Are there any exceptions?
The 2005 Act provides a mechanism for OSCR to waive an automatic disqualification. A waiver application form allows a disqualified individual to apply to OSCR for a waiver in terms of section 69(4) of the 2005 Act in relation to a particular charity, a type of charity, or to charities in general. Each case is considered on its own merits.
We make our decision based only on what is in the best interests of the charity or charities covered by the waiver application. We will also check that the waiver is not likely to damage public trust and confidence in a charity or charities.
If granted, a waiver would allow the individual to become a charity trustee or undertake a senior management function for a charity.
Before applying for a waiver, an individual must have declared their disqualification to the charity so that the existing charity trustees can consider whether they wish to support the application.
As part of the waiver of automatic disqualification application, an individual must attach a statement from the current charity trustees. The information that must be included in the statement is set out in Annex 3.
OSCR’s assessment will be based upon the following criteria:
- Whether a charity’s governing document would permit someone to become a charity trustee or undertake a senior management function for a charity even if a waiver was granted
- The details and circumstances of the disqualification
- An evaluation of the individual’s role in any particular charity, which they wish to be a charity trustee or undertake a senior management function for
- An evaluation of the possible risks to the charity’s property or reputation, or to the property or reputation of a type of charity or the sector in general
- Consideration of the supporting material from the charity trustees and/or others
In the case of a particular charity or type of charity, OSCR will also look at whether it is essential for an individual to serve as a charity trustee or undertake a senior management function for a charity.
OSCR will consider:
- What role and/or responsibilities the individual will have in the charity or type of charities
- What relevant skills or experience that they would bring
- How being a charity trustee or undertaking a senior management function for a charity would contribute to the charity or type of charities, and to achieving charitable purposes
- How the charity intends to mitigate and manage the risks arising if the individual is granted a waiver to allow them to become a charity trustee or undertake a senior management function
- What the legal form of the charity is
- What identifiable risks or disadvantages to the charity or type of charity would arise if the individual making the application was unable to serve as a charity trustee or undertake a senior management function for the charity
The decision on whether to grant a waiver will be made on the information provided in the waiver application form and the supporting information submitted with it. There might be some circumstances where OSCR may need to ask for further information from the individual, or a charity to enable a decision to be made.
If OSCR refuses an application for a waiver and the disqualified individual disagrees with that decision, they have the right to request a review of our decision. The process for this would be explained in our decision letter to the disqualified individual.