North Yorkshire Moors Railway General Discussion

It may generate a right of admission, but it cannot define what admission means can it? Does the legislation specifically state that admission is train travel? If it does can it bind the organisation to a specific train? That would surely take us straight to the terms and conditions which should state that no service is guaranteed to operate.
How exactly does the option to rescind the gift aid arise? The donation has been made, I wasn’t aware there was a right to a cooling off period on making a donation. The guidance allows gift aid declarations to be cancelled at any time, but that doesn’t affect the past donations.

 

There isn’t, though I suspect @Lineisclear is in reality suggesting revocation of the Gift Aid declaration.

Independently, the Charity Commission are very hot on donation refunds being an extreme exception to a general rule that donations cannot be refunded, that needs to be clearly documented within the charity’s own policies. I believe this is getting special emphasis because some fraudsters have used charitable structures for personal gain.

I’ve also seen new guidance from the Fundraising Commission on charitable collections. Again, the emphasis is on simplicity and clarity.

 

Sell separate tickets for Whitby to Grosmont?
Gift Aid the NYMR as a museum ticket etc. Waive rights to delay repay.
Apply DR to all non GA purchases.

Would that satisfy the requirements?

 

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And yet it appears on the National Network (maybe because all their passengers to them are viewed to be potentially dishonest or "gaming" the system) it appears the right to a refund on a non advance ticket for a cancelled service due to disruption is being withdrawn unless you apply for the refund before travel would have occurred, not on the day of proposed travel.
So I could book an off peak return from Wareham to East Grinstead on Friday evening before I go to bed, wake up Saturday see there is a points failure or trees down and in future I just have to write off that money.
So how is the National Network, which of course in reality means the government squaring that circle?

 

In the NMYR's case HMRC have determined that admission must include the ability to view ALL the work of the charity which is why Gift Aid is only recoverable only on All Line tickets including travel to and from Whitby . Those who argue that a provision in tax law deeming the payment to be a donation for tax purposes somehow transforms the purchase of a ticket into nothing more than a donation would need to explain why the money involved has to be paid before the purchaser is allowed to travel? If it was a donation pure and simple there wouuld be no consequent benefit attached to the transaction. The reality is that the Gift Aiding purchaser buys a ticket that gives the right of admission ( that's the term used in the tax legislation) to see all the work of the charity which can only realistically be done by travelling by train.
Whether a term in the T&C's stating that no train is guaranteed to operate is effective to negate a consumer's right to a full, or partial refund must be open to serious doubt. It's much more likely to fall foul of the prohibition on exclusion clauses that purport to excuse the seller from providing any service at all since,taken to its logical conclusion, all trains could be cancelled with no comeback.
As 35B has pointed out the option for the donor is to rescind the Gift Aid donation and treat the payment as the purchase of a normal ticket, including the stayutory right to a refund if the service is not provided as it would be reasonable to expect. The yardstick against which that is measured is likely to be the published timetable. There's no right for the consumer to rescind and then exercise their right to a refund but by offering that facility in response to a demand under the Consumer Rights Act the charity can comply with HMRC conditions on Gift Aid and with its Consumer Rights duty. The charity still receives payment for train travel but not the 25% uplift courtesy of HM Government so doesn't breach the fundamental HMRC requirement that, where Gift Aid is claimed, there can be no refund.

 

For clarity, I observe the mechanism but remain deeply unconvinced about the legal position for several reasons:
1. I am fundamentally not convinced that the Consumer Rights Act does apply to a donation in return for entry. I can see the mechanism being argued, but think the leap from "I can't believe Parliament would have intended" to "Parliament ruled" is too great.
2. The significant weight of charity legislation limiting the ability of charities to refund donations, and the irrevocability requirements at the point of donation.
3. Tied to (2), the idea that a Gift Aid declaration can be withdrawn for a single donation (when I give, I always tick the boxes for historic and future donations). This is about my status as a taxpayer, not my intent for the donation.

I presume that, in the absence of answers to my questions about consultation with HMRC or their answer, this has not been tested with HMRC. I suggest that the entire Gift Aid edifice is subject to the risk of challenge, with the associated risk of the right to claim being withdrawn during that period.

 

Would you not have recourse through delay repay in such a situation?

 

When people come to buy a ticket they have to be told that you can buy a ticket (as presumably intended) or, instead, you can make adonation 10% higher than the ticket price and, in return , you can view the work of the charity and will also receive a token gift voucher. The two are different. Any argument that, if it is a donation, it can be paid at any time and you can just walk in, is laughable.

 

Just for clarity I didn’t raise a question about the Whitby portion of the travel, but I do understand your explanation that this is included in the work of the charity.
The point of discussion in interpretation it seems to me is two items:
1. That you can rescind a gift aid declaration.
2. That consumer rights apply to rights acquired in response to a donation.

