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- Year: 2011
- Country: United Kingdom
- Language: English
- Document Type: Publication
- Topic: CSO Self-Regulation,Public Benefit and Charitable Status,Social Enterprise,Taxation and Fiscal Issues
Supporting speciﬁ c beneﬁ ciary groups – Equality Act summary guidance Who can beneﬁ t from charities? 1 of 8
Supporting speciﬁ c beneﬁ ciary groups –
Equality Act summary guidance
Who can beneﬁ t from charities?
A summary of how to avoid discrimination under the Equality Act 2010 when
deﬁ ning who can beneﬁ t from a charity.
A fuller version of this guidance will be available in spring 2011. For more information, see our
A. About the Equality Act and the charities exemption
All charities must have an aim for the public beneﬁ t. This means that the aim can beneﬁ t the public
generally, or it can be restricted to beneﬁ t a speciﬁ c group of people which is a sufﬁ cient section of
the public. The Equality Act 2010 aims to ensure that all people are treated fairly and it clariﬁ es when
such a restriction is not unlawful discrimination.
A2. What is this summary about?
In this summary we explain the part of the Equality Act 2010 (‘the Act’) that allows charities to
limit the group of people who it helps. In this summary we call this the charities exemption. This
summary provides an introduction to the charities exemption: we will review and develop this
guidance further before the end of this year. We also describe brieﬂ y the other parts of the Act which
have a particular relevance for charities.
A3. What is the Equality Act?
The Act brings together, updates and strengthens discrimination law. In general terms, it prevents
discrimination on the grounds of:
gender reassignment; •
marriage and civil partnership; •
pregnancy and maternity; •
religion or belief; •
sex; or •
sexual orientation. •
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These categories are known in the Act as protected characteristics.
The Act makes it illegal to discriminate against anyone with a protected characteristic in many areas –
for example, employment and providing services. There are some exemptions from this, including the
charity exemption which we explain in this summary.
The majority of the Act’s provisions are effective from 1 October 2010. The Government Equalities
Ofﬁ ce (GEO) and the Equality and Human Rights Commission (EHRC) have published a series of
specialist guides to the Act. Those likely to be most relevant to charities are listed at the end of this
A4. What is the charities exemption?
The Act allows a charity to restrict its beneﬁ ts to people with a shared protected characteristic.
The restriction must be allowed by the document that sets out the charity’s purposes (‘governing
document’) and it must be justiﬁ ed for either of the following reasons:
it helps to tackle disadvantages that particularly affect someone with a protected characteristic; •
it is for some other reason a fair, balanced and reasonable (‘proportionate’) way of achieving a •
Note: Charities cannot limit their beneﬁ ciaries by reference to skin colour.
A5. Which charities does this affect?
The charities exemption affects organisations applying to register as charities as well as existing
charities as follows:
Organisations seeking to register as charities with a restriction which limits beneﬁ ts to people •
with a protected characteristic. We can only register these organisations as charities if the
restriction is justiﬁ ed for either of the reasons described above.
Existing charities • will need to check if their governing document restricts who may beneﬁ t. If it
does, they must consider whether the restriction, or the way it is used, is limited to people with
a shared protected characteristic and, if so, whether it can be justiﬁ ed for either of the reasons
We describe at the end of section B the steps that charities can take to check whether the charities
exemption applies, and what to do if it does.
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A6. Which charities are not affected?
Charities which have no restriction on who may beneﬁ t, or which have a restriction that does not
relate to a protected characteristic, will not need to rely on the charity exemption in the Act.
For example, a charity which provides a playing ﬁ eld for the use of people living in a particular
town is not affected. This is because restrictions based on geography are not a protected
A7. How is this different from what went before?
Charities have always been able to restrict beneﬁ ts to persons sharing a protected characteristic. This
continues to be the case but the key difference is that the new Act explicitly requires charities to
justify any such restriction using either of the two tests outlined above.
