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Supervision of Scottish Charities A guide to the functions and powers of OSCR and the Court of Session For advisors of small charities. 4.3 version 3. The functions of OSCR. What are the general functions of OSCR? to determine whether bodies are charities

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Supervision of Scottish CharitiesA guide to the functions and powers of OSCR and the Court of SessionFor advisors of small charities

4.3 version 3

the functions of oscr
The functions of OSCR
  • What are the general functions of OSCR?
    • to determine whether bodies are charities
    • to keep a public register of charities
    • to encourage, facilitate and monitor compliance of charities with the provisions of the Act
    • to identify and investigate apparent misconduct in the administration of charities and to take remedial or protective action
    • to give information or advice, or to make proposals to Scottish ministers

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the scottish charity register
The Scottish Charity Register
  • OSCR’s functions and powers with regard to the Scottish Charity Register
    • to keep the Scottish Charity Register -section 3(1)
    • to apply the charity test to new applicants and where passed, enter the applicant as a new charity in the Register - section 5(1)
    • to periodically review each entry on the Register and amend accordingly (the ‘Rolling Review’) – section 3(6)
    • to ensure public access to the Register - section 21
    • to obtain information from charities in relation to the entry in the Register - section 22

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charity names
Charity names
  • OSCR’s functions and powers with regard to charity names
    • to refuse an applicant charitable status if it has an objectionable name - section 5(2)
    • to direct a charity to change its name - section 12(2) and (3)
    • to remove from the register any charity that fails to comply with a direction to change its name - section 12 (5)

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consent to changes
Consent to changes
  • OSCR’s functions and powers with applications for consent to changes
    • to consider applications for consent from charities seeking to make specified changes and to either:
      • grant consent
      • refuse consent
      • direct a charity not to take action for which consent is sought for a period of up to six monthssections 11 and 16(6)

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making inquiries
Making inquiries
  • Who may OSCR make inquiries about?
  • OSCR may at any time make inquiries, either generally or for particular purposes, with regard to:
    • a charity
    • a body controlled by one or more charities
    • a body not entered in the register which appears to OSCR to represent itself as a charity
    • a person who appears to OSCR to represent any of the bodies listed above

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making inquiries1
Making inquiries

Sources of referrals and complaints

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Making inquiries

Most prevalent issues

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Making inquiries

  • Inquiry & intervention Policy
  • Handling complaints: Background
    • OSCR asks in the public interest and not on behalf of individuals or groups
    • OSCR will seek to ensure that any information passed to OSCR by a complainant or anyone involved in an inquiry is correct and credible
    • It is an offence under the Act for a person to provide any information or explanation that is false or misleading in a material respect, or to destroy or conceal any document which is required for the conduct of any inquiry OSCR may undertake

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Making inquiries

  • Inquiry & intervention Policy
  • Handling complaints: Assessment to establish the following -
    • Whether OSCR has locus to act
    • If the complaint is more appropriate for another regulator to action
    • The seriousness of risk associated with the issues raised by the complainant
    • The action and intervention required (which will be proportionate to the risk(s) presented)

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Making inquiries

  • Inquiry & intervention Policy
  • Handling complaints: Risk Assessment
    • Assessment is based on the evidence available
    • Initial background inquiries
    • May contact the charity to help with understanding any of the information received

Next course of action then determined.

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Making inquiries

  • Inquiry & intervention Policy
  • Handling complaints: Risk Assessment – four potential outcomes
    • The complaint merits further inquiry work to be undertaken by a Compliance Officer or Investigator depending on seriousness
    • The complaint is more appropriate to another regulator and will be either passed to them direct or the complainant will be re-directed
    • OSCR determines that, based on the evidence provided, no action is appropriate
    • The complaint is deemed to be for the charity to resolve through its own complaints procedure

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making inquiries2
Making inquiries
  • What powers does OSCR have when making inquiries?
    • to direct any person or body with regard to which it is making an inquiry not to undertake any actions specified in the direction for up to six monthssection 28(3)
    • to require by written notice any person to provide it with any document, extract, other information or explanation necessary for the inquiry within 14 dayssection 29(1)

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following inquiries
Following inquiries
  • On what grounds can a complaint be upheld following an inquiry?
    • a body appears to OSCR not to meet the charity test
    • there appears to OSCR to be misconduct in the administration of a charity or a body controlled by a charity
    • that action is necessary to protect a charity’s property or secure its use for proper purposes
    • a body or a person representing a body is making false or misleading claims about the body’s charitable status

