BWB Highlights

From all of us at BWB, we wish you a peaceful and restorative season and a Happy New Year. 

The next BWB Briefing will come out to you in the first week of 2017.


At a glance

The Charity Commission has published further guidance in relation to the new powers to issue official warnings and to disqualify trustees, and has also published its decision to refuse to register The Temple of the Jedi Order as a CIO.

Three new measures have been announced by Government as part of a programme to help tackle the challenges of getting small charities into the public service supply chain.

Big Society Capital has launched a £15m investment facility for social investors to fund large-scale community-led housing projects.

The Department for Education has published new guidance on multi-academy trusts (MATs) in England.

New Philanthropy Capital has published a guide to “Evidence and data collection for education start-ups".


Charity Commission

Registration

The Commission has published its decision to refuse to register The Temple of the Jedi Order as a Charitable Incorporated Organisation (CIO). The purposes of the proposed CIO included “To advance the religion of Jediism, for the public benefit worldwide, in accordance with the Jedi Doctrine” Although the application was made on the basis that Jediism is a religion, the Commission also considered whether Jediism would promote moral or ethical improvement but concluded the CIO was not charitable on either ground. 

Guidance on official warnings and trustee disqualifications

The Commission has published the documents listed below  in relation to the new powers to issue official warnings and to disqualify trustees. In both cases, the consultation responses have led to considerable revision of the guidance, with the drafts being replaced by a new OG and a Questions and Answers document for the warning power and the draft being substantially revised into an Explanatory Statement, with accompanying Question and Answers document in the case of the disqualification power. 

New inquiry

The Commission has opened an inquiry into Ampleforth Abbey (1026493) and St Laurence Education Trust (1063808) which runs the schools Ampleforth College and St Martin’s Ampleforth. The inquiry will examine the charity trustees’ approach to safeguarding and handling of allegations of sexual abuse and follows media reports about individuals with links to Ampleforth College in connection with allegations of sexual abuse.

Inquiry report

The Commission has published its inquiry report into Kingsway International Christian Centre (‘KICC’ 1102114) a charity operating a large evangelical church, with 19 places of worship, a 24 acre facility in Kent and a television and radio station ministry. The inquiry, which was opened in 2011, was concerned with the investment of £5 million of the charity’s funds with an ex-trustee (then a trustee). The investment resulted in a net loss of £3.9million to the charity, including a tax liability paid to HMRC because the investment constituted non-charitable expenditure.  Among other things, the Commission concluded that there was mismanagement in the administration of the charity and that the trustees in place at the time of the investment did not exercise sufficient care in their decision making about the investment, did not appreciate the high risk nature of the investment and did not manage conflicts of interest properly. An out of court settlement with the ex trustee was reached on confidential terms in September 2015.

Safer giving

The Charity Commission and the Fundraising Regulator have issued joint guidance about giving safely over the Christmas period.

Regulatory alert: Cyber Attacks

The Commission has issued a regulatory alert under section 15(2) Charities Act 2011 about two prevalent email scams.

Public meeting

The Commission is publicising details of its annual public meeting on 9 January 2017.


Possible new transparency requirements for Royal Charter bodies and CIOs

Charities and social enterprises structured as companies are subject to requirements to keep a register of those with significant control over the company (known as PSCs), and to file details of their PSCs with Companies House.  Government is proposing that the PSC regime should be extended to cover other legal entities, as part of the implementation of the Fourth Money Laundering Directive.  Under the current proposals, certain Royal Charter Bodies and Charitable Incorporated Organisations would be affected.

BWB has responded to the Department for Business, Energy and Industrial Strategy discussion paper on implementation of the Directive, arguing that since the Directive is directed at commercial rather than not-for-profit entities, charities should be exempt from any extension to the scope of the PSC regime.


Governance

A new easy-read guide to trusteeship has been published to help people with learning disabilities to become charity trustees. The National Council for Voluntary Organisations has translated its best-selling Good Trustee Guide into easy-read format in order to provide information about a trustee's role and best practice guidance to people with learning disabilities.


General

NCVO has launched a new website explaining how charities are run. The website aims to answer some of the common questions people have about how charities work.


Brexit

Human Rights

The Joint Committee on Human Rights has issued an interim report, stating that fundamental rights should not be used as a bargaining chip. The Committee calls on the Government to give an undertaking to protect the residency rights of EU nationals in the UK. While many fundamental rights are underpinned by EU law, the Committee says that it is not clear whether the Government intends to remove any rights which UK citizens currently possess under EU law - and, if so, which rights are under threat. It demands that any future legislation should include safeguards and Parliament should have the opportunity to debate, amend and vote on any proposed changes to fundamental rights.

