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E+W+S+N.I.

Charities Act 1993

1993 CHAPTER 10

An Act to consolidate the Charitable Trustees Incorporation Act 1872 and, except for certain spent or transitional provisions, the Charities Act 1960 and Part I of the Charities Act 1992.

[27th May 1993]

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

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Modifications etc. (not altering text)

C1Act extended (1.10.1998) by 1992 c. 13, s. 22A(1)(2) (as added (1.10.1998) by 1998 c. 30, s. 41(2)) (with s. 42(8)); S.I. 1998/2215, art. 2

C2Act modified (8.8.1998) by 1998 c. 31, s. 11, Sch. 1 para. 10 (with ss. 138(9), 144(6)); S.I. 1998/2048, art. 2

C3Act excluded (1.9.1999) by 1998 c. 31, s. 23(3); S.I. 1999/2323, art. 2(1), Sch. 1

C4Act amended (1.9.1999) by 1998 c. 31, s. 23(1)(2); S.I. 1999/2323, art. 2(1), Sch. 1

Act: power to modify conferred (2.4.2002) by 2000 c. 39, s. 7(2); S.I. 2001/766, art. 2(1)(a) (subject to transitional provisions in art. 3)

C5Act: power to amend conferred (8.11.2006) by Charities Act 2006 (c. 50), s. 77

C7Act: power to amend conferred (27.2.2007) by Charities Act 2006 (c. 50), ss. 76, 79(2); S.I. 2007/309, art. 2, Sch.

Part IE+W The [F1Charity Commission] and the Official Custodian for Charities

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Amendments (Textual)

F1Words in Pt. I heading substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 97; S.I. 2007/309, art. 2, Sch.

F21 The Charity Commisioners.E+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

[F31AThe Charity CommissionE+W

(1)There shall be a body corporate to be known as the Charity Commission for England and Wales (in this Act referred to as “the Commission”).

(2)In Welsh the Commission shall be known as “Comisiwn Elusennau Cymru a Lloegr”.

(3)The functions of the Commission shall be performed on behalf of the Crown.

(4)In the exercise of its functions the Commission shall not be subject to the direction or control of any Minister of the Crown or other government department.

(5)But subsection (4) above does not affect—

(a)any provision made by or under any enactment;

(b)any administrative controls exercised over the Commission's expenditure by the Treasury.

(6)The provisions of Schedule 1A to this Act shall have effect with respect to the Commission.]

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Amendments (Textual)

[F41BThe Commission's objectivesE+W

(1)The Commission has the objectives set out in subsection (2).

(2)The objectives are—

1.The public confidence objective.

2.The public benefit objective.

3.The compliance objective.

4.The charitable resources objective.

5.The accountability objective.

(3)Those objectives are defined as follows—

1.The public confidence objective is to increase public trust and confidence in charities.

2.The public benefit objective is to promote awareness and understanding of the operation of the public benefit requirement.

3.The compliance objective is to promote compliance by charity trustees with their legal obligations in exercising control and management of the administration of their charities.

4.The charitable resources objective is to promote the effective use of charitable resources.

5.The accountability objective is to enhance the accountability of charities to donors, beneficiaries and the general public.

(4)In this section “the public benefit requirement” means the requirement in section 2(1)(b) of the Charities Act 2006 that a purpose falling within section 2(2) of that Act must be for the public benefit if it is to be a charitable purpose.

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Amendments (Textual)

F4Ss. 1B-1E inserted (27.2.2007 except for the insertion of ss. 1C(2) for specified purposes, 1C(5), 1E(3), 18.3.2008 for the insertion of s. 1E(3)) by Charities Act 2006 (c. 50), ss. 7, 79(2); S.I. 2007/309, art. 2, Sch.; S.I. 2008/751, art. 2, Sch.

1CThe Commission's general functionsE+W

(1)The Commission has the general functions set out in subsection (2).

(2)The general functions are—

1.Determining whether institutions are or are not charities.

2.Encouraging and facilitating the better administration of charities.

3.Identifying and investigating apparent misconduct or mismanagement in the administration of charities and taking remedial or protective action in connection with misconduct or mismanagement therein.

4.Determining whether public collections certificates should be issued, and remain in force, in respect of public charitable collections.

5.Obtaining, evaluating and disseminating information in connection with the performance of any of the Commission's functions or meeting any of its objectives.

6.Giving information or advice, or making proposals, to any Minister of the Crown on matters relating to any of the Commission's functions or meeting any of its objectives.

(3)The Commission's fifth general function includes (among other things) the maintenance of an accurate and up-to-date register of charities under section 3 below.

(4)The Commission's sixth general function includes (among other things) complying, so far as is reasonably practicable, with any request made by a Minister of the Crown for information or advice on any matter relating to any of its functions.

(5)In this section “public charitable collection” and “public collections certificate” have the same meanings as in Chapter 1 of Part 3 of the Charities Act 2006.

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Amendments (Textual)

F4Ss. 1B-1E inserted (27.2.2007 except for the insertion of ss. 1C(2) for specified purposes, 1C(5), 1E(3), 18.3.2008 for the insertion of s. 1E(3)) by Charities Act 2006 (c. 50), ss. 7, 79(2); S.I. 2007/309, art. 2, Sch.; S.I. 2008/751, art. 2, Sch.

1DThe Commission's general dutiesE+W

(1)The Commission has the general duties set out in subsection (2).

(2)The general duties are—

1.So far as is reasonably practicable the Commission must, in performing its functions, act in a way—

(a)which is compatible with its objectives, and

(b)which it considers most appropriate for the purpose of meeting those objectives.

2.So far as is reasonably practicable the Commission must, in performing its functions, act in a way which is compatible with the encouragement of—

(a)all forms of charitable giving, and

(b)voluntary participation in charity work.

3.In performing its functions the Commission must have regard to the need to use its resources in the most efficient, effective and economic way.

4.In performing its functions the Commission must, so far as relevant, have regard to the principles of best regulatory practice (including the principles under which regulatory activities should be proportionate, accountable, consistent, transparent and targeted only at cases in which action is needed).

5.In performing its functions the Commission must, in appropriate cases, have regard to the desirability of facilitating innovation by or on behalf of charities.

6.In managing its affairs the Commission must have regard to such generally accepted principles of good corporate governance as it is reasonable to regard as applicable to it.

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Amendments (Textual)

F4Ss. 1B-1E inserted (27.2.2007 except for the insertion of ss. 1C(2) for specified purposes, 1C(5), 1E(3), 18.3.2008 for the insertion of s. 1E(3)) by Charities Act 2006 (c. 50), ss. 7, 79(2); S.I. 2007/309, art. 2, Sch.; S.I. 2008/751, art. 2, Sch.

1EThe Commission's incidental powersE+W

(1)The Commission has power to do anything which is calculated to facilitate, or is conducive or incidental to, the performance of any of its functions or general duties.

(2)However, nothing in this Act authorises the Commission—

(a)to exercise functions corresponding to those of a charity trustee in relation to a charity, or

(b)otherwise to be directly involved in the administration of a charity.

(3)Subsection (2) does not affect the operation of section 19A or 19B below (power of Commission to give directions as to action to be taken or as to application of charity property).]

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Amendments (Textual)

F4Ss. 1B-1E inserted (27.2.2007 except for the insertion of ss. 1C(2) for specified purposes, 1C(5), 1E(3), 18.3.2008 for the insertion of s. 1E(3)) by Charities Act 2006 (c. 50), ss. 7, 79(2); S.I. 2007/309, art. 2, Sch.; S.I. 2008/751, art. 2, Sch.

2 The official custodian for charities.E+W

(1)There shall continue to be an officer known as the official custodian for charities (in this Act referred to as “the official custodian”) whose function it shall be to act as trustee for charities in the cases provided for by this Act; and the official custodian shall be by that name a corporation sole having perpetual succession and using an official seal which shall be officially and judicially noticed.

[F5(2)Such individual as the Commission may from time to time designate shall be the official custodian.]

(3)The official custodian shall perform his duties in accordance with such general or special directions as may be given him by the [F6Commission], and his expenses (except those re-imbursed to him or recovered by him as trustee for any charity) shall be defrayed by the [F6Commission].

(4)Anything which is required to or may be done by, to or before the official custodian may be done by, to or before any [F7member of the staff of the Commission] generally or specially authorised [F8by it] to act for him during a vacancy in his office or otherwise.

(5)The official custodian shall not be liable as trustee for any charity in respect of any loss or of the mis-application of any property unless it is occasioned by or through the wilful neglect or default of the custodian or of any person acting for him; but the Consolidated Fund shall be liable to make good to a charity any sums for which the custodian may be liable by reason of any such neglect or default.

(6)The official custodian shall keep such books of account and such records in relation thereto as may be directed by the Treasury and shall prepare accounts in such form, in such manner and at such times as may be so directed.

(7)The accounts so prepared shall be examined and certified by the Comptroller and Auditor General F9...

[F10(8)The Comptroller and Auditor General shall send to the Commission a copy of the accounts as certified by him together with his report on them.

(9)The Commission shall publish and lay before Parliament a copy of the documents sent to it under subsection (8) above.]

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Amendments (Textual)

F6Words in s. 2(3) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 98(3); S.I. 2007/309, art. 2, Sch.

F7Words in s. 2(4) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 98(4)(a); S.I. 2007/309, art. 2, Sch.

F8Words in s. 2(4) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 98(4)(b); S.I. 2007/309, art. 2, Sch.

F9Words in s. 2(7) repealed (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 98(5), Sch. 9; S.I. 2007/309, art. 2, Sch. (with art. 4)

F11[F11Part 1AE+W+S+N.I.The F12... Tribunal

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Amendments (Textual)

F11Pt. 1A inserted (27.2.2007 for the insertion of ss. 2B(1)-(4)(8)(9), 2C(5)(b) for specified purposes, 18.3.2008 in so far as not already in force) by Charities Act 2006 (c. 50), ss. 8(1), 79(2); S.I. 2007/309, art. 2, Sch.; S.I. 2008/751, art. 2, Sch. (with art. 3)

2AThe F13...TribunalE+W+S+N.I.

F14(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F14(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F14(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)The Tribunal shall have jurisdiction to hear and determine—

(a)such appeals and applications as may be made to the Tribunal in accordance with Schedule 1C to this Act, or any other enactment, in respect of decisions, orders or directions of the Commission, and

(b)such matters as may be referred to the Tribunal in accordance with Schedule 1D to this Act by the Commission or the Attorney General.

(5)Such appeals, applications and matters shall be heard and determined by the Tribunal in accordance with those Schedules, or any such enactment, taken with [F15rules made under section 2B(2) and Tribunal Procedure Rules].

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Amendments (Textual)

2BPractice and procedureE+W+S+N.I.

[F16(1)This section applies in relation to appeals, applications or references to the Tribunal which are mentioned in section 2A(4).

(2)The Lord Chancellor may make rules—

(a)specifying steps which must be taken before appeals, applications or references are made to the Tribunal (and the period within which any such steps must be taken);

(b)requiring the Commission to inform persons of their right to appeal or apply to the Tribunal following a final decision, direction or order of the Commission.

(3)Tribunal Procedure Rules may make any other provision regulating the exercise of rights to appeal or to apply to the Tribunal and matters relating to the making of references to it.]

(4)Rules under [F17subsection (2) or (3)] above may confer a discretion on—

(a)the Tribunal, [F18or]

F19(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)any other person.

F20(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F20(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F20(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8)Rules of the Lord Chancellor under this section—

(a)shall be made by statutory instrument, and

(b)shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(9)Section 86(3) below applies in relation to rules of the Lord Chancellor under this section as it applies in relation to regulations and orders of the Minister under this Act.

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Amendments (Textual)

2CAppeal from TribunalE+W+S+N.I.

F21(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F21(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)In the case of an appeal under [F22section 11 or 13 of the Tribunals, Courts and Enforcement Act 2007] against a decision of the Tribunal which determines a question referred to it by the Commission or the Attorney General, the [F23tribunal or court hearing the appeal]

(a)shall consider afresh the question referred to the Tribunal, and

(b)may take into account evidence which was not available to the Tribunal.

F24(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)For the purposes of [F25sections 11(2) and 13(2) of the Tribunals, Courts and Enforcement Act 2007]

(a)the Commission and the Attorney General are to be treated as parties to [F26cases before the Tribunal in respect of any such appeal, application or reference as is mentioned in section 2A(4)], and

F27(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

2DIntervention by Attorney GeneralE+W+S+N.I.

(1)This section applies to any proceedings—

(a)before the Tribunal, or

(b)on an appeal from the Tribunal,

to which the Attorney General is not a party.

(2)[F28The appropriate body] may at any stage of the proceedings direct that all the necessary papers in the proceedings be sent to the Attorney General.

(3)A direction under subsection (2) may be made by the [F29appropriate body]

(a)of its own motion, or

(b)on the application of any party to the proceedings.

(4)The Attorney General may—

(a)intervene in the proceedings in such manner as he thinks necessary or expedient, and

(b)argue before the [F30appropriate body] any question in relation to the proceedings which the Tribunal or court considers it necessary to have fully argued.

(5)Subsection (4) applies whether or not [F31a direction is given] under subsection (2).]

[F32(6)In this section “the appropriate body” means the Tribunal or, in the case of an appeal from the Tribunal, the tribunal or court hearing the appeal.]

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Amendments (Textual)

Part IIE+W Registration and Names of Charities

Registration of charitiesE+W

[F333Register of charitiesE+W

(1)There shall continue to be a register of charities, which shall be kept by the Commission.

(2)The register shall be kept by the Commission in such manner as it thinks fit.

(3)The register shall contain—

(a)the name of every charity registered in accordance with section 3A below (registration), and

(b)such other particulars of, and such other information relating to, every such charity as the Commission thinks fit.

(4)The Commission shall remove from the register—

(a)any institution which it no longer considers is a charity, and

(b)any charity which has ceased to exist or does not operate.

(5)If the removal of an institution under subsection (4)(a) above is due to any change in its trusts, the removal shall take effect from the date of that change.

(6)A charity which is for the time being registered under section 3A(6) below (voluntary registration) shall be removed from the register if it so requests.

(7)The register (including the entries cancelled when institutions are removed from the register) shall be open to public inspection at all reasonable times.

(8)Where any information contained in the register is not in documentary form, subsection (7) above shall be construed as requiring the information to be available for public inspection in legible form at all reasonable times.

(9)If the Commission so determines, subsection (7) shall not apply to any particular information contained in the register that is specified in the determination.

(10)Copies (or particulars) of the trusts of any registered charity as supplied to the Commission under section 3B below (applications for registration etc.) shall, so long as the charity remains on the register—

(a)be kept by the Commission, and

(b)be open to public inspection at all reasonable times.

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Amendments (Textual)

F33Ss. 3-3B substituted for s. 3 (27.2.2007 for the insertion of ss. 3A(2)(c)(4)(b)(5), 3B(2)(b) for specified purposes, 31.1.2009 in so far as not already in force except for the insertion of s. 3A(6)) by Charities Act 2006 (c. 50), ss. 9, 79(2); S.I. 2007/309, art. 2, Sch.; S.I. 2008/3267, art. 2, Sch. (with arts. 3-27) (as amended: (29.9.2009) by S.I. 2009/2648, art. 3; (26.7.2010) by S.I. 2010/1942, art. 2; and (1.8.2011) by S.I. 2011/1725, arts. 1(2), 3, Sch. para. 6)

3ARegistration of charitiesE+W

(1)Every charity must be registered in the register of charities unless subsection (2) below applies to it.

(2)The following are not required to be registered—

(a)any exempt charity (see Schedule 2 to this Act);

(b)any charity which for the time being—

(i)is permanently or temporarily excepted by order of the Commission, and

(ii)complies with any conditions of the exception,

and whose gross income does not exceed £100,000;

(c)any charity which for the time being—

(i)is, or is of a description, permanently or temporarily excepted by regulations made by the [F34Minister], and

(ii)complies with any conditions of the exception,

and whose gross income does not exceed £100,000; and

(d)any charity whose gross income does not exceed £5,000.

(3)For the purposes of subsection (2)(b) above—

(a)any order made or having effect as if made under section 3(5)(b) of this Act (as originally enacted) and in force immediately before the appointed day has effect as from that day as if made under subsection (2)(b) (and may be varied or revoked accordingly); and

(b)no order may be made under subsection (2)(b) so as to except on or after the appointed day any charity that was not excepted immediately before that day.