B. How the charities exemption works
For a charity (or proposed charity) which restricts its beneﬁ ts to people with a shared protected
characteristic, there are two possible tests that can be used to show that this is allowed by the Act
and is not discriminatory. Only one of these tests has to apply. We describe below how each one
Test A Tackling disadvantage
The Act says that this test is met if the restriction is ‘for the purpose of preventing or compensating
for a disadvantage linked to [a] protected characteristic’. In other words, a charity can limit its beneﬁ ts
to a group of people with a shared protected characteristic if members of that group are more likely
to face a particular disadvantage or need than the general or local population.
This test can therefore be met if:
the governing document restricts beneﬁ ts to people with a shared protected characteristic; • and
there is a particular disadvantage which is linked to people with that protected characteristic •
which the charity is tackling.
For example, it is lawful for a charity to tackle unemployment among people of a particular ethnic
origin if unemployment is particularly high for that group. Here, the people who can beneﬁ t
from the charity are restricted to a group with a protected characteristic (ethnic origin) and the
restriction is justiﬁ ed if unemployment is higher for that group than for the general population.
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For example, it is lawful for a charity to provide software adapted to the needs of visually
impaired people. Here, the group able to beneﬁ t from the charity is restricted to people with a
visual impairment so the protected characteristic is based on people with a particular disability.
The software compensates for any disadvantages visually impaired people may experience when
As an example of an inappropriate restriction, it is difﬁ cult to justify restricting the beneﬁ ciaries
of a charity which has general charitable purposes – that is, a charity which has the freedom to
choose any charitable purpose. This restriction is difﬁ cult to justify because there is no speciﬁ c aim
and it is therefore not clear what particular disadvantage is to be tackled.
Test B Achievement of a legitimate aim.
The Act says that this test is met if it is ‘a proportionate means of achieving a legitimate aim’. In
other words, where this test is met, a charity can restrict who may beneﬁ t even if there is no greater
disadvantage (as in Test A) for those who the charity helps than the general population.
Test B can therefore be met if:
the governing document restricts beneﬁ ts to people with a shared protected characteristic; • and
the restriction can be justiﬁ ed as being a fair, balanced and reasonable way of carrying out a •
We explain below how this test might be applied.
B1. What is meant by ‘legitimate aim’?
Although the Act does not deﬁ ne this term, the general law says that a legitimate aim is one that has
a reasonable social policy objective such as health improvement or the protection of children. It must
be consistent with the lawful carrying out of the charity’s stated purpose for the public beneﬁ t, and it
must not itself be discriminatory.
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B2. When is it acceptable to discriminate in carrying out a legitimate aim?
Limiting the beneﬁ ts to those with a protected characteristic is only acceptable under Test B if there
is a strong justiﬁ cation that shows that the restriction is appropriate and necessary to the carrying out
of the aim. The more serious the disadvantage caused to the group(s) excluded by the restriction, the
more convincing the case that must be made to justify the restriction.
Where the charity restricts its beneﬁ ts to a group that shares a protected characteristic such as race,
sexual orientation, or gender and the restriction is not justiﬁ ed on the basis of disadvantage or need
(see Test A) this can only be justiﬁ ed by particularly convincing and weighty reasons.
For example, a charity may have an aim to provide housing for men who have worked in the
police force and who are in ﬁ nancial need. By restricting beneﬁ ciaries to men, the charity is
helping people with a shared protected characteristic (gender / sex) and the charity must
consider if the charity exemption applies.
It is unlikely that Test A can be used to justify the restriction because, for example, men who
have worked in the police force are not likely to face poverty or homelessness to any greater
extent than women from the same background. To justify the restriction using Test B, therefore,
the charity would have to identify the legitimate aim that they seek to achieve and show that
providing single sex accommodation was a fair, balanced and reasonable (‘proportionate’) way of
B3. What must existing charities do to comply with the Act?
Charities have a legal duty to comply with the Act. Whilst it is likely that many charities with a
restriction will be able to rely on the charities exemption, we recommend that they check that they
do comply with the Act. This can be done as part of any routine review of the charity’s operations and
we would recommend the following approach:
Review the charity’s governing document. Does it restrict who may beneﬁ t? 1.
