The Law Commission published its report on Technical Issues in Charity Law in September 2017 following a public consultation.
The focus of this response was their power to issue official warnings under the Charities Act 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.
The Commission has published an analysis of the consultation responses, along with a question and answer document, and operational guidance which addresses some of the practical issues as to how warnings will be implemented including confirming the following key points.
The Commission will ordinarily give 28 days’ notice of its intention to issue a notice offering the trustees or charity the opportunity to respond unless there are specific reasons for longer or shorter period. The Commission highlights that such considerations may include:
- Whether there is any continuing specific and time-related risk to charity assets or beneficiaries or any other impact of the breach, misconduct or mismanagement that means they should give less than 28 days’ notice;
- The extent to which they have already corresponded with the trustees about the misconduct or mismanagement; and
- The size of the charity and its capacity to respond, including whether it employs staff or is purely run by volunteers.
The Commission outlined what representations can be made, stating that it must consider representations on the ‘content of the proposed warning’, and may consider wider representations to ensure that their ‘action is proportionate.' Given examples included actions taken by the trustees to put things right and their impact.
The Commission also confirms their ‘decision review procedure’ as the process by which the representations will be addressed and sets out their options at the end of the notice period, including reminding of their right to issue the warning either without modifications or with such modifications as it thinks desirable.
Decisions on publication
Decisions on publication will be made on a case-by-case basis, with criteria that staff will take into account. The operation guidance notes the Commission’s discretion as to whether and how they publish an official warning. It that they are unlikely to issue an official warning where for example:
- The trustees have acted honestly and reasonably and are taking appropriate steps to put matters right and prevent a recurrence; and
- The loss or risk to the charity or, to the public trust and confidence in the charity is minimal.
For more information
If you are concerned that you may be in breach of any accounting and regulatory requirements or that you may soon receive correspondence from the Commission in respect of misconduct or mismanagement of your charity, contact Sarah Patrice for advice. There may be an official warning notice on the way – consider yourself warned! To view the work we do with Charities, please visit our website.
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