(4)For the purposes of subsection (2)(c) above—

(a)any regulations made or having effect as if made under section 3(5)(b) of this Act (as originally enacted) and in force immediately before the appointed day have effect as from that day as if made under subsection (2)(c) (and may be varied or revoked accordingly);

(b)such regulations shall be made under subsection (2)(c) as are necessary to secure that all of the formerly specified institutions are excepted under that provision (subject to compliance with any conditions of the exception and the financial limit mentioned in that provision); but

(c)otherwise no regulations may be made under subsection (2)(c) so as to except on or after the appointed day any description of charities that was not excepted immediately before that day.

(5)In subsection (4)(b) above “formerly specified institutions” means—

(a)any institution falling within section 3(5B)(a) or (b) of this Act as in force immediately before the appointed day (certain educational institutions); or

(b)any institution ceasing to be an exempt charity by virtue of section 11 of the Charities Act 2006 or any order made under that section.

(6)A charity within—

(a)subsection (2)(b) or (c) above, or

(b)subsection (2)(d) above,

must, if it so requests, be registered in the register of charities.

(7)The Minister may by order amend—

(a)subsection (2)(b) and (c) above, or

(b)subsection (2)(d) above,

by substituting a different sum for the sum for the time being specified there.

(8)The Minister may only make an order under subsection (7) above—

(a)so far as it amends subsection (2)(b) and (c), if he considers it expedient to so with a view to reducing the scope of the exception provided by those provisions;

(b)so far as it amends subsection (2)(d), if he considers it expedient to do so in consequence of changes in the value of money or with a view to extending the scope of the exception provided by that provision,

and no order may be made by him under subsection (7)(a) unless a copy of a report under section 73 of the Charities Act 2006 (report on operation of that Act) has been laid before Parliament in accordance with that section.

(9)In this section “the appointed day” means the day on which subsections (1) to (5) above come into force by virtue of an order under section 79 of the Charities Act 2006 relating to section 9 of that Act (registration of charities).

(10)In this section any reference to a charity's “gross income” shall be construed, in relation to a particular time—

(a)as a reference to the charity's gross income in its financial year immediately preceding that time, or

(b)if the Commission so determines, as a reference to the amount which the Commission estimates to be the likely amount of the charity's gross income in such financial year of the charity as is specified in the determination.

(11)The following provisions of this section—

(a)subsection (2)(b) and (c),

(b)subsections (3) to (5), and

(c)subsections (6)(a), (7)(a), (8)(a) and (9),

shall cease to have effect on such day as the Minister may by order appoint for the purposes of this subsection.

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Amendments (Textual)

F33Ss. 3-3B substituted for s. 3 (27.2.2007 for the insertion of ss. 3A(2)(c)(4)(b)(5), 3B(2)(b) for specified purposes, 31.1.2009 in so far as not already in force except for the insertion of s. 3A(6)) by Charities Act 2006 (c. 50), ss. 9, 79(2); S.I. 2007/309, art. 2, Sch.; S.I. 2008/3267, art. 2, Sch. (with arts. 3-27) (as amended: (29.9.2009) by S.I. 2009/2648, art. 3; (26.7.2010) by S.I. 2010/1942, art. 2; and (1.8.2011) by S.I. 2011/1725, arts. 1(2), 3, Sch. para. 6)

3BDuties of trustees in connection with registrationE+W

(1)Where a charity required to be registered by virtue of section 3A(1) above is not registered, it is the duty of the charity trustees—

(a)to apply to the Commission for the charity to be registered, and

(b)to supply the Commission with the required documents and information.

(2)The “required documents and information” are—

(a)copies of the charity's trusts or (if they are not set out in any extant document) particulars of them,

(b)such other documents or information as may be prescribed by regulations made by the Minister, and

(c)such other documents or information as the Commission may require for the purposes of the application.

(3)Where an institution is for the time being registered, it is the duty of the charity trustees (or the last charity trustees)—

(a)to notify the Commission if the institution ceases to exist, or if there is any change in its trusts or in the particulars of it entered in the register, and

(b)(so far as appropriate), to supply the Commission with particulars of any such change and copies of any new trusts or alterations of the trusts.

(4)Nothing in subsection (3) above requires a person—

(a)to supply the Commission with copies of schemes for the administration of a charity made otherwise than by the court,

(b)to notify the Commission of any change made with respect to a registered charity by such a scheme, or

(c)if he refers the Commission to a document or copy already in the possession of the Commission, to supply a further copy of the document.

(5)Where a copy of a document relating to a registered charity—

(a)is not required to be supplied to the Commission as the result of subsection (4) above, but

(b)is in the possession of the Commission,

a copy of the document shall be open to inspection under section 3(10) above as if supplied to the Commission under this section.]

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Amendments (Textual)

F33Ss. 3-3B substituted for s. 3 (27.2.2007 for the insertion of ss. 3A(2)(c)(4)(b)(5), 3B(2)(b) for specified purposes, 31.1.2009 in so far as not already in force except for the insertion of s. 3A(6)) by Charities Act 2006 (c. 50), ss. 9, 79(2); S.I. 2007/309, art. 2, Sch.; S.I. 2008/3267, art. 2, Sch. (with arts. 3-27) (as amended: (29.9.2009) by S.I. 2009/2648, art. 3; (26.7.2010) by S.I. 2010/1942, art. 2; and (1.8.2011) by S.I. 2011/1725, arts. 1(2), 3, Sch. para. 6)

4 Effect of, and claims and objections to, registration.E+W

(1)An institution shall for all purposes other than rectification of the register be conclusively presumed to be or to have been a charity at any time when it is or was on the register of charities.

(2)Any person who is or may be affected by the registration of an institution as a charity may, on the ground that it is not a charity, object to its being entered by [F35the Commission] in the register, or apply [F36to the Commission] for it to be removed from the register; and provision may be made by regulations made by the [F37Minister] as to the manner in which any such objection or application is to be made, prosecuted or dealt with.

F38(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)If there is an appeal to the [F39Tribunal] against any decision of [F40the Commission] to enter an institution in the register, or not to remove an institution from the register, then until [F41the Commission is] satisfied whether the decision of [F40the Commission] is or is not to stand, the entry in the register shall be maintained, but shall be in suspense and marked to indicate that it is in suspense; and for the purposes of subsection (1) above an institution shall be deemed not to be on the register during any period when the entry relating to it is in suspense under this subsection.

(5)Any question affecting the registration or removal from the register of an institution may, notwithstanding that it has been determined by a decision on appeal under [F42Schedule 1C to this Act] above, be considered afresh by [F43the Commission] and shall not be concluded by that decision, if it appears to [F43the Commission] that there has been a change of circumstances or that the decision is inconsistent with a later judicial decisionF44....

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Amendments (Textual)

F35Words in s. 4(2) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 99(2)(a); S.I. 2007/309, art. 2, Sch.

F36Words in s. 4(2) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 99(2)(b); S.I. 2007/309, art. 2, Sch.

F39Words in s. 4(4) substituted (18.3.2008) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 99(4)(a) (with Sch. 10 para. 18); S.I. 2008/751, art. 2, Sch. (with art. 4)

F40Words in s. 4(4) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 99(4)(b); S.I. 2007/309, art. 2, Sch.

F41Words in s. 4(4) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 99(4)(c); S.I. 2007/309, art. 2, Sch.

F42Words in s. 4(5) substituted (18.3.2008) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 99(5)(a); S.I. 2008/751, art. 2, Sch. (with art. 4)

F43Words in s. 4(5) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 99(5)(b); S.I. 2007/309, art. 2, Sch.

F44Words in s. 4(5) repealed (18.3.2008) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 99(5)(c); S.I. 2008/751, art. 2, Sch. (with art. 4)

5 Status of registered charity (other than small charity) to appear on official publications etc.E+W

(1)This section applies to a registered charity if its gross income in its last financial year exceeded [F45£10,000].

(2)Where this section applies to a registered charity, the fact that it is a registered charity shall be stated F46. . . in legible characters—

(a)in all notices, advertisements and other documents issued by or on behalf of the charity and soliciting money or other property for the benefit of the charity;

(b)in all bills of exchange, promissory notes, endorsements, cheques and orders for money or goods purporting to be signed on behalf of the charity; and

(c)in all bills rendered by it and in all its invoices, receipts and letters of credit.

F47[(2A)The statement required by subsection (2) above shall be in English, except that, in the case of a document which is otherwise wholly in Welsh, the statement may be in Welsh if it consists of or includes the words “elusen cofrestredig” (the Welsh equivalent of “registered charity”).]

(3)Subsection (2)(a) above has effect whether the solicitation is express or implied, and whether the money or other property is to be given for any consideration or not.

(4)If, in the case of a registered charity to which this section applies, any person issues or authorises the issue of any document falling within paragraph (a) or (c) of subsection (2) above [F48which does not contain the statement] required by that subsection, he shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(5)If, in the case of any such registered charity, any person signs any document falling within paragraph (b) of subsection (2) above [F49which does not contain the statement] required by that subsection, he shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(6)The [F50Minister] may by order amend subsection (1) above by substituting a different sum for the sum for the time being specified there.

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Amendments (Textual)

F45Figure in s. 5(1) substituted (1.12.1995) by S.I. 1995/2696, art. 2(2)

F46Words in s. 5(2) repealed (21.12.1993) by 1993 c. 38, ss. 32(2), 35(1), 36(1), Sch. 2

F47S. 5(2A) inserted (21.12.1993) by 1993 c. 38, ss. 32(3), 36(1)

F48Words in s. 5(4) substituted (21.12.1993) by 1993 c. 38, ss. 32(4), 36(1)

F49Words in s. 5(5) substituted (21.12.1993) by 1993 c. 38, ss. 32(5), 36(1)

Charity namesE+W

6 Power of [F51Commission] to require charity’s name to be changed.E+W

(1)Where this subsection applies to a charity, the [F52Commission] may give a direction requiring the name of the charity to be changed, within such period as is specified in the direction, to such other name as the charity trustees may determine with the approval of the [F52Commission].

(2)Subsection (1) above applies to a charity if—

(a)it is a registered charity and its name (“the registered name”)—

(i)is the same as, or

(ii)is in the opinion of the [F52Commission] too like,

the name, at the time when the registered name was entered in the register in respect of the charity, of any other charity (whether registered or not);

(b)the name of the charity is in the opinion of the [F52Commission] likely to mislead the public as to the true nature—

(i)of the purposes of the charity as set out in its trusts, or

(ii)of the activities which the charity carries on under its trusts in pursuit of those purposes;

(c)the name of the charity includes any word or expression for the time being specified in regulations made by the [F53Minister] and the inclusion in its name of that word or expression is in the opinion of the [F52Commission] likely to mislead the public in any respect as to the status of the charity;

(d)the name of the charity is in the opinion of the [F52Commission] likely to give the impression that the charity is connected in some way with Her Majesty’s Government or any local authority, or with any other body of persons or any individual, when it is not so connected; or

(e)the name of the charity is in the opinion of the [F52Commission] offensive;

and in this subsection any reference to the name of a charity is, in relation to a registered charity, a reference to the name by which it is registered.

(3)Any direction given by virtue of subsection (2)(a) above must be given within twelve months of the time when the registered name was entered in the register in respect of the charity.

(4)Any direction given under this section with respect to a charity shall be given to the charity trustees; and on receiving any such direction the charity trustees shall give effect to it notwithstanding anything in the trusts of the charity.

(5)Where the name of any charity is changed under this section, then (without prejudice to [F54section 3B(3)]) it shall be the duty of the charity trustees forthwith to notify the [F52Commission] of the charity’s new name and of the date on which the change occurred.

(6)A change of name by a charity under this section does not affect any rights or obligations of the charity; and any legal proceedings that might have been continued or commenced by or against it in its former name may be continued or commenced by or against it in its new name.

F55(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8)Any reference in this section to the charity trustees of a charity shall, in relation to a charity which is a company, be read as a reference to the directors of the company.

(9)Nothing in this section applies to an exempt charity.

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Amendments (Textual)

F51Word in s. 6 heading substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 100(2); S.I. 2007/309, art. 2, Sch.

F54Words in s. 6(5) substituted (31.1.2009) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 100(3); S.I. 2008/3267, art. 2, Sch. (with arts. 3-27) (as amended: (29.9.2009) by S.I. 2009/2648, art. 3; (26.7.2010) by S.I. 2010/1942, art. 2; and (1.8.2011) by S.I. 2011/1725, arts. 1(2), 3, Sch. para. 6)

7 Effect of direction under s. 6 where charity is a company.E+W

(1)Where any direction is given under section 6 above with respect to a charity which is a company, the direction shall be taken to require the name of the charity to be changed by resolution of the directors of the company.

[F56(2)Where a resolution of the directors is passed in accordance with subsection (1), the company must give notice of the change to the registrar of companies.]

(3)Where the name of such a charity is changed in compliance with any such direction, the registrar of companies—

(a)shall [F57, if satisfied that the new name complies with the requirements of Part 5 of the Companies Act 2006,] enter the new name on the register of companies in place of the former name, and

(b)shall issue a certificate of incorporation altered to meet the circumstances of the case;

and the change of name has effect from the date on which the altered certificate is issued.

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Amendments (Textual)

Part IIIE+W+S+N.I.[F58Information Powers]

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Amendments (Textual)

F58Pt. III heading substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 101; S.I. 2007/309, art. 2, Sch.

8 General power to institute inquiries.E+W

(1)[F59The Commission] may from time to time institute inquiries with regard to charities or a particular charity or class of charities, either generally or for particular purposes, but no such inquiry shall extend to any exempt charity.

(2)[F60The Commission] may either conduct such an inquiry [F61itself] or appoint a person to conduct it and make a report [F62to the Commission].

(3)For the purposes of any such inquiry [F63the Commission, or a person appointed by the Commission] to conduct it, may direct any person (subject to the provisions of this section)—

(a)to furnish accounts and statements in writing with respect to any matter in question at the inquiry, being a matter on which he has or can reasonably obtain information, or to return answers in writing to any questions or inquiries addressed to him on any such matter, and to verify any such accounts, statements or answers by statutory declaration;

(b)to furnish copies of documents in his custody or under his control which relate to any matter in question at the inquiry, and to verify any such copies by statutory declaration;

(c)to attend at a specified time and place and give evidence or produce any such documents.

(4)For the purposes of any such inquiry evidence may be taken on oath, and the person conducting the inquiry may for that purpose administer oaths, or may instead of administering an oath require the person examined to make and subscribe a declaration of the truth of the matters about which he is examined.

(5)[F64The Commission] may pay to any person the necessary expenses of his attendance to give evidence or produce documents for the purpose of an inquiry under this section, and a person shall not be required in obedience to a direction under paragraph (c) of subsection (3) above to go more than ten miles from his place of residence unless those expenses are paid or tendered to him.

(6)Where an inquiry has been held under this section, [F65the Commission] may either—

(a)cause the report of the person conducting the inquiry, or such other statement of the results of the inquiry as [F66the Commission thinks] fit, to be printed and published, or

(b)publish any such report or statement in some other way which is calculated in [F67the Commission's opinion] to bring it to the attention of persons who may wish to make representations [F68to the Commission] about the action to be taken.

(7)The council of a county or district, the Common Council of the City of London and the council of a London borough may contribute to the expenses of [F69the Commission] in connection with inquiries under this section into local charities in the council’s area.

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Amendments (Textual)

F59Words in s. 8(1) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 102(2); S.I. 2007/309, art. 2, Sch.

F63Words in s. 8(3) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 102(4); S.I. 2007/309, art. 2, Sch.

F64Words in s. 8(5) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 102(5); S.I. 2007/309, art. 2, Sch.

F69Words in s. 8(7) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 102(7); S.I. 2007/309, art. 2, Sch.

Modifications etc. (not altering text)

9 Power to call for documents and search records.E+W

(1)[F70The Commission] may by order—

(a)require any person to [F71furnish the Commission] with any information in his possession which relates to any charity and is relevant to the discharge of [F72the Commission's functions] or of the functions of the official custodian;

(b)require any person who has in his custody or under his control any document which relates to any charity and is relevant to the discharge of [F72the Commission's functions] or of the functions of the official custodian—

(i)to [F71furnish the Commission] with a copy of or extract from the document, or

(ii)(unless the document forms part of the records or other documents of a court or of a public or local authority) to transmit the document itself to [F73the Commission for its] inspection.