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following inquiries1
Following inquiries
  • What happens if a body appears not to meet the charity test?
    • OSCR must either:
    • direct the body to take steps to meet the charity test, OR
    • remove the charity from the Register
    • section 30(1)
    • if the body fails to comply with a direction OSCR must remove it from the Register
    • section 30(3)

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following inquiries2
Following inquiries
  • What happens if a body is making false or misleading claims about its status?
    • OSCR may:
    • direct the body to stop doing so
    • restrict the transactions which may be entered into, or the nature or amount of payments which may be made, in the administration of the body without OSCR’s consent
    • direct any bank or person holding property on behalf of the body not to part with it without OSCR’s consent

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following inquiries3
Following inquiries
  • What happens if a person representing a body is making false or misleading claims about its status?
    • OSCR may:
    • direct the person to stop making the false or misleading claims about the body
    • direct the person to stop acting (or claiming to act) on behalf of the body
    • direct the person to pay to the body any sums collected on its behalf
    • direct any bank or person holding property on behalf of the body not to part with it without OSCR’s consent

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following inquiries4
Following inquiries
  • What happens if OSCR identifies misconduct in the administration of a charity?
  • OSCR may, by written notice, suspend any person concerned in the management or control of a charity or a body controlled by a charity who:
    • has been responsible for or privy to the misconduct
    • has contributed to or facilitated the misconduct
    • is deemed unable or unfit to perform that person’s functions in relation to the property of the charity or body

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following inquiries5
Following inquiries
  • Procedure for directions and suspensions
  • Suspensions and directions made by OSCR under section 31:
    • have effect for a specified period not exceeding 6 months
    • may be revoked at any time
    • may be varied at any time, but not so as to extend their period of effect beyond 6 months
    • may be added to by further suspensions or directions but not to extend beyond the date of the original

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following inquiries6
Following inquiries
  • Procedure for directions and suspensions
    • any suspension of a person and any direction issued to a person must also be copied to the charity or body in question
    • notice of a direction or suspension under section 31 must:
      • set out the decision of OSCR
      • give reasons for the decision
      • advise the recipient of their right to request OSCR to review the decision with 21 days

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following inquiries7
Following inquiries
  • What powers does OSCR have in the case of a charity not sending it annual accounts?
    • to appoint a suitably qualified person (an ‘appointed person’) to prepare a statement of account for the charity
    • to charge the trustees personally for any costs it incurs in relation to such an appointment
    • (section 45)

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the court of session
The Court of Session
  • What powers does the court have?
    • interdict a charity or body from any action including representing itself as a charity
    • appoint a judicial factor to manage the affairs of the charity
    • appoint a trustee
    • suspend or remove a person in management of a charity or body
    • place a restricting order on any transactions or payments
    • order a bank or person holding property not to part with it without consent
    • interdict a person from any action including representing a body as a charity
    • order a person to pay to a charity money collected on its behalf

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transfer schemes
Transfer schemes
  • What is a transfer scheme?
  • a scheme prepared by OSCR to transfer to a charity any assets of:
    • another charity
    • a body controlled by one or more charities
    • a body which is not a charity but which has been representing itself as such
  • requires approval of the Court of Session

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transfer schemes1
Transfer schemes
  • When will the court approve a transfer scheme?
  • there is or has been misconduct in the administration of a charity or body, or any of the charities that control it
  • it is necessary to act for the purpose of protecting the property of the charity or body
  • the transfer provided for by the scheme is reasonable

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delegation of functions
Delegation of functions
  • OSCR may delegate certain of its functions under the Act to any Scottish public authority with mixed functions or no reserved functions
  • PROVIDED THAT such body has other statutory regulatory functions with regard to the charities or type of charity
  • any charities affected by such delegation must receive a copy of the authorisation
  • provisions in the Act relating to disclosure of information to and by OSCR also apply to other public bodies with delegated functions

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delegation of functions1
Delegation of functions
  • Which functions may OSCR delegate?
  • making inquiries and obtaining information for such inquiriesunder sections 28 and 29
  • issuing directions or suspending persons from acting in the management of a charity or bodyunder sections 31 and 32
  • making reports on inquiriesunder section 33
  • making applications to the Court of Session to exercise its powers or to approve a transfer schemeunder sections 34 and 35

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consequences of non compliance
Consequences of non-compliance
  • What are the consequences for charities and trustees in breach of their duties under the Act or regulations?
    • removal from the Scottish Charity Register
    • fines and / or periods of imprisonment for trustees and other failing to comply with directions or provide required information
    • personal liability for the costs incurred by OSCR or others appointed by OSCR
    • suspensions, removal or disqualification from acting as a trustee

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