North Yorkshire Moors Railway General Discussion

The Gift Aid Rules were written by HMRC attempting to interpret the 2007 Act which is what the Government through Parliament are responsible for. If there's a question about the legality of Gift Aid procedures the answer will depend on the terms of that Act. For a heritage railway charity much of its property is open to public inspection for free. What isn't requires at train ride to "inspect" the property/work of the charity which involves a right of admission as referred to in the Act. It's also fundamental that the same right of admission must be available at the same price to non-Gift Aiding purchasers. Those that argue that the later Consumer Rights Act would exclude those who choose to make Gift Aid payments for the same right of admission have to consider whether Parliament intended that the more altruistic would, as a result of their generosity, be deprived of their consumer rights to compensation or refunds? Any reasonable interpretation of an Act to increase consumer rights suggests that it would be absurd to impute an intention to deny those rights to those who opt to make a Gift Aid declaration when they pay for a right of admission.

 

But that is exactly what the Consumer Rights Act says! Specifically, that the CRA doesn’t apply when other legislation applies a stricter duty on the service provider.

I just can’t fathom why you are so determined to argue black is white here in contravention of the stance of every other comparable charity. The GA regulations are absolutely explicit: you cannot claim GA if your terms and conditions have any possibility of a full or partial refund.

Tom

 

A point that also seems to apply to the more recent Digital Services legislation, which seems to define business in a way that excludes charities and societies.

The GA regulations say what they do, because they hinge on the wider concepts in charity law of what constitutes a donation. And it is they, rather than what Parliament may or may not have intended in 2015 (but never made explicit), that drive this technicality.

If @Lineisclear were arguing that there is an anomaly and that it should be corrected, I would have sympathy with the argument, though with caution for reasons previously given. It is the extension of a discussion of what should true be into the argument that it is true, and then the adamant insistence of correctness in the face of all other external authorities that I struggle with.

 

With resepect Tom I don't think you can be that categoric about section 35 of the Consumer Rights Act. It relates to conditions on the supply of a service. In contrast The Income Tax Act 2007 section 416 deals with conditions on a qualifying donation.

 

Which takes us back to the question of "what is a donation", and whether a donation can be refunded by a charity. There is no basis that I can find in law for the proposition that the status of a payment can be determined to be a donation or payment for goods & services rendered after the point of payment, nor for making a donation conditional upon performance of certain obligations by the receiving charity.

The status quo is that given by the museums quoted by @Jamessquared; to change that requires more than one individual's reading of the primary legislation. And that brings us back to the dog that isn't barking. In all of this discussion, there are no persuasive authorities being quoted for this new practice in an area that is settled. That silence speaks volumes.

 

But you aren’t supplying a service! You are accepting a donation, they are fundamentally different.

Tom

 

Maybe you guys have reached the end of the road on this. You are well dug in and until there is a court case or new legislation you will never resolve your differences.

I note that in their consultation on Delay Repay, the ORR wrote to 24 TOCs including the main OAOs but excluding NYMR, WCR, TY and LSL. Maybe from their perspective, users of charter services including Jacobite and Whitby need to rely on the T and Cs of those operators.

 

I agree that the NYMR seems way out on a limb here and risking adverse consequences for many other charitable organisations besides itself.

What NYMR could do would be to say, in its T&Cs, that the applicability of various pieces of legislation with regard to possible refunds is uncertain but that, if a customer is adversely affected by the delay or cancellation of a train service, the Railway may, at its discretion, make an ex gratia payment or provide other alternative compensation (such as a taxi ride).

 

The frustration is that the existence of such alternative authorities would help us move forward; as it is, I agree with you.

I think you’re right about the distinction between “public” and “heritage” OAOs; of course the issue at NYMR is then the role of T&Cs (a contractual artefact) in connection with a donation. While I accept that it is a conclusion that is repugnant to @Lineisclear for valid reasons, a consequence of there being no contract is that neither visitor nor provider are bound by mutually accepted terms.

 

Do HMRC agree with your interpretation of this?

 

It’s threads like this that assuage any minuscule niggling doubts I might have ever harboured that engineering was absolutely the right profession for me

 

I look forward to reading the case law ..Lineisclear (not NYMR ) v HMRC 2025 in due course …

 

I, perhaps foolishly, decided I would have a look at the Income Tax Act 2007 or, at least, the section related to Gift Aid. The bits in red are relevant to the discussion but the whole clause states:

416 Meaning of “qualifying donation”

(1)A gift made to a charity by an individual is a qualifying donation for the purposes of this Chapter if—

(a)conditions A to F are met,
and
(b)the individual or an intermediary representing the individual, gives the charity or an intermediary representing the charity, a gift aid declaration relating to the gift (see section 428).

(1A)For the purpose of subsection (1)(b) an intermediary is—

(a)a person authorised by the individual to give a gift aid declaration on behalf of that individual to the charity,

(b)a person authorised by a charity to receive a gift aid declaration on behalf of that charity, or

(c)a person authorised to perform both of the roles described in paragraphs (a) and (b).

(2)Condition A is that the gift takes the form of a payment of a sum of money.

(3)Condition B is that the payment is not subject to any condition as to repayment.

(4)Condition C is that the payment is not a sum falling within section 713(3) of ITEPA 2003 (payroll deduction scheme).

(5)Condition D is that the payment is not deductible in calculating the individual's income from any source.

(6)Condition E is that the payment is not conditional on, associated with or part of an arrangement involving, the acquisition of property by the charity from the individual or a person connected with the individual.
An acquisition by way of gift is ignored for the purposes of this condition.

Condition EA is that the payment is not by way of, and does not amount in substance to, waiver by the individual of entitlement to sums (whether of principal or return) due to the individual from the charity in respect of an amount—
(a)advanced to the charity, and
(b)in respect of which a person, whether or not the individual, has obtained relief under Part 5B (relief for social investments).

(7)Condition F is that—
(a)there are no benefits associated with the gift, or
(b)there are benefits associated with the gift but the restrictions on those benefits are not breached.

Even to my mind, that is fairly objective.

 

I think this bit is still ambiguous:

(3)Condition B is that the payment is not subject to any condition as to repayment.

I mean, that could be read to say that you can have clauses about repayment in your Ts&Cs, provided those Ts&Cs were drafted by Humpty Dumpty:

“When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’”

Specifically the word “not” in this case …

Tom

 

Do you mean that it is Humpty Dumpty that is deciding what it means in the NYMR’s case? Where’s the wall?

 

A perfectly reasonable interpretation of condition B is that the donor must not make the donation subject to any conditions as to repayment e.g. if the train's not steam hauled I insist on having my money back. After all if those that argue there is no contract are correct then there can be no other contract terms and conditions imposed by the service provider to which Condition B would refer.

 

I'm glad you agree with me that, if the conventional reading is correct, no contract exists!

As for Condition B, I suggest that the conditions apply in both from donor to charity, and charity to donor - while of no contractual standing, the T&Cs could be interpreted as a promise to the donor of a conditional refund, even if not legally enforceable.

 

For a standard rate tax payer there is no tax relief for the donor.

 

When you’ve lost the battle ,put your spade down ,move onto a JCB and keep digging .

 

Why could they demand a refund if not steam?
It’s the North Yorkshire Moors Railway …not North Yorkshire Moors Steam Railway …there are plenty of references in the timetable to diesels and indeed last week when Reptile did what it does best the majority of services were diesel …
Perhaps NYMR could reduce potential refund claims ,real or perceived ,by just not charging for a possible steam hauled train running to some semblance of a timetable ?