Trade

The House of Lords EU Committee has published a comprehensive report on the various trade options available to the UK after Brexit. The four main options considered are EEA membership, membership of the EU's customs union, a UK-EU free trade agreement, and trade under WTO rules. It noted that all these frameworks have important advantages in liberalising trade between contracting parties, but all also have significant shortcomings. The report can be found here.

Sector implications

The following NCVO blog considers data and research on the relationship between the European Union, the voluntary sector and volunteering.  

BOND has set up this Brexit hub for news about Brexit affecting international development organisations.  

Also see below under Northern Ireland.


Fundraising

TPS

With effect from 30 December 2016, the government has transferred the function of maintaining, and of keeping the Telephone Preference Service and Fax Preference Service (registers) up to date, from Ofcom to the Information Commissioner’s Office.  

Mental capacity and contracts/donations

The High Court has considered the correct test to be applied to assess a person's mental capacity to enter into a transaction (Fehily v Atkinson [2016] EWHC 3069 (Ch)). After a review of the authorities, it identified five general principles as being relevant:

  • A person needs the mental capacity to recognise the issues that must be considered, to obtain, receive, understand and retain relevant information, and to weigh the information in the balance in reaching a decision.
  • A person may have capacity for one type of decision but not another.
  • Capacity may vary over time and should be assessed at the specific time when the decision was made.
  • The key issue is whether the person has the ability to understand the transaction, not whether he actually understood it.
  • Although help might be needed to understand the transaction, this does not prevent the person having the capacity to understand it. The person needs the insight and understanding to realise that advice is needed, the ability to find and instruct an appropriate adviser, and the capacity to understand and make decisions based on that advice.

New IOF support for local charities

The Institute of Fundraising and Localgiving have announced a strategic partnership to provide increased fundraising support to local charities and community groups in the UK. The partnership will focus on expanding access to bespoke training, resources and fundraising opportunities for UK community-based voluntary organisations.  

New IOF Suppliers Forum

The Institute of Fundraising has launched a new Suppliers Forum - established to bring the IoF’s corporate supporter members together to share ideas and discuss sector-wide challenges.

Legacies

See here for the latest roundup from the BWB Charity Legacies, Trusts & Probate Disputes team.


Social finance

Big Society Capital has launched a £15m investment facility for social investors to fund large-scale community-led housing projects.  

The Financial Conduct Authority (FCA) has published its fourth consultation paper on the Markets in Financial Instruments Directive II (MiFID II), a wide ranging European regulation that affects investment intermediaries providing services connected to shares, bonds, units in collective investment schemes and derivatives. The consultation is the FCA’s final such publication, and concerns changes to the FCA Handbook ahead of MiFID II’s implementation in January 2018. Access the paper here.

The European Central Bank (ECB) has:

  • published a paper setting out its priorities for the Single Supervisory Mechanism (SSM) in 2017. The SSM is one of the two pillars of the EU’s banking union, and aims to ensure the safety and soundness of the European banking system through cooperation between the ECB and participating states. The paper identifies three thematic priorities linked to key sources of banking risk. These are business models and profitability drivers, credit risk, and risk management. The full paper can be found here.
  • issued wide-ranging feedback in response to the European Commission’s consultation on reviewing the EU’s macro-prudential policy, the framework that co-ordinates member states’ approach to financial stability and systemic risk. The ECB’s response includes comment on the relationship between the banking union and prudential legislation and different national banking authorities. The response can be accessed here.

Also see under Brexit above.


Social investment

IVAR, the Institute for Voluntary Action Research has published a research report on small charities and social investment.  The report, which is part of a long term project, looks at the ‘social investment journey’ of 25 small charities, providing in-depth insights into their motivation, experience of the process, challenges encountered and the support they received.


Social impact

New Philanthropy Capital has published a guide “How can charities maximise their impact by working with PCCs?”   

Also see under Education below.


Support for small charities

Three new measures have been announced by Government as part of a programme to help tackle the challenges of getting small charities into the public service supply chain. They are:

  • Developing a placed based Public Service Incubator that helps small charities get commissioned.
  • Exploring the development of a commissioning kitemark that will set out a best practice standard.
  • Recruiting a voluntary, community and social enterprise crown representative.

