THE ROLE OF THE CHARITY TRUSTEE

This Fact Sheet is aimed at anyone who has recently been nominated, elected or appointed as a Trustee of a Charity.

1   SOME DEFINITIONS TO START WITH

2   TYPES OF CHARITY

There are a number of different types of charity but, currently, the three most common are:

• an unincorporated association (also known as a voluntary association or club);
• a charitable trust (a Deed of Trust usually granted by one or more individuals); and
• a guarantee company (incorporated under the Companies Act 1985, as amended).

A new type of charity (which is expected to be available only from 2007), has been introduced in the CTI(S) Act, namely:

• a Scottish Charitable Incorporated Organisation (SCIO) - intended as a more convenient ‘off-the-shelf’ alternative to the guarantee company for smaller charities which seek limited liability without incurring large set-up costs. It is not subject to the Companies Acts, but is to be regulated by OSCR. See our separate Fact Sheet entitled ‘What is a SCIO?’. Nearer the time, We will provide a more detailed Fact Sheet on the SCIO, which also will list its advantages and disadvantages as against a guarantee company.

A Community Interest Company (CIC) has been introduced by The Companies (Audit, Investigations and Community Enterprise) Act 2004 and is intended for social enterprises and for small-scale community-based social entrepreneurs, but is not available for charities.

We are always happy to advise on which type of charity is most suitable in each case.

3   TYPES OF CONTROLLING BODY

The CTI(S) Act defines Charity Trustees as "the persons having the general control and management of the administration of a charity" (section 106). A Charity Trustee of any type of charity is part of the controlling body responsible for its overall control, strategy and, except perhaps where there are senior managers employed by the charity, its management too.

That controlling body may be called a number of different labels, including:

• Board of Directors
• Board of Trustees
• Board of Governors
• Management Committee
• Executive Committee

but in this Fact Sheet is referred to collectively as ‘the Board of Trustees’ and individually as ‘the Charity Trustee(s)’.

Even in the case of a guarantee company, it is usual to call the Board a 'Board of Trustees'. In this case the Charity Trustees are actually Directors of a limited company, but the label 'Director' is usually avoided owing to its connotations of salary, bonus and other profit schemes, which are inappropriate to the charity world. The position can be further confused by the practice of some charities who call their principal employee "the Director", in preference to "Chief Executive" or other label. However, it is important to remember that Trustees of a guarantee company, whatever their label, are also Directors and have responsibilities imposed upon them by the Companies Acts.

Although Trustees acting under a Deed of Trust and the Management Committee of an unincorporated association do not have these statutory responsibilities as Directors, the CTI(S) Act makes no distinction and expects the same level of understanding, direction and responsibility from all Charity Trustees and it is on this basis that the remainder of this Fact Sheet explains the role and responsibilities of the Charity Trustee.

4   TYPES OF MEMBERSHIP

An organisation intending to be a charity can either be two-tier (with an ‘open’ membership) or single-tier (with a ‘closed’ membership).

A charity with an open membership has a two-tier structure, the first tier being the Members and the second tier being the Board of Trustees (who in the main will be selected by democratic election from the membership). Open membership will usually mean that anyone interested in the charity’s Charitable Purposes may become a member, but this is not necessarily the case and it is quite possible to restrict open membership by applying certain criteria such as requiring voting members to be residents of a particular community.

A charity with a closed membership has a single-tier structure, where the Members and Charity Trustees are one and the same people (and with new Charity Trustees probably being appointed by the existing Board of Trustees in what is termed a ‘self-appointing oligarchy’).

A charity must always consider whether it is necessary and appropriate to have members and, if so, what advantage there is to a member in being involved as a member of the charity. Any restrictions on membership will have to be considered carefully, so as to ensure that they are not too restrictive, especially where the members of the charity are also its main beneficiaries.

5   WHO CAN BE A CHARITY TRUSTEE?

In Scotland any individual, of any nationality, aged 16 or over can be a Charity Trustee.

