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Charities and Trustee Investment (Scotland) Act 2005

Type Act of the Scottish Parliament

Publication 2005-07-14

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

Reform history JSON API

Part 1 — Charities

Chapter 1 — Office of the Scottish Charity Regulator

Application for creation of SCIO

1

(1) There is to be an office to be known as the Office of the Scottish Charity Regulator.

(2) There is established a body corporate, to be known as the Scottish Charity Regulator, which is to be the holder of that office.

(3) That office-holder is referred to in this Act as “OSCR”.

(4) OSCR has the functions conferred on it by or under this Act and any other enactment.

(5) OSCR's general functions are—

(a) to determine whether bodies are charities,

(b) to keep a public register of charities,

(d) to identify and investigate apparent misconduct in the administration of charities and to take remedial or protective action in relation to such misconduct, and

(e) to give information or advice, or to make proposals, to the Scottish Ministers on matters relating to OSCR's functions.

(6) OSCR may do anything (whether in Scotland or elsewhere) which is calculated to facilitate, or is conducive or incidental to, the performance of its functions.

(7) Subsection (6) does not enable OSCR to do anything in contravention of any express prohibition, restriction or limitation on its powers which is contained in any enactment (including this Act).

(8) OSCR must perform its functions in a manner that encourages equal opportunities and in particular the observance of the equal opportunity requirements.

(9) In performing its functions OSCR must, so far as relevant, have regard to—

(a) the principles under which regulatory activities should be proportionate, accountable, consistent, transparent and targeted only at cases in which action is needed, and

(b) any other principle appearing to OSCR to represent best regulatory practice.

(10) Schedule 1 makes further provision about the Scottish Charity Regulator.

Annual reports

2

(1) As soon as practicable after the end of each financial year, OSCR must—

(a) prepare and publish a general report on the exercise of its functions during that year,

(b) send a copy of the report to the Scottish Ministers, and

(1A) A general report must include information about what action OSCR has taken during that year to promote charities’ awareness and understanding of what they need to do to comply with the provisions of this Act.

(2) A general report may include, in particular, any general recommendations which OSCR may have arising from the exercise of its functions during that year and any previous financial year.

(3) Subject to subsection (1A), it is for OSCR to determine the form and content of a general report and by what means it is to be published.

Chapter 2 — Scottish Charity Register

The Register

Scottish Charity Register

3

(1) OSCR must keep a register of charities to be known as the “Scottish Charity Register” (and referred to in this Act as “the Register”).

(2) The Register is to be kept in such manner as OSCR thinks fit.

(3) The Register must contain a separate entry for each charity entered in it setting out—

(a) the name of the charity,

(aa) the name of each of its charity trustees,

(b) the principal office of the charity or, where it does not have such an office, the name and address of one of its charity trustees,

(d) where the charity is a designated religious charity or a designated national collector, that fact,

(e) where—

(i) a direction is given under section 11(3), 12(2) , (2A) or (3), 16(6), 28(3), 30(1) , 30A(2) , 30B(2) or 31(5) to (9), or

(ii) a notice is given under section 31(4) or 45A(2),

in relation to the charity, the fact that the direction or notice has been given and the date on which it was given,

(f) any other information in relation to the charity which the Scottish Ministers by regulations require to be set out in the Register, and

(g) any other information in relation to the charity which OSCR considers appropriate.

(4) Despite subsection (3)(aa) and (b), OSCR must exclude any information of the type specified in those provisions from a charity’s entry in the Register where—

(a) the information is the subject of an application for exclusion (whether as part of the application for the entry of a body in the Register or, subsequently, by a charity or any of its trustees), and

(b) OSCR is satisfied that including the information in the entry would be likely to jeopardise the safety or security of any person or premises.

(5) OSCR must, if it is satisfied that a direction or notice of a type described in subsection (3)(e) has been complied with or no longer has effect, remove reference to the direction or notice from the charity's entry.

(6) OSCR ...—

(a) may, from time to time, review any entry in the Register, ...

(b) must, if it considers any information set out in a charity's entry to be inaccurate—

(i) amend the entry accordingly, and

(ii) notify the charity of the amendment made , and

Applications

Application for entry in Register

4

An application for entry in the Register must—

(a) state the name of the body making the application (the “applicant”),

(b) state the principal office of the applicant or, where it does not have such an office, the name and address of one of the persons who, if the applicant is entered in the Register, will be its charity trustees,

(i) a statement of the applicant's purposes,

(ii) a copy of the applicant's constitution, and

(iii) the applicant's most recent statement of account (if any) and any associated reports forming part of the same document, and

(d) contain such other information, and be accompanied by such other documents, as may be—

(i) required by regulations under section 6(1), or

(ii) otherwise requested by OSCR.

