Bates Wells Briefing for Charities & Social Enterprises | 15 September

Bates Wells highlights

Services
Charity
Sectors
Charities, Social Enterprise
Type
Updates

Consent to use of data

See here for an article by Bates Wells’ Alex Jameson which looks at the latest guidance from the European Data Protection Board, and in particular the Regulators’ approach to ‘cookie walls’ and ‘scrolling and swiping’ as methods of obtaining consent.


At a glance

The Fundraising Regulator has updated its guidance for charities with income over £1m on including fundraising statements in their annual reports. 

The Information Commissioner’s Office (ICO) has confirmed that its Age Appropriate Design Code, known as the Children’s Code, came into force on 2 September 2020.

The Advertising Standards Authority has issued a reminder “Collect Clothes, Not Complaints: Charity collection bags”.  


Coronavirus – government funding

The government has announced that businesses in England that are required to shut because of local interventions will now be able to claim up to £1,500 per property every three weeks.  Whilst it is not explicitly made clear whether these grants will be available to charities in lockdown zones, we think they may be because previous government support that was available to businesses has also been made available to charitable organisations.  We will look out for clarification of this

Deadline approaching for the Resilience and Recovery Loan Fund. The Resilience & Recovery Loan Fund has so far approved funding for 25 charities and social enterprises, with a total value of close to £10m. Further funding is available with a deadline for applications at the end of this month, after which the fund will close to new applications.


Coronavirus – “six people” rule and charities

As you’ll know, since  Monday 14 September, when meeting friends and family you do not live with you must not meet in a group of more than 6, indoors or outdoors.  The permitted exceptions where groups can be larger than 6 people, include the following which may be relevant to charities:

  • for work, and voluntary or charitable services;
  • for education, training, registered childcare, or providers offering before or after-school clubs for children; 
  • participate in children’s playgroups; 
  • wedding and civil partnership ceremonies and receptions, or for other religious life-cycle ceremonies – where up to 30 people will be able to attend;
  • funerals – where up to 30 people will be able to attend; 
  • organised indoor and outdoor sports, physical activity and exercise classes (see the list of recreational team sportsoutdoor sport and exercise allowed under the gyms and leisure centre guidance;
  • youth groups or activities;
  • elite sporting competition or training; and
  • protests and political activities organised in compliance with COVID-19 secure guidance and subject to strict risk assessments.

Civil Society Media reports the Chartered Institute of Fundraising (IoF), is seeking clarification from the government on the impact of the “six people” rule on fundraising events.  


Coronavirus – new obligation on venues

From Friday 18 September, businesses and other public settings where people meet socially including hospitality, close contact and leisure venues must record contact details of customers, visitors and staff on their premises. Previously the government guidance was only advisory.

The government is urging businesses to ensure they have NHS QR code posters visible on entry so customers who have downloaded the new NHS COVID-19 app can use their smartphones to easily check-in.


Coronavirus – health

Public Health England has launched a new “Every Mind Matters” mental health campaign supporting the wellbeing of children, young people and their parents. The new advice has been developed in partnership with leading children and young people’s mental health charities, including Young MindsThe MixPlace2Be and The Anna Freud Centre.


Remote witnessing of wills – coronavirus

Legislation has been laid before Parliament which allows wills to be witnessed by videoconferencing or other visual transmission. This is a temporary measure, designed to allow testators to make wills despite the coronavirus restrictions.  It will apply to wills made between 31 January 2020 and 31 January 2022. The Ministry of Justice guidance on the legislation advises that where people can make wills in the conventional way they should continue to do so. The legislation doesn’t affect grants of probate made before it comes into force, on 28 September 2020. 

See here for comment from Bates Wells’ Leticia Jennings that the new rules may lead to a new stream of validity challenges down the line, which charities should ensure they are equipped to deal with.


Companies House – coronavirus

All the Companies House insolvency forms can now be uploaded via its “Upload a document” service.  