Section 69 of the CTI(S) Act lists those who cannot be Charity Trustees, namely anyone who is:

• convicted of an offence involving dishonesty (unless the conviction is spent).;
• convicted of an offence under the CTI(S) Act;
• an undischarged bankrupt;
• removed from being concerned in the management or control of any charity by the Court of Session
• removed from the office of charity trustee by the Charity Commissioners for England and Wales or by the High Court of Justice in England
• disqualified by the Court from acting as a company director by virtue of the Company Directors Disqualification Act 1986 (see Section 11 below).

6   SELECTION AND APPOINTMENT OF A NEW CHARITY TRUSTEE

How a potential Charity Trustee is selected for consideration as a candidate will perhaps depend on how dynamic the charity is. The more dynamic and the higher its profile, the easier it should be for a charity (and specifically its Board of Trustees) to recruit new Charity Trustees. Conversely some charities, perhaps relatively small and working in a less glamorous sector, may find that they receive few approaches which means that they have to be pro-active in their search for candidates, by word of mouth, through personal contacts or as a result of advertising.

It is helpful to the process if a charity has an idea of the profile of the type of candidate it seeks in respect of the skills appropriate to its own work and taking account of the existing skills already on its Board of Trustees. Increasingly, a candidate is asked to submit a CV or, in the case of democratic elections, a statement (perhaps up to 150 words) to support his/her candidature (particularly relevant for charities where the members do not know each other). In general, a Charity Trustee should be selected because of what he or she can contribute by way of skill, knowledge, contacts and expertise.

Section 66(5) of the CTI(S) Act gives a Board of Trustees a collective responsibility to ensure that a breach by any one Charity Trustee is "corrected ... and not repeated", or if the breach is serious or persistent that the Charity Trustee in question is "removed". Because of this, it will be necessary for the Board of Trustees to consider obtaining a written Declaration from any new Charity Trustee which, at the least, confirms:

• his/her identity;
• that he/she is not disqualified from acting as a Charity Trustee (see Section 5 above); and
• that he/she has read and understood any guidance issued by OSCR about Charity Trustees and agrees to undergo an induction process with the charity.

We can advise on the content and terms of such a Declaration on a case-by-case basis.

If, additionally, the new Charity Trustee is a director of a charitable guarantee company, a Form 228a will require to be completed and signed by him/her to confirm his/her consent to act as a company director.

How a Charity Trustee is appointed will depend upon the type of charity in question, its constitution and whether it is a membership (two-tier) body. The main ways of appointment are:

• election democratically by the membership (usually at the annual meeting);
• nomination by a specific outside organisation authorised to do so by the terms of the charity's constitution (for example, a Local Authority or Community Council having power to nominate one of its Councillors onto the Board of Trustees) - but see below;
• appointment by the Board of Trustees, where there is no membership, so that the Board appoints a new Charity Trustee each time a vacancy arises (as a 'self-appointing oligarchy');
• co-option by the Board of Trustees (which will usually last only until the charity's next annual meeting).

Where a Charity Trustee has been appointed by a specific outside organisation, it is vital that the Charity Trustee, once appointed, must act in the best interests of the charity as a whole and not (necessarily) in the best interests of the organisation which appointed him/her (section 66(1)(c) of the CTI(S) Act). This tenet of course applies to all the Charity’s Trustees, that they must act individually and collectively in the best interests of the charity.

7   INDUCTION OF A NEW CHARITY TRUSTEE

Induction of a new Charity Trustee is not only good practice but is becoming increasingly essential. To enable him/her to hit the ground running, examples of items which might be included in an Induction Pack are:

• the constitution (and any supporting guidelines or regulations);
• the last Annual Report (and any other explanatory leaflet, brochure or prospectus issued by the charity);
• the last audited accounts, the current Budget and the most recent (monthly or quarterly) Management Accounts;
• copies of the last three Board Minutes and the Agenda for the next Board meeting (and a note of any future meeting dates);
• any Code of Conduct or Board Policies in existence;
• details of any Conflicts of Interest requirements;
• details of the Committee and staff structures and reporting processes.

