BWB Highlights

Data protection compliance for charities is now in the spotlight more than it has ever been.  See today’s briefing for developments last week and a planned BWB seminar in the New Year.

We are pleased to announce that the third edition of our definitive and fully updated guide to charity law, The Charities Acts Handbook – a Practical Guide, is now available from Jordan Publishing. For a limited amount of time we will be offering an exclusive 20% discounton the title to our charity contacts. To redeem your discount enter the code CAH at the checkout before 16th December. Please click hereto purchase your copy.


At a glance

New Philanthropy Capital has published a new guide “Above and Beyond in Trusteeship."

The Donations to Charity (Gift Aid Declarations) Regulations 2016 have been made.

Bond have published an article titled ‘What have we learned so far about Britain’s post-Brexit relationship with the EU around international development’.

The Scottish Fundraising Implementation Group has announced the eight members of the panel which will set fundraising standards for Scotland.


Charity Commission

Inquiry Report

The Commission has published its inquiry report into Greenfinch Charitable Trust (1014816), a charity which ran a fostering service until 2004, and from 2004 to 2010 ran a supervised contact centre and a service providing court assessments for families subject to care proceedings. The charity went into liquidation in 2010.  Points of interest from the case report included that :

  • The charity disagreed with the Commission’s view that the directors of the company limited by guarantee were trustees of the charity. The charity was set up to have a separate “Council of Management” who were stated to be the trustees, who were not the company directors.
  • The inquiry found that the transfer of the charity’s fostering agency to a private company in 2004 was in breach of the trustees’ duties and was voidable as the transfer was to a connected person and neither the consent of the members of the charitable company, nor of the Commission was sought.
  • In 2013 the Commission issued restitution proceedings against four individuals in relation to the outsourcing arrangement. (The liquidator had confirmed that she was considering bringing claims relating to the transfer of the fostering agency and the unauthorised remuneration.) A settlement was reached in relation to the Commission’s claim and any other potential claims, following which the liquidator was able to pay all of the charity’s creditors in full, plus the costs of litigation and in addition, the sum of £181,081.11 to other charities with similar objects.

Statistics

Following last week’s publication of statistics for Monitoring and Compliance cases, the Inquiry case statistics have now published. We will consider all three sets of figures together and will report back on any significant trends.

Survey

The Commission has launched a new customer survey about its digital services. The Commission is looking for input on what it can do to improve the range and quality of its current digital offering and changes or additions that would improve the overall user experience. The survey will be open until Wednesday 18 January.


Charity law cases

The Upper Tribunal has overturned a First Tier Tribunal decision relating to the legal title to charity land, the Blackheath Jamia Mosque. The Ruling of the First-tier Tribunal was held to involve an error on a point of law.


Governance

NPC has published a new guide “Above and Beyond in Trusteeship“ which” draws on the experiences and insights of active, ambitious trustees, as well as NPC’s own knowledge gained over nearly 15 years working with charities and funders”. 


Tax and VAT

Gift Aid

The Donations to Charity (Gift Aid Declarations) Regulations 2016 have been made.  Coming into force on 6th April 2017, they enable declarations to be given by an intermediary acting on behalf of a donor and to be received by intermediaries acting on behalf of charities. 

Also see under Sport and Scotland below.


Fundraising

Last week the British Heart Foundation  and the RSPCA each received monetary penalties from the ICO.  The penalties related to activities including data sharing (via Reciprocate) and wealth screening.  Representatives of both charities expressed disappointment with the decisions and indicated they may appeal.

Following the fines the Charity Commission and Fundraising Regulator have issued a joint alert to charities reminding trustees that as well as complying with charity law requirements they must ensure that their charities have systems in place to identify and comply with relevant data protection laws. The alert sets out a number of steps which the regulators expect charities and trustees to be taking, including:

  • reviewing and assessing activities in the areas of data collection, storage and use to ensure compliance with data protection law – this should include reviewing fair processing statements to ensure they are explicit, clear, transparent and highly visible
  • reviewing and assessing current data governance systems and processes to ensure they are fit for purpose and evidence sufficient oversight, control, are operating and effective – this includes ensuring there is a clear framework of ownership and accountability in place

In a separate press release in response to the penalties, the Charity Commission has flagged an upcoming event for the sector “The Commission, ICO and the Fundraising Regulator will also be hosting a joint educational event for charities early next year on data protection requirements.”

BWB are also holding a seminar in partnership with the IoF on ICO fines - the legal implications for charities and fundraisers. See below for more information.

The Institute of Fundraising has also issued this comment on the fines.


Social investment

Minister for Civil Society, Rob Wilson, has announced the creation of an Advisory Group that will look at how individuals can be offered savings and investment choices which target positive social outcomes as well as financial returns.  BWB Partner Luke Fletcher comments “There is a real need to make sure that ordinary investors and savers are provided with suitable social investment options. Time and time again, research shows that a large percentage of investors want to invest in line with their values. At the moment, there is a risk that unsuitable products are offered which conflict with individual investors’ values, because investors do not understand how or where their money is invested.”


