Bates Wells Briefing for Charities & Social Enterprises | 18 January

Our weekly round up of news and updates from across the sector.

Coronavirus – local authority grants

The Local Government and Social Care Ombudsman (LG&SCO), in report numbers 20 009 015 and 20 006 458, has found fault with the way that the London Borough of Camden dealt with two applications for Covid-19 business grants in 2020. The government guidance on administering the relevant grants stated that they could only be paid to the person who (according to the billing authority’s records) was the ratepayer on 11 March 2020.  And in relation to these applications, the Council had refused to pay the grants because the applicant was different to the recorded rate payer at those premises on 11 March 2020 – even though the Council had been made aware of the new ratepayer after that date.  The LG&SCO found:

  • The council to be at fault in its approach and in failing to offer either complainant a review of its decision or access to its complaints procedure.
  • That the government guidance would have allowed the council to have paid the grants where it had learnt of a change of ratepayer prior to 11 March 2020 but had not been notified until after this date.

The LG&SCO recommended that one applicant be paid £25,000 to reflect the council’s non-payment of the grant and that the decision to refuse the second applicant be reviewed and paid if he was eligible. The LG&SCO also urged other local authorities who may have adopted a similar approach to consider how they could deal with any complaints which may follow the publication of its report.

Also see below under Social Enterprise news.

Coronavirus – vaccination status of care home and other health care workers in England

The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) (No. 2) Regulations 2022 (SI 2022/15) were made on 6 January 2022.

  • From 7 January, individuals who have not previously been employed or engaged in the care home can be deployed if they have received a single dose at least 21 days before starting work. They must then obtain a second dose within 10 weeks of the first. And there is now an exemption for those taking part in clinical trials.
  • From 1 April 2022, further amendments under regulation 4 will extend the mandatory vaccination requirement to those working in “any other regulated activity” outside a care home. Regulated activities are listed in Schedule 1 of the 2014 Regulations, and include nursing and personal care, and most forms of health care including medical treatment, surgery, diagnostic services, ambulance services, midwifery and dentistry among other things. The vaccination requirement will not apply where the person is under 18, is clinically exempt, has no face-to-face contact with service users, or where the regulated activity is part of a “shared lives agreement”. Similar exemptions will apply in relation to clinical trials and new employees who have only received one dose of vaccine. 

Coronavirus – PPE

NHS trusts, primary care and adult social care providers will continue to receive Covid-19 PPE free of charge until 31 March 2023 or until infection prevention and control (IPC) guidance is withdrawn or significantly amended. Following customer testing and trial launch, a new improved portal for the procurement of PPE will be rolled out to all eligible users from April.

From 6 April 2022 the Personal Protective Equipment at Work (Amendment) Regulations 2022 (SI 2022/8) extend the duty of an employer to provide suitable personal protective equipment (PPE) where there is a health and safety risk, so that PPE will need to be provided to all workers not just employees. The prohibition on employers charging employees for PPE will also be extended to cover workers. “Worker” has the same definition as section 230(3) of the Employment Rights Act 1996 and the employer’s duty will apply during periods that a worker is working under their worker’s contract but not otherwise. The amended PPE Regulations follow the High Court’s judgment in R (Independent Workers’ Union of Great Britain) v Secretary of State for Work and Pensions and another [2020] EWHC 3050 (Admin), where it was held that, by excluding workers from protection, the UK had failed to properly implement Article 8(4) and (5) of the EU Health and Safety Framework Directive (89/391/EC) and the Council Directive on the minimum health and safety requirements for the use by workers of PPE at the workplace.


Charity Commission

Blog by CEO

Helen Stephenson has written a blog reflecting on 2021, and considering the year ahead from the commission’s perspective. Three key areas for the regulator in 2022 are likely to be:

  • Data – how the commission collects, uses and shares data
  • Communication with charities – including plans for a new online portal
  • The Charities Bill

Register of mergers

The register of mergers has been updated to include mergers from October to December 2021.


Community benefit societies

The Financial Conduct Authority has added a new Information Note to the Co-operative and Community Benefit Societies section of its forms page, on ‘Ending registration of a co-operative or community benefit society’.


Charities Bill

The Bill completed its passage through the Lords on 10 January, and moved into the Commons where it had its first reading on 11 January. The current version of the Bill can be found here and new Explanatory Notes are here. The second reading committee stage is scheduled for 18 January.

There is also a briefing paper which has been prepared for the Commons which can be found here; the landing page for this document also has a useful background summary.

Catch-up on our series The Charities Bill Explained, which explains what your charity needs to know and how to prepare.


Sector general

Dan Corry of NPC has written here for the Times “We need a reset between charities and government”. 

NPC also has this blog “Seeking social justice: People, power, and the law” which looks at using the power of the law (particularly judicial review) to seek social justice.  The blog flags that some groups bringing JR actions relied heavily on the generosity of funders and charities such as The Lankelly Chase Foundation and The Public Law Project (PLP) to provide cost protection and pro-bono services.


