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Charity and Social Enterprise Update in Brief

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Charity and Social Enterprise Update in Brief Autumn 2013 Charity and Social Enterprise Update In brief Contents In the year since Lord Hodgson published his report on charity law there has been a lot of discussion about his recommendations but Charity law reform 3 so far, little action, report Rosamund McCarthy and Christine Rigby. Page 3 News in brief 5 Ban on TV campaigns 7 The European Court has upheld a UK ban on charity TV advertising for the purposes of campaigning and social advocacy. Email in governance 8 Lawrence Simanowitz advises that charities should not be deterred Skateistan 11 from campaigning by the decision. Page 7 CaSE Insurance 12 Tesse Akpeki and Christine Rigby outline the legal and governance Restricted funds 14 issues for boards to consider when communicating by email. Page 8 Companies Act update 16 Our client focus in this issue is on Skateistan, an international Focus on: Education 18 family of charities that provide skateboarding and educational programmes in Afghanistan and Cambodia. Page 11 Charity Commission update 22 It is important to view buying insurance for your charity or social enterprise as a vital aspect of your risk management rather than just another purchasing decision. Huw Evans of CaSE Insurance Front cover image: Skateistan outlines a good insurance-buying process. Page 12 BWB client Skateistan is an international family of charities that provide skateboarding The Charities Act 2011 provides some welcome relief for charities and educational programmes in Afghanistan struggling to use funds that appear to be locked away from use and Cambodia. For more information please with out of date purposes or restrictions. Laura Soley and Alice refer to their website www.skateistan.co.uk Faure Walker outline some ways to release much-needed funds. Page 14 Comments Please contact us with any comments Although it is now almost four years since the Companies Act 2006 or suggestions by visiting: was fully implemented, there are key changes that have yet to be https://www.surveymonkey.com/s/ fully exploited by some companies. Chinonso Denwigwe outlines BWBDepartmentalUpdatesFeedback some of the opportunities presented by the Act, and areas that can Previous updates are available at: give rise to practical challenges. Page 16 www.bwbllp.com/knowledge/updates In our education focus, Liz Goulder outlines upcoming reforms Let us know if you would like to add a to special educational needs provision, and provides a recent name to the distribution list for this or other example of a successful tribunal case, while our new senior departmental updates; if your contact details associate, Caraline Johnson, examines the complexity of spinning have changed; or if you would prefer to out school services from local authorities. Page 18 receive our update by post/email. Contact the Marketing Department at: [email protected] or And finally, in the light of recent news on a further tightening of its visit https://www.surveymonkey.com/s/ funding, we provide our regular update of news from and about the BWBDepartmentalUpdatesFeedback Charity Commission. Page 22 2 Employment Law Update | Summer 2013 Features Charity law reform – all talk and no action? In the year since Lord Hodgson published his report into charity law there has been a lot of discussion about his recommendations but, so far, little action. Rosamund McCarthy and Christine What areas are likely to be changed? Rigby look at the current state of The Law Commission has already indicated it plans charity law reform to look at: Rosamund McCarthy n areas where trustees might be given more Partner It is now over a year since Lord Hodgson published autonomy, such as disposals (and mortgages) of T: 020 7551 7751 his 159-page report reviewing charity law and making charity land and making ‘ex gratia’ payments out [email protected] recommendations for change. In the meantime of charity funds; there has been high-profile discussion (especially Rosamund advises a n in parliament) about whether charity law, and the safeguarding bequests to charities that have wide range of charities, merged; foundations and public Charity Commission, are fit for purpose. But can we benefit organisations expect reform any time soon? n easier ways for Royal Charter bodies to amend and is recommended their charter; and by Chambers UK What has happened so far? as ‘exceptionally n widening the powers of the Charity Tribunal – for professional’. Rosamund The government issued an interim response to Lord example to give the Tribunal power to suspend the was involved in the BWB Hodgson’s report in December 2012, and a fuller effects of a Charity Commission scheme or decision submissions to Lord response is expected when parliament returns from pending the outcome of an appeal. Hodgson’s review and to its summer break. In the interim, two parliamentary the Public