(2)Any [F74member of the staff of the Commission, if so authorised by it], shall be entitled without payment to inspect and take copies of or extracts from the records or other documents of any court, or of any public registry or office of records, for any purpose connected with the discharge of the functions of [F75the Commission] or of the official custodian.

(3)[F76The Commission] shall be entitled without payment to keep any copy or extract furnished [F77to it] under subsection (1) above; and where a document transmitted [F78to the Commission] under that subsection for [F79it to inspect] relates only to one or more charities and is not held by any person entitled as trustee or otherwise to the custody of it, [F80the Commission] may keep it or may deliver it to the charity trustees or to any other person who may be so entitled.

(4)No person properly having the custody of documents relating only to an exempt charity shall be required under subsection (1) above to transmit to the Commissioners any of those documents, or to furnish any copy of or extract from any of them.

(5)The rights conferred by subsection (2) above shall, in relation to information recorded otherwise than in legible form, include the right to require the information to be made available in legible form for inspection or for a copy or extract to be made of or from it.

[F81(6)In subsection (2) the reference to a member of the staff of the Commission includes the official custodian even if he is not a member of the staff of the Commission.]

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Amendments (Textual)

[F8210Disclosure of information to CommissionE+W+S+N.I.

(1)Any relevant public authority may disclose information to the Commission if the disclosure is made for the purpose of enabling or assisting the Commission to discharge any of its functions.

(2)But Revenue and Customs information may be disclosed under subsection (1) only if it relates to an institution, undertaking or body falling within one (or more) of the following paragraphs—

(a)a charity;

(b)an institution which is established for charitable, benevolent or philanthropic purposes;

(c)an institution by or in respect of which a claim for exemption has at any time been made under section 505(1) of the Income and Corporation Taxes Act 1988 [F83or Part 10 of the Income Tax Act 2007] [F84or a relevant claim for exemption has at any time been made under Part 11 of the Corporation Tax Act 2010];

(d)a subsidiary undertaking of a charity;

(e)a body entered in the Scottish Charity Register which is managed or controlled wholly or mainly in or from England or Wales.

[F85(2A)For the purposes of subsection (2)(c) above a claim for exemption made under Part 11 of the Corporation Tax Act 2010 is a relevant claim if it is neither—

(a)a claim for exemption under section 475, 476 or 477 (reliefs for eligible bodies and scientific research organisations), nor

(b)a claim made by virtue of section 490 or section 491 (application of exemptions to eligible bodies and scientific research organisations).]

(3)In subsection (2)(d) above “subsidiary undertaking of a charity” means an undertaking (as defined by [F86section 1161(1) of the Companies Act 2006]) in relation to which—

(a)a charity is (or is to be treated as) a parent undertaking in accordance with the provisions of [F87section 1162 of, and Schedule 7 to, the Companies Act 2006] , or

(b)two or more charities would, if they were a single charity, be (or be treated as) a parent undertaking in accordance with those provisions.

(4)For the purposes of the references to a parent undertaking—

(a)in subsection (3) above, and

(b)in [F88section 1162 of, and Schedule 7 to, the Companies Act 2006] as they apply for the purposes of that subsection,

undertaking” includes a charity which is not an undertaking as defined by [F89section 1161(1)] of that Act.

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Amendments (Textual)

F82Ss. 10-10C substituted for s. 10 (8.11.2006 for specified purposes, 27.2.2007 except for the insertion of s. 10B and references to s. 10B) by Charities Act 2006 (c. 50), s. 79(1)(g), Sch. 8 para. 104 (with Sch. 10 para. 20); S.I. 2007/309, art. 2, Sch. (with art. 5)

F83Words in s. 10(2)(c) inserted (with effect in accordance with art. 1(2) of the amending S.I.) by The Income Tax Act 2007 (Amendment) Order 2010 (S.I. 2010/588), arts. 1(1), 4

F84Words in s. 10(2)(c) inserted (with effect in accordance with s. 1184(1) of the amending Act) by Corporation Tax Act 2010 (c. 4), s. 1184(1), Sch. 1 para. 274(2) (with Sch. 2)

F85S. 10(2A) inserted (with effect in accordance with s. 1184(1) of the amending Act) by Corporation Tax Act 2010 (c. 4), s. 1184(1), Sch. 1 para. 274(3) (with Sch. 2)

10ADisclosure of information by CommissionE+W+S+N.I.

(1)Subject to subsections (2) and (3) below, the Commission may disclose to any relevant public authority any information received by the Commission in connection with any of the Commission's functions—

(a)if the disclosure is made for the purpose of enabling or assisting the relevant public authority to discharge any of its functions, or

(b)if the information so disclosed is otherwise relevant to the discharge of any of the functions of the relevant public authority.

(2)In the case of information disclosed to the Commission under section 10(1) above, the Commission's power to disclose the information under subsection (1) above is exercisable subject to any express restriction subject to which the information was disclosed to the Commission.

(3)Subsection (2) above does not apply in relation to Revenue and Customs information disclosed to the Commission under section 10(1) above; but any such information may not be further disclosed (whether under subsection (1) above or otherwise) except with the consent of the Commissioners for Her Majesty's Revenue and Customs.

(4)Any responsible person who discloses information in contravention of subsection (3) above is guilty of an offence and liable—

(a)on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum, or both;

(b)on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or both.

(5)It is a defence for a responsible person charged with an offence under subsection (4) above of disclosing information to prove that he reasonably believed—

(a)that the disclosure was lawful, or

(b)that the information had already and lawfully been made available to the public.

(6)In the application of this section to Scotland or Northern Ireland, the reference to 12 months in subsection (4) is to be read as a reference to 6 months.

(7)In this section “responsible person” means a person who is or was—

(a)a member of the Commission,

(b)a member of the staff of the Commission,

(c)a person acting on behalf of the Commission or a member of the staff of the Commission, or

(d)a member of a committee established by the Commission.

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Amendments (Textual)

F82Ss. 10-10C substituted for s. 10 (8.11.2006 for specified purposes, 27.2.2007 except for the insertion of s. 10B and references to s. 10B) by Charities Act 2006 (c. 50), s. 79(1)(g), Sch. 8 para. 104 (with Sch. 10 para. 20); S.I. 2007/309, art. 2, Sch. (with art. 5)

10BDisclosure to and by principal regulators of exempt charitiesE+W+S+N.I.

(1)Sections 10 and 10A above apply with the modifications in subsections (2) to (4) below in relation to the disclosure of information to or by the principal regulator of an exempt charity.

(2)References in those sections to the Commission or to any of its functions are to be read as references to the principal regulator of an exempt charity or to any of the functions of that body or person as principal regulator in relation to the charity.

(3)Section 10 above has effect as if for subsections (2) and (3) there were substituted—

(2)But Revenue and Customs information may be disclosed under subsection (1) only if it relates to—

(a)the exempt charity in relation to which the principal regulator has functions as such, or

(b)a subsidiary undertaking of the exempt charity.

(3)In subsection (2)(b) above “subsidiary undertaking of the exempt charity” means an undertaking (as defined by [F90section 1161(1) of the Companies Act 2006] ) in relation to which—

(a)the exempt charity is (or is to be treated as) a parent undertaking in accordance with the provisions of [F91section 1162 of, and Schedule 7 to, the Companies Act 2006] , or

(b)the exempt charity and one or more other charities would, if they were a single charity, be (or be treated as) a parent undertaking in accordance with those provisions.

(4)Section 10A above has effect as if for the definition of “responsible person” in subsection (7) there were substituted a definition specified by regulations under section 13(4)(b) of the Charities Act 2006 (regulations prescribing principal regulators).

(5)Regulations under section 13(4)(b) of that Act may also make such amendments or other modifications of any enactment as the [F92Minister] considers appropriate for securing that any disclosure provisions that would otherwise apply in relation to the principal regulator of an exempt charity do not apply in relation to that body or person in its or his capacity as principal regulator.

(6)In subsection (5) above “disclosure provisions” means provisions having effect for authorising, or otherwise in connection with, the disclosure of information by or to the principal regulator concerned.

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Amendments (Textual)

F82Ss. 10-10C substituted for s. 10 (8.11.2006 for specified purposes, 27.2.2007 except for the insertion of s. 10B and references to s. 10B) by Charities Act 2006 (c. 50), s. 79(1)(g), Sch. 8 para. 104 (with Sch. 10 para. 20); S.I. 2007/309, art. 2, Sch. (with art. 5)

10CDisclosure of information: supplementaryE+W+S+N.I.

(1)In sections 10 and 10A above “relevant public authority” means—

(a)any government department (including a Northern Ireland department),

(b)any local authority,

(c)any constable, and

(d)any other body or person discharging functions of a public nature (including a body or person discharging regulatory functions in relation to any description of activities).

(2)In section 10A above “relevant public authority” also includes any body or person within subsection (1)(d) above in a country or territory outside the United Kingdom.

(3)In sections 10 to 10B above and this section—

  • enactment” has the same meaning as in the Charities Act 2006;

  • Revenue and Customs information” means information held as mentioned in section 18(1) of the Commissioners for Revenue and Customs Act 2005.

(4)Nothing in sections 10 and 10A above (or in those sections as applied by section 10B(1) to (4) above) authorises the making of a disclosure which—

(a)contravenes the Data Protection Act 1998, or

(b)is prohibited by Part 1 of the Regulation of Investigatory Powers Act 2000.]

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Amendments (Textual)

F82Ss. 10-10C substituted for s. 10 (8.11.2006 for specified purposes, 27.2.2007 except for the insertion of s. 10B and references to s. 10B) by Charities Act 2006 (c. 50), s. 79(1)(g), Sch. 8 para. 104 (with Sch. 10 para. 20); S.I. 2007/309, art. 2, Sch. (with art. 5)

11 Supply of false or misleading information to [F93Commission] , etc.E+W

(1)Any person who knowingly or recklessly provides the [F94Commission] with information which is false or misleading in a material particular shall be guilty of an offence if the information—

(a)is provided in purported compliance with a requirement imposed by or under this Act; or

(b)is provided otherwise than as mentioned in paragraph (a) above but in circumstances in which the person providing the information intends, or could reasonably be expected to know, that it would be used by the [F94Commission] for the purpose of discharging [F95its functions] under this Act.

(2)Any person who wilfully alters, suppresses, conceals or destroys any document which he is or is liable to be required, by or under this Act, to produce to the [F94Commission] shall be guilty of an offence.

(3)Any person guilty of an offence under this section shall be liable—

(a)on summary conviction, to a fine not exceeding the statutory maximum;

(b)on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or both.

(4)In this section references to the [F94Commission] include references to any person conducting an inquiry under section 8 above.

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Amendments (Textual)

F95Words in s. 11(1)(b) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 105(3); S.I. 2007/309, art. 2, Sch.

F9612. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

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Amendments (Textual)

Part IVE+W+N.I. Application of Property Cy-près and Assistance and Supervision of Charities by Court [F97and Commission]

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Amendments (Textual)

F97Words in Pt. IV heading substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 106; S.I. 2007/309, art. 2, Sch.

Extended powers of court and variation of chartersE+W+N.I.

13 Occasions for applying property cy-près.E+W

(1)Subject to subsection (2) below, the circumstances in which the original purposes of a charitable gift can be altered to allow the property given or part of it to be applied cy-près shall be as follows—

(a)where the original purposes, in whole or in part—

(i)have been as far as may be fulfilled; or

(ii)cannot be carried out, or not according to the directions given and to the spirit of the gift; or

(b)where the original purposes provide a use for part only of the property available by virtue of the gift; or

(c)where the property available by virtue of the gift and other property applicable for similar purposes can be more effectively used in conjunction, and to that end can suitably, regard being had to [F98the appropriate considerations] , be made applicable to common purposes; or

(d)where the original purposes were laid down by reference to an area which then was but has since ceased to be a unit for some other purpose, or by reference to a class of persons or to an area which has for any reason since ceased to be suitable, regard being had to [F99the appropriate considerations] , or to be practical in administering the gift; or

(e)where the original purposes, in whole or in part, have, since they were laid down,—

(i)been adequately provided for by other means; or

(ii)ceased, as being useless or harmful to the community or for other reasons, to be in law charitable; or

(iii)ceased in any other way to provide a suitable and effective method of using the property available by virtue of the gift, regard being had to [F100the appropriate considerations] .

[F101(1A)In subsection (1) above “the appropriate considerations” means—

(a)(on the one hand) the spirit of the gift concerned, and

(b)(on the other) the social and economic circumstances prevailing at the time of the proposed alteration of the original purposes.]

(2)Subsection (1) above shall not affect the conditions which must be satisfied in order that property given for charitable purposes may be applied cy-près except in so far as those conditions require a failure of the original purposes.

(3)References in the foregoing subsections to the original purposes of a gift shall be construed, where the application of the property given has been altered or regulated by a scheme or otherwise, as referring to the purposes for which the property is for the time being applicable.

(4)Without prejudice to the power to make schemes in circumstances falling within subsection (1) above, the court may by scheme made under the court’s jurisdiction with respect to charities, in any case where the purposes for which the property is held are laid down by reference to any such area as is mentioned in the first column in Schedule 3 to this Act, provide for enlarging the area to any such area as is mentioned in the second column in the same entry in that Schedule.

(5)It is hereby declared that a trust for charitable purposes places a trustee under a duty, where the case permits and requires the property or some part of it to be applied cy-près, to secure its effective use for charity by taking steps to enable it to be so applied.

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Amendments (Textual)

14 Application cy-près of gifts of donors unknown or disclaiming.E+W

(1)Property given for specific charitable purposes which fail shall be applicable cy-près as if given for charitable purposes generally, where it belongs—

(a)to a donor who after—

(i)the prescribed advertisements and inquiries have been published and made, and

(ii)the prescribed period beginning with the publication of those advertisements has expired,

cannot be identified or cannot be found; or

(b)to a donor who has executed a disclaimer in the prescribed form of his right to have the property returned.

(2)Where the prescribed advertisements and inquiries have been published and made by or on behalf of trustees with respect to any such property, the trustees shall not be liable to any person in respect of the property if no claim by him to be interested in it is received by them before the expiry of the period mentioned in subsection (1)(a)(ii) above.

(3)For the purposes of this section property shall be conclusively presumed (without any advertisement or inquiry) to belong to donors who cannot be identified, in so far as it consists—

(a)of the proceeds of cash collections made by means of collecting boxes or by other means not adapted for distinguishing one gift from another; or

(b)of the proceeds of any lottery, competition, entertainment, sale or similar money-raising activity, after allowing for property given to provide prizes or articles for sale or otherwise to enable the activity to be undertaken.

(4)The court [F102or the Commission] may by order direct that property not falling within subsection (3) above shall for the purposes of this section be treated (without any advertisement or inquiry) as belonging to donors who cannot be identified where it appears to the court [F102or the Commission] either—

(a)that it would be unreasonable, having regard to the amounts likely to be returned to the donors, to incur expense with a view to returning the property; or

(b)that it would be unreasonable, having regard to the nature, circumstances and amounts of the gifts, and to the lapse of time since the gifts were made, for the donors to expect the property to be returned.

(5)Where property is applied cy-près by virtue of this section, the donor shall be deemed to have parted with all his interest at the time when the gift was made; but where property is so applied as belonging to donors who cannot be identified or cannot be found, and is not so applied by virtue of subsection (3) or (4) above—

(a)the scheme shall specify the total amount of that property; and

(b)the donor of any part of that amount shall be entitled, if he makes a claim not later than six months after the date on which the scheme is made, to recover from the charity for which the property is applied a sum equal to that part, less any expenses properly incurred by the charity trustees after that date in connection with claims relating to his gift; and

(c)the scheme may include directions as to the provision to be made for meeting any such claim.

(6)Where—

(a)any sum is, in accordance with any such directions, set aside for meeting any such claims, but

(b)the aggregate amount of any such claims actually made exceeds the relevant amount,

then, if [F103the Commission so directs], each of the donors in question shall be entitled only to such proportion of the relevant amount as the amount of his claim bears to the aggregate amount referred to in paragraph (b) above; and for this purpose “the relevant amount” means the amount of the sum so set aside after deduction of any expenses properly incurred by the charity trustees in connection with claims relating to the donors’ gifts.