Climate change

ClientEarth has announced that it is applying for permission to apply for judicial review of the government’s UK Net Zero Strategy, published in October 2021. 

Friends of the Earth has announced that it has separately applied for permission to apply for judicial review of the Net Zero Strategy, also on the basis that it is in breach of the Climate Change Act 2008.

The European Commission has published a call for evidence on an initiative to encourage consumers to use goods for a longer time. The initiative aims to provide consumers with incentives and tools to allow them to make more sustainable choices, such as to repair defective products.

If you’ve been looking for practical ways to reduce your carbon footprint and extend your positive social impact, take a look at our quick guide to responsible supply chain management.


Safeguarding

The Welsh Government has published Working together to safeguard people: Code of safeguarding practice, setting out its expectations in relation to safeguarding arrangements for individuals, groups and organisations offering activities or services (such as youth clubs, childcare sessions or tutoring). 

Also see below under Education.


Fundraising

See under Scotland.


Contract law

The European Commission has published these sets of revised and new guidance on these three consumer protection directives:

The guidance will be of interest to UK traders selling to EU consumers, who will need to comply with the directives as amended by the EMD. However, traders selling just within the UK will also be interested in those parts of the revised guidance which summarise pre-Brexit case law which remains binding in the UK until either the relevant UK legislation is amended or the Supreme Court or the Court of Appeal (or their closest equivalent courts) decide otherwise. 


Execution of documents

The Wills Act 1837 (Electronic Communications) (Amendment) Order 2022 was laid before Parliament on 11 January 2022. The Order extends the time period for remote witnessing of wills until 31 January 2024 (the previous deadline being 31 January 2022) and comes into force on 1 February 2022.

The Ministry of Justice (MOJ) has stated that use of video technology should remain a last resort and people must continue to arrange physical witnessing of wills where it would be safe to do so. In the longer term, the MOJ will consider wider reforms to the law on making wills and its response to the Law Commission’s report on wills reform.


Property and public spaces

Last week we flagged the government’s response to the Protect Duty public consultation.  Bates Wells partner Jamie Huard comments “It’s worth noting that exemptions were suggested by respondents for charities and Publicly Accessible Locations run primarily or solely by volunteers, as week as for community groups and village halls and places of worship, particularly if they are small. There has also been a lot of concern raised regarding the expense involved in compliance for charities and voluntary organisations, including the potential to reduce participation in charitable work. There are clearly some key areas for charities in this potential duty and it will be important for charities to be aware of how this will impact them and their properties.”


Scotland

The Scottish Fundraising Standards Panel has rebranded as the Scottish Fundraising Adjudication Panel

In a new blog post, OSCR’s Head of Regulation and Improvement, Martin Tyson, explains the regulator’s role in awarding charitable status and provides further detail about its recent decision to award status to Stanton Healthcare (East of Scotland).


Health and social care

The Welsh Government has published a guidance document which sets out when people in Wales will need to pay for adult social services and how much they will cost.


Social enterprise news

Six social enterprise essentials: Why only common ownership can create system change. In the first of a series for Pioneers Post reflecting on the key principles defining social enterprise, Freer Speckley considers the importance of ‘common ownership’. The series draws on Spreckly’s recently published book, ‘Essential Social Enterprise: A just transition to a regenerative fair future’.

Applications open for the Unfound Accelerator to support start-up platform co-ops. UnFound Accelerator, a 10-week business development programme delivered by Co-operatives UK and supported by The Co-operative Bank, is open for applications until 6 March 2022 to help turn ideas for ethical digital businesses into successful platform co‑ops. Co-operatives UK published a press release here.

Co-operatives urged to apply as funds released for businesses impacted by Omicron wave. Co-operatives UK encourages co-ops experiencing difficulties because of Omicron to apply to local authorities for funding, noting that, although much of the public funding support for businesses is focused on the hospitality and leisure sectors, local authorities have some discretionary funding available and some have used discretion in earlier Covid grant schemes to support co-operatives and the social economy.


Social investment and social impact investing news

Why the Esmée Fairbairn Foundation is impact investing. Ben Smith, Head of Social Investment at the Esmée Fairbairn Foundation, writes for Alliance magazine about the Foundation’s deployment of a part of its portfolio into impacting investing, thereby strategically bridging the gap between its social investment activities and using part of its endowment for ESG investing.

Social Investment Business’ Recovery Loan Fund raises over £21m to support UK charities and social enterprises. Social Investment Business has secured four new investors into the Recovery Loan Fund, taking funds raised to date to £21.5m. Big Society capital provides an update.

