Regulation of fundraising was rarely out of the headlines over the summer. We summarise developments and the next steps in today's briefing.
This weeks’ briefing covers an extended period from 20th July to 21st August.
At a glance
The Etherington Review of Fundraising is due to report to the Minister of Civil Society by 21 September 2015. Separately, the Parliamentary inquiry into charity fundraising has begun and is seeking evidence and written submissions.
The non-charitable organisation CAGE has been given permission to bring judicial review proceedings against the Charity Commission.
During the passage of the Charities (Protection and Social Investment) Bill through the House of Lords, the social investment power was amended so that it is now clear that charities will be able to invest on an unrestricted basis into social enterprises where there is some “mission benefit” and some financial return.
The Institute of Fundraising Code of Practice has been amended in relation to calling TPS registered numbers.
Some new Welsh regulations contain examples of organisations that are to be treated as social enterprises.
The Consumer Rights Act 2015 comes into force on 1st October 2015.
The Pensions Regulator has published guidance for trustees, employers and advisers of direct benefit pension schemes sponsored by not-for-profit employers.
The trustees of Bath Recreation Ground Trust have succeeded in an appeal to the Upper Tribunal. The trustees sought to reinstate the Scheme in relation to the Charity as originally propounded by the Charity Commission with certain changes.
There is a government consultation on introducing fees for appeals to the First Tier Charity Tribunal. The consultation closes on 15th September.
Charities (Protection and Social Investment) Bill
The Charities (Protection and Social Investment) Bill has now been through the Report Stage at the House of Lords. In relation to the social investment sections, BWB briefed Lord Hodgson, who persuaded the Government to amend the social investment power so that it is now clear that charities will be able to invest on an unrestricted basis into social enterprises where there is some “mission benefit” and some financial return. In addition, the Cabinet Office and the Treasury have agreed to write jointly to the FCA to consider the regulatory approach to how members of the public make social investments, focusing on the financial promotion rules. BWB Partner Luke Fletcher comments “The financial promotion rules is an area we have been pushing to get reviewed for years, so it will be interesting to see what comes of it – hopefully, it will be easier for charities and CICs to raise social investment from the public.”
Please click here for a summary of developments in relation to regulation of fundraising including the Etherington Review of Fundraising, the parliamentary inquiry and changes to the Institute of Fundraising Code of Practice.
Tax and VAT
The Upper Tribunal (Tax) has decided to make a reference to the Court of Justice of the European Union on the question of whether contract bridge is a sport within the meaning of EU law. The reference has been triggered by a case between the English Bridge Union Ltd and HMRC about whether competition entry fees are exempt from VAT – they are if contract (or duplicate) bridge falls within the definition of “sport”.
Be aware: the HMRC pages on gov.uk are currently undergoing a review of all forms. As such, some pages may be flagged as containing new content, when the content may only have been slightly and inconsequentially changed. If in doubt about whether something has changed substantially, you can compare the new version with the previous version.
Big Society Capital has announced its first investment to be successfully repaid since it was established in 2012. The redemption comes from the £2m Scope charity bond which Big Society Capital supported through a £875,000 investment into Investing for Good, the social finance intermediary who arranged and underwrote the transaction.
Section 16 of the Social Services and Well-being (Wales) Act 2014 requires local authorities in Wales to promote the local development of social enterprises and co-operative organisations or arrangements to provide care, support and preventative services, and the availability in its area of such services from third sector organisations. Regulations made to implement that Section:
- Provide further detail about the sorts of organisations or arrangements that are or are not to be treated as social enterprises, co-operative organisations or arrangements. Regulation 7 gives examples of organisations that are to be treated as social enterprises. These include community interest companies and housing associations.
- Set out what constitutes activity that a person might reasonably consider to be carried on for the benefit of society, for the purpose of the definition of a "social enterprise" in section 16(2) of the Act.
- Make provision for what may constitute a section of society, for the purpose of the definition of a "social enterprise" and a "third sector organisation".
The full name of the Regulations are the Social Services and Well-being (Wales) Act 2014 (Social Enterprise, Co-operative and Third Sector) (Wales) Regulations 2015 (SI 2015/1500). They come into force on 6 April 2016.
Payment by results
See item regarding mental healthcare contracts under Health below.
New Philanthropy Capital has published a report of its 3 year Inspiring Impact programme.
- On 15 August 2015, the Department for Education published updated statutory guidance on the constitution of governing bodies of maintained schools in England. The guidance is aimed at governing bodies of all maintained schools (including federations), local authorities, school leaders and school staff.
- On 30 July 2015, the High Court refused leave in two linked cases in which the claimants challenged the decision of Neath Port Talbot County Borough Council to close two primary schools in its area. In refusing leave, the court accepted the council's argument in each case that it was highly likely that the outcome for the claimants would not have been substantially different.
- Free schools application process. The Department for Education has published an updated guide on the free schools application process for groups wishing to open schools in September 2016.
- The Prime Minister has announced a new partnership between National Citizen Service and Teach First.