This Induction Pack should be followed up, where applicable, by an induction visit to the charity. Additionally, an existing Charity Trustee might be allocated by the Board to look after the new Charity Trustee for a suitable time as 'mentor'. The charity may, if employing best practice, operate an appraisal (or self-appraisal) system, or at least one where the Chair meets individually with each Charity Trustee on an annual basis. The charity may arrange an annual training week-end for its Charity Trustees and/or an annual strategy meeting. A Charity Trustee might choose to go on specific training courses (whether organised in due course by OSCR, SCVO, Scottish Museums Council or others).

Any or all of the above enable induction to be seen as a never-ending process of gaining skills and evaluating performance, so as to ensure that the whole Board (and each individual Charity Trustee) is being effective.

8   THE RISK OF THE SHADOW TRUSTEE

Great care has to be taken to ensure that it is the Charity Trustees who are truly in control of the charity. There can be situations where one or more people, who are not formally appointed as Charity Trustees, can and perhaps do exert influence upon and even control over a charity, such as:

• the dominant spouse of a person who runs a small charitable trust;
• meetings of the Management Committee of an unincorporated association which are regularly attended by someone not on the Committee who influences outcomes or becomes involved in making decisions;
• a forceful executive who exerts control over a weak Chair or a disinterested Board;
• an Advisory Committee which is set up to provide advice, perhaps on technical matters, but exceeds its remit by stipulating conditions of management and strategy which are accepted without question by a poorly-led or weak Board of Trustees.

In such circumstances, anyone who is not a Charity Trustee but who exercises "control" over the charity can be treated as though a Charity Trustees, by virtue of section 106 of the CTI(S) Act, and found to be liable as such, in the event of any investigation which examines the position, with the benefit of hindsight, when things go wrong and blame requires to be apportioned. This can also be the case with guarantee companies, where a person with influence can be confirmed subsequently to have been a "shadow" director and thus as liable as if he/she had indeed been a Director and Charity Trustee.

9 RETIRAL, RESIGNATION OR DISMISSAL OF A CHARITY TRUSTEE

The charity's constitution will list the various events upon which resignation by a Charity Trustee will - or be deemed to - take effect. These may include:

• his/her written notice of resignation;
• his/her becoming bankrupt or insolvent;
• his/her becoming incapable for medical reasons of fulfilling the duties of a Charity Trustee;
• his/her being directly or indirectly interested in any contract with the charity and failing to declare that interest;
• his/her being absent from a number of consecutive Board meetings;
• his/her death.

In addition, a Charity Trustee may become disqualified whilst in office, if one of the events listed in section 69 of the CTI(S) Act applies - see Section 5 above.

In the normal event, retiral will take place by rotation (whereby each Charity Trustee serves for one, two or three 'terms' of office, each term being perhaps of three, four or five years). It is usually good practice for retiral of Charity Trustees by rotation.

Where the constitution does not provide for a regular rotation of Trustees, retiral may be prompted by:

• a recognition by the Charity Trustee that he/she should retire;
• the Charity Trustee’s reaching a retirement age set out in the constitution;
• the Chair having a word with a long-serving Charity Trustee who is now less effective;
• the Board of Trustees invoking a power (if within the constitution) to remove a Charity Trustee for good reason (such as prompted by section 66(5) of the CTI(S) Act);
• the involvement of OSCR to remove a Charity Trustee where there has been misconduct or mismanagement.

10   THE ROLE OF A CHARITY TRUSTEE

The quick description is that a charity's Board of Trustees is responsible for controlling its strategy and management within the context of its Charitable Purposes and the terms of its constitution. The role of the Charity Trustee is not a position of honour without responsibility; it requires time, understanding, vigilance and effort.