(7)For the purposes of this section, charitable purposes shall be deemed to “fail” where any difficulty in applying property to those purposes makes that property or the part not applicable cy-près available to be returned to the donors.

(8)In this section “prescribed” means prescribed by regulations made by [F104the Commission]; and such regulations may, as respects the advertisements which are to be published for the purposes of subsection (1)(a) above, make provision as to the form and content of such advertisements as well as the manner in which they are to be published.

(9)Any regulations made by [F105the Commission] under this section shall be published by [F105the Commission] in such manner as [F106it thinks fit].

(10)In this section, except in so far as the context otherwise requires, references to a donor include persons claiming through or under the original donor, and references to property given include the property for the time being representing the property originally given or property derived from it.

(11)This section shall apply to property given for charitable purposes, notwithstanding that it was so given before the commencement of this Act.

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Amendments (Textual)

F103Words in s. 14(6) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 107(2); S.I. 2007/309, art. 2, Sch.

F104Words in s. 14(8) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 107(3); S.I. 2007/309, art. 2, Sch.

[F10714AApplication cy-près of gifts made in response to certain solicitationsE+W+N.I.

(1)This section applies to property given—

(a)for specific charitable purposes, and

(b)in response to a solicitation within subsection (2) below.

(2)A solicitation is within this subsection if—

(a)it is made for specific charitable purposes, and

(b)it is accompanied by a statement to the effect that property given in response to it will, in the event of those purposes failing, be applicable cy-près as if given for charitable purposes generally, unless the donor makes a relevant declaration at the time of making the gift.

(3)A “relevant declaration” is a declaration in writing by the donor to the effect that, in the event of the specific charitable purposes failing, he wishes the trustees holding the property to give him the opportunity to request the return of the property in question (or a sum equal to its value at the time of the making of the gift).

(4)Subsections (5) and (6) below apply if—

(a)a person has given property as mentioned in subsection (1) above,

(b)the specific charitable purposes fail, and

(c)the donor has made a relevant declaration.

(5)The trustees holding the property must take the prescribed steps for the purpose of—

(a)informing the donor of the failure of the purposes,

(b)enquiring whether he wishes to request the return of the property (or a sum equal to its value), and

(c)if within the prescribed period he makes such a request, returning the property (or such a sum) to him.

(6)If those trustees have taken all appropriate prescribed steps but—

(a)they have failed to find the donor, or

(b)the donor does not within the prescribed period request the return of the property (or a sum equal to its value),

section 14(1) above shall apply to the property as if it belonged to a donor within paragraph (b) of that subsection (application of property where donor has disclaimed right to return of property).

(7)If—

(a)a person has given property as mentioned in subsection (1) above,

(b)the specific charitable purposes fail, and

(c)the donor has not made a relevant declaration,

section 14(1) above shall similarly apply to the property as if it belonged to a donor within paragraph (b) of that subsection.

(8)For the purposes of this section—

(a)solicitation” means a solicitation made in any manner and however communicated to the persons to whom it is addressed,

(b)it is irrelevant whether any consideration is or is to be given in return for the property in question, and

(c)where any appeal consists of both solicitations that are accompanied by statements within subsection (2)(b) and solicitations that are not so accompanied, a person giving property as a result of the appeal is to be taken to have responded to the former solicitations and not the latter, unless he proves otherwise.

(9)In this section “prescribed” means prescribed by regulations made by the Commission, and any such regulations shall be published by the Commission in such manner as it thinks fit.

(10)Subsections (7) and (10) of section 14 shall apply for the purposes of this section as they apply for the purposes of section 14.]

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Amendments (Textual)

F107S. 14A inserted (27.2.2007 for specified purposes, 18.3.2008 in so far as not already in force) by Charities Act 2006 (c. 50), ss. 17, 79(2); S.I. 2007/309, art. 2, Sch.; S.I. 2008/751, art. 2, Sch. (with art. 7)

[F10814BCy-près schemesE+W+N.I.

(1)The power of the court or the Commission to make schemes for the application of property cy-près shall be exercised in accordance with this section.

(2)Where any property given for charitable purposes is applicable cy-près, the court or the Commission may make a scheme providing for the property to be applied—

(a)for such charitable purposes, and

(b)(if the scheme provides for the property to be transferred to another charity) by or on trust for such other charity,

as it considers appropriate, having regard to the matters set out in subsection (3).

(3)The matters are—

(a)the spirit of the original gift,

(b)the desirability of securing that the property is applied for charitable purposes which are close to the original purposes, and

(c)the need for the relevant charity to have purposes which are suitable and effective in the light of current social and economic circumstances.

The “relevant charity” means the charity by or on behalf of which the property is to be applied under the scheme.

(4)If a scheme provides for the property to be transferred to another charity, the scheme may impose on the charity trustees of that charity a duty to secure that the property is applied for purposes which are, so far as is reasonably practicable, similar in character to the original purposes.

(5)In this section references to property given include the property for the time being representing the property originally given or property derived from it.

(6)In this section references to the transfer of property to a charity are references to its transfer—

(a)to the charity, or

(b)to the charity trustees, or

(c)to any trustee for the charity, or

(d)to a person nominated by the charity trustees to hold it in trust for the charity,

as the scheme may provide.]

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Amendments (Textual)

15 Charities governed by charter, or by or under statute.E+W+N.I.

(1)Where a Royal charter establishing or regulating a body corporate is amendable by the grant and acceptance of a further charter, a scheme relating to the body corporate or to the administration of property held by the body (including a scheme for the cy-près application of any such property) may be made by the court under the court’s jurisdiction with respect to charities notwithstanding that the scheme cannot take effect without the alteration of the charter, but shall be so framed that the scheme, or such part of it as cannot take effect without the alteration of the charter, does not purport to come into operation unless or until Her Majesty thinks fit to amend the charter in such manner as will permit the scheme or that part of it to have effect.

(2)Where under the court’s jurisdiction with respect to charities or the corresponding jurisdiction of a court in Northern Ireland, or under powers conferred by this Act or by any Northern Ireland legislation relating to charities, a scheme is made with respect to a body corporate, and it appears to Her Majesty expedient, having regard to the scheme, to amend any Royal charter relating to that body, Her Majesty may, on the application of that body, amend the charter accordingly by Order in Council in any way in which the charter could be amended by the grant and acceptance of a further charter; and any such Order in Council may be revoked or varied in like manner as the charter it amends.

(3)The jurisdiction of the court with respect to charities shall not be excluded or restricted in the case of a charity of any description mentioned in Schedule 4 to this Act by the operation of the enactments or instruments there mentioned in relation to that description, and a scheme established for any such charity may modify or supersede in relation to it the provision made by any such enactment or instrument as if made by a scheme of the court, and may also make any such provision as is authorised by that Schedule.

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Extent Information

E1S. 15 extends to England and Wales; s. 15(2) extends also to Northern Ireland, see s. 100(4)

[F109Powers of Commission] to make schemes and act for protection of charities etc.E+W

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Amendments (Textual)

F109Words in s. 16 cross-heading substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 108; S.I. 2007/309, art. 2, Sch.

16 Concurrent jurisdiction with High Court for certain purposes.E+W

(1)Subject to the provisions of this Act, [F110the Commission] may by order exercise the same jurisdiction and powers as are exercisable by the High Court in charity proceedings for the following purposes—

(a)establishing a scheme for the administration of a charity;

(b)appointing, discharging or removing a charity trustee or trustee for a charity, or removing an officer or employee;

(c)vesting or transferring property, or requiring or entitling any person to call for or make any transfer of property or any payment.

(2)Where the court directs a scheme for the administration of a charity to be established, the court may by order refer the matter to [F111the Commission for it] to prepare or settle a scheme in accordance with such directions (if any) as the court sees fit to give, and any such order may provide for the scheme to be put into effect by order of [F112the Commission] as if prepared under subsection (1) above and without any further order of the court.

(3)[F113The Commission] shall not have jurisdiction under this section to try or determine the title at law or in equity to any property as between a charity or trustee for a charity and a person holding or claiming the property or an interest in it adversely to the charity, or to try or determine any question as to the existence or extent of any charge or trust.

(4)Subject to the following subsections, [F114the Commission shall not exercise its] jurisdiction under this section as respects any charity, except—

(a)on the application of the charity; or

(b)on an order of the court under subsection (2) above; or

(c)in the case of a charity other than an exempt charity, on the application of the Attorney General.

(5)In the case of a charity which is not an exempt charity and whose [F115gross income does not] exceed £500 a year, [F116the Commission may exercise its] jurisdiction under this section on the application—

(a)of any one or more of the charity trustees; or

(b)of any person interested in the charity; or

(c)of any two or more inhabitants of the area of the charity if it is a local charity.

(6)Where in the case of a charity, other than an exempt charity, [F117the Commission is] satisfied that the charity trustees ought in the interests of the charity to apply for a scheme, but have unreasonably refused or neglected to do so and [F118the Commission has] given the charity trustees an opportunity to make representations to them, [F119the Commission] may proceed as if an application for a scheme had been made by the charity but [F119the Commission] shall not have power in a case where [F120it acts] by virtue of this subsection to alter the purposes of a charity, unless forty years have elapsed from the date of its foundation.

(7)Where—

(a)a charity cannot apply to [F121the Commission] for a scheme by reason of any vacancy among the charity trustees or the absence or incapacity of any of them, but

(b)such an application is made by such number of the charity trustees as [F122the Commission considers] appropriate in the circumstances of the case,

[F121the Commission] may nevertheless proceed as if the application were an application made by the charity.

(8)[F123The Commission] may on the application of any charity trustee or trustee for a charity exercise [F124its jurisdiction] under this section for the purpose of discharging him from his trusteeship.

(9)Before exercising any jurisdiction under this section otherwise than on an order of the court, [F125the Commission shall give notice of its] intention to do so to each of the charity trustees, except any that cannot be found or has no known address in the United Kingdom or who is party or privy to an application for the exercise of the jurisdiction; and any such notice may be given by post, and, if given by post, may be addressed to the recipient’s last known address in the United Kingdom.

(10)[F126The Commission shall not exercise its] jurisdiction under this section in any case (not referred to them by order of the court) which, by reason of its contentious character, or of any special question of law or of fact which it may involve, or for other reasons, [F127the Commission] may consider more fit to be adjudicated on by the court.

F128(11). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F128(12). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F128(13). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F128(14). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(15)If the [F129Minister] thinks it expedient to do so—

(a)in consequence of changes in the value of money, or

(b)with a view to increasing the number of charities in respect of which [F130the Commission may exercise its] jurisdiction under this section in accordance with subsection (5) above,

he may by order amend that subsection by substituting a different sum for the sum for the time being specified there.

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Amendments (Textual)

F110Words in s. 16(1) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 109(2); S.I. 2007/309, art. 2, Sch.

F113Words in s. 16(3) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 109(4); S.I. 2007/309, art. 2, Sch.

F114Words in s. 16(4) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 109(5); S.I. 2007/309, art. 2, Sch.

F125Words in s. 16(9) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 109(10); S.I. 2007/309, art. 2, Sch.

F126Words in s. 16(10) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 109(11)(a); S.I. 2007/309, art. 2, Sch.

F127Words in s. 16(10) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 109(11)(b); S.I. 2007/309, art. 2, Sch.

F130Words in s. 16(15)(b) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 109(13); S.I. 2007/309, art. 2, Sch.

Modifications etc. (not altering text)

C9S. 16(3)(9)(11)-(14) applied (1.8.1993) by 1987 c. 3, s. 5(8) (as substituted (1.8.1993) by ss. 98, 99(1), Sch. 6 para. 23(1) of this Act)

C10S. 16(4) excluded (1.4.1997) by 1996 c. 14, s. 120, Sch. 5, Pt. II paras. 6, 8 (with s. 72(5)); S.I. 1997/305, art. 2(1)

17 Further powers to make schemes or alter application of charitable property.E+W

(1)Where it appears to [F131the Commission] that a scheme should be established for the administration of a charity, but also that it is necessary or desirable for the scheme to alter the provision made by an Act of Parliament establishing or regulating the charity or to make any other provision which goes or might go beyond the powers exercisable [F132by the Commission] apart from this section, or that it is for any reason proper for the scheme to be subject to parliamentary review, then (subject to subsection (6) below) [F131the Commission] may settle a scheme accordingly with a view to its being given effect under this section.

(2)A scheme settled by [F133the Commission] under this section may be given effect by order of the [F134Minister], and a draft of the order shall be laid before Parliament.

(3)Without prejudice to the operation of section 6 of the M1Statutory Instruments Act 1946 in other cases, in the case of a scheme which goes beyond the powers exercisable apart from this section in altering a statutory provision contained in or having effect under any public general Act of Parliament, the order shall not be made unless the draft has been approved by resolution of each House of Parliament.

(4)Subject to subsection (5) below, any provision of a scheme brought into effect under this section may be modified or superseded by the court or [F135the Commission] as if it were a scheme brought into effect by order of [F135the Commission] under section 16 above.

(5)Where subsection (3) above applies to a scheme, the order giving effect to it may direct that the scheme shall not be modified or superseded by a scheme brought into effect otherwise than under this section, and may also direct that that subsection shall apply to any scheme modifying or superseding the scheme to which the order gives effect.

(6)The [F136Commission] shall not proceed under this section without the like application and the like notice to the charity trustees, as would be required [F137if the Commission was] proceeding (without an order of the court) under section 16 above; but on any application for a scheme, or in a case where [F138it acts] by virtue of subsection (6) or (7) of that section, the [F136Commission] may proceed under this section or that section as appears [F139to it] appropriate.

(7)Notwithstanding anything in the trusts of a charity, no expenditure incurred in preparing or promoting a Bill in Parliament shall without the consent of the court or [F140the Commission] be defrayed out of any moneys applicable for the purposes of a charity but this subsection shall not apply in the case of an exempt charity.

(8)Where [F141the Commission is] satisfied—

(a)that the whole of the income of a charity cannot in existing circumstances be effectively applied for the purposes of the charity; and

(b)that, if those circumstances continue, a scheme might be made for applying the surplus cy-près; and

(c)that it is for any reason not yet desirable to make such a scheme;

then [F142the Commission] may by order authorise the charity trustees at their discretion (but subject to any conditions imposed by the order) to apply any accrued or accruing income for any purposes for which it might be made applicable by such a scheme, and any application authorised by the order shall be deemed to be within the purposes of the charity.

(9)An order under subsection (8) above shall not extend to more than £300 out of income accrued before the date of the order, nor to income accruing more than three years after that date, nor to more than £100 out of the income accruing in any of those three years.

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Amendments (Textual)

F133Words in s. 17(2) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 110(3); S.I. 2007/309, art. 2, Sch.

F135Words in s. 17(4) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 110(4); S.I. 2007/309, art. 2, Sch.

F140Words in s. 17(7) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 110(6); S.I. 2007/309, art. 2, Sch.

Modifications etc. (not altering text)

C12S. 17(1)-(5)(7) applied (1.8.1993) by 1987 c. 3, s. 5(8) (as substituted (1.8.1993) by ss. 98(1), 99(1), Sch. 6 para. 23(1) of this Act).

Marginal Citations

18 Power to act for protection of charities.E+W

(1)Where, at any time [F143after it has] instituted an inquiry under section 8 above with respect to any charity, [F144the Commission is] satisfied—

(a)that there is or has been any misconduct or mismanagement in the administration of the charity; or

(b)that it is necessary or desirable to act for the purpose of protecting the property of the charity or securing a proper application for the purposes of the charity of that property or of property coming to the charity,

[F145the Commission may of its] own motion do one or more of the following things—

(i)by order suspend any trustee, charity trustee, officer, agent or employee of the charity from the exercise of his office or employment pending consideration being given to his removal (whether under this section or otherwise);

(ii)by order appoint such number of additional charity trustees [F146as it considers] necessary for the proper administration of the charity;

(iii)by order vest any property held by or in trust for the charity in the official custodian, or require the persons in whom any such property is vested to transfer it to him, or appoint any person to transfer any such property to him;

(iv)order any person who holds any property on behalf of the charity, or of any trustee for it, not to part with the property without the approval of [F147the Commission];

(v)order any debtor of the charity not to make any payment in or towards the discharge of his liability to the charity without the approval of [F147the Commission];

(vi)by order restrict (notwithstanding anything in the trusts of the charity) the transactions which may be entered into, or the nature or amount of the payments which may be made, in the administration of the charity without the approval of [F147the Commission];

(vii)by order appoint (in accordance with section 19 below) [F148an interim manager, who shall act as receiver] and manager in respect of the property and affairs of the charity.

