When and how to seek consent

Background

The Charities and Trustee Investment (Scotland) Act 2005 introduces a requirement for charities to seek consent from OSCR in relation to certain actions a charity may wish to take and also to notify OSCR when certain changes have taken place.

The consents and notifications processes are set out in sections 11, 16 and 17 of the Act. View full guidance on the consents and notifications procedures.

For further information on when you need to contact OSCR please read our OSCR postcard.

OSCR also has a combined process for any registered charity that wishes to become a company.

Overview of changes requiring OSCR's consent

A charity that wishes to do any of the following can click on the relevant text to access the required form:

A charity applying to the Court in relation to amending its purposes, amalgamating or winding up may also use the above forms. For more information on how to apply for consent using any of the forms, please access the guidance.

A charity can only make such changes if its constitution allows for the charity trustees to do so. This follows from the general principle that charity trustees must act in accordance with the specific terms of the constitution of the charity. It is therefore important to establish, through reading the constitution, that there are sufficient powers in the constitution to allow the charity trustees to make the change.

In the event of a charity not having the necessary powers to make the intended change, Sections 39 to 43 of the Act will need to be applied. Sections 39-43 of the Act came into effect on the 31 May 2007. Please click to read more about OSCR's Charity Reorganisation.

Overview of changes that need to be notified to OSCR

Charities must notify OSCR of the following changes within 3 months of the date that the change takes effect:

change to principal office of the charity (or change to the name and address of the charity trustee specified in the Register if there is no office);
any change in other details set out in its entry in the Register;
any change to the constitution;
any action taken to amalgamate, wind up or dissolve the charity, or to apply to the court to do so, subject to consent having been obtained.

You can download a form here to notify OSCR of any such changes.

Further, OSCR must be notified separately of when, and indeed whether, the action to which it consented took effect. This is because it is possible that a charity may seek and be granted consent to a proposed action that is not then followed through. For example, a proposed change to a charity's constitution which must be agreed at an AGM, where the AGM decides not to accept the proposed change. OSCR's Consents and Notifications Guidance explains this process in full.

Charities must notify OSCR of the following changes within one month from the date the change took effect:

Any administration order for winding up made by the court in respect of the charity
The appointment of a receiver in respect of any of the charity’s property.

Download a form to notify OSCR of any such changes.

Changing legal form - OSCR's process

An existing charity on the Scottish Charity Register that wishes to change its legal form, for example an unincorporated association, or a trust wishing to become a company limited by guarantee, must seek charitable status for the new body (in this case the company) and wind up the existing charity. OSCR will consider this type of change as an application for a change in legal form.

We have developed an ‘all-in-one’ procedure to ease the process of changing legal form and the required interaction with OSCR for charities wishing to make this change.

OSCR has therefore combined the processes for:

the application for entry in the Register for the new body;
the winding up of the current charity; and
the consideration, if relevant, of a new name.

This ‘all-in-one’ process also allows a charity that changes its legal form to retain its current charity number and name, if it so wishes.

OSCR has produced guidance to outline the new process:

Change in Legal Form Guidance

The application form, together with guidance on completing it, are below, along with the required trustee declaration form:

Once OSCR has agreed to enter the new body on the register, the forms below must be completed and sent to OSCR:

Change in Legal Form Application for Wind Up and Removal

Application forms and Guidance can also be obtained by contacting the OSCR Consent Team.

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