Social finance

Big Society Capital is to partner with three of the fastest growing crowdfunding platforms in the UK as part of a unique £10 million Crowd Match Fund to allow the public to invest directly in charities and social enterprises.  

On 9 December 2016, the Financial Conduct Authority published a feedback statement setting out interim feedback to its call for input on its post-implementation review of its crowdfunding rules. The statement indicates that some aspects of the loan-based crowdfunding market pose risks to its objectives. In particular, the FCA states that there is a risk of regulatory arbitrage and the potential for investors to misunderstand the nature of the products offered. The FCA's aim is to publish a consultation paper in the first quarter of 2017 and to publish the final rules in the summer of 2017. The full feedback statement can be accessed here.


Social enterprise

ESELA has published plans for its Annual Conference 2017 which will take place on Friday 28 April in Belgium.  The theme is “Teaming Up in the Middle: How do business and nonprofits jointly create social impact?”  For more details see here.


Mutuals

This Law Society Gazette article describes how a legal firm has adapted its limited liability partnership structure to introduce a “mutual" element.  A limited company operates as a member of the partnership and the company is empowered to share, equally among all members of staff, half of the outstanding profits left after salaries and bonuses are paid.  The other half of the profits is retained by the firm.  The scheme was agreed with the Solicitors Regulation Authority and HMRC.


Contracts and commissioning

new report published last  week by Lloyds Bank Foundation for England and Wales finds that central and local government are using “shockingly complicated and inappropriate contracting and commissioning processes to secure vital public services”.  


International development

Bond have published an article titled ‘What have we learned so far about Britain’s post-Brexit relationship with the EU around international development’.


Education

The Parliamentary Education Committee has published written evidence it received as part of its inquiry into the impact of exiting the European Union on higher education. Submissions come from a diverse range of universities, including Cambridge, Sheffield Hallam, UCL and Birkbeck, businesses such as Zurich, individual students and academics.

A further £5 million has been awarded to the Education and Training Foundation to continue their work to “ensure further and technical education is of the highest quality”.

Also see under Rehabilitation of Offenders and Information below.


Communities

The government has announced a new ‘Communities Fund’ to help local people who are struggling to manage.  The fund worth £2.5 million will be open to applications from Small grassroots community groups including neighbourhood organisations, parishes and local voluntary groups.  Alongside grants of £70,000 or more, grassroots organisations will benefit from expert advice from the local government sector, training from a ‘grassroots network’ and advice on evaluating the success of their services.


Rehabilitation of offenders

The Justice Secretary has announced education and training will be put at the heart of youth justice, with two ‘secure schools’ to be launched – alongside new measures to monitor progress in English and maths, health and behaviour.


Sport

As the next step in the government’s plans to expand the circumstances in which companies can get corporation tax deductions for contributions to grassroots sports, the government has now published draft legislation.


Procurement

The Crown Commercial Service has published its customer update for November/December 2016. The update provides government and public sector buyers with the latest information on:

  • Developments in procurement policy.
  • The CCS agreements that are available.
  • The new commercial agreements being developed and information on training opportunities and events.

Information

The First-tier Tribunal (Information Rights) (FTT(IR)) has held that certain information held by an Ofsted inspection team about Ely College should be disclosed.  The FTT(IT) considered that it was not unfair to disclose critical references to the school's trust adviser; since such disclosure highlighted significant weaknesses in the governance of the school and was necessary to a proper evaluation of the inspection. Further, it was not unfair to disclose evidence that referred to a potential conflict of interest arising from the school's employment of the chair of governors to run business enterprises and partnerships for the school. Disclosure was necessary in order to present a proper view of the school's standards of administration.


Scotland

OSCR has published its Annual Review 2015-16.

As you will remember, from 6th August 2017 Scotland will be free to set its own income tax rates.  This technical note from HMRC expands on how this will work in practice and consults on some consequential changes to legislation that are proposed.  

The Scottish Fundraising Implementation Group has announced the eight members of the panel which will set fundraising standards for Scotland.


New from Get Legal

BWB Get Legal brings you a range of top-quality, affordable legal documents, available to download and customise to your specifications. Every document has been drafted by our expert solicitors.

Make sure your firm stays compliant - download our Conflicts of Interest Policy document.

Disclaimer - The information contained in this update is not intended to be a comprehensive update - it is our selection of the website announcements made in the week up to last Friday which we think will be of interest to charities and social enterprises. The content is necessarily of a general nature - specific advice should always be sought for specific situations.


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Christine Rigby

Senior Consultant

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+44(0)20 7551 7712

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c.rigby@bwbllp.com
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Posted on 14/12/2016 in Legal Updates

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