Bates Wells Briefing for Charities and Social Enterprises | 26 September 2017

Bates Wells Highlights

Charities, Social Enterprise

The Charity Commission has published an updated version of its guidance on reporting serious incidents.

BWB’s Simon Steeden has blogged for Civil Society on whether the charities and social enterprises sector has “hit the end of the road in its efforts to persuade the Government to repeal or amend the Lobbying Act”. See below for the full article.

A reminder that our Annual Charity Tea Party is on Monday 2nd October. This year it is being held at The Law Society (WC2A 1PL) rather than BWB offices.

At a glance

The government has published its response to a BEIS report on corporate governance from earlier this year.

The Information Commissioner’s Office is consulting on draft guidance on contracts and liabilities between controllers and processors under the General Data Protection Regulation.

The Fundraising Regulator has now launched registration for commercial fundraising businesses.

The Institute of Fundraising has launched a new Certification Programme for in-house charity fundraising teams and fundraising agencies who work on direct debit door-to-door, street, private site and telephone fundraising.

The Vulnerable Customer Taskforce of the Direct Marketing Association has developed a template to assist businesses and organisations to develop an internal policy for handling contacts with vulnerable customers or those who are in vulnerable circumstances.

Charity Commission

Final guidance on Serious Incident Reporting published

The Commission has published an updated version of ‘How to report a serious incident in your charity‘.  The Commission reports the new guidance:

  • includes new tools, such as examples and checklists to make it clearer to trustees what they should, and should not, report to the regulator
  • provides greater clarity on incidents resulting in “significant financial loss”, making clear that losing significant funding or contracts that the charity can’t replace should be reported to the regulator
  • no longer requires trustees to report if their charity doesn’t have a safeguarding policy in place, as that information is now captured through the annual return.


The Commission is publicising the Charities Against Fraud Awards 2017.

The Charity Commission is running Outreach Events in Leeds on Registering your faith organisation as a charity, see here for more information.

Charity law cases

The First-tier Tribunal (Charity) has upheld a scheme made by the Charity Commission in relation to allotment gardens in Hughenden, Buckinghamshire. The tribunal held that awards made in 1855 and 1862 under the Inclosure Act 1845 established charitable trusts in respect of the allotments and that these charitable trusts were unaffected by subsequent developments in charity law and the law relating to allotments. The charity continued to exist and the Commission had power to make a scheme for it. The tribunal concluded that the terms of the Commission’s scheme were appropriate in the circumstances.  While this decision is fact-specific, the tribunal’s conclusions on the purpose of the allotments system and the effect of an award under the 1845 Act may well have an impact on other allotment land. (Densham v Charity Commission for England and Wales (CA/2015/002 & 0011 (19 June 2017).)


The government has published its response to a BEIS report on corporate governance from earlier this year.  In relation to promoting good corporate governance for private companies, the government:

  • intends to introduce secondary legislation to require all companies of significant size (private as well as public) to explain how their directors have had regard to the employee and other non-shareholder interests set out in section 172 of the Companies Act 2006. A draft statutory instrument is due to be published later this year.
  • believes that an appropriate voluntary code or set of principles should be developed for large private companies but does not propose to introduce a formal complaints mechanism relating to such code or principles.

BWB Partner Luke Fletcher comments “There was a lot of hope when the Companies Act 2006 came into force that it would lead to a more enlightened form of business management but it is widely believed that companies have not yet taken the s172 duties seriously enough. It is encouraging to see Government giving existing directors’ duties – to have regard to a wide range of stakeholder interests beyond those of the shareholders – more teeth. And it will be interesting to see what kind of reporting mechanisms different companies follow and whether we start to see some adopting more comprehensive impact reporting methods, given this new reporting obligation”. BWB is a sponsor of ‘The Future of the Corporation’ project, a major piece of research and engagement which aims to reimagine the nature of the company and its role in society.

NCVO has published this Governance Round-Up for September.


In partnership with ACEVO and UK Community Foundations, NCVO has written to the Chancellor ahead of his Autumn Budget with two proposals that will “enable charities and volunteers to help vulnerable people find work, and strengthen local grantmaking”:

  • Create a successor fund to ESF following Brexit
  • Use dormant assets to support local communities for a generation to come


Cross border contracts

The Association for Financial Markets in Europe (AFME) and UK Finance have published a paper addressed to policy makers that examines the impact of Brexit on cross-border financial services contracts. The reporthighlights a range of actions that are potentially available to address cross-border contractual uncertainty in the absence of EU “passporting” rights. Actions include having a transitional period in place that confirms the legal right to contract in a certain way for a defined period.