Charity Commission

Inquiry Report

Name of organisationBrief descriptionAnything unusual e.g. unusual facts or novel/rare use of commission’s powers
Believe in Magic (former registered charity 1145557)
Inquiry report
The charity’s objects were to relieve the needs of children and young people in the UK suffering from serious or terminal illness and their family and carers.A Commission compliance case was opened due to concerns about potential private benefit by trustees or connected parties and the late submission of the charity’s accounts. When the Commission arranged to visit the charity, none of the trustees made themselves available to attend the meeting.An inquiry was opened which found that a collective failure by the trustees to fully cooperate with the inquiry prevented a full investigation of whether, and to what extent, the charity was operating in furtherance of its charitable objects and for the public benefit.The Commission removed two trustees who did not engage with the inquiry and served an order on the remaining trustee to wind up the charity and transfer any remaining property to a charity with the same purposes.The inquiry received a voluntary undertaking from the remaining trustee not to be a trustee and/or hold an office or employment with a senior management function in any charity for a period of five years.There has been sector and national media coverage of the inquiry report due to the charity having previously been promoted by the band One Direction, see here for example. 

Tax and VAT

Changes to VAT and charity advertising – further updates from HMRC

HMRC has recently amended its views on the meaning of “targeted” advertising, after correspondence with the Charity Tax Group (CTG) (please see here for previous Bates Wells commentary). HMRC has now issued Brief 13 (2020), to confirm the views it had set out in its letter to the CTG.

In addition to the positive concessions in the original letter, the HMRC Brief has gone further, and now accepts that “location targeting” also falls within the VAT zero rate. This covers situations where individuals opt in to provide location data, and the data is later combined into large datasets, so that advertisers can target audiences who have visited particular areas when they browse elsewhere (with no personal data being collected).

This is positive news for the sector, and brings the existing policy more in line with modern technological developments. Ultimately, changes to the VAT legislation will still be needed, to better reflect current developments.

Creative Tax Reliefs

Charity Tax Group reports HMRC has updated its guidance on the Creative Tax Reliefs, to reflect the impact of furlough money.


Safeguarding

See under Scotland below.


Data protection

Consent to use of data

See here for an article by Bates Wells’ Alex Jameson which looks at the latest guidance from the European Data Protection Board, and in particular the Regulators’ approach to ‘cookie walls’ and ‘scrolling and swiping’ as methods of obtaining consent. 

Services likely to be accessed by children

The Information Commissioner’s Office (ICO) has confirmed that its Age Appropriate Design Code, known as the Children’s Code, came into force on 2 September 2020 and it has launched a Children’s Code hub. The Children’s Code is a statutory code of practice that applies to organisations providing online services and products likely to be accessed by children up to the age of 18. There is now a 12 month transition period to allow organisations to make the necessary changes to ensure that the 15 standards set out in the code are incorporated into their design processes and subsequent development and upgrade processes. See here for an update on navigating the rules around children’s data from Bates Wells’ Mairead O’Reilly.

ICO fines

The ICO has fined a company £130,000 for unauthorised pensions cold calls.  The fine was issued under the Privacy and Electronic Communications Regulation (PECR).


Fundraising

Updated guidance on fundraising statements in annual reports

It is a legal requirement under the Charities (Protection and Social Investment) Act Act 2016 for charities registered in England and Wales with a gross income of over £1m to include certain statements about fundraising in their annual report. The Fundraising Regulator (FR) has published the results of its latest review into charities’ compliance with these fundraising reporting requirements and has updated its guidance to support charities to meet the requirements.

The FR has concluded that although many charities with income over £1m are reporting on their fundraising approach, of concern is that many are not reporting on their monitoring of third parties, protecting vulnerable people, their commitment to voluntary regulations and complaints received.  The review also found that only 21% complied with all six of the fundraising reporting requirements.

Current fundraising climate

See this guest blog for the Charted Institute of Fundraising “How we can shape giving and fundraise post-coronavirus”.  The blog is based on research into how donation trends may be impacted. 

House to house clothing collections

The Advertising Standards Authority (ASA) has issued this reminder “Collect Clothes, Not Complaints: Charity collection bags”.  It includes a link to the 2017 ASA guidance for commercial participators carrying out house to house collections.  