If there is a restriction, does it relate to people with a shared protected characteristic? 2.
If the answer to question 2 is ‘yes’, consider whether the restriction can be justiﬁ ed using either 3.
Test A or Test B. If it can, then no further action is needed.
If it is difﬁ cult to apply either Test A or Test B, we recommend that the charity seeks 4.
professional advice from a lawyer or other adviser who specialises in charity advice. If it
is necessary to change the restriction please follow our guidance Changing your Charity’s
(CC 36) .
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B4. What must organisations seeking registration as charities do to comply with
If the organisation’s governing document limits those who can beneﬁ t from the charity’s aim to a
group with a protected characteristic, the restriction should be reviewed in order to check that it can
be justiﬁ ed using either of the tests described in this guidance.
C. Other exemptions relevant to charities
The Act contains some other exemptions for charities from the requirement not to discriminate
against people with a protected characteristic. More information about exemptions is contained in
the guides provided by Government Equality Ofﬁ ce and Equality and Human Rights Commission. The
following list sets out the main exemptions which can apply to charities.
C1. Other charity speciﬁ c exemptions
Events held to support or promote charities can be restricted to one sex only such as Race for Life
which is a women only event held to support Cancer Research UK.
If a charity is offering membership, it can ask someone to make a statement to say or imply that they
are a member of a particular religion or belief, or accept that religion or belief in order to become a
member of the charity. In these circumstances, charities can also refuse members access to beneﬁ ts if
they do not accept that religion or belief but only as long as this requirement has existed since before
18 May 2005.
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C2. Exemptions which apply to particular types of organisation, including
Associations (any group of 25 people or more which has rules to control how someone becomes
a member) may restrict membership to people who share a protected characteristic provided
membership is not based solely on someone’s colour. For example, an association to support women
with breast cancer can restrict membership to women. However, associations which are charities
will need to be able to demonstrate that they are established for the public beneﬁ t. This includes a
requirement to show that there is a rational link between any restriction on who can beneﬁ t and the
association’s charitable aim.
Religion or belief organisations
There are some exceptions to equality law that only apply to services provided by religion and belief
organisations, including charities which fall into this category. In certain circumstances religion and
belief organisations can discriminate in the way they operate on the ground of religion and belief or
the ground of sexual orientation. For example, a religious group may in certain circumstances restrict
their membership and other beneﬁ ts to heterosexual people so that the organisation can comply with
its religious doctrine or to avoid conﬂ ict with strongly held convictions of the belief’s followers. Unlike
other types of charity, religion and belief charities do not need a governing document restriction to
be able to do this. However, permitted discrimination is only possible in certain circumstances. For
example, religion and belief organisations cannot discriminate because of sexual orientation where
they are providing services on behalf of a public authority under a contract with that public authority.
In some circumstances, in line with admissions policies, schools can select pupils based on certain
criteria, including gender in the case of single sex schools and preference for children who follow a
particular faith in the case of faith schools.
Some people with protected characteristics are disadvantaged or under represented in some areas
of life or have particular needs linked to their characteristic. New positive action provisions in the Act
allow service providers to take proportionate action to help such groups achieve the same chances as
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D. Further information
The Government Equalities Ofﬁ ce (GEO) and the Equality and Human Rights Commission (EHRC) have
produced a series of guides giving advice on what organisations must do to meet the requirements of
equality law. These give a full account of equality obligations and how they impact on different types
of organisations and different activities. The guides clearly highlight what has been changed by the
new law. The series includes specialist guides which will be relevant for particular groups of charities.
Examples of these are listed below.
What equality law means for your voluntary and community sector organisation (including charities
and religion or belief organisations)
What equality law means for your association, club or society
What equality law means for you as an education provider – schools
Equality Act 2010: What do I need to know? A summary guide for voluntary and community sector
Equality Act 2010: What do I need to know? A quick start guide to positive action in service provision
for voluntary and community organisations
Equality Act 2010: What do I need to know? A quick start guide for voluntary and community sector