Bates Wells Briefing for Charities & Social Enterprises

For our latest thinking on how Brexit is likely to affect charities and social enterprises, see our updated guide Brexit – where are we now? Before Christmas we mentioned the ICO has published a new Data Sharing Code.  Bates Wells’ Senior Associate Mairead O’Reilly has written here about what organisations need to know and what the key practical implications are for organisations sharing personal data.

Social Enterprise
Bates Wells highlights

At a glance

The Charity Commission has announced that it plans to consult this Spring on draft revised guidance on responsible investment, supported by a “refreshed interpretation of the law in this area”.

The government has updated its guidance on volunteering to reflect the lockdown restrictions that came into force on 6 January 2021.

The government is consulting on a new “Right to regenerate” which will enable the public to require councils and public sector to sell unused land and assets.

The Education Secretary has announced a “wholesale independent review of children’s social care”.

The government has set out a package of reforms in a wide-ranging new Reforming the Mental Health Act white paper. 

Coronavirus – government guidance for volunteering
The Department for Digital, Culture, Media and Sport has updated its guidance for organisations and groups in England on how to safely and effectively involve volunteers in their work during the COVID-19 pandemic to reflect the lockdown restrictions that came into force on 6 January 2021.

This now says that:

– people must volunteer from home, unless it is not reasonably possible for them to do so.
– A person who cannot volunteer from home can volunteer outside their home, provided they do not need to self-isolate for any reason and follow social distancing guidance or COVID-secure guidance if volunteering in a workplace. This also applies to clinically vulnerable people. However, clinically extremely vulnerable people should be supported to volunteer from home and should not volunteer outside their home.
– Where they are unable to volunteer from home, people can travel to volunteer or while volunteering in England. However, while travelling, they should stay local where possible (this means avoiding travelling outside of their village, town or the part of a city where their live, unless absolutely necessary). The safer travel guidance should be followed.
– While volunteering, people can meet in groups of any size, indoors or outdoors. However, volunteers who meet in groups or with others from outside their household or support bubble should be especially careful to follow social distancing guidance, or COVID-secure guidance if volunteering in a workplace.

The guidance also confirms that:

– Formal support groups are exempt from gathering restrictions up to a limit of 15 participants (aged 5 and older); however there is no limit on the number of volunteers. For example, 5 volunteers could support a group of up to 15 participants.
– Volunteers classified as being in critical worker roles can send their children to school or other educational settings.
– Accommodation such as hotels, B&Bs, campsites, holiday lets and guest houses, which are otherwise ordered to close, are permitted to open for people who need to stay for volunteering purposes.

The Department for Education has updated its guidanceCritical workers and vulnerable children who can access schools or educational settings, to clarify that, in England, parents and carers who are critical workers should keep their children at home if they can in response to the increasing numbers of COVID-19 cases across the UK and concerns around the numbers of children currently attending schools. It states that children with at least one parent or carer who is a critical worker can go to school or college if required, however.
The government has updated its guidance note, Providing apprenticeships during the coronavirus (COVID-19) outbreak, to reflect the lockdown restrictions that came into force on 6 January 2021 in England. The guidance now states that training providers, employers and end-point assessment organisations (EPAOs) must ensure that training and assessment takes place remotely wherever possible.

Coronavirus Job Retention Scheme
HMRC has updated its guidance on the Coronavirus Job Retention Scheme to confirm that employees may be furloughed if they are unable to work or are working reduced hours because of caring responsibilities which have arisen as a result of COVID-19.  The amended guidance states that caring responsibilities include caring for:
– Children who are at home as a result of the closure of schools or childcare facilities.
– A vulnerable individual in the household.

Coronavirus – business interruption insurance 
The Supreme Court has substantially allowed the appeal of the Financial Conduct Authority (FCA) on behalf of policyholders, meaning that thousands of policyholders should now have their claims for coronavirus-related business interruption losses paid out.  The FCA has published a press release on the judgment and proceedings on its website.  See also this Bates Wells bulletin for more information.
The FCA notes that most policies held by small and medium-sized enterprises only have limited cover for business interruption arising from property damage.  But for those who whose cover includes business interruption arising from other causes – such as infections disease, and prevention of access/public authority restrictions – some insurers had disputed liability.  The FCA selected a representative sample of 21 types of policy issued by eight insurers; in all 370,000 policyholders were identified as holding policies that may be affected by the outcome of the test case.   
The FCA has said that it will publish a set of Q&As for policyholders to assist them and their advisers in understanding the test case. The FCA will also publish a list of business interruption policy types that potentially respond to the pandemic.

Coronavirus – new mental health campaign 
Public Health England has launched a nationwide Better Health – Every Mind Matters campaign to support people to take action to look after their mental health and wellbeing and help support others such as family and friends. The campaign encourages people to get a free NHS-approved Mind Plan from the Every Mind Matters website. By answering 5 simple questions, adults will get a personalised action plan with practical tips to help them deal with stress and anxiety, boost their mood, sleep better and feel more in control.  The campaign is supported by a coalition of leading mental health charities, including Mind, Samaritans, Young Minds and Rethink. 


Brexit – where are we now?

We have updated our Brexit – where are we now?  guide for clients.  As well as a short introduction, it has up to date commentary on the position in areas ranging from data protection to procurement to immigration. 

EU trade

The House of Lords EU Services Sub-Committee has launched a new inquiry on the future of UK-EU relations on trade in services, including the impact of the provisions set out in the UK-EU trade and co-operation agreement.  The call for evidence explains that the service sectors of interest to the Committee’s inquiry include, but are not limited to:

  • Financial services
  • Professional and business services (including legal services, accountancy, auditing, architecture, engineering, advertising, market research, recruitment services).
  • Research and education.
  • Creative industries (including audio-visual services).
  • Data and digital services.