Determination of applications

5

(1) OSCR may enter an applicant in the Register only if it considers that the applicant meets the charity test.

(2) OSCR must refuse to enter an applicant if—

(a) it considers that the applicant's name falls within section 10, or

(aa) it considers that it would not be appropriate for it to regulate the applicant because the applicant has or will have no or negligible connection to Scotland,

(b) the application must, by virtue of regulations under section 6(1), be refused,

but must not otherwise refuse to enter an applicant which it considers meets the charity test.

(3) Despite subsection (2)(a), where—

(a) an applicant’s name falls within section 10 only because it is the same as, or too like, the name of a charity, and

(b) the application for entry in the Register is being made as part of a proposed charity merger (within the meaning of section 64A(2)) involving that charity,

OSCR is entitled, but not required, to refuse to enter the applicant on the grounds of the applicant’s name.

(4) For the purpose of subsection (2)(aa), in considering, in all the circumstances, what connection (if any) the applicant has or will have to Scotland, OSCR must have regard to the following factors—

(a) whether the applicant has (or intends to have) a principal office in Scotland,

(b) whether the applicant occupies (or intends to occupy) any land or premises in Scotland,

(c) whether the applicant carries out (or intends to carry out) activities in any office, shop or similar premises in Scotland,

(d) whether the applicant is established under the law of Scotland,

(e) whether any of the persons who are (or are to be) concerned in the management or control of the applicant are resident in Scotland,

(f) any other relevant factor.

(5) The Scottish Ministers may by regulations modify this section to make provision about the factors which are or are not relevant for the purpose of subsection (2)(aa).

Applications: further procedure

6

(1) The Scottish Ministers may by regulations make such further provision in relation to the procedure for applying and determining applications for entry in the Register (including applications under section 54(1), 56(1) and 59(1)) as they think fit.

(2) Such regulations may in particular make provision about—

(a) information and documents which must be specified in or accompany an application,

(b) the form and manner in which applications must be made,

(d) circumstances in which OSCR must refuse to enter a body in the Register.

The charity test

7

(1) A body meets the charity test if—

(a) its purposes consist only of one or more of the charitable purposes, and

(b) it provides (or, in the case of an applicant, provides or intends to provide) public benefit in Scotland or elsewhere.

(2) The charitable purposes are—

(a) the prevention or relief of poverty,

(b) the advancement of education,

(d) the advancement of health,

(e) the saving of lives,

(f) the advancement of citizenship or community development,

(g) the advancement of the arts, heritage, culture or science,

(h) the advancement of public participation in sport,

(i) the provision of recreational facilities, or the organisation of recreational activities, with the object of improving the conditions of life for the persons for whom the facilities or activities are primarily intended,

(j) the advancement of human rights, conflict resolution or reconciliation,

(k) the promotion of religious or racial harmony,

(l) the promotion of equality and diversity,

(m) the advancement of environmental protection or improvement,

(n) the relief of those in need by reason of age, ill-health, disability, financial hardship or other disadvantage,

(o) the advancement of animal welfare,

(p) any other purpose that may reasonably be regarded as analogous to any of the preceding purposes.

(3) In subsection (2)—

(a) in paragraph (d), “the advancement of health” includes the prevention or relief of sickness, disease or human suffering,

(b) paragraph (f) includes—

(i) rural or urban regeneration, and

(ii) the promotion of civic responsibility, volunteering, the voluntary sector or the effectiveness or efficiency of charities,

(d) paragraph (i) applies only in relation to recreational facilities or activities which are—

(i) primarily intended for persons who have need of them by reason of their age, ill-health, disability, financial hardship or other disadvantage, or

(ii) available to members of the public at large or to male or female members of the public at large,

(e) paragraph (n) includes relief given by the provision of accommodation or care, and

(f) for the purposes of paragraph (p), the advancement of any philosophical belief (whether or not involving belief in a god) is analogous to the purpose set out in paragraph (c).