Government removes community wealth fund amendment from Dormant Assets Bill. Civil Society Medial reports that, during the committee stage in the House of Commons, the government removed an amendment relating to the creation of community wealth funds from the Dormant Assets Bill, but acknowledged the widespread support for the concept and said that a consultation on the use of the English share of the funds would include community wealth funds as an option. NCVO and other charity sector organisations, as part of the Community Wealth Fund Alliance, supported the Lords amendment. For more, various organisations provided written evidence to the Public Bill Committee in relation to the Dormant Assets Bill, including the National Lottery Community Fund, here, and, jointly, Big Society Capital, Access – the Foundation for Social Investment, Fair4All Finance, and Youth Futures Foundation, here.

Tips and tricks for success in getting funding for your social enterprise. The Big Issue sets out their top tips for attracting social enterprise funding.

Development finance must mobilise trillions of dollars to fight climate injustice. Amal-Lee Amin, climate change director at CDC Group, discusses in an interview with Pioneers Post, the role of development finance institutions in finding the trillions of dollars needed to effectively tackle climate change, including through supporting the channelling of private investment.

How impact-driven innovation can unlock new market segments. Big Society Capital comments on how impact-driven financing models can unlock difficult to reach market segments, specifically in the context of financial inclusion.


Faith based organisations

See above under Property and public spaces.


International development

The UK’s Minister for Africa, Vicky Ford MP has announced a $10.7 million package of UK support for Somalis affected by extreme drought. The support is part of the £16.5 million package of UK support to countries in East Africa affected by extreme drought and flooding.


Education

Ofsted reports that following an investigation by its unregistered schools taskforce in 2021, a charitable trust, Yorkshire Tuition Centre, and two individuals pleaded guilty to running an illegal (unregistered) school. The illegal school, Aysha Tuition Centre (ATC), which claimed to be a tuition centre, was in reality providing up to 28 children with full-time education. ATC was located at premises previously used by a registered private school, Oak Tree High, which had closed because it was failing to provide pupils with a good education.

The DfE has published a consultation on proposed revisions to its statutory guidance ‘Keeping children safe in education’. The consultation closes on 11 March 2022. Schools Week summarises what schools need to know here.

Following a public consultation, the DfE has set out reforms to encourage more students to take up language GCSEs, helping to make the content more accessible for students.

The DfE has announced that its National Tutoring Programme delivered more than 300,000 tutoring courses last term, helping students to benefit from catch up tutoring in the first term of the academic year. The DfE states that the figures help to keep the Programme on track to deliver the ambitious target of two million courses this academic year.

The DfE has announced that hundreds of former teachers have signed up with supply agencies following the Education Secretary’s call for them to temporarily return to the profession to support face-to-face learning. Some teachers have already been placed back in the classroom during the first week of term.

To evaluate how Ofsted is engaging with the role of governance during inspection, the National Governance Association (NGA) is asking governors and trustees of schools that have been inspected by Ofsted since September 2021 to complete a short survey about their experience.

To support new clerks to governing boards in schools and trusts, the NGA has produced a suite of e-learning modules as well as template exemplars of key governance administration documents. The modules include topics such as arranging meetings, managing information and documents, and minuting meetings.

The National Association of Headteachers has published a new report ‘School business leadership in crisis? Making school business leadership sustainable​.’ The report highlights the many different pressures that the school business leadership profession is facing and makes a series of recommendations about what needs to change to make school business leadership a sustainable career choice.

Less than half of all UK universities have confirmed they will accept T Levels for entry this year. An FE Week investigation has also found many universities still yet to decide whether to accept T Levels despite there being less than two weeks before the UCAS deadline for 2022 admissions.

Following a consultation in 2021, the DfE has confirmed reforms on how local authorities’ school improvement functions are funded. The DfE is intending to remove the School Improvement Monitoring and Brokering grant, with Councils receiving new powers to top-slice local authority-controlled school budgets to cover the shortfall.


Resilience and recovery

Our Charity core services: reviews, health checks and training.

We understand the unprecedented issues that the sector has been facing. To aid recovery and build resilience amongst charities we have a range of services to offer.

Our reviews and health checks provide focussed support, with a report and route map to guide you towards best practice.

Our training gives the opportunity for the trustees and senior management to have a guided discussion about the key legal and regulatory issues affecting your organisation and how to tackle them.

Read more about our offering


Upcoming events

Trade marks Q&A, 20 January 11am

Join us for the opportunity to have your Trade Marks questions and problems answered in this free Q&A.

Mediation: An Essential Guide for HR Professionals, 24 February 3pm

We’re offering a free training session, delivered by specialist employment lawyers and accredited civil and commercial mediators. This will give HR teams and managers a clear understanding of the advantages of mediation, how it works in practice, and how to upskill managers and business partners.

Employment update, 23 March 3pm

This instalment of our popular series will keep you up to date with January and February employment law updates which directly impact your organisation.


Our Briefing includes our selection of news and legal items in the preceding week which we think may be of interest to charities and social enterprises operating in England.  Where it’s quick to do so, we flag if announcements are also relevant to other jurisdictions within the UK.


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 18, 2022.