Under the 2005 Act, all organisations which represent themselves as charities in Scotland must register with OSCR. This includes bodies that are established and/or registered as charities in other legal jurisdictions, such as England and Wales.
The 2005 Act provides some exceptions where a cross-border charity represents itself as a charity but does not have substantive activity in Scotland.
Generally if you want to call yourself a charity in Scotland you have to be on the Scottish Charity Register. If an organisation is not listed in the Scottish Charity Register then it is not a charity in Scotland. There are no categories of charities exempt or excepted from registration in Scotland.
The Charities and Trustee Investment (Scotland) Act 2005 (the 2005 Act) includes all charitable operations in Scotland and therefore organisations registered or recognised as a charity in another jurisdiction may be required to register with OSCR if they meet certain criteria. The 2005 Act recognises that it is appropriate to draw a distinction between a significant operation in Scotland and an organisation which has only an occasional connection.
The questions below will help you decide if your organisation needs to apply to OSCR. If after reading this you are still unsure please contact us to discuss.
Download the pdf version of this flowchart.
This means any public reference (written or verbal) to the organisation being a charity, made by the organisation or by a person acting on behalf it. For example a funding application or a request for rates relief in which the organisation makes reference to being a charity would be considered to be representing itself as a charity. Internal communications lack a public element and aren’t classed as representation.
It doesn’t matter if the charity trustees – the people in general management and control of the charity – live in Scotland or not. What matters is whether the management or control of the organisation takes place here. For example, where the office of the organisation is, where the administration of the organisation takes place, or where the charity trustees meet on a regular basis.
The key factor here is occupation. Owning land without occupying it (for example as an investment) does not create a requirement to register. If your organisation is liable for business rates or council tax in respect of a property in Scotland, then it will be considered to occupy this land or premises.
This question breaks down into two parts – both of which need to apply for your organisation to be required to register.
1. Generally speaking ‘activities’ include a wide range of actions – from fundraising to providing services, including admin activities. However, when deciding if the organisation needs to register with OSCR the significance of the organisation’s operations will be a factor. Such as:
‘Premises’ can be a building, a structure, a construction, a place, a property or a site. This could mean anything from a mobile kiosk to a tower block or even an open air market.
The current primary purpose of the premises may not be the one for which it was originally intended. For example where a house has been converted to offices the primary purpose should be taken as being business not residential. A useful guide in this context may be how the local authority treats the premises for purposes of planning or rates.
If the primary purpose of the premises is not for business, then is there a particular part of the premises dedicated to business? For example a room in a house converted to an office or shop and used on a long term basis.
You don’t have to own or rent the premises to be carrying out activities. For example, a self help group holding weekly sessions in a church hall would be considered to ‘carry out activities in similar premises’.
Generally if the activities only take place within an employee’s private residence in Scotland on an occasional basis, then you will not need to register with OSCR.
However, if the employee also frequently works in a place of business by regularly visiting other organisations in their offices or attending meetings or public events in Scotland that would be carrying out activities in a place of business and you would need to register.
OSCR can only register an organisation as a charity in Scotland if it meets the requirements of the charity test set out in the 2005 Act, Meeting the Charity Test: Guidance. These requirements differ in some ways from the legal requirements governing which organisations can be charities in England and Wales.
Charitable Incorporated Organisations (CIOs) incorporated in England and Wales which represent themselves as charities in Scotland must also register here. It is also possible for an unincorporated charity registered with CCEW to become a Charitable Incorporated Organisation (CIO) or for a charitable company or registered society registered with CCEW and OSCR to convert to a CIO. If you are looking to do this you should contact OSCR first.
There is a Scottish equivalent to the CIO, the Scottish Charitable Incorporated Organisation (SCIO). However, OSCR can only incorporate a SCIO if its principal office is in Scotland. This means that a SCIO cannot register with CCEW as it will not fall under the laws of England and Wales.
For more information on SCIOs see: SCIOs: A Guide
For more information on CIOs see: