UPDATED INFORMATION FOR CHAPTER 11:
VOLUNTARY SECTOR LEGAL HANDBOOK
This page contains information that has appeared on Sandy Adirondack's legal update website for voluntary organisations at www.sandy-a.co.uk/legal.htm. For current updates, including potential changes that are in the pipeline, see the legal update website.
These websites for each chapter update
the 2nd edition of The Voluntary Sector Legal Handbook by Sandy Adirondack and James Sinclair Taylor (Directory of Social Change, 2001). The websites are not intended as a comprehensive update and should not be treated as such.
To order a copy of The Voluntary Sector Legal Handbook, print out the order form at www.sandy-a.co.uk/bookserv.htm or send an email order by clicking
. It costs £50 for voluntary organisations or £80 for others, plus 10% p&p. We expect the third edition to be published in 2007.
The information here covers the law applicable to England and Wales. It may not apply in Northern Ireland and/or Scotland. These news items are not a full or definitive statement of the law and are not intended as a substitute for professional legal advice. No responsibility for loss occasioned as a result of any person acting or refraining from acting can be taken by the author.
Chapter 11
MEMBERS OF THE GOVERNING BODY
THE CHARITIES ACT 2006
Updated 8/12/06.
The Office of the Third Sector announced on 5 December 2006 the proposed timetable for implementation of the Charities Act 2006. The Act, which received royal assent on 8 November 2006, will come into effect in stages over the next two years, with the first commencement order expected in early 2007, the second in the second half of 2007, and the third in early 2008.
The Act (in pdf format) is at www.opsi.gov.uk/acts/acts2006/ukpga_20060050_en.pdf, and in html format at www.opsi.gov.uk/acts/acts2006/20060050.htm.
Explanatory notes to the Act are at www.opsi.gov.uk/acts/en2006/2006en50.htm.
The Charity Commission's guide to the main provisions is at www.charitycommission.gov.uk/spr/ca2006prov.asp.
For the Office of the Third Sector's implementation timetable click here (the address is too long to show on screen).
The summary below lists some of the changes that may affect small and medium charities, with the expected implementation dates. It is not full summary of the Act and does not cover all provisions.
Charities Act 2006: WAIVER OF TRUSTEE DISQUALIFICATION
Updated 19/2/07. This information updates s.11.3.2.5 in The Voluntary Sector Legal Handbook 2nd edition.
A person who has been removed as a charity trustee by the Charity Commission, High Court or Court of Session in Scotland is disqualified from serving as a trustee for any charity unless the Charity Commission waives the disqualification. From 27 February 2007, the Commission has to grant any application for a waiver where the person has been disqualified under these provisions for more than five years, unless it has good reason for not granting the waiver. However the Commission cannot grant a waiver under these provisions where the person would become a trustee of a charitable company, and he or she is an undischarged bankrupt or is disqualified from serving as a company director.
This provision is in s.35 of the Charities Act 2006, which inserts new s.72(4A) to the Charities Act 1993. The 2006 Act is at www.opsi.gov.uk/acts/acts2006/20060050.htm.
Explanatory notes to the Act are at www.opsi.gov.uk/acts/en2006/2006en50.htm.
COMMISSION AGREES YOUNG TRUSTEES FOR CHARITABLE COMPANIES
Updated 9/2/05. This information updates ss.11.3.2 and 11.3.3 in The Voluntary Sector Legal Handbook 2nd edition.
For the first time, the Charity Commission has allowed a charitable company to register with articles of association allowing trustee/directors under 18 years old. Company law allows directors to be under 18 years old (provided they are considered able to understand their duties and responsibilities) but the Commission has not previously allowed this for charitable companies. However in May 2004 they registered Funky Dragon, the Welsh youth parliament, with articles allowing four of the eight trustees to be under 18.
On 10 December 2004 the Charity Commission and National Council for Voluntary Youth Services issued a joint statement on trustees under 18, clearly explaining the issues and also explaining why it is not possible for unincorporated charities (charitable associations or trusts) to have trustees under 18. The statement is at www.ncvys.org.uk/pdfs/101204%20charity%20commission.pdf.
DRAFT GUIDANCE ON CHECKING ELIGIBILITY OF CHARITY TRUSTEES
Updated 10/8/05. This information adds to ss.11.3.2 and 11.3.3 in The Voluntary Sector Legal Handbook 2nd edition.
The Charity Commission consulted in 2004 on draft guidance covering the law and good practice in checking the eligibility and suitability of charity trustees. The guidance covers not only Criminal Records Bureau checks on trustees for charities working with children and vulnerable adults, but also ways to ensure that trustees of any charity are not disqualified under charity law from serving as a trustee. Draft guidance on recruiting, selecting and appointing trustees is at www.charitycommission.gov.uk/enhancingcharities/cc30cons.asp. The consultation results are at www.charitycommission.gov.uk/enhancingcharities/cc30consresp.asp.
From 1 July 2004 the individual insolvency register on the Insolvency Service's website allows anyone to find out, free of charge, whether an individual is an undischarged bankrupt, the subject of a bankruptcy restrictions order (BRO) or party to an individual voluntary arrangement (IVA). It is an offence for an undischarged bankrupt or person subject to a BRO to serve as a charity trustee or company director. The individual insolvency register is at www.insolvency.gov.uk/bankruptcy/bankruptcysearch.htm.
GUIDANCE ON RECRUITING TRUSTEES
Added 26/7/06. This information updates s.11.4.1 in The Voluntary Sector Legal Handbook 2nd edition.
Finding New Trustees: What charities need to know, issued by the Charity Commission in July 2006, replaces earlier guidance from 2002. It covers the importance of understanding who is and is not eligible to be a trustee (under charity and company law and the organisation's governing document), how to locate suitable people, vetting and CRB checks (see below), and appointing trustees. The publication is at www.charitycommission.gov.uk/publications/cc30.asp.
COMPANIES ACT 2006 CHANGES
For changes relating to company directors in the Companies Act 2006, see www.sandy-a.co.uk/vslh/02incorp.htm.
FILING COMPANY FORMS ON THE WEB
Added 21/9/03. This information updates ss.11,4, 15.1.3 and 16.3.2 in The Voluntary Sector Legal Handbook 2nd edition.
Companies House now allows the following forms to be filed on the web rather than on paper: 288a (appointment of director), 288b (resignation of director), 288c (change of information about a director), 287 (change of registered office), 353 (change in where the register of company members is kept), 353a (change in where a non-legible, i.e. electronic, register of members is kept), and some other forms that are unlikely to be used by voluntary sector companies. Further information is available under webfiling at www.companieshouse.gov.uk.
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