Generally a Charity Trustee cannot delegate his/her responsibilities to others. Although many charities will of course appoint sub-committees (sometimes called Work Groups, Steering Groups, Task Forces, etc.) to look after specific aspects of a charity's governance (e.g. finance, fund-raising, marketing, property, etc.), the ultimate responsibility for taking decisions vests in the Charity Trustees acting together as the Board of the charity. It is good practice to ensure that there is at least one Charity Trustee, but preferably more, on each sub-committee.

The main roles of a Charity Trustee are:

• to ensure that the charity is run properly, responsibly and lawfully in the interests of its members in accordance with its constitution;
• to ensure that all its activities fall within its Charitable Purposes;
• to ensure that there is no unnecessary duplication of activities with other charities;
• to ensure that the charity acts openly and accountably by fulfilling its Charitable Purposes and by providing Public Benefit;
• to ensure that the charity complies with the CTI(S) Act and responds to all requests and directions from OSCR thereunder (see also Section 11);
• to develop and agree the strategy and policies of the charity;
• to network with and learn from other charities;
• to agree a financial budget and monitor financial performance;
• to ensure that the charity has adequate resources to carry out its Charitable Purposes;
• to guard against the liabilities of the charity exceeding its assets;
• to ensure effective and accountable management;
• to appoint, support and review the performance of (senior) employees;
• to respond efficiently and properly to all donors and beneficiaries;
• to keep up-to-date with relevant skills and knowledge;
• to report accurately and promptly to OSCR and, if a guarantee company, the Registrar of Companies;
• to report accurately and at least annually to the members of the charity.

At specific times, a Charity Trustee will focus on different issues. These will of course depend on circumstances, but the following will usually be relevant:

At commencement

• be fully conversant with the constitution;
• be fully conversant with the CTI(S) Act and the duties of a Charity Trustee thereunder;
• consider whether any policies or guidelines should also be adopted;
• consider and become acquainted with other charities working locally or in the same sector;
• establish a written development plan and a mechanism for its assessment and review;
• consider the composition of the Board of Trustees;
• consider employment of any staff.

In the early years

• review Board skills;
• review staff skills;
• review Charitable Purposes specifically and the constitution generally;
• assess and review the development plan and measure its outcomes;
• explore funding (without compromising independence and staying always within the Charitable Purposes);
• set Board Polices as required;
• consider trading - and whether a separate trading subsidiary requires to be established;
• consider, where relevant, the issues relating to the purchase or letting of property;
• work collaboratively with other charities.

11   THE MAIN DUTIES OF A CHARITY TRUSTEE

The principal duties of a Charity Trustee are spelt out by the CTI(S) Act (section 66) as being:

• "to seek, in good faith, to ensure that the charity acts in a manner which is consistent with its purposes";
• "to act with the care and diligence that it is reasonable to expect of a person who is managing the affairs of another person"; and
• "to ensure that the charity complies with any direction, requirement, notice or duty imposed on it by virtue of [the CTI(S)] Act".

In implementation of these principal statutory duties, additional duties of a Charity Trustee include:

• to give proper time and attention to the task of being a Charity Trustee;
• to account to the members of the charity for its current well-being and future development;
• to obtain regular, accurate and informative, budgets, forecasts, budgetary controls, cash flows and Accounts;
• to act in good faith and with honesty, prudence and competence in what he/she considers to be the charity's best interests;
• to assess all risks relating to the charity (financial, health & safety, training needs), to consider the probability and impact of each and to address the likely outcomes;
• to ensure that statutory documents, including the Annual Return and Accounts, are lodged timeously;
• not to put himself/herself in a position where personal interests might or do conflict with those of the charity;
• not to allow the charity to trade when he/she knows " or ought to have known " that it was insolvent (that is, where its liabilities exceed its assets, which is known as ‘wrongful trading’, );
• to calculate and maintain an appropriate financial reserve;
• to comply (as relevant) with the formalities of the CTI(S) Act and the Companies Acts (see below);
• not to receive any personal benefit or profit from the office of Charity Trustee (except as permitted - see Section 14 below);
• not (as a general rule) to be an employee of the charity (see Section 14 below);
• to undertake initial and regular training in order to be and remain a skilled and effective Charity Trustee;
• to respond timeously and fully to any enquiries by and requests from OSCR.