Administration committees have also had their say: Select Committee. The Law Commission is still considering whether it n the Public Administration Select Committee (PASC) will also carry out a review of the issues relating to published its report on the Charities Act in May social investment by charity trustees – BWB’s Luke 2013; and Fletcher and Stephen Lloyd have met with the Law Commission to encourage them to do this. n in the same month the Public Accounts Committee (PAC) published a report on the Charity Commission. So far, it is disappointing that the Law Commission Christine Rigby Senior Consultant And if that was not enough, the National Audit Office seems unlikely to tackle some of the bigger issues like T: 020 7551 7712 also plans to report in the autumn on the Charity the role of the Charity Commission or widening the [email protected] Commission’s ‘effectiveness as a regulator remit of the Charity Tribunal so it can hear appeals against any decision or non-decision of the Charity Christine combines of registered charities’. Commission. But it’s possible that with enough updating clients on new political will, some of these other areas might be legal developments What plans are there to implement suggested with providing specialist changes? tackled as well. advice on constitutional and governance issues, The Law Commission, which is a government In any event, from what government has said to date, fundraising and trading. advisory board responsible for reviewing existing legislation implementing any reforms is not expected Christine was involved law and drafting new legislation, does have time set before 2016. with submissions to Lord aside in the next two years to implement changes Hodgson’s review from to charity law. The full details of its remit will be What other areas are hitting the headlines? BWB and the Charity published in a consultation paper in the first half Law Association and with The Charity Commission and charity regulation the report from NCVO’s of 2014, but already we have a fairly clear idea Lord Hodgson and the PASC were both clear about Charity Law Review that the Commission will be focusing on some very the need for the Commission to focus its resources Advisory Group, of which technical areas and not necessarily progressing all she is a member. recommendations from Lord Hodgson, the PASC on regulation, with the latter commenting that or the PAC. the Commission’s objectives, now set out in the Charities Act 2011, represented ‘an ambition that the Commission could never fulfil, even before the budget cuts were initiated’. The PAC was concerned that ‘the Commission’s approach to regulation and enforcement Charity and Social Enterprise Update | Autumn 2013 3 Features “It is disappointing that the Law Commission seems unlikely to tackle some of the bigger issues like the role of the Charity Commission or widening the remit of the Charity Tribunal so it can hear appeals against any decision or non-decision of the Charity Commission. But it’s possible that with enough political will, some of these other areas might be tackled as well” lacks vigour’. With the National Audit Office review BWB’s Philip Kirkpatrick in our Spring 2013 Update in the pipeline, we can certainly expect more rhetoric (http://www.bwbllp.com/knowledge/2013/02/28/ here, though whether that translates into changes charity-and-social-enterprise-spring-update/), the to the law (or better still, improved funding for the PASC recommended that charity annual returns Commission) is difficult to predict. should set out how much of a charity’s spending has been on political and communications work. Lord Hodgson was supportive of some level of charging by the Charity Commission for filing annual What’s next? returns and for charity registration. However, the The next thing to look out for – and by the time government’s initial response was lukewarm, and the you are reading this it may well be out – is the full PASC report was not supportive of charging, except government response to Lord Hodgson’s report. This for imposing fines for late filing of annual returns. may indicate that the government is going to ‘fast track’ some areas separate to the work the Law Public benefit Commission is doing. Otherwise, we may see further As ever, there were strong views on public benefit. change within the Charity Commission as to what it Lord Hodgson’s report and the government’s interim prioritises and that, in reality, may have as much or response were both in favour of keeping things as more impact on charities than much of the proposed they are, with no statutory definition of public benefit. law reform! The PASC took a very different view, describing the Charities Act as ‘critically flawed’ in relation to public benefit, and recent controversial public benefit cases Find out more as ‘an administrative and financial disaster for the Lord Hodgson’s report https://www.gov.uk/ Charity Commission and the charities involved’.
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