(2)Where, at any time after [F149it has] instituted an inquiry under section 8 above with respect to any charity, [F150the Commission is] satisfied—

(a)that there is or has been any misconduct or mismanagement in the administration of the charity; and

(b)that it is necessary or desirable to act for the purpose of protecting the property of the charity or securing a proper application for the purposes of the charity of that property or of property coming to the charity,

[F151the Commission may of its] own motion do either or both of the following things—

(i)by order remove any trustee, charity trustee, officer, agent or employee of the charity who has been responsible for or privy to the misconduct or mismanagement or has by his conduct contributed to it or facilitated it;

(ii)by order establish a scheme for the administration of the charity.

(3)The references in subsection (1) or (2) above to misconduct or mismanagement shall (notwithstanding anything in the trusts of the charity) extend to the employment for the remuneration or reward of persons acting in the affairs of the charity, or for other administrative purposes, of sums which are excessive in relation to the property which is or is likely to be applied or applicable for the purposes of the charity.

(4)[F152The Commission] may also remove a charity trustee by order made of [F153its own motion]

(a)where, within the last five years, the trustee—

(i)having previously been adjudged bankrupt or had his estate sequestrated, has been discharged, or

(ii)having previously made a composition or arrangement with, or granted a trust deed for, his creditors, has been discharged in respect of it;

(b)where the trustee is a corporation in liquidation;

(c)where the trustee is incapable of acting by reason of mental disorder within the meaning of the M2Mental Health Act 1983;

(d)where the trustee has not acted, and will not declare his willingness or unwillingness to act;

(e)where the trustee is outside England and Wales or cannot be found or does not act, and his absence or failure to act impedes the proper administration of the charity.

(5)[F154The Commission may by order made of its] own motion appoint a person to be a charity trustee—

(a)in place of a charity trustee [F155removed by the Commission] under this section or otherwise;

(b)where there are no charity trustees, or where by reason of vacancies in their number or the absence or incapacity of any of their number the charity cannot apply for the appointment;

(c)where there is a single charity trustee, not being a corporation aggregate, and [F156the Commission is of] opinion that it is necessary to increase the number for the proper administration of the charity;

(d)where [F156the Commission is of] opinion that it is necessary for the proper administration of the charity to have an additional charity trustee because one of the existing charity trustees who ought nevertheless to remain a charity trustee either cannot be found or does not act or is outside England and Wales.

(6)The powers of [F157the Commission] under this section to remove or appoint charity trustees of [F158its own motion] shall include power to make any such order with respect to the vesting in or transfer to the charity trustees of any property as [F157the Commission] could make on the removal or appointment of a charity trustee [F159by it] under section 16 above.

(7)Any order under this section for the removal or appointment of a charity trustee or trustee for a charity, or for the vesting or transfer of any property, shall be of the like effect as an order made under section 16 above.

F160(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F160(9). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F160(10). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(11)The power of [F161the Commission] to make an order under subsection (1)(i) above shall not be exercisable so as to suspend any person from the exercise of his office or employment for a period of more than twelve months; but (without prejudice to the generality of section 89(1) below), any such order made in the case of any person may make provision as respects the period of his suspension for matters arising out of it, and in particular for enabling any person to execute any instrument in his name or otherwise act for him and, in the case of a charity trustee, for adjusting any rules governing the proceedings of the charity trustees to take account of the reduction in the number capable of acting.

(12)Before exercising any jurisdiction under this section otherwise than by virtue of subsection (1) above, [F162the Commission] shall give notice of [F163its intention] to do so to each of the charity trustees, except any that cannot be found or has no known address in the United Kingdom; and any such notice may be given by post and, if given by post, may be addressed to the recipient’s last known address in the United Kingdom.

(13)[F164The Commission] shall, at such intervals as [F165it thinks fit], review any order made [F166by it] under paragraph (i), or any of paragraphs (iii) to (vii), of subsection (1) above; and, if on any such review it appears [F167to the Commission] that it would be appropriate to discharge the order in whole or in part, [F168the Commission shall] so discharge it (whether subject to any savings or other transitional provisions or not).

(14)If any person contravenes an order under subsection (1)(iv), (v) or (vi) above, he shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(15)Subsection (14) above shall not be taken to preclude the bringing of proceedings for breach of trust against any charity trustee or trustee for a charity in respect of a contravention of an order under subsection (1)(iv) or (vi) above (whether proceedings in respect of the contravention are brought against him under subsection (14) above or not).

(16)This section shall not apply to an exempt charity.

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Amendments (Textual)

F161Words in s. 18(11) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 111(8); S.I. 2007/309, art. 2, Sch.

F162Words in s. 18(12) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 111(9)(a); S.I. 2007/309, art. 2, Sch.

F163Words in s. 18(12) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 111(9)(b); S.I. 2007/309, art. 2, Sch.

F164Words in s. 18(13) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 111(10)(a); S.I. 2007/309, art. 2, Sch.

F165Words in s. 18(13) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 111(10)(b); S.I. 2007/309, art. 2, Sch.

F166Words in s. 18(13) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 111(10)(c); S.I. 2007/309, art. 2, Sch.

F167Words in s. 18(13) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 111(10)(d); S.I. 2007/309, art. 2, Sch.

F168Words in s. 18(13) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 111(10)(e); S.I. 2007/309, art. 2, Sch.

Marginal Citations

[F16918APower to suspend or remove trustees etc. from membership of charityE+W

(1)This section applies where the Commission makes—

(a)an order under section 18(1) above suspending from his office or employment any trustee, charity trustee, officer, agent or employee of a charity, or

(b)an order under section 18(2) above removing from his office or employment any officer, agent or employee of a charity,

and the trustee, charity trustee, officer, agent or employee (as the case may be) is a member of the charity.

(2)If the order suspends the person in question from his office or employment, the Commission may also make an order suspending his membership of the charity for the period for which he is suspended from his office or employment.

(3)If the order removes the person in question from his office or employment, the Commission may also make an order—

(a)terminating his membership of the charity, and

(b)prohibiting him from resuming his membership of the charity without the Commission’s consent.

(4)If an application for the Commission’s consent under subsection (3)(b) above is made five years or more after the order was made, the Commission must grant the application unless satisfied that, by reason of any special circumstances, it should be refused.]

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Amendments (Textual)

19 Supplementary provisions relating to [F170interim manager] appointed for a charity.E+W

[F171(1)The Commission may under section 18(1)(vii) above appoint to be interim manager in respect of a charity such person (other than a member of its staff) as it thinks fit.]

(2)Without prejudice to the generality of section 89(1) below, any order made by [F172the Commission] under section 18(1)(vii) above may make provision with respect to the functions to be discharged by the [F173interim manager] appointed by the order; and those functions shall be discharged by him under the supervision of [F172the Commission].

(3)In connection with the discharge of those functions any such order may provide—

(a)for the [F174interim manager] appointed by the order to have such powers and duties of the charity trustees of the charity concerned (whether arising under this Act or otherwise) as are specified in the order;

(b)for any powers or duties exercisable or falling to be performed by the [F174interim manager] by virtue of paragraph (a) above to be exercisable or performed by him to the exclusion of those trustees.

(4)Where a person has been appointed [F175interim manager] by any such order—

(a)section 29 below shall apply to him and to his functions as a person so appointed as it applies to a charity trustee of the charity concerned and to his duties as such; and

(b)[F176the Commission] may apply to the High Court for directions in relation to any particular matter arising in connection with the discharge of those functions.

(5)The High Court may on an application under subsection (4)(b) above—

(a)give such directions, or

(b)make such orders declaring the rights of any persons (whether before the court or not),

as it thinks just; and the costs of any such application shall be paid by the charity concerned.

(6)Regulations made by the [F177Minister] may make provision with respect to—

(a)the appointment and removal of persons appointed in accordance with this section;

(b)the remuneration of such persons out of the income of the charities concerned;

(c)the making of reports to [F178the Commission] by such persons.

(7)Regulations under subsection (6) above may, in particular, authorise [F178the Commission]

(a)to require security for the due discharge of his functions to be given by a person so appointed;

(b)to determine the amount of such a person’s remuneration;

(c)to disallow any amount of remuneration in such circumstances as are prescribed by the regulations.

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Amendments (Textual)

F170Words in s. 19 heading substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 112(7); S.I. 2007/309, art. 2, Sch.

F174Words in s. 19(3) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 112(4); S.I. 2007/309, art. 2, Sch.

F178Words in s. 19(6)(c) and (7) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 112(6); S.I. 2007/309, art. 2, Sch.

[F17919APower to give specific directions for protection of charityE+W

(1)This section applies where, at any time after the Commission has instituted an inquiry under section 8 above with respect to any charity, it is satisfied as mentioned in section 18(1)(a) or (b) above.

(2)The Commission may by order direct—

(a)the charity trustees,

(b)any trustee for the charity,

(c)any officer or employee of the charity, or

(d)(if a body corporate) the charity itself,

to take any action specified in the order which the Commission considers to be expedient in the interests of the charity.

(3)An order under this section—

(a)may require action to be taken whether or not it would otherwise be within the powers exercisable by the person or persons concerned, or by the charity, in relation to the administration of the charity or to its property, but

(b)may not require any action to be taken which is prohibited by any Act of Parliament or expressly prohibited by the trusts of the charity or is inconsistent with its purposes.

(4)Anything done by a person or body under the authority of an order under this section shall be deemed to be properly done in the exercise of the powers mentioned in subsection (3)(a) above.

(5)Subsection (4) does not affect any contractual or other rights arising in connection with anything which has been done under the authority of such an order.]

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Amendments (Textual)

[F18019BPower to direct application of charity propertyE+W

(1)This section applies where the Commission is satisfied—

(a)that a person or persons in possession or control of any property held by or on trust for a charity is or are unwilling to apply it properly for the purposes of the charity, and

(b)that it is necessary or desirable to make an order under this section for the purpose of securing a proper application of that property for the purposes of the charity.

(2)The Commission may by order direct the person or persons concerned to apply the property in such manner as is specified in the order.

(3)An order under this section—

(a)may require action to be taken whether or not it would otherwise be within the powers exercisable by the person or persons concerned in relation to the property, but

(b)may not require any action to be taken which is prohibited by any Act of Parliament or expressly prohibited by the trusts of the charity.

(4)Anything done by a person under the authority of an order under this section shall be deemed to be properly done in the exercise of the powers mentioned in subsection (3)(a) above.

(5)Subsection (4) does not affect any contractual or other rights arising in connection with anything which has been done under the authority of such an order.]

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Amendments (Textual)

[F18119CCopy of order under section 18, 18A, 19A or 19B, and Commission's reasons, to be sent to charityE+W

(1)Where the Commission makes an order under section 18, 18A, 19A or 19B, it must send the documents mentioned in subsection (2) below—

(a)to the charity concerned (if a body corporate), or

(b)(if not) to each of the charity trustees.

(2)The documents are—

(a)a copy of the order, and

(b)a statement of the Commission's reasons for making it.

(3)The documents must be sent to the charity or charity trustees as soon as practicable after the making of the order.

(4)The Commission need not, however, comply with subsection (3) above in relation to the documents, or (as the case may be) the statement of its reasons, if it considers that to do so—

(a)would prejudice any inquiry or investigation, or

(b)would not be in the interests of the charity;

but, once the Commission considers that this is no longer the case, it must send the documents, or (as the case may be) the statement, to the charity or charity trustees as soon as practicable.

(5)Nothing in this section requires any document to be sent to a person who cannot be found or who has no known address in the United Kingdom.

(6)Any documents required to be sent to a person under this section may be sent to, or otherwise served on, that person in the same way as an order made by the Commission under this Act could be served on him in accordance with section 91 below.]

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Amendments (Textual)

F181S. 19C inserted (27.2.2007 for specified purposes, 18.3.2008 in so far as not already in force) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 113; S.I. 2007/309, art. 2, Sch.; S.I. 2008/751, art. 2, Sch.

[F18220Publicity relating to schemesE+W

(1)The Commission may not—

(a)make any order under this Act to establish a scheme for the administration of a charity, or

(b)submit such a scheme to the court or the Minister for an order giving it effect,

unless, before doing so, the Commission has complied with the publicity requirements in subsection (2) below.

This is subject to any disapplication of those requirements under subsection (4) below.

(2)The publicity requirements are—

(a)that the Commission must give public notice of its proposals, inviting representations to be made to it within a period specified in the notice; and

(b)that, in the case of a scheme relating to a local charity (other than an ecclesiastical charity) in a parish or in a community in Wales, the Commission must communicate a draft of the scheme to the parish or community council (or, where a parish has no council, to the chairman of the parish meeting).

(3)The time when any such notice is given or any such communication takes place is to be decided by the Commission.

(4)The Commission may determine that either or both of the publicity requirements is or are not to apply in relation to a particular scheme if it is satisfied that—

(a)by reason of the nature of the scheme, or

(b)for any other reason,

compliance with the requirement or requirements is unnecessary.

(5)Where the Commission gives public notice of any proposals under this section, the Commission—

(a)must take into account any representations made to it within the period specified in the notice, and

(b)may (without further notice) proceed with the proposals either without modifications or with such modifications as it thinks desirable.

(6)Where the Commission makes an order under this Act to establish a scheme for the administration of a charity, a copy of the order must be available, for at least a month after the order is published, for public inspection at all reasonable times—

(a)at the Commission's office, and

(b)if the charity is a local charity, at some convenient place in the area of the charity.

Paragraph (b) does not apply if the Commission is satisfied that for any reason it is unnecessary for a copy of the scheme to be available locally.

(7)Any public notice of any proposals which is to be given under this section—

(a)is to contain such particulars of the proposals, or such directions for obtaining information about them, as the Commission thinks sufficient and appropriate, and

(b)is to be given in such manner as the Commission thinks sufficient and appropriate.

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Amendments (Textual)

F182Ss. 20, 20A substituted (27.2.2007) for s. 20 by Charities Act 2006 (c. 50), ss. 22, 79(2); S.I. 2007/309, art. 2, Sch.

20APublicity for orders relating to trustees or other individualsE+W

(1)The Commission may not make any order under this Act to appoint, discharge or remove a charity trustee or trustee for a charity, other than—

(a)an order relating to the official custodian, or

(b)an order under section 18(1)(ii) above,

unless, before doing so, the Commission has complied with the publicity requirement in subsection (2) below.

This is subject to any disapplication of that requirement under subsection (4) below.

(2)The publicity requirement is that the Commission must give public notice of its proposals, inviting representations to be made to it within a period specified in the notice.

(3)The time when any such notice is given is to be decided by the Commission.

(4)The Commission may determine that the publicity requirement is not to apply in relation to a particular order if it is satisfied that for any reason compliance with the requirement is unnecessary.

(5)Before the Commission makes an order under this Act to remove without his consent—

(a)a charity trustee or trustee for a charity, or

(b)an officer, agent or employee of a charity,

the Commission must give him not less than one month's notice of its proposals, inviting representations to be made to it within a period specified in the notice.

This does not apply if the person cannot be found or has no known address in the United Kingdom.

(6)Where the Commission gives notice of any proposals under this section, the Commission—

(a)must take into account any representations made to it within the period specified in the notice, and

(b)may (without further notice) proceed with the proposals either without modifications or with such modifications as it thinks desirable.

(7)Any notice of any proposals which is to be given under this section—

(a)is to contain such particulars of the proposals, or such directions for obtaining information about them, as the Commission thinks sufficient and appropriate, and

(b)(in the case of a public notice) is to be given in such manner as the Commission thinks sufficient and appropriate.

(8)Any notice to be given under subsection (5)—

(a)may be given by post, and

(b)if given by post, may be addressed to the recipient's last known address in the United Kingdom.]

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Amendments (Textual)

F182Ss. 20, 20A substituted (27.2.2007) for s. 20 by Charities Act 2006 (c. 50), ss. 22, 79(2); S.I. 2007/309, art. 2, Sch.