Specifically in accordance with the terms of the CTI(S) Act, each Charity Trustee must, ensure that:

• the timeous prior consent of OSCR is obtained for any change in the charity’s name (section 11 of the CTI(S) Act);
• the consent of OSCR is obtained in respect of any amendment to the charity’s Charitable Purposes, its proposed amalgamation or reorganisation or its proposed winding up (section 16 of the CTI(S) Act);
• all assets of the charity are applied exclusively to its Charitable Purposes;
• upon dissolution, the charity’s assets remain in the charitable domain (section 19 of the CTI(S) Act);
• OSCR is notified (in terms of section 17 of the CTI(S) Act) of any changes in:
• the charity’s principal office (or, where there is no principal office, its Principal Contact Person);
• its entry details on the Register of Charities;
• its constitution (other than a change in its Charitable Purposes - where OSCR’s consent is required);
• any administrative or winding up order;
• the appointment of a Receiver;
• he/she gives no false or misleading information to OSCR - section 26(3) of the CTI(S) Act (not restricted to a charity trustee);
• he/she neither refuses nor fails, without reasonable excuse, to supply any document, information or explanation to OSCR - section 29(6) of the CTI(S) Act (this is not restricted to a charity trustee);
• proper accounting records are maintained, annual accounts are prepared, which are either audited or independently examined, and a signed set lodged timeously with OSCR (section 44(1) of the CTI(S) Act);
• he/she neither refuses nor fails, without reasonable excuse, to comply with a requirement of an "appointed person" - section 46(6) of the CTI(S) Act (this is not restricted to a charity trustee);
• he/she does not act as a Charity Trustee whilst disqualified (section 68 of the CTI(S) Act).

As already stated in Section 6 above, the Charity Trustees share a collective responsibility effectively to police each other. In terms of section 66(5) of the CTI(S) Act, the Board must ensure that any breach by any Trustee of the principal duties listed in section 66 (quoted above at the top of this Section) is corrected and not repeated and that, if the breach is persistent or serious, the Board should ensure the removal of that Trustee.

12   THE LEVEL OF A CHARITY TRUSTEE’S DUTY OF CARE

A Charity Trustee’s duty of care is to exercise such care and skill as is "reasonable to expect of a person who is managing the affairs of another person" (section 66(1)(b) of the CTI(S) Act).

If a Charity Trustee has any specialist or professional knowledge or experience which he or she holds out as having, that additional level of knowledge or skill is not taken into account in terms of the CTI(S) Act. However, it remains to be seen whether a Court would consider, with the benefit of hindsight, that such additional skill or knowledge should be taken into account, potentially raising the level of that Charity Trustee’s own duty of care to a level reasonable to expect of a person with that skill or knowledge.

13   OSCR AND THE CHARITY’S DUTY OF PUBLIC ACCOUNTABILITY

The Board of Trustees reports not only to its members (where the charity is a two-tier membership organisation) but also to OSCR on behalf of the public as to its stewardship of the charity’s funds in the annual accounts, which will include the Board’s detailed annual report, as a coherent package. Thereby the Board discharges its duty of public accountability.

The accounts provide financial information as to income and resources, their application in furtherance of the Charitable Purposes and the position of the charity’s assets and liabilities.

The annual report enables the Board to demonstrate that it understands and is working to achieve the Charitable Purposes. It explains what the Board is trying to do, how it is going about it, what it has done in the year in question and what it plans to do in the immediate future. Rather than being seen as a chore, or as a matter to be left to the accountants to prepare, the annual report should be addressed with care and be prepared by the Board itself as it is a critical opportunity for the charity to convey a positive message, in what will become an increasingly important ‘shop window’, about its activities and achievements and its future intentions and targets, bearing in mind that it is likely to be read by potential members, donors, funders, service contractors and beneficiaries.