Sir Martyn Lewis will chair a voluntary sector-led implementation group on these proposals, to put them into practice.  NAVCA has welcomed the announcement, saying it is particularly pleased that this highlights the expertise and knowledge small charities can provide to shape services.  Social Enterprise UK has described the proposals as an “incremental step forward”.


Education

New Philanthropy Capital has published a guide to “Evidence and data collection for education start-ups”.  It is aimed at people setting up new projects in the education sector. It offers step-by-step advice on what evidence and data to collect, and how to collect it. It is based on NPC’s experience of supporting around 40 organisations through the Young Foundation’s Young Academy education incubator programme. 

Early years

The Department for Education has published a summary of the responses to its consultation on proposed changes to early years funding for three and four year olds, together with its response, intended next steps and local authorities' specific national funding formula allocations.

Schools

The government has published plans to “end the postcode lottery of school funding”.   

On 9 December 2016, the DfE published new guidance on multi-academy trusts (MATs) in England.


Health and social care

Communities Secretary Sajid Javid has announced plans for councils to be able to raise an additional £208 million for social care, by having the flexibility to increase the dedicated social care precept in Council Tax by up to 3% next year if they choose.  King’s Fund has published this response to the announcement.  

University College London has been chosen to lead a UK-wide effort to treat, care for and prevent dementias.  It will house the UK Dementia Research Institute, a joint £250 million investment by government and leading Alzheimer’s charities.  

new two-year project to support people with learning disabilities and autism to find work has been launched by the government.

The Competition and Markets Authority (CMA) has launched a market study into care homes for the elderly in the UK.   The study will include:

  • looking into possible consumer and competition concerns, in particular complaints systems and unfair contract terms
  • looking into how people find the experience of choosing a care home and how care homes compete to attract residents, and
  • exploring current regulation and how well care homes are complying with consumer law.

The CMA would like to hear by 16 January 2017 from care home providers and their representatives, charities representing older people and consumer groups.  For more, see this blog post on the CMA’s website.


Housing

See first item above under Social Finance.


Faith based organisations

See under Charity Commission above for a recent registration decision.

The English Churches and Cathedrals Sustainability Review has launched a call for evidence to hear the public’s views on how church buildings should be looked after and the role can they play in local communities.  The review panel aims to find innovative and practical ways to maintain church and cathedral buildings at the heart of their communities for generations to come.  The deadline for submissions is 31 January 2017 with the responses informing the Review Panel’s recommendations which are due to be published in spring 2017.


International development

See item under Brexit - sector implications above. 


Volunteering

Minister for Civil Society Rob Wilson has launched an independent review to look at the challenges and benefits of young people committing to full-time social action (more than 16 hours a week).  The review will look at how to increase participation in full-time social action by reviewing the opportunities and barriers faced by organisations supporting young people. The advisory panel will include experts from the private and voluntary sectors and is expected to make recommendations to the Minister for Civil Society by October 2017. 


Equality

The government is taking fresh steps in the fight against hatred of Jews by formally adopting the International Holocaust Remembrance Alliance’s (IHRA) working definition of anti-Semitism.


Commissioning and contracts

See under Support for small charities above.


Procurement

The Crown Commercial Service has published Procurement Policy Note 10/16 dealing with onerous practices in procurement and contracting which result in disproportionate risk transfer between buyers and suppliers.  This PPN applies with immediate effect to all central government departments, their executive agencies and non-departmental public bodies which are required to conduct their procurement and contracting activities in accordance with best practice, which includes:

  • Conducting effective pre-market engagement and ensuring accurate data is made available to suppliers.
  • Awarding contracts on the basis of value for money, and ensuring the contracts include appropriate mechanisms for risk management and for dealing with change management on a collaborative basis.
  • Using government guidance and its model services contract to establish limits of liability in contracts.

Consumer law

The Chartered Trading Standards Institute has published new guidance for traders dealing with consumers, covering pricing practices. The guidance replaces the 2010 Pricing Practices Guide, produced by the then Department for Business, Innovation and Skills (BIS), which has now been withdrawn. 


Northern Ireland

CCNI has published guidance on Data Protection for charities in Northern Ireland focusing on the requirements for charity trustees.

CCNI has published a report about Northern Ireland’s charity sector, to mark three years of charity registrations.

See here for outcomes from a recent roundtable looking at Brexit implications for the charity section in Northern Ireland.

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 21/12/2016 in Legal Updates

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