Luke Fletcher, Partner in our Charity team, comments that we have written open letters to the Charity Commission and Attorney General asking them to refer certain key questions about the nature of charity investment duties to an independent tribunal for decision. Find out more further down in the Briefing.
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At a glance
As you will have seen in our mailing yesterday, the Fundraising Regulator has referred 59 charities to the Information Commissioner’s Office and to the Charity Commission for failing to act on suppression requests submitted via the Fundraising Preference Service. The message is - don't ignore unsubscribe requests!
The Department for Education has published its proposals on relationships education, relationships and sex education, and health education.
The government has published a guide aimed at voluntary, community and social enterprise organisations considering selling or supplying services to central and local government.
Open letter requesting Tribunal reference on investment duties
Luke Fletcher, Partner in our Charity team, comments that “We have written open letters to the Charity Commission and Attorney General asking them to refer certain key questions about the nature of charity investment duties to an independent tribunal for decision. We believe that only an independent tribunal or court has the ability to provide a judgment on the matter of charity investment duties which trustees, legal advisors and others can have confidence is an authoritative summary of the law and of how it should be applied today – as opposed to an arguable or potentially challengeable interpretation.
Given changes in the law and in market practice since the original Bishop of Oxford case, the landmark case which was decided in 1991, we believe that a court would today favour and support an intentional investment approach in which trustees deliberately seek to reflect a charity’s mission and values in its investment strategy, as a matter of best practice or potentially as a legal requirement. When you think about the level of charitable assets under management and the range of positive and negative social impacts which those investment assets are generating and will generate over time, as well as the wider leadership role which charities can and should play, legal clarity on the nature and extent of charity trustee investment duties and their relationship with charities’ obligations to provide public benefit would be hugely beneficial.” Click here to find out more.
Fraud resilience survey
The commission has launched a fraud resilience survey, in conjunction with the Fraud Advisory Panel.
Charity law cases
The Court of Appeal has held that, where a school site ceased to be used for the statutory purposes set out in section 2 of the School Sites Act 1841 (SSA 1841) this would immediately trigger a reverter to the grantor and his successors according to the SSA 1841. This would be the case even where a sale of the school had been arranged and where it was the intention of the education authority to use the sale proceeds to fund the building of a new school on a different site. This reverses the earlier High Court decision that the reverter was overridden because, although the school had closed, it was always the intention of the education authority to use the sale proceeds from the site to fund the building of a new school elsewhere. (Case: Rittson-Thomas –v- Oxfordshire County Council  EWCA Civ 200).
Two new appeals have been filed in the First Tier Charity Tribunal by:
- Joshua Waldman
- Martin Phelps
No details have been given of the charities they relate to.
As you have probably seen, Teresa May has announced a £1.6 billion Stronger Towns Fund. More than half (£583 million) will go to towns across the North with a further £322 million allocated to communities in the Midlands. Another £600 million will be available through a bidding process to communities in any part of the country. Access to the funds will be via Local Enterprise Partnerships. It is not clear if this replaces the planned UK Shared Prosperity Fund which had previously been announced.
General charity sector
- published a blog by Sir Stuart Etherington on the dangers of a No-deal Brexit;
- sent this briefing to MPs which summarises the impact of a no-deal Brexit on charities; and
- published a blog, ‘Dealing with Deficiencies – Is the Brexit secondary legislation process working?’. It notes that NCVO was a signatory to a letter organised by the Public Law Project, raising questions about how the process is working in practice.
The NHS Confederation reports that Niall Dickinson (co-chair of the Brexit Health Alliance and chief executive of the NHS confederation) has said that a negotiated Brexit deal is needed to protect UK patients. Find out more via this link.
Edward Timpson, Chair of the independent Child Safeguarding Practice Review Panel, has announced the first national child safeguarding practice review into adolescents in need of state protection from criminal exploitation.
A former senior local government officer has been prosecuted for passing the personal information of rival job applicants to his partner. Kevin Bunsell was employed by Nuneaton and Bedworth District Council. In July 2017, his partner applied for an administrative job at the council and Bunsell was not involved in the selection process because of his personal relationship. However, he accessed the authority’s recruitment system and emailed the personal information of the nine rival shortlisted candidates to both his own work email address and also his partner’s Hotmail account. Once the data breach had been discovered, Bunsell resigned and although his partner had initially been successful, her employment was also terminated because she had had been appointed on the basis of an invalid recruitment process. Bunsell admitted a charge of unlawfully sharing data in breach of s55 of the Data Protection Act 1998 and was fined £660 and ordered to pay £713.75 costs and a victim surcharge of £66.