Charity accounts require care in their preparation and have to conform to the current accounting requirements (particularly as embodied in section 44 of the CTI(S) and the Charities Accounts (Scotland) Regulations 2006) and, where applicable the current Statement of Recommended Practice (SORP 2005).

For Charity Trustees who are directors of companies, the Companies (Audit, Investigations and Community Enterprise) Act 2004 requires that the accounts must include statements to confirm that:

• so far as each director is aware, there is no relevant audit information of which the company’s auditors are unaware; and
• each director has taken all steps that he or she ought to have taken as a director in order to make himself or herself aware of any relevant audit information and to establish that the company’s auditors are aware of that information.

A Charity Trustee who is a director will need to address these points appropriately, whilst the charitable company will have to introduce systems and controls which enable him or her to do so and to make these statements.

Subject to the terms of the new Accounting Regulations, and unless a higher requirement is specified in its own constitution (or is required by a funding body), a charity’s accounts must comply as follows:

• a charity (other than a company - see below) which has annual incoming resources of:
  • up to £100,000 can provide receipts and payments accounts and have these approved by an independent financial examiner (who, in terms of Regulation 11(1), is reasonably believed by the charity to have the requisite ability and practical experience to carry out a competent examination of the accounts);
  • between £100,00 - £500,000 can provide accruals accounts and have these approved by a qualified independent financial examiner (who must be a member of one of the organisations listed in Regulation 11(2)); and
  • over £500,000 - or which has an aggregate value of its assets (before deduction of liabilities) in excess of £2.8 million - requires to provide audited accounts which are audited by a registered auditor;
• a charity which is a guarantee company which has annual incoming resources of:
  • up to £90,000 can provide accruals accounts and have these approved by a qualified independent financial examiner;
  • between £90,000 - £250,000 can provide accruals accounts and have these approved by a certified accountant; and
  • more than £250,000 requires to provide audited accounts which are audited by a registered auditor.

A charity is under a legal duty to provide a copy of its latest accounts (and of its constitution if that is also requested) to any member of the public within one month of such request. It can charge reasonably for the cost of so doing (photocopying and postage).

A charity has to lodge a signed set of its accounts with OSCR within 9 months after its year end (in terms of Regulation 5) and, if also a charitable company, with the Registrar of Companies within 10 months after its year end.

In addition, a charity must lodge an Annual Return with OSCR and, if also a charitable company, an Annual Return with the Registrar of Companies. Both OSCR and the Registrar of Companies provide pre-populated versions of their Annual Return, based on the information submitted during the previous year, which has to be checked, verified and, if necessary, amended by the charity before being returned timeously.

Larger charities will also have to complete and file a Monitoring Return with OSCR. Those charities with annual incoming resources of £25,000 - £100,000 will complete a reduced form of Monitoring Return and those with annual incoming resources greater than £100,000 will have to complete the full form. OSCR will conduct a ‘rolling review’ to ensure that in the case of each charity:

• its Charitable Purposes fall within the list of charitable purposes in section 7(2) of the CTI(S) Act and that all of the activities it has undertaken are exclusively charitable and fall within its own declared Charitable Purposes;
• it provides Public Benefit in terms of section 8 of the CTI(S) Act (and, if so, that there is no condition on obtaining benefit which is "unduly restrictive");
• its name is not objectionable in terms of section 10 of the CTI(S) Act; and
• none of its Charity Trustees is disqualified in terms of section 69 of the CTI(S) Act.

Charity Trustees must be aware that the charity’s own auditors or independent financial examiners are under a duty (in terms of section 46 of the CTI(S) Act) to report on the activities or affairs of either the charity or any "connected body" (such as a trading subsidiary) where they encounter any matter which is likely to be of "material significance" to OSCR in carrying out its functions. This ‘whistleblowing’ provision is further extended in that, optionally, the auditors or independent financial examiners may report any other matter which they believe is likely to be "relevant" to OSCR in carrying out its functions.

