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Suhan Rajkumar
Associate
The Charity Commission (the Commission) published revised guidance on reporting serious incidents (SIs) on 17 October 2018. There are a number of changes from the previous version, so all charities should now familiarise themselves with the guidance. The key points to note a:
Associate
The basics: An explanation of what “significant” means in relation to an incident has been included, as this term is used frequently throughout the guidance. It means something “significant in the context of your charity, taking account of its staff, operations, finances and/or reputation.”
There is also a new sentence in the “Who should report” section to the effect that if a charity does not report an incident and the Commission later becomes involved, the trustees will then need to be able to explain why it was not reported at the time.
Trustee oversight: Although we don’t understand the position to have changed, there is increased emphasis on trustees (rather than only employees) being made expressly aware of matters that could constitute SIs and deciding whether a report should be made, e.g.
Safeguarding: There is a much more detailed section on safeguarding incidents, which has been moved higher up in the guidance and includes the Commission’s broader definition of safeguarding. Helpfully, the guidance says that a report is generally not required if there is an incident involving abuse of a beneficiary/staff member etc, but neither the abuse nor alleged abuser were connected to the charity’s activities in any way (unless the charity did not handle the matter appropriately and caused additional harm). This appears relevant where a staff member may be suffering harm in their personal life.
The guidance is clear that SIs may have to be reported in relation to workplace matters, but says “this does not mean that the Commission expects charities to report every internal staffing incident – charities need to make a judgement call about which incidents either individually, or as a collection, are serious in the context of the charity.”
There is an updated version of the examples table, with some completely new examples of what to report or not report. In relation to workplace matters, examples of incidents that should be reported are:
Examples of some things that may not need to be reported are:
Criminal reporting: The section on reporting criminal activity has been expanded and does contemplate that in ‘exceptional circumstances’ there may be examples of crimes that do not need to be reported. This includes “where the crime and the impact on the charity are minor for example one-off theft of a very small amount of money”.
Relationships with partners: Further specific guidance is promised on reporting safeguarding incidents in respect of partners. However, for now there is some new guidance about the Commission’s definition of a ‘partner’ and some new examples in the examples table. A charity should make a report if there has been an incident involving a partner “which materially affects your charity, its staff, operations, finances and/or reputation, such that it is serious enough to be reported.”
Under the “How to report” heading, there is a new paragraph about incidents occurring in more than one charity, including in federated structures, which explains that the incident should be reported by each of the charities involved. However, it also says that charities can agree for one of them to make the report on behalf of all of them if it makes it clear that it has the authority to do so and tells the Commission about the action that each of the charities are taking in response to the incident.
Bulk reporting: The wording here has been tweaked to suggest prior agreement is required from the Commission before adopting periodic/multiple reporting, which was not previously included. Charities which have previously been reporting in bulk, or consider that this may be appropriate, should reach out to the Commission in light of this.
Data protection/confidentiality: The data protection/confidentiality section has changed and seems a little less robust – it now says “the Commission often considers that sharing information is necessary in order to further its statutory functions and objectives and, in some cases, the Commission is required to share information by law. The Commission does not therefore routinely guarantee information provided will be kept confidential.”
Method of reporting: The associated press release also foreshadows a potential new digital tool for lodging serious incident reports and some checklists to sit alongside the guidance.
Whistleblowing and Duties of Auditors: These sections have been de-merged, with links to recent guidance under both headings.
The link to the new guidance is here.
Given the continued regulatory focus, all charity trustees should review the updated guidance and consider their reporting procedures.
Please contact BWB if you wish to discuss any implications of this guidance with you in more detail.
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 November 7, 2018.