- The Department for Business, Innovation and Skills has announced as part of a package of measures to boost apprenticeships, that from 1 September 2015 all bids for government contracts worth more than £10 million must demonstrate a clear commitment to apprenticeships. Employers' bids will be reviewed in line with best practice for the number of apprentices that they expect to support. This change will apply to central government departments, their Executive Agencies and Non Departmental Public Bodies.
NHS England has:
- announced eight new vanguards that will “launch the transformation of urgent and emergency care for more than nine million people”.
- published two consultation papers on its interaction with the voluntary, community and social enterprise sector (VCSE). The first is on the Voluntary Sector Investment Programme. The second is on the challenges and solutions to better investment in and partnership with the VCSE sector. Both consultations close on 6th November.
- Together with Monitor, published information on outcomes-based payment models for mental healthcare contracts.
In July, the Department of Health and the National Institute for Health and Care Excellence issued a joint consultation on the potential guideline and quality standard topics relevant to social care that will form the basis of NICE's social care work programme. The consultation closes on Friday 9 October 2015.
See items under Charity Commission case reports, Charity Tribunal and Tax and VAT above.
On 4th August, the Government opened a consultation on its new cross-departmental strategy for sport. The consultation will close on 2 October 2015.
Services to offenders/ex-offenders
New Philanthropy Capital has published a paper on its work with criminal justice charities to understand and develop their impact for their beneficiaries.
Also see items under Fundraising above.
A company that claimed to run a service that stopped people receiving nuisance calls has been fined £50,000, after the regulator found it was responsible for large numbers of nuisance calls itself.
Search engines and data
- The Supreme Court has granted Google permission in part to appeal the Court of Appeal's decision in Google Inc v Vidal-Hall and others. In March 2015, the Court of Appeal affirmed that three individuals resident in England could bring claims in England against US-based Google Inc for misuse of private information and breach of the Data Protection Act 1998 (DPA), arising from Google cookies tracking their online behaviour without their knowledge or consent.
- Separately, the Information Commissioner’s Office has ordered Google Inc to remove search results linking to information about a person that was no longer relevant. Google had previously removed links to webpages including details of a minor criminal offence committed by the individual almost ten years ago, but when the removal of those links then itself became a news story, Google refused to remove links to these later news stories which were then part of the results displayed when searching for the complainant’s name on Google.
EU data protection Reform
- The European Data Protection Supervisor has set out its recommendations on the EU's option for data protection reform.
Guidance to support small businesses
The Crown Commercial Service has published guidance on provisions in the Public Contracts Regulations 2015 that support market access for small businesses.
New procurement notes
The Cabinet Office and Crown Commercial Service have published:
- A procurement policy note providing guidance on the changes to the choices of procurement routes resulting from the Public Contracts Regulations 2015, including a revised Decision Tree.
High Court refuses mandatory injunction
The High Court has refused to order Milton Keynes Council to award a contract to a company that successfully challenged a procurement procedure. The High Court set aside the Council's original decision and declared that the claimant's tender was the most economically advantageous tender provided to the Council. However, the High Court did not consider that it would be appropriate to make a mandatory injunction in relation to the award of the contract. While it did not rule out that a mandatory injunction could be granted in a procurement case, this would only be in exceptional circumstances.
Consumer Rights Act
Many provisions of this Act come into force on 1st October 2015. The Competition and Markets Authority (successor to the OFT in this context) has published final guidance setting out its understanding of the provisions of the Act about the fairness of contract terms and notices used by traders in their dealing with consumers. The final guidance includes:
- Unfair contract terms guidance (CMA37). This is the main, detailed guide on the unfair terms provisions in the Act. It will supersede OFT311, the government's current guidance on unfair consumer terms.
- Unfair contract terms explained. A short guide aimed at businesses that gives a brief introduction to the types of terms and notices that the CMA considers are open to challenge under it.
- Unfair contracts: what do businesses need to know? A very short (two page) guide that gives a brief summary of the key points that businesses need to know about unfair terms under the Act.
The Pensions Regulator has published guidance for trustees, employers and advisers of direct benefit pension schemes sponsored by not-for-profit employers. The guidance covers how the covenant offered by the not-for-profit employer should be assessed.
The Charity Commission for Northern Ireland has published:
- New guidance calling on all charities to ask if they are “getting it right” when it comes to ensuring they are complying with the law.
- a list of charity registration FAQs on the website.
- its annual report 2014-15, providing an overview of the Commission’s progress over the 12 month period. 1,306 charities were registered during the year, bringing the total number of charities on the new register of charities to 1,337 by 31 March 2015
See item under Fundraising above.
The Office of the Scottish Charity Regulator has published:
- an updated version of “Meeting the Charity Test”, its guidance on what it takes to become a charity and to stay within the rules on public benefit.
- four new example accounts to illustrate how charities should prepare their accounts in accordance with the Scottish Charity Accounting Regulations and the new charity Statements of Recommended Practice (SORPs) that came into effect for charities with accounting periods beginning on or after 1 January 2015.
Anniversary of Stephen Lloyd
Over the summer, within BWB, we marked privately the first anniversary of Stephen's death. The Stephen Lloyd Awards has provided a fitting tribute to his memory, with three inspiring winners this year. Please click here for more information
Posted on 25/08/2015 in Legal UpdatesBack to Knowledge