Bates Wells Briefing for Charities & Social Enterprises | 27 November

Bates Wells highlights

Services
Charity
Sectors
Social Enterprise
Type
Update

CAF, UnLtd and Shift have published a new report “Unlocking More Philanthropic Capital for Social Investment: An exploration of best practice”. BWB’s Oliver Hunt and Luke Fletcher supported by providing the underlying legal analysis and contributing to the thinking contained in it.

As the role of a trustee constantly changes, our governance expert Tesse Akpeki is hosting a session which will clarify what is required of boards and trustees, examine the roles within a board and impart the principles behind good governance. Participants will focus on the impact of values, behaviours, attitudes and communication using social media. Click here to find out more and book your place.


At a glance

Labour peer Toby Harris, Lord Harris of Haringey, will be the new Chair of the Fundraising Regulator.

From 17 December, new regulations will give the Information Commissioner’s Office power to fine officers of a body corporate up to £500,000 for breach of the rules on the use of automated calling systems and unsolicited direct marketing.

The Advertising Standards Authority has upheld a complaint about a poster ad for National Lottery scratch cards.

The Department for Education has published updated statutory guidance on opening and closing local authority-maintained schools.

The Competition and Markets Authority has published its finalised advice on consumer law compliance for care homes.


Charity Commission

Report on reserves policies

The Commission has reported on a review of charity reserves policies that it undertook by selecting a random sample of 106 sets of accounts of charities with an income of over £500,000, for period ends in the year ended 31 December 2016, and released this press release. The Commission found that 97% of the charities referred to their reserves policy in their trustees’ annual report. However, more than a third of the charities did not provide all of the basic information required, with the level of reserves held being the most common omission. The Commission then used the information in each charity’s reserves policy and accounts to assess whether their stated level of reserves was accurate and found that less than a quarter of the charities had stated the correct figure in their annual report. (This was in part because a third of the charities did not include a figure for reserves).

The Commission says that as a result of this review it has updated its guidance on reserves, CC19, to bring it into line with Charities SORP (FRS102) and is considering whether a more wide ranging review of its guidance is needed. It says it will also use the findings from this review to inform the Joint Chairs of the SORP-making body and will recommend that the SORP-making body considers being more directive about how the new Charities SORP defines reserves and the information that charities are required to provide in their trustees’ annual reports and accounts.


Governance

See here for a video clip of BWB’s Tesse Akpeki from the NCVO Conference. Tesse is discussing harnessing conflict and why conflict on a board can be a positive thing.


Data protection and data

New powers to fine individuals for breach of PECR

On 16 November 2018, the government laid draft regulations amending the Privacy and Electronic (EC Directive) Regulations 2003 (SI 2003/2426) (PECR). The amendments will enable the Information Commissioner’s Office (ICO) to fine officers of a body corporate up to £500,000 for breach of the PECR rules on the use of automated calling systems and unsolicited direct marketing. Officers will be liable where they have consented to or connived in the breach or it is attributable to their neglect. The Regulations amending PECR will come into force on 17 December 2018. In terms of official guidance, the government states that the new statutory code on direct marketing will reflect the amendments.


Fundraising

Fundraising Regulator

Labour peer Toby Harris, Lord Harris of Haringey, will be the new Fundraising Regulator Chair. Lord Harris’ role will start on 1 January 2019 when current chair Lord Grade’s term comes to an end. For details of Lord Harris’ relevant experience, see here.

The Fundraising Regulator (FR) has announced a change of policy re naming charities it investigates. For complaints received after 1 March 2019, the FR will name all organisations it investigates, whether the complaint is upheld or not. To date, the FR has mostly published anonymised summaries of investigations. This new naming policy will not be applied retrospectively and when the FR publishes its decisions, it will “recognise the organisations that have cooperated fully with our investigation and any actions they have taken to learn from the complaint, whether it is upheld or not”.

Code consultation

NCVO has published a summary of its main thoughts on the recent Code consultation.

Advertising

The Advertising Standards Authority has upheld a complaint about a poster ad for National Lottery scratch cards on the basis the poster was displayed outside a school and was therefore arguably directed at children under 16 years of age.


Education

Schools

The government has announced a “pioneering” new approach to assessing pupils with complex disabilities is to be introduced in schools.

A series of programmes aimed at recruiting experienced business leaders and talented PhD graduates into the classroom are to receive more than £10million to build on their success. School Standards Minister Nick Gibb has announced that three organisations – Now Teach, Cognition Education and The Brilliant Club – will be backed by a £10.7million investment to recruit and support up to 600 teachers over the next two years.

The Department for Education has published updated statutory guidance on opening and closing local authority-maintained schools. This guidance updates the previous 2016 version and also replaces the DfE guidance “Making significant changes to maintained schools”. The guidance titled “Deciding prescribed alteration and establishment and discontinuance proposals” has also been removed from the GOV.UK website by the DfE following the publication of updated guidance in October 2018. The statutory guidance on opening and closing local authority-maintained schools will be reviewed in November 2019.

Higher education

Dame Shirley Pearce has been named as the independent reviewer of the Teaching Excellence and Student Outcomes Framework (TEF), which reviews teaching and graduate outcomes at universities, rating them as gold, silver or bronze.