Property vested in official custodianE+W

21 Entrusting charity property to official custodian, and termination of trust.E+W

(1)The court may by order—

(a)vest in the official custodian any land held by or in trust for a charity;

(b)authorise or require the persons in whom any such land is vested to transfer it to him; or

(c)appoint any person to transfer any such land to him;

but this subsection does not apply to any interest in land by way of mortgage or other security.

(2)Where property is vested in the official custodian in trust for a charity, the court may make an order discharging him from the trusteeship as respects all or any of that property.

(3)Where the official custodian is discharged from his trusteeship of any property, or the trusts on which he holds any property come to an end, the court may make such vesting orders and give such directions as may seem to the court to be necessary or expedient in consequence.

(4)No person shall be liable for any loss occasioned by his acting in conformity with an order under this section or by his giving effect to anything done in pursuance of such an order, or be excused from so doing by reason of the order having been in any respect improperly obtained.

22 Supplementary provisions as to property vested in official custodian.E+W

(1)Subject to the provisions of this Act, where property is vested in the official custodian in trust for a charity, he shall not exercise any powers of management, but he shall as trustee of any property have all the same powers, duties and liabilities, and be entitled to the same rights and immunities, and be subject to the control and orders of the court, as a corporation appointed custodian trustee under section 4 of the M3Public Trustee Act 1906 except that he shall have no power to charge fees.

(2)Subject to subsection (3) below, where any land is vested in the official custodian in trust for a charity, the charity trustees shall have power in his name and on his behalf to execute and do all assurances and things which they could properly execute or do in their own name and on their own behalf if the land were vested in them.

(3)If any land is so vested in the official custodian by virtue of an order under section 18 above, the power conferred on the charity trustees by subsection (2) above shall not be exercisable by them in relation to any transaction affecting the land, unless the transaction is authorised by order of the court or of [F183the Commission].

(4)Where any land is vested in the official custodian in trust for a charity, the charity trustees shall have the like power to make obligations entered into by them binding on the land as if it were vested in them; and any covenant, agreement or condition which is enforceable by or against the custodian by reason of the land being vested in him shall be enforceable by or against the charity trustees as if the land were vested in them.

(5)In relation to a corporate charity, subsections (2), (3) and (4) above shall apply with the substitution of references to the charity for references to the charity trustees.

(6)Subsections (2), (3) and (4) above shall not authorise any charity trustees or charity to impose any personal liability on the official custodian.

(7)Where the official custodian is entitled as trustee for a charity to the custody of securities or documents of title relating to the trust property, he may permit them to be in the possession or under the control of the charity trustees without thereby incurring any liability.

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Amendments (Textual)

F183Words in s. 22(3) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 114; S.I. 2007/309, art. 2, Sch.

Marginal Citations

23 Divestment in the case of land subject to Reverter of Sites Act 1987.E+W

(1)Where—

(a)any land is vested in the official custodian in trust for a charity, and

(b)it appears to [F184the Commission] that section 1 of the M4Reverter of Sites Act 1987 (right of reverter replaced by [F185trust]) will, or is likely to, operate in relation to the land at a particular time or in particular circumstances,

the jurisdiction which, under section 16 above, is exercisable by [F184the Commission] for the purpose of discharging a trustee for a charity may, at any time before section 1 of that Act (“the 1987 Act”) operates in relation to the land, be exercised [F186by the Commission of its own] motion for the purpose of—

(i)making an order discharging the official custodian from his trusteeship of the land, and

(ii)making such vesting orders and giving such directions as [F187appear to the Commission] to be necessary or expedient in consequence.

(2)Where—

(a)section 1 of the 1987 Act has operated in relation to any land which, immediately before the time when that section so operated, was vested in the official custodian in trust for a charity, and

(b)the land remains vested in him but on the trust arising under that section,

the court or [F188the Commission (of its own motion)] may—

(i)make an order discharging the official custodian from his trusteeship of the land, and

(ii)(subject to the following provisions of this section) make such vesting orders and give such directions as appear to it F189... to be necessary or expedient in consequence.

(3)Where any order discharging the official custodian from his trusteeship of any land—

(a)is made by the court under section 21(2) above, or by [F190the Commission] under section 16 above, on the grounds that section 1 of the 1987 Act will, or is likely to, operate in relation to the land, or

(b)is made by the court or [F190the Commission] under subsection (2) above,

the persons in whom the land is to be vested on the discharge of the official custodian shall be the relevant charity trustees (as defined in subsection (4) below), unless the court or (as the case may be) [F191the Commission is] satisfied that it would be appropriate for it to be vested in some other persons.

(4)In subsection (3) above “the relevant charity trustees” means—

(a)in relation to an order made as mentioned in paragraph (a) of that subsection, the charity trustees of the charity in trust for which the land is vested in the official custodian immediately before the time when the order takes effect, or

(b)in relation to an order made under subsection (2) above, the charity trustees of the charity in trust for which the land was vested in the official custodian immediately before the time when section 1 of the 1987 Act operated in relation to the land.

(5)Where—

(a)section 1 of the 1987 Act has operated in relation to any such land as is mentioned in subsection (2)(a) above, and

(b)the land remains vested in the official custodian as mentioned in subsection (2)(b) above,

then (subject to subsection (6) below), all the powers, duties and liabilities that would, apart from this section, be those of the official custodian as [F185trustee] of the land shall instead be those of the charity trustees of the charity concerned; and those trustees shall have power in his name and on his behalf to execute and do all assurances and things which they could properly execute or do in their own name and on their own behalf if the land were vested in them.

(6)Subsection (5) above shall not be taken to require or authorise those trustees to sell the land at a time when it remains vested in the official custodian.

(7)Where—

(a)the official custodian has been discharged from his trusteeship of any land by an order under subsection (2) above, and

(b)the land has, in accordance with subsection (3) above, been vested in the charity trustees concerned or (as the case may be) in any persons other than those trustees,

the land shall be held by those trustees, or (as the case may be) by those persons, as [F185trustees] on the terms of the trust arising under section 1 of the 1987 Act.

(8)The official custodian shall not be liable to any person in respect of any loss or misapplication of any land vested in him in accordance with that section unless it is occasioned by or through any wilful neglect or default of his or of any person acting for him; but the Consolidated Fund shall be liable to make good to any person any sums for which the official custodian may be liable by reason of any such neglect or default.

(9)In this section any reference to section 1 of the 1987 Act operating in relation to any land is a reference to a [F185trust] arising in relation to the land under that section.

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Amendments (Textual)

F185Words in s. 23(1)(b)(5)(7)(9) substituted (1.1.1997) by 1996 c. 47, s. 25(1), Sch. 3 para. 26(a)-(d) (with s. 24(2), 25(4)(5)); S.I. 1996/2974, art. 2

Marginal Citations

Establishment of common investment or deposit fundsE+W

24 Schemes to establish common investment funds.E+W

(1)The court or [F192the Commission] may by order make and bring into effect schemes (in this section referred to as “common investment schemes”) for the establishment of common investment funds under trusts which provide—

(a)for property transferred to the fund by or on behalf of a charity participating in the scheme to be invested under the control of trustees appointed to manage the fund; and

(b)for the participating charities to be entitled (subject to the provisions of the scheme) to the capital and income of the fund in shares determined by reference to the amount or value of the property transferred to it by or on behalf of each of them and to the value of the fund at the time of the transfers.

(2)The court or [F192the Commission] may make a common investment scheme on the application of any two or more charities.

(3)A common investment scheme may be made in terms admitting any charity to participate, or the scheme may restrict the right to participate in any manner.

[F193(3A)A common investment scheme may provide for appropriate bodies to be admitted to participate in the scheme (in addition to the participating charities) to such extent as the trustees appointed to manage the fund may determine.

(3B)In this section “appropriate body” means—

(a)a Scottish recognised body, or

(b)a Northern Ireland charity,

and, in the application of the relevant provisions in relation to a scheme which contains provisions authorised by subsection (3A) above, “charity” includes an appropriate body.

“The relevant provisions” are subsections (1) and (4) to (6) and (in relation only to a charity within paragraph (b)) subsection (7).]

(4)A common investment scheme may make provision for, and for all matters connected with, the establishment, investment, management and winding up of the common investment fund, and may in particular include provision—

(a)for remunerating persons appointed trustees to hold or manage the fund or any part of it, with or without provision authorising a person to receive the remuneration notwithstanding that he is also a charity trustee of or trustee for a participating charity;

(b)for restricting the size of the fund, and for regulating as to time, amount or otherwise the right to transfer property to or withdraw it from the fund, and for enabling sums to be advanced out of the fund by way of loan to a participating charity pending the withdrawal of property from the fund by the charity;

(c)for enabling income to be withheld from distribution with a view to avoiding fluctuations in the amounts distributed, and generally for regulating distributions of income;

(d)for enabling money to be borrowed temporarily for the purpose of meeting payments to be made out of the funds;

(e)for enabling questions arising under the scheme as to the right of a charity to participate, or as to the rights of participating charities, or as to any other matter, to be conclusively determined by the decision of the trustees managing the fund or in any other manner;

(f)for regulating the accounts and information to be supplied to participating charities.

(5)A common investment scheme, in addition to the provision for property to be transferred to the fund on the basis that the charity shall be entitled to a share in the capital and income of the fund, may include provision for enabling sums to be deposited by or on behalf of a charity on the basis that (subject to the provisions of the scheme) the charity shall be entitled to repayment of the sums deposited and to interest thereon at a rate determined by or under the scheme; and where a scheme makes any such provision it shall also provide for excluding from the amount of capital and income to be shared between charities participating otherwise than by way of deposit such amounts (not exceeding the amounts properly attributable to the making of deposits) as are from time to time reasonably required in respect of the liabilities of the fund for the repayment of deposits and for the interest on deposits, including amounts required by way of reserve.

(6)Except in so far as a common investment scheme provides to the contrary, the rights under it of a participating charity shall not be capable of being assigned or charged, nor shall any trustee or other person concerned in the management of the common investment fund be required or entitled to take account of any trust or other equity affecting a participating charity or its property or rights.

(7)The powers of investment of every charity shall include power to participate in common investment schemes unless the power is excluded by a provision specifically referring to common investment schemes in the trusts of the charity.

(8)A common investment fund shall be deemed for all purposes to be a charity; and if the scheme admits only exempt charities, the fund shall be an exempt charity for the purposes of this Act.

(9)Subsection (8) above shall apply not only to common investment funds established under the powers of this section, but also to any similar fund established for the exclusive benefit of charities by or under any enactment relating to any particular charities or class of charity.

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Amendments (Textual)

F192Words in s. 24(1)(2) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 116; S.I. 2007/309, art. 2, Sch.

F193S. 24(3A)(3B) inserted (27.2.2007) by Charities Act 2006 (c. 50), ss. 23(1), 79(2); S.I. 2007/309, art. 2, Sch.

Modifications etc. (not altering text)

C13S. 24 excluded (6.2.2000) by 1999 c. 16, s. 122(4), Sch. 19 Pt. IV para. 15(a)

25 Schemes to establish common deposit funds.E+W

(1)The court or [F194the Commission] may by order make and bring into effect schemes (in this section referred to as “common deposit schemes”) for the establishment of common deposit funds under trusts which provide—

(a)for sums to be deposited by or on behalf of a charity participating in the scheme and invested under the control of trustees appointed to manage the fund; and

(b)for any such charity to be entitled (subject to the provisions of the scheme) to repayment of any sums so deposited and to interest thereon at a rate determined under the scheme.

(2)Subject to subsection (3) below, the following provisions of section 24 above, namely—

(a)[F195subsections (2), (3) and (4)] , and

(b)subsections (6) to (9),

shall have effect in relation to common deposit schemes and common deposit funds as they have effect in relation to common investment schemes and common investment funds.

(3)In its application in accordance with subsection (2) above, subsection (4) of that section shall have effect with the substitution for paragraphs (b) and (c) of the following paragraphs—

(b)for regulating as to time, amount or otherwise the right to repayment of sums deposited in the fund;

(c)for authorising a part of the income for any year to be credited to a reserve account maintained for the purpose of counteracting any losses accruing to the fund, and generally for regulating the manner in which the rate of interest on deposits is to be determined from time to time;.

[F196(4)A common deposit scheme may provide for appropriate bodies to be admitted to participate in the scheme (in addition to the participating charities) to such extent as the trustees appointed to manage the fund may determine.

(5)In this section “appropriate body” means—

(a)a Scottish recognised body, or

(b)a Northern Ireland charity,

and, in the application of the relevant provisions in relation to a scheme which contains provisions authorised by subsection (4) above, “charity” includes an appropriate body.

(6)“The relevant provisions” are—

(a)subsection (1) above, and

(b)subsections (4) and (6) of section 24 above, as they apply in accordance with subsections (2) and (3) above, and

(c)(in relation only to a charity within subsection (5)(b) above) subsection (7) of that section, as it so applies.]

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Amendments (Textual)

F194Words in s. 25(1) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 117; S.I. 2007/309, art. 2, Sch.

F195Words in s. 25(2) substituted (27.2.2007) by Charities Act 2006 (c. 50), ss. 23(2), 79(2); S.I. 2007/309, art. 2, Sch.

Modifications etc. (not altering text)

C15S. 25 excluded (6.2.2000) by 1993 c. 10, s. 122(4), Sch. 19 Pt. IV para. 15(b)

[F19725AMeaning of “Scottish recognised body” and “Northern Ireland charity” in sections 24 and 25E+W

(1)In sections 24 and 25 above “Scottish recognised body” means a body—

(a)established under the law of Scotland, or

(b)managed or controlled wholly or mainly in or from Scotland,

to which the Commissioners for Her Majesty's Revenue and Customs have given intimation, which has not subsequently been withdrawn, that relief is due under F198...[F199Part 10 of the Income Tax Act 2007] [F200, or that qualifying relief is due under Part 11 of the Corporation Tax Act 2010,] in respect of income of the body which is applicable and applied to charitable purposes only.

(2)In those sections “Northern Ireland charity” means an institution—

(a)which is a charity under the law of Northern Ireland, and

(b)to which the Commissioners for Her Majesty's Revenue and Customs have given intimation, which has not subsequently been withdrawn, that relief is due under F201... [F202Part 10 of the Income Tax Act 2007] [F203, or that qualifying relief is due under Part 11 of the Corporation Tax Act 2010,] in respect of income of the institution which is applicable and applied to charitable purposes only.]

[F204(3)For the purposes of this section relief under any provision of Part 11 of the Corporation Tax Act 2010 other than—

(a)section 480 (exemption for profits of small-scale trades), and

(b)section 481 (exemption from charges under provisions to which section 1173 applies),

is qualifying relief under that Part.]

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Amendments (Textual)

F198Words in s. 25A(1) repealed (with effect in accordance with s. 1184(1) of the amending Act) by Corporation Tax Act 2010 (c. 4), s. 1184(1), Sch. 1 para. 275(2)(a), Sch. 3 Pt. 1 (with Sch. 2)

F199Words in s. 25A(1) inserted (6.4.2007) by Income Tax Act 2007 (c. 3), s. 1034(1), Sch. 1 para. 353 (with Sch. 2)

F200Words in s. 25A(1) inserted (with effect in accordance with s. 1184(1) of the amending Act) by Corporation Tax Act 2010 (c. 4), s. 1184(1), Sch. 1 para. 275(2)(b) (with Sch. 2)

F201Words in s. 25A(2) repealed (with effect in accordance with s. 1184(1) of the amending Act) by Corporation Tax Act 2010 (c. 4), s. 1184(1), Sch. 1 para. 275(3)(a), Sch. 3 Pt. 1 (with Sch. 2)

F202Words in s. 25A(2) inserted (6.4.2007) by Income Tax Act 2007 (c. 3), s. 1034(1), Sch. 1 para. 353 (with Sch. 2)

F203Words in s. 25A(2) inserted (with effect in accordance with s. 1184(1) of the amending Act) by Corporation Tax Act 2010 (c. 4), s. 1184(1), Sch. 1 para. 275(3)(b) (with Sch. 2)

F204S. 25A(3) inserted (with effect in accordance with s. 1184(1) of the amending Act) by Corporation Tax Act 2010 (c. 4), s. 1184(1), Sch. 1 para. 275(4) (with Sch. 2)

[F205Additional powers of Commission]E+W

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Amendments (Textual)

26 Power to authorise dealings with charity property etc.E+W

(1)Subject to the provisions of this section, where it appears to [F206the Commission] that any action proposed or contemplated in the administration of a charity is expedient in the interests of the charity, [F207the Commission may] by order sanction that action, whether or not it would otherwise be within the powers exercisable by the charity trustees in the administration of the charity; and anything done under the authority of such an order shall be deemed to be properly done in the exercise of those powers.

