Charity safeguarding duties
Recently the Charity Commission, which is the registrar and regulator of charities in England and Wales, has been in the spotlight due to scandals by well-known charities Oxfam and the RSPCA.
Oxfam has been criticised by the Commission for failing to adequately report the sexual abuse of sex workers (some of whom where underage) by Oxfam members on a Haiti mission following the earthquake in 2011.
The Commission also criticised the RSPCA’s trustees after ‘paying off’ their former CEO with a six figure sum, worth more than his £150,000 salary. The Commission stated that the trustees had failed to use the charity’s money sensibly and subsequently had “failed to act with reasonable care and skill” when negotiating the sum to be paid to the former CEO.
The Commission issued an official warning against the RSPCA and launched a statutory inquiry into Oxfam’s reporting, as well as issuing an alert urging charities to review their safeguarding and governance arrangements.
The purpose and priorities of the Commission were recently published and their “five strategic objectives are to:
Hold charities to account
- Deal with wrongdoing and harm
- Inform public choice
- Give charities the understanding and tools they need to succeed
- Keep charity relevant for today’s world
The Commission has various powers to enforce its objectives, including the power to:
- Provide general advice and guidance
- Issue warnings
- Appoint and remove trustees
- Disqualify trustees
- Wind up non-compliant charities
The Commission requires charities and their trustees to take reasonable steps to protect those who come into contact with the charity through its work, from harm, ensuring that the charity manages any serious incident responsibly. Trustees must comply with their legal duties to the charity and take steps to limit the impact of the incident and, if possible, prevent it from happening again. If a serious incident takes place, it is important that there is prompt and full disclosure of the incident to the Commission, detailing what happened and how the charity is dealing with it.
What must a charity report to the Commission?
Following the Oxfam and RSPCA scandals, the Commission made significant changes to its guidance on the way charities report ‘serious incidents’. The definition now includes an adverse event, whether actual or alleged, which results in or risks significant harm (in the context of its staff, operations, finances or reputation) to a charity’s beneficiaries, staff, volunteers or others who come into contact with the charity through its work.
To assist charities following the changes, the Commission published an updated table giving examples of what to report. Examples include the following:
- A significant data breach within the charity
- Incidents of abuse or mistreatment of beneficiaries or people who come into contact with the charity through its work
- Loss of the charity’s money or assets (note there is no minimum figure that must be reported)
- Breaches of procedures or policies which put people at significant risk of harm, such as the failure to carry out relevant vetting checks
- Damage to the charity’s property
- Harm to the charity’s work or reputation
This update also provides examples of what not to report, such as cyber-attack attempts against the charity and slips and trips at the charity’s places of work.
The full table can be found by clicking here.
Who within the charity has the duty to report significant incidents?
The charity’s trustees have the responsibility for reporting serious incidents to the commission within a timely manner. This means the actual or alleged serious incident should be reported promptly, and as soon as it is reasonably possible, after it happens or a worker, employee or the charity becomes aware of it.
If the trustees fail to report such an incident they will be in breach of their duty of not providing false or misleading information to the Commission
To whom should the significant incident be reported?
As detailed above, the trustees of a charity have the duty to report a serious incident/adverse event to the Commission. However, some charities also carry out activities such as providing care or education services and are therefore also accountable to other relevant regulators. In which case the charity will be required to report the serious incident to the relevant authority as well as to the Commission. The charity should let the Commission know which other agencies the incident has been reported to.
Trustees have the obligation to report serious incidents to the Commission or could face being disqualified. In practice this can prove to be quite problematic. For example, Oxfam owns 750 shops and it is virtually impossible for the trustees to know about the goings on within each and every shop. Perhaps it was discovered in one of the shops, that a worker routinely took small amounts of money from the till, the trustees may not be informed of the incident as it may be dealt by the shop’s own in-house management. Yet the duty remains on the trustees to report incidents of theft to the Commission or face serious repercussions. Trustees can only report what they are made aware of and rely on employees to bring serious incidents to their attention.
Steps charities can take
To protect the charity and its trustees, employees should be trained on what constitutes a serious incident and the importance of recognising and reporting a serious incident to the trustees or the Charity Commission.
Charities should also have a clear and accessible standalone safeguarding policy and provide their staff with regular training regarding the charity’s safeguarding concerns, principles, structure and implementation.
Although the Commission’s serious incident reporting guidance is aimed at a charity’s trustees, an employee of a charity who suspects serious wrongdoing within the charity, can also report a serious incident.
Charities are advised to ensure all volunteers, workers, employees, managers, senior executives and trustees are trained to spot and identify events that can constitute serious incidents. This will enable charities to recognise and respond quickly, efficiently and adequately to such issues, allowing them to be dealt with transparently and to avoid any criticisms or sanctions from the Charity Commission.
The best way to do this would be to have a clear policy on identifying and acting upon serious incidents. All staff should be regularly trained on the policy to ensure they are able to comply and therefore help to protect the charity.
Kayleigh Arthurs, trainee solicitor