Charity law has changed
The first of the changes to charity law contained in the Charities (Regulation and Administration) (Scotland) Act 2023 came into effect yesterday, 1 April 2024.
Removing charities that fail to submit accounts and to respond to OSCR
The 2023 Act gives OSCR the power to remove charities from the Scottish Charity Register that have failed to submit accounts on time and failed to engage with OSCR about putting this breach of trustee duties right.
Every year, charities must submit accounts to OSCR within 9 months of their financial year end, and if they fail to do this OSCR, members of the public and potential beneficiaries and donors cannot be assured that those charities are effectively using charity resources for charitable purposes.
This month we will be notifying over 100 charities of our intent to remove them from the Register, and you will be able to find further details of the charities involved .
If you advise or work with any of these charities, please bring this notification to the attention of the charity trustees.
Where any of these charities re-engage with OSCR we will expect them to bring their reporting up to date in order to maintain their registration. Where we don’t hear from these charities, we will proceed to remove them in line with the process set out in the 2023 Act.
Increased inquiry powers
We also have a number of new powers to help us work more effectively to protect charities and their assets. They include:
- Power to direct charities to take particular actions: This will allow us to compel changes and improvements that need to be made in a charity. Our current powers only allow us to instruct a charity not to do certain things. This positive power will allow us to respond flexibly and appropriately to the wide range of situations we encounter. We want to focus on achieving beneficial outcomes from the use of this power and will use it where appropriate. The power does not relieve charity trustees from their responsibilities and legal duties in running the charity – we will not for example use it to take sides in a dispute.
- Power to appoint interim trustees: Using this power, we will be able to help charities where the number of charity trustees in place is less than the number needed to appoint more trustees and the charity’s governing document doesn’t specify how to deal with that situation. Specific criteria must be met to allow us to do this. More guidance is provided .
- Power to inquire into former charities and former charity trustees: This will extend the reach we have to make inquiries into organisations that are no longer charities and individuals who were previously charity trustees. This extension of our powers will enhance our ability to deal with situations and issues that may cause concern to the public.
- Changes to OSCR’s powers to require charities and others to provide information: The timescales involved here will be clarified and the process streamlined, providing benefit to the progress of our inquiries.
A charity’s connection to Scotland
From now, OSCR must refuse an application to be registered as a charity from organisations that have no or a negligible connection with Scotland. To decide on this, we will need to look at factors including whether the organisation has a principal office in Scotland, occupies premises or carries out activities here. Our experience so far indicates that this will not be an issue for the overwhelming majority of applicants. Most of these are SCIOs (Scottish Charitable Incorporated Organisations), which in any case have always required to have a principal office address in Scotland. However, the new measure will ensure that we can deal with issues where they arise with organisations applying under other legal forms.
The requirement to have a connection to Scotland will apply to existing charities on the Scottish Charity Register from 1 October 2024, but we are already in touch with the charities we are aware of that are likely to be affected to try to resolve the issues involved.
Other changes
In addition to the changes above, the 2023 Act has made minor changes to simplify interactions between charities and OSCR and provide more flexibility. In particular:
- Charities are no longer required to give OSCR 42 days’ notice of changes which require our consent (like changes to charity name, purposes in the constitution or dissolution).
- OSCR can enter two charities on the Scottish Charity Register with the same name when there is a merger of charities – for instance, when an unincorporated charity is winding up and transferring its assets to a new SCIO, the new SCIO can be registered under the same name as the unincorporated one.
We will also be able to take action where the working or ‘known as’ name of a charity or an applicant for registration is misleading, offensive or too similar to another charity’s name, as we do now for charities’ legal names.
The rules on a charity paying charity trustees or a person connected to them under a contract of employment or for services have been tightened up. In order for payment to be made by the charity less than half the total number of charity trustees should be paid or be connected to a person who is being paid. You can read more about this in our guidance and good practice for charity trustees.
OSCR’s guidance has been updated to reflect the changes now in place.
The future
Some further measures will commence on 1 October 2024. Under the most important of these, OSCR will provide a publicly searchable record of individuals who have been permanently disqualified by the Courts from being a charity trustee so that charities can carry out due diligence on prospective new trustees.
The remaining parts of the 2023 Act are planned to come into force in summer 2025. This should give charities and OSCR the time needed to prepare for these changes, which include:
- publication of charity annual reports and accounts
- a schedule of charity trustees
- publication of trustee names
- a record of charity mergers; and
- updates to the disqualification criteria for charity trustees.
Further updates will be shared on our website and through our newsletter, the OSCR Reporter, which you can sign up for here.