Charity Trustees may also become involved with OSCR as a result of a complaint being made to OSCR against them or about the charity, leading to OSCR’s carrying out enquiries or an investigation.

14   PERSONAL REMUNERATION OF A CHARITY TRUSTEE

The general difficulty which some charities face in recruiting individuals with relevant skills to serve as Charity Trustees is doubtless exacerbated by the fact that, in most cases, a charity cannot remunerate a Charity Trustee for his/her actings as a Trustee.

Whilst the safest rule to follow is that a Charity Trustee should not be remunerated for being a Charity Trustee and that, in consequence, an employee of should also not serve as a Charity Trustee, this is not prohibited by the CTI(S) Act.

In terms of section 67 of the CTI(S) Act, provided that there is no prohibition in the charity’s constitution against either its remunerating a Charity Trustee, remuneration can be given to a Charity Trustee (or to someone connected to a Charity Trustee) in certain specific circumstances.

If the charity’s constitution pre-dates 15 November 2004 and, at that date, permitted remuneration to a Charity Trustee (or to anyone connected thereto), remuneration can be given, or continue to be given, by the charity without further ado.

Otherwise, remuneration can be given only, in terms of section 67, on the following conditions, that:

• the maximum amount of the remuneration is set out (as a specific sum or ascertainable by formula) in a written agreement with the charity;
• the maximum amount of the remuneration is reasonable in the circumstances;
• the Board of Trustees is satisfied that it would be in the interests of the charity for the agreement to be entered into for specific services to be carried out by the Charity Trustee in question (or someone connected to that Charity Trustee) for that maximum remuneration;
• less than half of the Board of Trustees is receiving remuneration, or is connected to someone who is receiving remuneration.

The full list of those "connected to" a Charity Trustee is given in section 68(2) of the CTI(S) Act.

We can provide detailed advice on the applicability and content of individual Remuneration Agreements.

15   PERSONAL LIABILITY OF A CHARITY TRUSTEE

A charity will take collective responsibility for the actions of its Board of Trustees and its employees, for example where there are insufficient funds to pay the bills, or where a claim arises out of a contract. That collective responsibility may require the charity to cease trading and to wind up its affairs.

If a guarantee company, the charity will in most cases simply require its members (including its Trustees) to pay a minimum set out in its Memorandum (usually £1 each). If an unincorporated association or a charitable trust, it is possible that the Trustees (and members if there are any) will proportionately be liable for the charity's debts - this is the reason why limited liability, as afforded by a guarantee company, is so attractive.

It is possible for Trustees to obtain indemnity insurance in respect of their actings, provided that the constitution specifically enables the charity to pay such premiums from its resources. Such indemnity insurance will not cover certain actings by Charity Trustees and particularly those which are wrongful, negligent or fraudulent.

However, any Charity Trustee (even where the charity is a guarantee company) runs the risk of financial penalties and/or personal liability if he/she:

• causes loss to the charity by acting unlawfully or outwith its Charitable Purposes and/or powers;
• commits the charity to debts which amount to more than its assets (‘wrongful trading’);
• commits the charity to act fraudulently (‘fraudulent trading’);
• acts negligently (which can be a negligent act or a negligent omission to act);
• allows a conflict of interest to develop where personal gain, or gain for a family member or friend, is obtained at the expense of the charity;
• fails to advise the Registrar of Companies of changes to Directors, Company Secretary or Registered Office;
• fails timeously to provide the Registrar of Companies with Accounts and an Annual Return;
• fails in certain circumstances to comply with certain elements of the CTI(S) Act (see Section 11 above) or of obligations or requirements thereunder due to OSCR.

