The Government first announced plans for a shared ownership right to buy in October 2019. At the time the sector raised concerns about the impact the plans would have on housing associations ability to borrow. An election and a pandemic later the Government announced, during the CIH Housing Festival last week, the return of the right to shared ownership as part of its Affordable Homes Programme (AHP).
The Charities (Protection and Social Investment) Act 2016 gives the Charity Commission the power to issue official warnings to a charity trustee or a charity where it considers there has been a breach of trust or duty or other misconduct or mismanagement of the charity.
This new power is an important tool for the Commission but its introduction has been controversial. The Commission may publish a warning it has given ‘in any way it considers appropriate’ and simply publishing a warning could greatly damage the reputation of a charity. Funders or other potential supporters may assume there is no smoke without fire. Before the power was introduced many in the sector raised concerns about the potential for the power to be used inappropriately. It could damage the reputation of charities or the sector as a whole if the power is not used in a consistent, targeted and proportionate way. This problem is exacerbated by the fact that charities can not appeal to the Charity Tribunal against the decision to issue a warning.
The Commission has introduced draft guidance on how it will issue warnings or publicise them and is seeking feedback. The Commission recognises that there is concern in the sector about the new power and the way in which it will be exercised.
Sarah Atkinson, the Commission’s director of policy and communications has said "We are keen to ensure that the sector understands our approach and the important safeguards for charities". To help ensure this power is used in an effective and proportionate way, respond to the online consultation by 5pm on Friday 23 September.
Charity sector figures and representative bodies such as the CLA have expressed significant concerns about the new guidance. These include:
- The short notice period: as things stand, trustees may receive just 14 days notice that the Commission will be issuing a warning. Most charity trustees are volunteers giving their time for nothing and many boards will struggle to respond to the Commission within 14 days, particularly if they need to take professional advice or corrective action.
The CLA has recommended a minimum notice period of at least 28 days to give charities more time to consider concerns raised by the Commission and explain why it should not issue a warning or should not publicise any warning it does issue.
We anticipate that many of our clients will endorse that recommendation. If that applies to you, question 6 (of 10) in the consultation allows you to tell the Commission.
- Publicising warnings: the Commission will usually publish warnings. The guidance identifies five circumstances in which a warning would not be published and places the onus on trustees to identify when those circumstances apply and inform the Commission. The guidance could make clear that the Commission should be satisfied there is no evidence that any of those criteria apply before a warning is published.
- Clarity: the guidance says little about how representations may be made. It could, for example, make clear that in appropriate circumstances the Commission will consider publishing a warning on an anonymised basis.
For more information
We will be responding to the consultation. If you would like to contribute to that response, please contact Shivaji Shiva or your usual ACS contact.
Two final pieces of the possession jigsaw have been published on 15 September 2020. Mr Justice Knowles’ working group on possession proceedings has issued its guidance on the “overall arrangements” for possession proceedings.
One change proposed by the Building Safety Bill is the introduction of a duty holder regime, which will see statutory responsibility for the safety of higher risk buildings placed on key individuals
Throughout this pandemic, the Competition and Markets Authority (CMA) has been publishing various “Statements on Coronavirus” (Statements) which provide guidance on consumer rights during this time.
A recent increase in COVID-19 cases in the UK means new measures are being put in place in an effort to reduce the risk of a second wave. Whilst the impact of COVID-19 continues to be felt, it is important to remain focused on the sector’s road to recovery.
Sometimes half an hour at a conference gives you the reality that has been staring you in the face all along. That was my experience watching “Change is on the Horizon”
Following our recent e-briefing on Possession Notices, Helen Tucker and Emilie Pownall from our housing litigation team discuss the impact of the changes on social landlords.
Not only has the possession stay been extended until 20 September, the notice periods to be given to tenants has been extended in certain circumstances with some important exceptions.
The Court has confirmed that a party cannot withhold its consent in order to re-write the original bargain.
Following the Grenfell Tower tragedy, building safety continues to be a key concern for social housing providers and their residents.
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