OSCR: a regulator, not a mediator
OSCR’s Head of Regulation & Improvement, Martin Tyson, discusses OSCR’s role as a regulator when dealing with disputes about the decisions made by charities and their trustees.
We recently revised our Inquiry Policy, updating how we handle concerns raised about Scottish charities and making it clearer what OSCR can and cannot deal with according to Scottish charity law.
OSCR often hears from individuals or organisations who are unhappy about decisions that have been made by charities or their trustees. It is testament to the vital role that charities play in our communities that members of the public can often feel a strong connection with charitable works and the actions of individual charities, and get in touch with us when they disagree with what charities are doing.
As well as disagreements with members of the public or external stakeholders, there can also be disputes within charities, whether among charity trustees or between trustees and members of charities. Sometimes these will involve factions with genuine differences of view about what should be done. Sometimes they are simply poorly managed personality clashes.
What is OSCR’s role as a regulator?
Despite a feeling of collective ownership, it is charity trustees who have the right and the duty to make decisions in the interest of their charities and in line with their governing documents. Charities have a right to be unpopular and to do unpopular things and do sometimes make mistakes.
It is not OSCR’s place to get involved in differences of opinion. Our role as a regulator is to ensure that trustees make their decisions in line with their trustee duties and their governing documents, not to police disagreements about the decisions that charities take.
Likewise, we will seek to punish wrongdoing, but it’s in no one’s interest to tar an honest mistake with the same regulatory brush as a charity or trustee who wilfully and knowingly breaks the law.
When charities or trustees make a mistake, OSCR’s role as an enabling regulator is to support the organisation and the wider sector to ensure that matters are put right, and lessons are learned for the future. Human beings all make mistakes, and we believe that human beings who run charities are no different.
How can charities manage these disputes?
Charity trustees can help themselves and their charities in these situations by ensuring that they engage openly about what they are doing with the communities, beneficiary groups and stakeholders, and that they are as transparent as possible about their reasons for taking decisions they are taking.
While we fully understand how difficult these situations can be for trustees, our experience is that openness is usually the best policy.
What should charities expect from OSCR?
OSCR may still get involved in disputes like these where our risk assessment indicates there may be misconduct or charitable assets are at risk. But everyone involved needs to be clear that OSCR’s role is not to mediate disputes, and anyone expecting us simply to pick a side and intervene on their behalf will be disappointed.
We expect charity trustees to be able to manage and accommodate differences of opinion and disagreement as part of running a charity. Our colleagues in England and Wales recently emphasised the need for charity trustees to show ‘goodwill and commitment, and a willingness to compromise their position’. We agree. We know that charity trustees are motivated by strong commitment to their charities, but the ability to work together in difficult times and sometimes to set aside strong feelings or views can be key ways of acting in the interests of a charity.
You can read our new Inquiry Policy here, and our updated form to report concerns about a charity in Scotland can be found here.
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