On point 1, the guidance seems pretty clear that you cannot rescind a gift aid declaration for a donation already made.
It seems to be agreed that a donation cannot be rescinded once made. It must follow that at the moment that donor makes the cash or card transaction that transaction becomes irreversible by the donor. (Only the trustees can return the donation- and rarely).
You can rescind a gift aid declaration for donations you have not yet made.
The only logical interpretation that I can see here is that once the financial transaction takes place the donation has been made. The gift aid declaration by the donor cannot be rescinded for THAT donation by the donor.
I think what you are saying is that the charity may elect not to use that declaration and to not claim the gift aid. I can see that this would be possible, and I am prepared to believe that there is no obligation on the charity to use a declaration it doesn’t want to (though I don’t know that one way or other).
So, I can see that provided you can keep track of all of this through the ticketing system you can elect as a charity not to use a particular declaration of gift aid as part of your claim, and I could believe that this would be acceptable to HMRC. However, the donor can’t initiate this, because they are not able to rescind gift aid for a donation already made.
Where I feel the ground might be about to be shakier is the idea that the charity by electing not to claim the gift aid is able de facto to turn the donation into a conventional customer transaction, which is the implication of the approach. I don’t know if that is true. Not because HMRC might get upset - they didn’t get a claim for gift aid so presumably their interest has ceased - but because the return of donations is not a simple matter from a charity perspective.

On point 2, everything I have seen so far and read in guidance suggests to me that consumer rights don’t accrue to a right conferred as a result of a donation. The HMRC guidance is crystal clear that there can be no right of refund. Charity law discourages refunds of donations. The remedy for failing to provide the right of access is unspecified, but presumably allowing access at any other time reasonable to both parties is the acceptable recompense.

It seems to me to be a very complex interplay between different bits of legislation. I remain very unconvinced that a delay repay scheme is the appropriate solution, and very uncertain that it is permissible where a donation has been made. In addressing a perceived risk in relation to consumer law there seems to be a bigger minefield being walked into.

 

I have to ask, though, why does viewing all the sites necessarily involve using the train? This ruling implies that there is potentially much more to the charity's work than providing train rides and that much of the value of a visit lies in the stations and their surroundings, and they are not dependent on train services to access them. The only site that isn't available by NR trains, buses or shanks pony is Levisham, and there isn't much to see there!

 

I suspect that that is the definition agreed between the HMRC and the charity in question.

 

I think it is simpler than that.

The key part of the guidance says (my emphasis):

3.39.13 It’s most important that the terms and conditions attached to an admission fee do not include a right to a full or partial refund of the admission fee. This may be in the event of bad weather, cancellation of an exhibition or mechanical failure of an exhibit. It’s an important condition of the Gift Aid Scheme that any donation cannot be repaid under any circumstances.
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So it is not just a question of saying "if the charity doesn't claim the Gift Aid on a refunded ticket purchase, everything is OK" because the problem arises earlier than that. The moment that your terms and conditions include the right to a full or partial refund, you are in breach of the rules. At which point it is irrelevant whether the situation ever arises, or whether in practice you have never had to do this, or you have an administrative process that enables it. You have contravened the guidance the moment you publish terms and conditions that hold out the possibility of a refund.

Tom

 

I think you’re right. I sensed that the proposition being made was that it wasn’t a donation until the gift aid was claimed, which in charity law is not true. Despite reading the very paragraph you quoted earlier today I stepped past that in responding to the very complex proposition being made.

So I think what you post actually settles two points doesn’t it? 1 - you can’t refund a donation made even if that results in a right of entry and 2 - consumer law doesn’t apply if a donation was made since no full or partial refund is permitted.

 

At which point the argument of @Lineisclear about the intent of Parliament falls, because Parliament has explicitly determined that the Gift Aid rules override consumer rights.

 

Perhaps the point being missed is that the same transaction has more than one characteristic. For tax purposes in relation to Gift Aid it’s deemed to be a donation. However for all other purposes the same transaction is the purchase of a ticket conferring the right of admission and train travel as a contractual service to which the Consumer Rights Act applies.

 

No I don’t think we do miss that point, but you cannot square that by offering a partial or full refund, and the situation is far from unique to heritage railways. The guidance is explicit that the terms and conditions of entry cannot offer a refund.

 

Precisely. Once it is a donation, the other option fall away and alternative interpretations run into the buffers.

 

Interesting then that the Gift Aid regulations specifically provide for circumstances where subsequent to the date of donation the Gift Aid declaration can be treated has never having taken effect.

 

The person missing the point is you ,not everyone else !