Fundraising Preference Service
The Times reports that the Fundraising Regulator has referred fifty-nine charities to the Information Commissioner and Charity Commission, and issued regulatory notices for failures to comply with requests by members of the public to stop sending them marketing material and fundraising appeals. The full list of charities affected can be accessed here.
As mentioned in our mailing yesterday, Victoria Hordern, Head of Data Privacy at Bates Wells, comments that the Fundraising Regulator’s action “demonstrates that all organisations must put in place proper procedures to ensure that they act promptly when they receive an unsubscribe request”. Click here to read Victoria’s comments further.
See under Charity Law cases above.
The Department for Education (DfE) has published its response to its consultation on relationships education, relationships and sex education, and health education, together with the draft Relationships Education, Relationships and Sex Education and Health Education (England) Regulations 2019 (draft regulations) and draft statutory guidance that have both been updated as a result of consultation responses. The central outcome of the consultation is that all schools will be required to teach these subjects, and must have regard to the statutory guidance, from September 2020. The DfE states that it is intended that the regulations will be debated in Parliament in Spring 2019. If they are made, the final guidance will be published. The guidance is scheduled to be reviewed after three years.
More than 100 rural primary schools across England are set to get gigabit-capable broadband connections within the next few months as part of the Government’s commitment to improve internet infrastructure in rural areas.
The Department for Digital, Culture, Media and Sport has announced three projects to encourage young people to participate in making national policy. They include:
- A Youth Steering Group;
- A Young Inspectors Group; and
- Digital Youth engagement research.
The projects will be delivered by a consortium of youth organisations led by the British Youth Council and will run as pilots until March 2020.
Health and social care
The Law Society has expressed concern about the proposed amendments to the Mental Capacity Act 2005 which are currently progressing through Parliament. It says that 300,000 people with conditions such as Alzheimer’s, autism or learning disabilities will see their rights – specifically their right to liberty – stripped back every year by the proposed changes. It argues that care home managers would be given too much influence under the new regime, “creating a dangerous conflict of interest”.
Housing and homelessness
The Government has announced up to £26 million funding for local authority services to help vulnerable rough sleepers.
The Ministry of Housing, Communities and Local Government has issued a consultation on structures that support partnership working and local accountability in homelessness services. The consultation seeks views on the effectiveness of existing non-statutory and statutory provisions and, particularly, whether the government should introduce Homelessness Reduction Boards (HRB) as a potential "local governance mechanism" that would be responsible for addressing homelessness at a local level. A HRB could link local delivery partners and ensure they are held to account, and be constituted by local authority members or officers, other statutory service providers and voluntary sector organisations. The consultation also explores ideas for making such stakeholders' participation in a HRB a statutory requirement.
The government has published a guide aimed at voluntary, community and social enterprise organisations (VCSEs) considering selling to central and local government or becoming part of the supply chain for delivering public services.
See under Advertising below.
The Cabinet Office has published Procurement Policy Note 01/19 (PPN 01/19) which relates to grounds for excluding candidates, dealing with conflicts of interest and whistleblowing in public procurement procedures.
The government has published the Outsourcing Playbook (playbook) containing guidance on outsourcing decisions and contracting. It is aimed at commercial, finance and project delivery professionals in central government departments who are responsible for the planning and delivery of outsourcing projects. Its purpose is to provide those professionals with guidelines, rules and principles that will help them to avoid the most common errors observed in outsourcing projects.
The Advertising Standards Authority has upheld a complaint that a website for volunteering and internship provider Projects Abroad misleadingly implied that it was a not-for-profit. Interestingly the complaint was made by the Competition and Markets Authority.
The Cabinet Secretary for Communities and Local Government has announced the appointment of Lindsay Montgomery CBE as Chair of OSCR. The appointment will be for four years and will run from 1 March 2019 to 28 February 2023.
OSCR has posted a video on its website on the topic of Trustee Recruitment and Succession Planning.
Charity Commission for Northern Ireland has reported that a number of charities have been issued with an email from CCNI indicating they are currently in default of their annual reporting requirements, when they are not, as a result of a system error.
Posted on 06/03/2019 in Legal UpdatesBack to Knowledge