Intellectual property

The European Commission has released a position paper on ‘Intellectual property rights (including geographical indications‘ giving us the first indication of how the Commission will approach the Brexit negotiations with the UK regarding Intellectual Property Rights.


Fundraising Regulator

The Fundraising Regulator has now formally launched registration for commercial fundraising businesses, Commercial Participators and Community Interest Companies (CICs).  Previously just charities registered in England and Wales could register.  The types of commercial businesses invited to register include:

  • Agencies offering telemarketing or face to face fundraising services
  • Direct marketing agencies
  • Online donation sites and fundraising platforms
  • Payroll giving services
  • Commercial clothing collectors
  • Companies exclusively offering fundraising products e.g. charity Christmas cards, affinity sites for purchases

Third party organisations that apply for registration will be invoiced according to their annual turnover, using the same bandings that are applied for the fundraising levy. Once registered, these organisations will also be able to use the ‘Registered With’ logo on all fundraising materials.

IOF Certification programme

The Institute of Fundraising has launched a new Certification Programme for in-house charity fundraising teams and fundraising agencies who work on direct debit door-to-door, street, private site and telephone fundraising.  There are three steps to certification:

  • a detailed self-assessment form is completed by the charity or agency, which assesses their compliance policies and processes.
  • observation of their training programmes; and
  • a mystery shopping programme to check and feedback on whether their processes are being implemented on the front line.

Charities themselves may want to apply for this certification, or if sub contracting fundraising to an agency, will want to see the agency has the necessary certification.

Dealing with vulnerable donors

The Vulnerable Customer Taskforce of the Direct Marketing Association (DMA) has developed a template to assist businesses and organisations to develop an internal policy for handling contacts with vulnerable customers or customers who are in vulnerable circumstances. The framework document provides practical guidance on the steps to follow and relevant considerations when creating and implementing a vulnerable customers policy.  The framework document contains a definition of “vulnerability” which expands on the non-exhaustive list of criteria given in the Consumer Protection from Unfair Trading Regulations 2008 and gives examples of persons who might be considered to be vulnerable adults or to be in a vulnerable situation. The framework document also identifies key principles to follow or adapt depending on the circumstances of the particular business and suggests how to define relevant roles and responsibilities within the organisation.  

The DMA’s Vulnerable Customer Taskforce has also issued other resources to assist businesses dealing with vulnerable consumers, including guidelines for call centres dealing with vulnerable consumers (re-issued in August 2015) and a white paper issued in September 2016.

FPS scam invoices

The Fundraising Regulator has also issued an alert about an email scam being sent to charities, asking to receive payment for the Fundraising Preference Service or implying that an invoice is due. The FR has clarified that it does not send out invoices for the Fundraising Preference Service, as the cost of this service is covered by the fundraising levy.


The second in a series of bulk buying deals (sometimes referred to as ‘aggregated deals’) for schools considering buying new tablets, laptops or desktop devices has now started. To take part, schools will need to submit their requirements for new devices to CCS at: [email protected] by 6 October 2017. This video explains the process in more detail.

Health and social care

NAVCA recently helped produce this guidance ‘Recruiting and managing volunteers in NHS providers:  a practical guide‘. 

NHS England has published:

  • guidance for Transforming Care Partnerships (and their local CCG or local authority partners) in commissioning support and services for children and young people with learning disability, autism or both.
  • guidance intended to assist those involved in information sharing and information governance for the purpose of Prevent, a counter-terrorism safeguarding programme.

Communities, planning and parks

The Government has announced funding of around £5.5 million per year until 2022 to provide communities with specialist support to help develop a Neighbourhood Plan. 

Parks and Green Spaces Minister Marcus Jones has launched a new Parks Action Group to “help England’s public parks and green spaces meet the needs of communities now and in the future”.  The new Parks Action Group will include experts from the world of horticulture, leisure, heritage and tourism, and will be tasked with bringing forward proposals to address some of the issues faced by public parks and other green spaces across England. To support them, government is providing £500,000 funding to kick start their work.

Social finance

Pioneers Post shares information about the launch of the School for Social Entrepreneurs’ (SSE) new grant-funding initiative, Match Trading, which will match the trading income of social ventures pound-for-pound. According to Alastair Wilson, CEO of SSE, this was developed “to help social entrepreneurs working in the toughest markets (to) move towards more trading-based models, to improve their long-term sustainability and impact”.   