16   THE ROLE OF THE CHAIR

This includes:

• provision of leadership and vision;
• ensuring good communications throughout the charity's organisation;
• ensuring a good two-way relationship with the charity's senior employee;
• ensuring that all Charity Trustees are involved, are effective and are sufficiently briefed and trained;
• undertaking (either formally or informally) an annual appraisal of each Charity Trustee;
• ensuring a good mix of Charity Trustees on the Board and to encourage recruitment and retirals as appropriate; and
• providing for a reasonable succession within the Board generally and specifically in respect of a future Chair.

17   BOARD POLICIES & REGISTER OF INTERESTS

Each Board of Trustees is likely to adopt a Policy for each of a number of specific matters. For larger charities, where SORP 2005 applies, some of these will be mandatory. Board Policies might, for example, include:

• Board appraisal
• Complaints Handling
• Confidentiality
• Conflicts of Interest
• Data Protection
• Freedom of Information
• Health & Safety
• Investment (and any restrictions on investment)
• Recruitment Procedures, Equal Opportunities and Employment Issues
• Reserves
• Risk Assessment and Risk Management.

The Board of Trustees will also, in selecting appropriate Policies to formulate and endorse, be mindful of current legislation relevant to the scope of the charity’s operations, for example in relation to disabilities, children, etc.

It is good practice for a charity to establish and maintain a Register of Interests in which Charity Trustees (and usually employees also) record details of employment/self-employment; ownership of land and buildings; substantial ownership of companies; and other material influences. Such a Register, once established, should be updated regularly (at least annually) and be available for inspection by the Charity Trustees, the charity’s members and, in certain circumstances, members of the general public.

If the charity’s constitution is silent as to how to manage conflicts of interest as they arise potentially or actually, it is good practice for a Board to have a policy in this respect. Such a policy will explain what a Charity Trustee should do if he or she finds that a conflict of interest may potentially arise or is actually arising and how the Board should react, for example and depending upon the circumstances, to determine whether the conflict simply be noted in the Minutes, or whether the Trustee in question, whilst being permitted to remain in the meeting, must not partake in discussions or decisions relating to such matter, or whether the Trustee in question should require to be absent from that particular element of the meeting.

We can provide detailed advice on Board Policies, Register of Interests and/or Code of Conduct.

18   COMMON PROBLEM AREAS

Inevitably, with over 17,000 active charities in Scotland alone, there is a knowledge-base of the type of problems which recur and the reasons for these, which include:

• insufficient range of skills and training within the Board of Trustees;
• poor relationship and/or lines of communication between the Chair and principal employee;
• inadequately trained employees;
• inadequate monitoring of employees (trusting them too much);
• insufficient financial information being provided on a regular basis to Trustees;
• Charity Trustees relying on everyone else to get it right;
• lack of basic internal administrative and financial controls;
• poor accounting systems;
• a failure to keep ring-fenced or project funding separate from general funds;
• insufficient use of professional accountancy, company secretarial and legal advice;
• poor organisational development (either growing too fast or too slowly);
• Charity Trustees not understanding the charity's business;
• poor communications and/or Trustees failing to meet often enough.

It is important to be aware of such failings in order to take steps to avoid them.

19   REVIEW OF CHARITABLE PURPOSES

Charity Trustees should always have in mind, and review regularly, the effectiveness of the Charitable Purposes under which they are caused to operate, as well as the more detailed administrative provisions within their charity’s constitution. Wherever possible within the terms of the existing constitution, steps should be taken from time to time to modernise and update the constitution.

This is not a sign of failure of an existing constitution but rather an acknowledgement that a charity can and should grow dynamically and is therefore a manifestation of the Board’s acumen in recognising where the charity is at any given time and where it is going and then ensuring that its constitution continues to be tailor-made for all current and prospective needs.

Although carefully prepared, this Fact Sheet is intended as a guide only. Specific and specialist legal advice should be sought on individual situations, including the precise content of any charitable constitution, Policies, Register of Interests, Remuneration Agreement, etc.

Copyright © 2006 J & H Mitchell

J. & H. Mitchell, W.S.
51 Atholl Road,
Pitlochry
PH16 5BU