Education

The Department for Education has:

  • published a policy paper setting out a package of support for students who have had to defer their university studies due to the impact of COVID-19. The paper includes information on opportunities available in the public, private and voluntary sector; and
  • updated its guidance on the reopening of higher education settings to include advice from SAGE and to include the NHS Test and Trace handbook.

Ofqual has, following a consultation, announced that awarding bodies of vocational and technical qualifications can adjust their qualifications and assessments next year to take account of lost teaching and training time due to COVID-19.

Grammar schools have been warned not to discriminate against disabled children during this year’s 11+ entry exams. This follows an appeal funded by the Equality and Human Rights Commission where a child, who was visually impaired and had an Education Health and Care Plan, had not had necessary adjustments made by a school in order for him to take the 11+ entry exam, with the refusal to do so on the grounds of the additional expense for the adjustments. The First-tier Tribunal (Special Educational Needs and Disability), concluded that the school was responsible for making sure adjustments were in place. If applying through a consortium, there should be a written policy in place to set out how adjustments should be made for disabled children to take the exam. 


Social finance and impact investing news

Trustees no longer accept choice between ethical investment and financial returns. Civil Society Media reports on presentations made by speakers at its Faith Week conference, including comments by an asset manager that has started a new climate stewardship fund and a representative of a faith organisation, that charities don’t have to accept a trade-off between investment ethics and good returns.

Pioneers Post reports on presentations made at the Global Steering Group (GSG) Global Impact Summit, including from International Monetary Fund (IMF) managing director Kristalina Georgieva about the changes needed to create a sustainable world economy (IMF boss says impact investing can ‘shape post-Covid world’) and from the current and former GSG chief executives, Cliff Prior and Sir Ronald Cohen, about the predicted growth of impact investments to $1trn this year (Sir Ronald Cohen: ‘We’ve reached impact investment tipping point’).

Preserving and transforming affordable credit provision during the pandemic. Holly Piper, Investment Director at Fair4All Finance, provides commentary on the impact of lockdown on the affordable credit sector, and how Fair4All Finance has responded.

Strong social infrastructure can level up left-behind places: here’s how. Social Investment Business’ Policy Lead, Will Thomson, highlights the connection between the ‘left behind’ UK communities that have fared worse in the pandemic due to a lack of social infrastructure, and the learnings from the Futurebuilders England Fund and the role of social investment in ‘building back better’.


Public procurement

The High Court has given a verdict relevant to when and how commissioners may disqualify bidders from tender processes. (Stagecoach East Midlands Trains Ltd and others v Secretary of State for Transport)Several bidders for rail franchises were disqualified by the Department of Transport. The Invitation to Tender stated that bids that sought to transfer risks back to the government would be non-compliant, and that it had discretion to disqualify any such bids. Due to concerns about the treatment of pensions’ liabilities, the claimants submitted bids seeking to push pension risk back to the government, who disqualified their bids. Bates Wells’ David Hunter explains “Relevant points from the case are:

  • A commissioner has a wide discretion in establishing what will constitute non-compliance and grounds for disqualification. Here there was no breach of the duties of transparency and fairness, as the terms fell within that wide discretion. 
  • The law does not limit the size of risk that can be proposed under a contract. Claimants are free not to bid if the terms are unattractive. Any uncertainty of outcome did not engage the principle of transparency so as to make the imposition of the risk unlawful. 
  • The principle of proportionality did not require a contracting authority to contract on terms that were most favourable (or even acceptable at all) to potential bidders. 
  • In general, it was for the contracting authority to determine the nature and extent of contracts it wished to enter into, and not the court.

The judgment also offers useful observations of the law on related procurement issues.”


Scotland

OSCR will be hosting a webinar on 1 October on the subject of “Keeping your charity safe online”.

Safeguarding

The Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill seeks to provide financial redress to people who were abused in relevant care settings before 1 December 2004.  The Bill looks to set up a financial redress scheme which offers an alternative to the civil courts. It makes provision for a new organisation called ‘Redress Scotland’. People who were abused (or in some cases their next of kin) will be able to apply for a redress payment with an £80,000 upper limit.


Disclaimer – The information contained in this update is not intended to be a comprehensive update – it is our selection of the website announcements 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 15, 2020.