(4) A body which falls within paragraphs (a) and (b) of subsection (1) does not, despite that subsection, meet the charity test if—

(a) its constitution allows it to distribute or otherwise apply any of its property (on being wound up or at any other time) for a purpose which is not a charitable purpose,

(b) its constitution expressly permits the Scottish Ministers or a Minister of the Crown to direct or otherwise control its activities, or

(5) The Scottish Ministers may by order disapply either or both of paragraphs (a) and (b) of subsection (4) in relation to any body or type of body specified in the order.

Public benefit

8

(1) No particular purpose is, for the purposes of establishing whether the charity test has been met, to be presumed to be for the public benefit.

(2) In determining whether a body provides or intends to provide public benefit, regard must be had to—

(a) how any—

(i) benefit gained or likely to be gained by members of the body or any other persons (other than as members of the public), and

(ii) disbenefit incurred or likely to be incurred by the public,

in consequence of the body exercising its functions compares with the benefit gained or likely to be gained by the public in that consequence, and

(b) where benefit is, or is likely to be, provided to a section of the public only, whether any condition on obtaining that benefit (including any charge or fee) is unduly restrictive.

Guidance on charity test

9

OSCR must, after consulting representatives of the charitable sector and such other persons as it thinks fit, issue guidance on how it determines whether a body meets the charity test.

Charity names

Objectionable names

10

(1) A body's name falls within this section if it is—

(a) the same as, or too like, the name or working name of a charity,

(b) likely to mislead the public as to the true nature of the purposes of the body or of the activities which it carries on, or intends to carry on, in pursuit of those purposes,

(c) likely to give the impression that the body is connected in some way to the Scottish Administration, Her Majesty's Government in the United Kingdom or any local authority, or with any other person, when it is not so connected, or

(d) offensive.

(2) The reference in subsection (1)(b) to a body's purposes are—

(a) in the case of an applicant, the purposes set out in the statement accompanying its application,

(b) in the case of a charity, the purposes set out in its entry in the Register, and

(c) in the case of an SCIO proposed in an application under section 54(1), 56(1) or 59(1), the purposes set out in the SCIO's proposed constitution accompanying the application.

(3) Nothing in this section, or in any of sections 5(2)(a), 11(4), 12(3), 54(4)(a) or 57(3)(a), requires OSCR to undertake any investigation into the working name of a charity.

Change of name

11

(1) A charity may change its name only with OSCR's consent.

(2) A charity which proposes to change its name must ... give notice to OSCR specifying its proposed new name.

(3) Unless OSCR, within 28 days of the date on which a notice is given under subsection (2) —

(a) refuses its consent, or

(b) directs the charity not to change its name to that proposed new name for a period of not more than 6 months specified in the direction,

OSCR is to be taken as having given its consent.

(3A) A direction under subsection (3)(b)—

(a) may be revoked at any time,

(b) may be varied, but not so as to have effect for a period of more than 6 months from the date on which it is given.

(3B) Where OSCR gives such a direction it must, after making such inquiries as it thinks fit—

(a) give its consent, whether or not subject to conditions, or

(b) refuse its consent.

(4) OSCR may refuse to consent to a charity changing its name only where

(a) it considers that the proposed new name falls within section 10 , or

(b) it is unable, after making reasonable inquiries, to satisfy itself that the proposed new name does not fall within section 10.

(5) OSCR may, at the request of a charity, grant consent to a different proposed new name than that specified by the charity in the notice given by it under subsection (2).

Power of OSCR to require charity to change name

12

(1) A charity may, if it considers that the name or working name of another charity is the same as or too like its name or working name, request OSCR to conduct a review.

(2) OSCR must, if satisfied following such a review that the names of two charities are too alike, direct either one or both of the charities to change its name.

(2A) OSCR may, if satisfied following such a review that the working name of a charity (“charity A”) is the same as or too like the name or working name of another charity (“charity B”), as appropriate—

(a) direct charity B to change its name,

(b) direct either one or both of the charities to stop using its working name within such period as may be specified in the direction.

(3) At any other time—

(a) where OSCR considers that a charity's name falls within section 10, it must direct the charity to change its name,

(b) where OSCR considers that a charity's working name is objectionable, it may direct the charity to stop using that working name within such period as may be specified in the direction.

(3A) But, for the purposes of subsection (3)(a), where—

(a) a charity's name falls within section 10 only because it is the same as, or too like, the name of another charity, and

(b) one of the charities was entered in the Register with that name by virtue of section 5(3),

OSCR may direct either one or both of the charities to change its name under subsection (3)(a) only if OSCR is satisfied that it is no longer appropriate for the names to be the same or so alike.

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