Big Society Capital reports on the National Housing Federation’s new futures programme, ‘Creating our Future’ which will bring together housing associations from across the country to create products and services. Big Society Capital will invest £15m in the most investable, innovative, socially impactful and financially sustainable idea from the futures programme which also has a robust business model that requires investment.  

Social enterprise

Civil Society reports on Social Enterprise UK’s report titled “The future of business: State of social enterprise survey 2017” which highlights the barriers to the growth of social enterprises. The report cites pressures on cashflow and a slowdown in recruitment as examples. However, it also finds social enterprises to be more resilient than small and medium-sized enterprises and more diverse than other sectors.

Pioneers Post has identified that a government report titled “Social Enterprise: Market Trends 2017” estimates that there are 471,000 social enterprises in the UK and 1.44 million people are employed by the sector. The report was published on 15 September and can be read here in full.

Pioneers Post reports on Social Saturday 2017 which will take place on 14 October 2017. The Department of Culture, Media and Sport, and the Co-op are supporting an annual campaign led by Social Enterprise UK to challenge consumers across the UK to support social enterprise by investing in products with social impact. You can find out more about this here.


See this BWB Briefing on the recent case of RSPB, Friends of the Earth & Client Earth v. Secretary of State for Justice [2017] EWHC 2309 (Admin), where the claimants were partially successful in their application for judicial review, which sought to challenge amendments to the Civil Procedure Rules (‘CPR’) governing costs in environmental legal challenges. This decision will be of particular interest to charities and other organisations who may seek to challenge the decisions of public bodies that have a connection to the environment, as well as public bodies defending any such challenges.

Public services

The 10th International Conference of Information Commissioners has passed a resolution aimed at tackling a key challenge for access to information frameworks around the world – the growth in contracted-out public services. The resolution was agreed in Manchester on September 21 by the commissioners following dialogue with civil society groups about the transparency challenges posed by new modes of delivery for public services. It highlights the “challenge of scrutinising public expenditure and the performance of services provided by outsourced contractors” and “the impact on important democratic values such as accountability and transparency and the wider pursuit of the public interest”.  Next steps agreed in the resolution include the promotion of global open contracting standards, and a new conference working group to share practice about different initiatives that have been developed to tackle the issue.

Campaigning and lobbying

BWB Partner Simon Steeden writes here in Civil Society about what is next for the Lobbying Act. Simon’s blog, entitled “Where next for the Lobbying Act?”, explores the consequences of the Government’s decision not to amend the terms of this legislation following a recent review by the Cabinet Office. In his piece Simon also observes that this news has been “greeted with dismay” by charity leaders, and speculates how, with Brexit dominating the agenda, finding parliamentary time to debate reform will be a tall order.

Data protection

See under public services above.

The ICO is consulting on draft guidance on contracts and liabilities between controllers and processors under the GDPR. The draft guidance contains practical guidance for UK commercial organisations including examples and checklists.  The ICO has set out what must be included in the contract to ensure GDPR compliance, including compulsory details about the processing, minimum contractual terms and what should be included as good practice. Although not required by the GDPR, the ICO suggests that the processor’s direct responsibilities and liabilities under the GDPR are covered in the contract explicitly and the extent of any indemnity specified. Processing contracts in place on 25 May 2018 will need to meet the new GDPR requirements. The ICO recommends businesses review existing and template contracts to ensure compliance. The ICO also advises ensuring processors understand the reasons for the contract changes and are aware of their new responsibilities and liabilities, and the consequences and penalties for non-compliance. The consultation period is open until 10 October 2017.

Another substantial fine was handed out by the ICO last week – it fined Coventry firm Easyleads Limited £260,000 for making 16.7 million automated marketing calls.

Also see under Scotland below.


The Office of the Scottish Charity Regulator (OSCR) has published information about SCVO’s Cyber Essentials Grants Scheme, which helps small to medium sized charities achieve Cyber Essentials accreditation.

OSCR has uploaded to its website its presentations from a recent “Meet the Regulator” session.

Charity & Social Enterprise Update | Autumn 2017

Click here to view the Autumn edition of the Charity & Social Enterprise Update.

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Disclaimer – The information contained in this update is not intended to be a comprehensive update – it is our selection of the website announcements made in the week up to last Friday which we think will be of interest to charities and social enterprises. The content is necessarily of a general nature – specific advice should always be sought for specific situations.

This information is necessarily of a general nature and doesn’t constitute legal advice. This is not a substitute for formal legal advice, given in the context of full information under an engagement with Bates Wells.

All content on this page is correct as of September 26, 2017.