(2)An order under this section may be made so as to authorise a particular transaction, compromise or the like, or a particular application of property, or so as to give a more general authority, and (without prejudice to the generality of subsection (1) above) may authorise a charity to use common premises, or employ a common staff, or otherwise combine for any purpose of administration, with any other charity.

(3)An order under this section may give directions as to the manner in which any expenditure is to be borne and as to other matters connected with or arising out of the action thereby authorised; and where anything is done in pursuance of an authority given by any such order, any directions given in connection therewith shall be binding on the charity trustees for the time being as if contained in the trusts of the charity; but any such directions may on the application of the charity be modified or superseded by a further order.

(4)Without prejudice to the generality of subsection (3) above, the directions which may be given by an order under this section shall in particular include directions for meeting any expenditure out of a specified fund, for charging any expenditure to capital or to income, for requiring expenditure charged to capital to be recouped out of income within a specified period, for restricting the costs to be incurred at the expense of the charity, or for the investment of moneys arising from any transaction.

(5)An order under this section may authorise any act notwithstanding that it is prohibited by any of the disabling Acts mentioned in subsection (6) below or that the trusts of the charity provide for the act to be done by or under the authority of the court; but no such order shall authorise the doing of any act expressly prohibited by Act of Parliament other than the disabling Acts or by the trusts of the charity or shall extend or alter the purposes of the charity.

[F208(5A)In the case of a charity that is a company, an order under this section may authorise an act notwithstanding that it involves the breach of a duty imposed on a director of the company under Chapter 2 of Part 10 of the Companies Act 2006 (general duties of directors).]

(6)The Acts referred to in subsection (5) above as the disabling Acts are the M5Ecclesiastical Leases Act 1571, the M6Ecclesiastical Leases Act 1572, the M7Ecclesiastical Leases Act 1575 and the M8Ecclesiastical Leases Act 1836.

(7)An order under this section shall not confer any authority in relation to a building which has been consecrated and of which the use or disposal is regulated, and can be further regulated, by a scheme having effect under the Union of Benefices Measures 1923 to 1952, the Reorganisation Areas Measures 1944 and 1954, the M9Pastoral Measure 1968 or the M10Pastoral Measure 1983, the reference to a building being taken to include part of a building and any land which under such a scheme is to be used or disposed of with a building to which the scheme applies.

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Amendments (Textual)

F206Words in s. 26(1) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 119(a); S.I. 2007/309, art. 2, Sch.

F207Words in s. 26(1) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 119(b); S.I. 2007/309, art. 2, Sch.

F208S. 26(5A) inserted (1.10.2007) by Companies Act 2006 (c. 46), ss. 181(4), 1300(2); S.I. 2007/2194, art. 2(1)(d) (with arts. 7 12 Sch. 1 para. 9) (which transitional provisions in Sch. 1 are revoked (1.10.2008) by S.I. 2007/3495, art. 10(2)(b))

Marginal Citations

27 Power to authorise ex gratia payments etc.E+W

(1)Subject to subsection (3) below, [F209the Commission] may by order exercise the same power as is exercisable by the Attorney General to authorise the charity trustees of a charity—

(a)to make any application of property of the charity, or

(b)to waive to any extent, on behalf of the charity, its entitlement to receive any property,

in a case where the charity trustees—

(i)(apart from this section) have no power to do so, but

(ii)in all the circumstances regard themselves as being under a moral obligation to do so.

(2)The power conferred on [F210the Commission] by subsection (1) above shall be exercisable [F211by the Commission] under the supervision of, and in accordance with such directions as may be given by, the Attorney General; and any such directions may in particular require [F210the Commission], in such circumstances as are specified in the directions—

(a)to refrain from exercising that power; or

(b)to consult the Attorney General before exercising it.

(3)Where—

(a)an application is made to [F212the Commission for it] to exercise that power in a case where [F213it is not] precluded from doing so by any such directions, but

(b)[F214the Commission considers] that it would nevertheless be desirable for the application to be entertained by the Attorney General rather than [F215by the Commission],

[F216the Commission shall] refer the application to the Attorney General.

(4)It is hereby declared that where, in the case of any application made [F217to the Commission] as mentioned in subsection (3)(a) above, [F218the Commission determines] the application by refusing to authorise charity trustees to take any action falling within subsection (1)(a) or (b) above, that refusal shall not preclude the Attorney General, on an application subsequently made to him by the trustees, from authorising the trustees to take that action.

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Amendments (Textual)

F209Words in s. 27(1) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 120(2); S.I. 2007/309, art. 2, Sch.

28 Power to give directions about dormant bank accounts of charities.E+W

(1)Where [F219the Commission]

(a)[F220is informed] by a relevant institution—

(i)that it holds one or more accounts in the name of or on behalf of a particular charity (“the relevant charity”), and

(ii)that the account, or (if it so holds two or more accounts) each of the accounts, is dormant, and

(b)[F221is unable], after making reasonable inquiries, to locate that charity or any of its trustees,

[F222it may give] a direction under subsection (2) below.

(2)A direction under this subsection is a direction which—

(a)requires the institution concerned to transfer the amount, or (as the case may be) the aggregate amount, standing to the credit of the relevant charity in the account or accounts in question to such other charity as is specified in the direction in accordance with subsection (3) below; or

(b)requires the institution concerned to transfer to each of two or more other charities so specified in the direction such part of that amount or aggregate amount as is there specified in relation to that charity.

(3)The [F223Commission] may specify in a direction under subsection (2) above such other charity or charities as [F224it considers] appropriate, having regard, in a case where the purposes of the relevant charity are known [F225to the Commission], to those purposes and to the purposes of the other charity or charities; but the [F223Commission] shall not so specify any charity unless [F226it has received] from the charity trustees written confirmation that those trustees are willing to accept the amount proposed to be transferred to the charity.

(4)Any amount received by a charity by virtue of this section shall be received by the charity on terms that—

(a)it shall be held and applied by the charity for the purposes of the charity, but

(b)it shall, as property of the charity, nevertheless be subject to any restrictions on expenditure to which it was subject as property of the relevant charity.

(5)Where—

(a)[F227the Commission has been] informed as mentioned in subsection (1)(a) above by any relevant institution, and

(b)before any transfer is made by the institution in pursuance of a direction under subsection (2) above, the institution has, by reason of any circumstances, cause to believe that the account, or (as the case may be) any of the accounts, held by it in the name of or on behalf of the relevant charity is no longer dormant,

the institution shall forthwith notify those circumstances in writing to [F228the Commission] ; and, if it appears to [F228the Commission] that the account or accounts in question is or are no longer dormant, [F229it shall revoke] any direction under subsection (2) above which has previously been given [F230by it] to the institution with respect to the relevant charity.

(6)The receipt of any charity trustees or trustee for a charity in respect of any amount received from a relevant institution by virtue of this section shall be a complete discharge of the institution in respect of that amount.

(7)No obligation as to secrecy or other restriction on disclosure (however imposed) shall preclude a relevant institution from disclosing any information to [F231the Commission] for the purpose of enabling [F232the Commission to discharge its functions] under this section.

(8)For the purposes of this section—

(a)an account is dormant if no transaction, other than—

(i)a transaction consisting in a payment into the account, or

(ii)a transaction which the institution holding the account has itself caused to be effected,

has been effected in relation to the account within the period of five years immediately preceding the date when [F233the Commission is informed] as mentioned in paragraph (a) of subsection (1) above;

(b)a “relevant institution” means—

(i)the Bank of England;

[F234(ii)a person who has permission under Part 4 of the Financial Services and Markets Act 2000 to accept deposits;

(iii)an EEA firm of the kind mentioned in paragraph 5(b) of Schedule 3 to that Act which has permission under paragraph 15 of that Schedule (as a result of qualifying for authorisation under paragraph 12(1) of that Schedule) to accept deposits; or

(iv)such other person who may lawfully accept deposits in the United Kingdom as may be prescribed by the [F235Minister].]

(c)references to the transfer of any amount to a charity are references to its transfer—

(i)to the charity trustees, or

(ii)to any trustee for the charity,

as the charity trustees may determine (and any reference to any amount received by a charity shall be construed accordingly).

[F236(8A)Sub-paragraphs (ii) to (iv) of the definition of “relevant institution” in subsection (8)(b) must be read with—

(a)section 22 of the Financial Services and Markets Act 2000;

(b)any relevant order under that section; and

(c)Schedule 2 to that Act.]

(9)For the purpose of determining the matters in respect of which any of the powers conferred by section 8 or 9 above may be exercised it shall be assumed that [F237the Commission has] no functions under this section in relation to accounts to which this subsection applies (with the result that, for example, a relevant institution shall not, in connection with the functions of [F238the Commission] under this section, be required under section 8(3)(a) above to furnish any statements, or answer any questions or inquiries, with respect to any such accounts held by the institution).

This subsection applies to accounts which are dormant accounts by virtue of subsection (8)(a) above but would not be such accounts if sub-paragraph (i) of that provision were omitted.

(10)Subsection (1) above shall not apply to any account held in the name of or on behalf of an exempt charity.

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Amendments (Textual)

F233Words in s. 28(8)(a) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 121(6); S.I. 2007/309, art. 2, Sch.

F234S. 28(8)(b)(ii)-(iv) substituted (1.12.2001) for s. 28(8)(b)(ii)-(v) by S.I. 2001/3649, arts. 1, 339(2)

F236S. 28(8A) inserted (1.12.2001) by S.I. 2001/3649, arts. 1, 339(3)

[F23929 Power to give advice and guidanceE+W

(1)The Commission may, on the written application of any charity trustee or trustee for a charity, give that person its opinion or advice in relation to any matter—

(a)relating to the performance of any duties of his, as such a trustee, in relation to the charity concerned, or

(b)otherwise relating to the proper administration of the charity.

(2)A charity trustee or trustee for a charity who acts in accordance with any opinion or advice given by the Commission under subsection (1) above (whether to him or to another trustee) is to be taken, as regards his responsibility for so acting, to have acted in accordance with his trust.

(3)But subsection (2) above does not apply to a person if, when so acting, either—

(a)he knows or has reasonable cause to suspect that the opinion or advice was given in ignorance of material facts, or

(b)a decision of the court or the Tribunal has been obtained on the matter or proceedings are pending to obtain one.

(4)The Commission may, in connection with its second general function mentioned in section 1C(2) above, give such advice or guidance with respect to the administration of charities as it considers appropriate.

(5)Any advice or guidance so given may relate to—

(a)charities generally,

(b)any class of charities, or

(c)any particular charity,

and may take such form, and be given in such manner, as the Commission considers appropriate.]

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Amendments (Textual)

F239S. 29 substituted (27.2.2007) by Charities Act 2006 (c. 50), ss. 24, 79(2); S.I. 2007/309, art. 2, Sch.

[F24029APower to determine membership of charityE+W

(1)The Commission may—

(a)on the application of a charity, or

(b)at any time after the institution of an inquiry under section 8 above with respect to a charity,

determine who are the members of the charity.

(2)The Commission's power under subsection (1) may also be exercised by a person appointed by the Commission for the purpose.

(3)In a case within subsection (1)(b) the Commission may, if it thinks fit, so appoint the person appointed to conduct the inquiry.]

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Amendments (Textual)

30 Powers for preservation of charity documents.E+W

(1)[F241The Commission] may provide books in which any deed, will or other document relating to a charity may be enrolled.

(2)The [F242Commission] may accept for safe keeping any document of or relating to a charity, and the charity trustees or other persons having the custody of documents of or relating to a charity (including a charity which has ceased to exist) may with the consent of the [F242Commission] deposit them with the [F242Commission] for safe keeping, except in the case of documents required by some other enactment to be kept elsewhere.

(3)Where a document is enrolled by [F243the Commission] or is for the time being deposited [F244with the Commission] under this section, evidence of its contents may be given by means of a copy certified by any [F245member of the staff of the Commission generally or specially authorised by the Commission] to act for this purpose; and a document purporting to be such a copy shall be received in evidence without proof of the official position, authority or handwriting of the person certifying it or of the original document being enrolled or deposited as aforesaid.

(4)Regulations made by the [F246Minister] may make provision for such documents deposited with [F247the Commission] under this section as may be prescribed by the regulations to be destroyed or otherwise disposed of after such period or in such circumstances as may be so prescribed.

(5)Subsections (3) and (4) above shall apply to any document transmitted to [F248the Commission] under section 9 above and kept [F249by the Commission] under subsection (3) of that section, as if the document had been deposited [F250with the Commission] for safe keeping under this section.

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Amendments (Textual)

F241Words in s. 30(1) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 122(2); S.I. 2007/309, art. 2, Sch.

F242Words in s. 30(2) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 122(3); S.I. 2007/309, art. 2, Sch.

F247Words in s. 30(4) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 122(5); S.I. 2007/309, art. 2, Sch.

31 Power to order taxation of solicitor’s bill.E+W

(1)[F251The Commission] may order that a solicitor’s bill of costs for business done for a charity, or for charity trustees or trustees for a charity, shall be taxed, together with the costs of the taxation, by a taxing officer in such division of the High Court as may be specified in the order, or by the taxing officer of any other court having jurisdiction to order the taxation of the bill.

(2)On any order under this section for the taxation of a solicitor’s bill the taxation shall proceed, and the taxing officer shall have the same powers and duties, and the costs of the taxation shall be borne, as if the order had been made, on the application of the person chargeable with the bill, by the court in which the costs are taxed.

(3)No order under this section for the taxation of a solicitor’s bill shall be made after payment of the bill unless [F252the Commission is] of opinion that it contains exorbitant charges; and no such order shall in any case be made where the solicitor’s costs are not subject to taxation on an order of the High Court by reason either of an agreement as to his remuneration or the lapse of time since payment of the bill.

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Amendments (Textual)

F251Words in s. 31(1) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 123(2); S.I. 2007/309, art. 2, Sch.

F252Words in s. 31(3) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 123(3); S.I. 2007/309, art. 2, Sch.

[F25331APower to enter premisesE+W

(1)A justice of the peace may issue a warrant under this section if satisfied, on information given on oath by a member of the Commission's staff, that there are reasonable grounds for believing that each of the conditions in subsection (2) below is satisfied.

(2)The conditions are—

(a)that an inquiry has been instituted under section 8 above;

(b)that there is on the premises to be specified in the warrant any document or information relevant to that inquiry which the Commission could require to be produced or furnished under section 9(1) above; and

(c)that, if the Commission were to make an order requiring the document or information to be so produced or furnished—

(i)the order would not be complied with, or

(ii)the document or information would be removed, tampered with, concealed or destroyed.

(3)A warrant under this section is a warrant authorising the member of the Commission's staff who is named in it—

(a)to enter and search the premises specified in it;

(b)to take such other persons with him as the Commission considers are needed to assist him in doing anything that he is authorised to do under the warrant;

(c)to take possession of any documents which appear to fall within subsection (2)(b) above, or to take any other steps which appear to be necessary for preserving, or preventing interference with, any such documents;

(d)to take possession of any computer disk or other electronic storage device which appears to contain information falling within subsection (2)(b), or information contained in a document so falling, or to take any other steps which appear to be necessary for preserving, or preventing interference with, any such information;

(e)to take copies of, or extracts from, any documents or information falling within paragraph (c) or (d);

(f)to require any person on the premises to provide an explanation of any such document or information or to state where any such documents or information may be found;

(g)to require any such person to give him such assistance as he may reasonably require for the taking of copies or extracts as mentioned in paragraph (e) above.

(4)Entry and search under such a warrant must be at a reasonable hour and within one month of the date of its issue.

(5)The member of the Commission's staff who is authorised under such a warrant (“the authorised person”) must, if required to do so, produce—

(a)the warrant, and

(b)documentary evidence that he is a member of the Commission's staff,

for inspection by the occupier of the premises or anyone acting on his behalf.

(6)The authorised person must make a written record of—

(a)the date and time of his entry on the premises;

(b)the number of persons (if any) who accompanied him onto the premises, and the names of any such persons;

(c)the period for which he (and any such persons) remained on the premises;

(d)what he (and any such persons) did while on the premises; and

(e)any document or device of which he took possession while there.

