Over the years it can be expected that there will be some changes to your charity. There may be changes to the people managing the charity, for example as Charity Trustees resign and new Charity Trustees come on board, or if people move address, and their contact details change. Your group might need to change direction, make changes to the activities or administration of services.
In some cases charities will have been established a long time ago when the people responsible for setting them up had little idea of how things might change. Often, charities will need to adapt the way they operate to reflect changes in society and the context in which they work.
For most charities, their governing document (or constitution) will clearly set out the Trustees power to make changes. As a charity on the Scottish Charity Register, some changes will require your Trustees to notify the Office of the Scottish Charity Regulator (OSCR), whilst others, legally require you to seek OSCR's prior consent (that is, ask their permission before the changes can take place).
Notification and Consent procedures can only be followed when your charity’s constitution clearly gives your Trustee’s the powers to make the changes you are wanting to make in the first place. Where your charity’s constitution does not give your Trustee’s the power to make changes, your charity can seek intervention from OSCR under the Reorganisation Schemes.
Seeking prior consent from OSCR
Charities on the Scottish Charity Register must seek OSCR’s consent at least 42 days prior to making any of the following changes:-
- changing the name of the charity
- changes to the charity’s governing document but only where these changes relate to the charitable purposes of the charity
- winding-up or dissolution of the charity
- amalgamating with another charity or body (in which case each charity needs to apply for consent and needs to remember that consent for this does not give any assurance that the new body will meet the charity test – the new body will need to consequently apply separately for charitable status)
- changing the charity's legal structure (for example from a trust to a SCIO or from an unincorporated association to a company) - there is an ‘all in one’ consent process for this which will enable the charity to keep its charity registration number
If your group is considering any of these changes they should use the correct consent form (available on OSCR’s website together with guidance). Once OSCR’s permission has been granted, your group should follow your governing document's rules on presenting the proposed changes to the members. Any meeting where the changes are formally adopted should be properly minuted as a record of making the change. You are also required to notify OSCR once the changes have been formally adopted by your members.
Charity Trustees have a legal duty to notify OSCR immediately of any changes to your charity's principal contact details.
You must notify OSCR within 1 month after the following changes take place:-
- the appointment of a receiver in respect of the charity’s property (assets)
- any administration order or any order for the winding up or dissolution made by the court in respect of the charity
Charity Trustees also have a legal duty to notify OSCR no later than 3 months after any of the following changes have taken place:-
- any changes to details on the Scottish Charity Register (for example a change to the charity's website address)
- any changes to your charity’s financial year end
- any changes to your constitution (unrelated to the charity's purposes)
- confirmation of any changes for which OSCR has given prior consent
OSCR Reorganisation Schemes
Where a charity does not have the power to make changes themselves, they may apply to the Office of the Scottish Charity Regulator (OSCR) for authority to make changes under the Reorganisation schemes. A charity may be unable to make changes itself because:-
- their governing documents may have become out of date
- their governing document does not give the Trustees powers to make changes
- the original governing document cannot be found
- original conditions placed on 'restricted funds' have become outdated
The guidelines and processes for Reorganisation are set within the legal framework of The Charities and Trustee Investment (Scotland) Act 2005, The Charities Reorganisation (Scotland) Amendment Regulations 2012 and The Charities Restricted Funds Reorganisation (Scotland) Regulations 2012.
There are two types of re-organisation:-
- Charity Reorganisation
- Reorganisation of Restricted Funds
Charity Reorganisation Schemes
Charity Reorganisation schemes affect the charity as a whole and fall into three types of significant changes:-
- making changes to the terms of the charity’s constitution (whether or not in relation to its purposes)
- dissolving and passing on funds to another charity
- amalgamating with another charity
In these circumstances, a charity may apply to OSCR under the Charity Reorganisation Schemes.
A charity seeking to make changes under the Charity Reorganisation Schemes needs to be meet at least one of seven reorganisation conditions, and the changes made should result in one of two identifiable outcomes for the charity.
The reorganisation application should be made by either the charity trustees (or by someone acting on behalf of the charity trustees). The process timescale will depend on the size of the charity and the complexity of the reorganization, but can take up to 6 months for larger charities.
Public notification of the application will be by publication on the OSCR website for a period not exceeding 42 days (and for larger charities with an income of £250,000 (or more) additional advertisement in a local or national newspaper).
For full details of the Charity Reorganisation Schemes visit the OSCR website.
Restricted Funds Reorganisation Schemes
This type of reorganisation applies exclusively to funds held by the charity.
Restricted Funds Reorganisation schemes can enable charities to:
- change the purpose for which the fund/s may be used and/or
- change or remove the conditions imposed on the charity on how it can use the fund/s
Restricted Funds refer to assets/property (including land, buildings, vehicles and money) that have been given to a charity for a specific purpose with conditions on how they should be used.
Under The Charities Restricted Funds Reorganisation (Scotland) Regulations 2012, charities (registered in Scotland) may apply to OSCR to approve the reorganisation of restricted funds. This will unlock the funds to be spent for ammended purposes and/or with ammended conditions.
Any charity applying under the Restricted Funds Reorganisation Scheme must satisfy OSCR that
- their proposal meets one of the specified reorganisation conditions
- their proposal meets with the specified reorganisation outcome.
- they have been unable to establish what the original donor of the funds wants to do.
For all but very small funds, information about the proposed reorganisation will be published and members of the public will be allowed to express their views.
For very small funds, there is a simplified application process.
For full details and guidance on the Reorganisation of Restricted Funds visit the OSCR website.
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Last Updated 04/02/2013 12:12