Bates Wells’ Natalie Knight and Natalie Ali have written an article for the Autumn edition of the Linked, the London Universities Purchasing Consortium (LUPC) magazine. In the article they explore the wealth of untapped potential students offer in developing new ideas and inventions. Such potential is already in place in the form of technology transfer. The article further explores how universities could support students in cultivating such ideas to bring benefit to both students, universities and society as a whole. Please click here to read the full article.

Youth services

The Department for Education and the Department for Digital, Culture, Media and Sport have published statutory guidance for local authorities in England and their duty to provide appropriate local youth services to improve young people’s well-being (for example, through volunteering, the provisions of sports, arts and music activities, and by raising their aspirations). The guidance covers young people aged 13 to 19 and those with learning difficulties up to the age of 24.


Health and social care

People with health conditions are to receive further support to manage their health conditions at work. Almost £4 million of funding under the new Work and Health Challenge Fund will be shared between 19 successful projects. The fund is the latest in a series of government measures which form part of a 10-year strategy to get one million more disabled people in work by 2027. Projects include a new mobile phone app which aims to ease lower back pain by giving sufferers a personalised self-management plan; and an app to help individuals understand signs of mental ill health, including access to a Vocational Rehabilitation trained advisor.

The Department of Health and Social Care has published guidance for NHS trusts and foundation trusts providing emergency departments, urgent treatment centres and inpatient services on the duty to refer service users who may be homeless or threatened with homelessness to a local housing authority.

The Competition and Markets Authority (CMA) has published its finalised advice on consumer law compliance for care homes. Alongside the finalised advice, the CMA has published the responses to its consultation, indicating how it has dealt with the points raised, as well as a short guide for businesses, an open letter to care homes and a short guide for residents and their families. The guidance focuses on the following main areas:

  • Upfront information. What upfront information care homes should give to potential residents and their families and when (through websites, over the phone and when people visit). In response to comments, the CMA has clarified that, when provided on websites, required information must be no more than one click away from the main home page. The requirements to state staff to resident ratios has also been amended.
  • Contract terms and business practices. How to make sure that contract terms and the way residents and their representatives are treated is fair. In response to feedback, the CMA has added more examples of terms likely to be fair or unfair but stresses that this is ultimately a matter for the courts, taking all circumstances into account.
  • Quality of service and complaint handling. The requirement to use reasonable skill and care is linked to sector regulatory requirements. In relation to complaints, the guidance sets out how to handle complaints fairly and ensure the complaints procedure is easy to find and use.

The CMA will carry out a sector review in November 2019, to assess whether care homes are complying with the new advice and, in the meantime, may take further action if it finds any care homes mistreating residents and breaking the law.


Social finance

CAF, UnLtd and Shift have published a new report “Unlocking more Philanthropic Capital for Social Investment: An exploration of best practice”. BWB’s Oliver Hunt and Luke Fletcher  supported by providing the underlying legal analysis and contributing to the thinking contained in it.


Housing

See under Health and social care above.

The Ministry of Housing, Communities and Local Government has published statutory guidance on improving access to social housing for victims of domestic abuse.


Heritage

See here for the Speech by the Minister for Arts, Heritage and Tourism, Michael Ellis, to the Annual General Meeting of Historic Houses.


Environment

The Environment Agency has published guidance on the closure of the CRC Energy Efficiency Scheme (CRC). The CRC is not being replaced. The new streamlined energy and carbon reporting (SECR) regime under the Companies Act 2006 will extend current requirements for reporting on carbon dioxide (CO2) emissions and energy use in company annual reports. It is anticipated to apply to a number of private sector CRC participants, although it will not apply to public sector organisations.


Animal welfare

The government has published policy paper, Animal Health and Welfare Framework (2018) to help county councils, unitary authorities and metropolitan boroughs in England deliver their statutory duties in relation to the health and welfare of farmed animals. Defra, APHA: Animal Health and Welfare Framework (2018), 8 November 2018.


Advertising

See under Fundraising above.

The ASA has not upheld complaints about a cinema ad for the domestic abuse charity, Women’s Aid Federation of England. The complaints were that the ad caused excessive distress and that the scheduling had been irresponsibly targeted.


Equality

The Government Equalities Office has published a Review of the Equality and Human Rights Commission. In summary, the Review found that the EHRC is not meeting its potential.


Procurement

The Technology and Construction Court (TCC) (O’Farrell J) has ordered two successful tenderers to disclosure their full tender documents to a confidentiality ring in order to ascertain whether there had been discrepancies in the way in which these were evaluated by the contracting authority (the Ministry of Justice). The case relates to a Ministry of Justice procurement exercise for the award of a single contract, or regional contracts, for the delivery of approved enforcement agency services on its behalf. The claimant (M) challenged the procurement exercise on the basis that there had been defects in the evaluation process. The TCC required the full tender documents to be disclosed to the first confidentiality ring comprising the parties’ legal teams. This decision is of interest as it clarifies when a successful tenderers’ documentation should be disclosed and for what purpose. (Marston Holdings Ltd v Ministry of Justice (HM Courts and Tribunals Service) [2018] EWHC 3168 (TCC).)


Scotland

The Office of the Scottish Charity Regulator has published updated guidance on:


All content on this page is correct as of November 27, 2018.