The Committee welcomes submissions from anyone with answers to the call for evidence. It is possible to submit evidence until 5 February 2021.

Charity Commission
Investment guidance
The Charity Commission has announced that it plans to publish draft revised guidance on responsible investment in the Spring for public consultation, supported by a “refreshed interpretation of the law in this area”. Last year, two of our clients, the Ashden Trust and Mark Leonard Trust, applied to the Commission for consent to seek declarations from the High Court on the nature of the powers and duties of the charities’ trustees when investing. We understand that the Commission has since, in the light of these applications, revisited the law on investment by charities, which has led to its refreshed interpretation. The Commission anticipates finalising its guidance this Summer. The announcement follows a listening exercise undertaken by the regulator last year

Tax and VAT
The Charity Tax Group, supported by the Charity Finance Group, has written to the Chancellor to submit Budget representations calling for an improved tax system for charities. 

Sector General
The government is consulting on a new “Right to regenerate”, which will enable the public to require councils and public sector to sell unused land and assets. The rights would apply to land, buildings, unused publicly owned social housing and garages

Data protection

New ICO Data Sharing Code
Before Christmas we mentioned the ICO has published a new Data Sharing Code.  Bates Wells’ Senior Associate Mairead O’Reilly has written here about what organisations need to know and what the key practical implications are for organisations sharing personal data.

Climate change
The Prime Minister Boris Johnson announced last week that the UK will commit at least £3 billion to climate change solutions that protect and restore nature and biodiversity over five years.

The Department for Education has published the guidance ‘Review your remote education provision’, which provides non-statutory guidance on remote learning provisions for schools. It applies in England only. The guidance allows schools to identify strengths in their remote education provision and to find resources, training, guidance and networks that could help them improve this. Similarly, Ofsted has published ‘What’s working well in remote education’, which it states is useful advice for leaders and teachers, aimed at helping them develop their remote education offer.
Amendments to school admissions appeals procedures will be maintained until 30 September 2021, after the government laid the School Admissions (England) (Coronavirus) (Appeals Arrangements) (Amendment) Regulations 2021 (SI 2021/14) (2021 Regulations) before Parliament. The 2021 Regulations amend the School Admissions (England) (Coronavirus) (Appeals Arrangements) (Amendment) Regulations 2020 (SI 2020/446), which allowed school admissions appeals in England under the School Admissions (Appeals Arrangements) (England) Regulations 2012 (SI 2012/9) to continue where the COVID-19 pandemic made it impractical to do so. The 2020 regulations were set to expire on 31 January 2021.

Children’s services
The Education Secretary has announced a “wholesale independent review of children’s social care” which will be led by Josh MacAlister, founder and Chief Executive of the social work charity Frontline. The Department for Education will publish terms of reference for the review, setting out the themes and questions that will be addressed and how it will respond to the changing needs of children in care or at risk of going into care, especially given the impact of the pandemic.
The Government will also respond to the consultation on unregulated provision, where the views of the sector and care-experienced young people were sought on banning the placement of children under the age of 16 in this provision and introducing national standards for provision for 16 and 17-year-olds.


The government has set out a package of reforms in a wide-ranging new Reforming the Mental Health Act white paper.  The paper builds on the recommendations made by Sir Simon Wessely’s Independent Review of the Mental Health Act in 2018.  Government says the reforms will:
– empower individuals to have more control over their treatment.
– deliver parity between mental and physical health services and put patients’ views at the centre of their care.
– tackle mental health inequalities including disproportionate detention of people from black, Asian and minority ethnic (BAME) communities
– look at use of the act to detain people with learning disabilities and autism, and
– improve care for patients within the criminal justice system.

Also see below under Rehabilitation of offenders.

Social investment and social finance news

Three guiding principles for investing our dormant assets for good – Nick Temple, CEO of Social Investment Business, writes for Pioneers Post following last week’s announcement that the government will be expanding the Dormant Assets Scheme, which uses money from dormant accounts and other financial products to support social and environmental initiatives across the UK, with up to a further £800m now becoming available. Nick sets out three principles for investing this money.
An open letter has been sent by a coalition of asset owners, stewardship service providers and asset managers with a collective £3trn AUM, led by CCLA Investment Management, to the Compass Group, seeking clarification over the pricing and nutritional benefit of Chartwells’ food parcels provided to children in lieu of free school meals whilst schools are not open. The signatories include: Trust for London, ShareAction, Friends Provident Foundation and Church Commissioners for England.  For more, Civil Society Media provides commentary.

Social enterprise news
Big Society Capital’s new £150,000 Ideas for Impact scheme is open for applications until 1 March 2021, and will provide up to £30,000 of development funding, plus in-kind support and connections, to ideas with “the greatest potential to have a transformative impact on a social issue at scale” in the UK. For more, Pioneers Post reports on the scheme’s launch.

Rehabilitation of offenders
The Lord Chancellor has set out how the government plans to support people with neurodivergent conditions such as autism and dyslexia, as well as those with acute mental health problems, within the criminal justice system.

International development

The House of Commons International Development Committee has published a report “Progress on tackling the sexual exploitation and abuse of aid beneficiaries”. 

Local authorities
The Local Government Association has published a Model Member Code of Conduct.  The Code of Conduct sets out the conduct that is expected of local authority members and specific obligations that establish instances where action will be taken. It has been designed to protect local authorities’ democratic role, encourage good conduct and safeguard the public’s trust in local government.

Campaigning and elections
Civil Society Media reports that, according to a survey conducted by the Sheila McKechnie Foundation, politicians have become more hostile to charity campaigning over the last twelve months,

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 January 21, 2021.