Law Project – a charity now, for a very long time. The clue is in the name, we feel!
In the HDT case, the Tribunal – overturning a decision of the Charity Commission about political purposes, held as follows:
We find that “promoting the sound administration of the law” was recognised as a description of a “fourth head” charitable purpose under the “old law” i.e. prior to 1 April 2008 (see s. 3 (4) of the Act) so that it now falls within s. 3 (1) (m) (i) of the Act.
There is no legal authority to support the view that the conduct of strategic litigation before a competent constitutional court is a proper means of advancing the sound administration of the law, but equally we have not been referred to any authority which suggests that it is not an acceptable means of advancing such a charitable purpose.
We take the view that the conduct of the very particular form of litigation supported and engaged in by HDT is an acceptable means of advancing the charitable purpose of promoting the sound administration of the law.
We consider that the public benefit requirement and the question of whether there is any risk to foreign policy from such a purpose falls to be addressed in relation to s. 4 of the Act and that we should be careful not to merge it into our consideration of the definition of a description of a charitable purpose, as the Charity Commission’s submissions seem to suggest that we should.
In any event we find…that the particular type of constitutional litigation supported and conducted by HDT is fundamentally different in nature from the activities found to be objectionable as political in McGovern v AG.
So please get out there and do the same thing, if you believe in what you’re doing.
If you build it, they will come!