(7)If required to do so, the authorised person must give a copy of the record to the occupier of the premises or someone acting on his behalf.

(8)Unless it is not reasonably practicable to do so, the authorised person must comply with the following requirements before leaving the premises, namely—

(a)the requirements of subsection (6), and

(b)any requirement made under subsection (7) before he leaves the premises.

(9)Where possession of any document or device is taken under this section—

(a)the document may be retained for so long as the Commission considers that it is necessary to retain it (rather than a copy of it) for the purposes of the relevant inquiry under section 8 above, or

(b)the device may be retained for so long as the Commission considers that it is necessary to retain it for the purposes of that inquiry,

as the case may be.

(10)Once it appears to the Commission that the retention of any document or device has ceased to be so necessary, it shall arrange for the document or device to be returned as soon as is reasonably practicable—

(a)to the person from whose possession it was taken, or

(b)to any of the charity trustees of the charity to which it belonged or related.

(11)A person who intentionally obstructs the exercise of any rights conferred by a warrant under this section is guilty of an offence and liable on summary conviction—

(a)to imprisonment for a term not exceeding 51 weeks, or

(b)to a fine not exceeding level 5 on the standard scale,

or to both.]

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Amendments (Textual)

Modifications etc. (not altering text)

C16S. 31A(3) power of seizure extended by 2001 c. 16, Sch. 1 para. 56A (as inserted (27.2.2007) by Charities Act 2006 (c. 50), ss. 26(2), 79(2); S.I. 2007/309, art. 2, Sch.)

C17S. 31A(11) modified (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 10 para. 6; S.I. 2007/309, art. 2, Sch.

Legal proceedings relating to charitiesE+W

32 Proceedings by [F254Commission]E+W

(1)Subject to subsection (2) below, [F255the Commission] may exercise the same powers with respect to—

(a)the taking of legal proceedings with reference to charities or the property or affairs of charities, or

(b)the compromise of claims with a view to avoiding or ending such proceedings,

as are exercisable by the Attorney General acting ex officio.

(2)Subsection (1) above does not apply to the power of the Attorney General under section 63(1) below to present a petition for the winding up of a charity.

(3)The practice and procedure to be followed in relation to any proceedings taken by [F256the Commission] under subsection (1) above shall be the same in all respects (and in particular as regards costs) as if they were proceedings taken by the Attorney General acting ex officio.

(4)No rule of law or practice shall be taken to require the Attorney General to be a party to any such proceedings.

(5)The powers exercisable by [F257the Commission] by virtue of this section shall be exercisable [F258by the Commission of its own] motion, but shall be exercisable only with the agreement of the Attorney General on each occasion.

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Amendments (Textual)

F255Words in s. 32(1) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 124(2); S.I. 2007/309, art. 2, Sch.

F256Words in s. 32(3) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 124(2); S.I. 2007/309, art. 2, Sch.

33 Proceedings by other persons.E+W

(1)Charity proceedings may be taken with reference to a charity either by the charity, or by any of the charity trustees, or by any person interested in the charity, or by any two or more inhabitants of the area of the charity if it is a local charity, but not by any other person.

(2)Subject to the following provisions of this section, no charity proceedings relating to a charity (other than an exempt charity) shall be entertained or proceeded with in any court unless the taking of the proceedings is authorised by order of [F259the Commission].

(3)[F260The Commission] shall not, without special reasons, authorise the taking of charity proceedings where in [F261its opinion] the case can be dealt with [F262by the Commission] under the powers of this Act other than those conferred by section 32 above.

(4)This section shall not require any order for the taking of proceedings in a pending cause or matter or for the bringing of any appeal.

(5)Where the foregoing provisions of this section require the taking of charity proceedings to be authorised by an order of [F263the Commission], the proceedings may nevertheless be entertained or proceeded with if, after the order had been applied for and refused, leave to take the proceedings was obtained from one of the judges of the High Court attached to the Chancery Division.

(6)Nothing in the foregoing subsections shall apply to the taking of proceedings by the Attorney General, with or without a relator, or to the taking of proceedings by [F263the Commission] in accordance with section 32 above.

(7)Where it appears to [F264the Commission], on an application for an order under this section or otherwise, that it is desirable for legal proceedings to be taken with reference to any charity (other than an exempt charity) or its property or affairs, and for the proceedings to be taken by the Attorney General, [F264the Commission] shall so inform the Attorney General, and send him such statements and particulars as [F265the Commission thinks] necessary to explain the matter.

(8)In this section “charity proceedings” means proceedings in any court in England or Wales brought under the court’s jurisdiction with respect to charities, or brought under the court’s jurisdiction with respect to trusts in relation to the administration of a trust for charitable purposes.

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Amendments (Textual)

F259Words in s. 33(2) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 125(2); S.I. 2007/309, art. 2, Sch.

F263Words in s. 33(5)(6) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 125(4); S.I. 2007/309, art. 2, Sch.

34 Report of s. 8 inquiry to be evidence in certain proceedings.E+W

(1)A copy of the report of the person conducting an inquiry under section 8 above shall, if certified by [F266the Commission] to be a true copy, be admissible in any proceedings to which this section applies—

(a)as evidence of any fact stated in the report; and

(b)as evidence of the opinion of that person as to any matter referred to in it.

(2)This section applies to—

(a)any legal proceedings instituted by [F266the Commission] under this Part of this Act; and

(b)any legal proceedings instituted by the Attorney General in respect of a charity.

(3)A document purporting to be a certificate issued for the purposes of subsection (1) above shall be received in evidence and be deemed to be such a certificate, unless the contrary is proved.

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Amendments (Textual)

F266Words in s. 34(1)(2) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 126; S.I. 2007/309, art. 2, Sch.

Meaning of “trust corporation”E+W

35 Application of provisions to trust corporations appointed under s. 16 or 18.E+W

(1)In the definition of “trust corporation” contained in the following provisions—

(a)section 117(xxx) of the M11Settled Land Act 1925,

(b)section 68(18) of the M12Trustee Act 1925,

(c)section 205(xxviii) of the M13Law of Property Act 1925,

(d)section 55(xxvi) of the M14Administration of Estates Act 1925, and

(e)section 128 of the M15 [F267Senior Courts Act 1981],

the reference to a corporation appointed by the court in any particular case to be a trustee includes a reference to a corporation appointed by [F268the Commission] under this Act to be a trustee.

(2)This section shall be deemed always to have had effect; but the reference to section 128 of the [F267Senior Courts Act 1981] shall, in relation to any time before 1st January 1982, be construed as a reference to section 175(1) of the M16Supreme Court of Judicature (Consolidation) Act 1925.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F268Words in s. 35(1) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 127; S.I. 2007/309, art. 2, Sch.

Commencement Information

I1As from Royal Assent, this section shall be deemed to always have had effect.

Marginal Citations

Part VE+W Charity Land

36 Restrictions on dispositions.E+W

(1)Subject to the following provisions of this section and section 40 below, no land held by or in trust for a charity shall be [F269conveyed, transferred], leased or otherwise disposed of without an order of the court or of [F270the Commission].

(2)Subsection (1) above shall not apply to a disposition of such land if—

(a)the disposition is made to a person who is not—

(i)a connected person (as defined in Schedule 5 to this Act), or

(ii)a trustee for, or nominee of, a connected person; and

(b)the requirements of subsection (3) or (5) below have been complied with in relation to it.

(3)Except where the proposed disposition is the granting of such a lease as is mentioned in subsection (5) below, [F271the requirements mentioned in subsection (2)(b) above are that] the charity trustees must, before entering into an agreement for the sale, or (as the case may be) for a lease or other disposition, of the land—

(a)obtain and consider a written report on the proposed disposition from a qualified surveyor instructed by the trustees and acting exclusively for the charity;

(b)advertise the proposed disposition for such period and in such manner as the surveyor has advised in his report (unless he has there advised that it would not be in the best interests of the charity to advertise the proposed disposition); and

(c)decide that they are satisfied, having considered the surveyor’s report, that the terms on which the disposition is proposed to be made are the best that can reasonably be obtained for the charity.

(4)For the purposes of subsection (3) above a person is a qualified surveyor if—

(a)he is a fellow or professional associate of the Royal Institution of Chartered Surveyors or of the Incorporated Society of Valuers and Auctioneers or satisfies such other requirement or requirements as may be prescribed by regulations made by the [F272Minister]; and

(b)he is reasonably believed by the charity trustees to have ability in, and experience of, the valuation of land of the particular kind, and in the particular area, in question;

and any report prepared for the purposes of that subsection shall contain such information, and deal with such matters, as may be prescribed by regulations so made.

(5)Where the proposed disposition is the granting of a lease for a term ending not more than seven years after it is granted (other than one granted wholly or partly in consideration of a fine), [F273the requirements mentioned in subsection (2)(b) above are that] the charity trustees must, before entering into an agreement for the lease—

(a)obtain and consider the advice on the proposed disposition of a person who is reasonably believed by the trustees to have the requisite ability and practical experience to provide them with competent advice on the proposed disposition; and

(b)decide that they are satisfied, having considered that person’s advice, that the terms on which the disposition is proposed to be made are the best that can reasonably be obtained for the charity.

(6)Where—

(a)any land is held by or in trust for a charity, and

(b)the trusts on which it is so held stipulate that it is to be used for the purposes, or any particular purposes, of the charity,

then (subject to subsections (7) and (8) below and without prejudice to the operation of the preceding provisions of this section) the land shall not be [F274conveyed, transferred], leased or otherwise disposed of unless the charity trustees have [F275before the relevant time]

(i)given public notice of the proposed disposition, inviting representations to be made to them within a time specified in the notice, being not less than one month from the date of the notice; and

(ii)taken into consideration any representations made to them within that time about the proposed disposition.

[F276(6A)In subsection (6) above “the relevant time” means—

(a)where the charity trustees enter into an agreement for the sale, or (as the case may be) for the lease or other disposition, the time when they enter into that agreement, and

(b)in any other case, the time of the disposition.]

(7)Subsection (6) above shall not apply to any such disposition of land as is there mentioned if—

(a)the disposition is to be effected with a view to acquiring by way of replacement other property which is to be held on the trusts referred to in paragraph (b) of that subsection; or

(b)the disposition is the granting of a lease for a term ending not more than two years after it is granted (other than one granted wholly or partly in consideration of a fine).

(8)[F277The Commission] may direct—

(a)that subsection (6) above shall not apply to dispositions of land held by or in trust for a charity or class of charities (whether generally or only in the case of a specified class of dispositions or land, or otherwise as may be provided in the direction), or

(b)that that subsection shall not apply to a particular disposition of land held by or in trust for a charity,

if, on an application made to them in writing by or on behalf of the charity or charities in question, [F278the Commission is satisfied] that it would be in the interests of the charity or charities [F279for the Commission] to give the direction.

(9)The restrictions on disposition imposed by this section apply notwithstanding anything in the trusts of a charity; but nothing in this section applies—

(a)to any disposition for which general or special authority is expressly given (without the authority being made subject to the sanction of an order of the court) by any statutory provision contained in or having effect under an Act of Parliament or by any scheme legally established; or

(b)to any disposition of land held by or in trust for a charity which—

(i)is made to another charity otherwise than for the best price that can reasonably be obtained, and

(ii)is authorised to be so made by the trusts of the first-mentioned charity; or

(c)to the granting, by or on behalf of a charity and in accordance with its trusts, of a lease to any beneficiary under those trusts where the lease—

(i)is granted otherwise than for the best rent that can reasonably be obtained; and

(ii)is intended to enable the demised premises to be occupied for the purposes, or any particular purposes, of the charity.

(10)Nothing in this section applies—

(a)to any disposition of land held by or in trust for an exempt charity;

(b)to any disposition of land by way of mortgage or other security; or

(c)to any disposition of an advowson.

(11)In this section “land” means land in England or Wales.

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Amendments (Textual)

F274Words in s. 36(6) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 128(5)(a); S.I. 2007/309, art. 2, Sch. (with art. 6(1))

F275Words in s. 36(6) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 128(5)(b); S.I. 2007/309, art. 2, Sch. (with art. 6(1))

Modifications etc. (not altering text)

37 Supplementary provisions relating to dispositions.E+W

(1)Any of the following instruments, namely—

(a)any contract for the sale, or for a lease or other disposition, of land which is held by or in trust for a charity, and

(b)any conveyance, transfer, lease or other instrument effecting a disposition of such land,

shall state—

(i)that the land is held by or in trust for a charity,

(ii)whether the charity is an exempt charity and whether the disposition is one falling within paragraph (a), (b) or (c) of subsection (9) of section 36 above, and

(iii)if it is not an exempt charity and the disposition is not one falling within any of those paragraphs, that the land is land to which the restrictions on disposition imposed by that section apply.

(2)Where any land held by or in trust for a charity is [F280conveyed, transferred], leased or otherwise disposed of by a disposition to which subsection (1) or (2) of section 36 above applies, the charity trustees shall certify in the instrument by which the disposition is effected—

(a)(where subsection (1) of that section applies) that the disposition has been sanctioned by an order of the court or of [F281the Commission] (as the case may be), or

(b)(where subsection (2) of that section applies) that the charity trustees have power under the trusts of the charity to effect the disposition, and that they have complied with the provisions of that section so far as applicable to it.

(3)Where subsection (2) above has been complied with in relation to any disposition of land, then in favour of a person who (whether under the disposition or afterwards) acquires an interest in the land for money or money’s worth, it shall be conclusively presumed that the facts were as stated in the certificate.

(4)Where—

(a)any land held by or in trust for a charity is [F280conveyed, transferred], leased or otherwise disposed of by a disposition to which subsection (1) or (2) of section 36 above applies, but

(b)subsection (2) above has not been complied with in relation to the disposition,

then in favour of a person who (whether under the disposition or afterwards) in good faith acquires an interest in the land for money or money’s worth, the disposition shall be valid whether or not—

(i)the disposition has been sanctioned by an order of the court or of [F281the Commission], or

(ii)the charity trustees have power under the trusts of the charity to effect the disposition and have complied with the provisions of that section so far as applicable to it.

(5)Any of the following instruments, namely—

(a)any contract for the sale, or for a lease or other disposition, of land which will, as a result of the disposition, be held by or in trust for a charity, and

(b)any conveyance, transfer, lease or other instrument effecting a disposition of such land,

shall state—

(i)that the land will, as a result of the disposition, be held by or in trust for a charity,

(ii)whether the charity is an exempt charity, and

(iii)if it is not an exempt charity, that the restrictions on disposition imposed by section 36 above will apply to the land (subject to subsection (9) of that section).

F282(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F283(7)Where the disposition to be effected by any such instrument as is mentioned in subsection (1)(b) or (5)(b) above will be—

(a)a registrable disposition, or

(b)a disposition which triggers the requirement of registration,

the statement which, by virtue of subsection (1) or (5) above, is to be contained in the instrument shall be in such form as may be prescribed by land registration rules.]

[F283(8)Where the registrar approves an application for registration of—

(a)a disposition of registered land, or

(b)a person’s title under a disposition of unregistered land,

and the instrument effecting the disposition contains a statement complying with subsections (5) and (7) above, he shall enter in the register a restriction reflecting the limitation under section 36 above on subsequent disposal.]

(9)Where—

(a)any such restriction is entered in the register in respect of any land, and

(b)the charity by or in trust for which the land is held becomes an exempt charity,

the charity trustees shall apply to the registrar for [F284the removal of the entry]; and on receiving any application duly made under this subsection the registrar shall [F285remove the entry].

(10)Where—

(a)any registered land is held by or in trust for an exempt charity and the charity ceases to be an exempt charity, or

(b)any registered land becomes, as a result of a declaration of trust by the registered proprietor, land held in trust for a charity (other than an exempt charity),

the charity trustees shall apply to the registrar for such a restriction as is mentioned in subsection (8) above to be entered in the register in respect of the land; and on receiving any application duly made under this subsection the registrar shall enter such a restriction in the register in respect of the land.

(11)In this section—

(a)references to a disposition of land do not include references to—

(i)a disposition of land by way of mortgage or other security,

(ii)any disposition of an advowson, or

(iii)any release of a rentcharge falling within section 40(1) below; and

(b)land” means land in England or Wales;

and subsections (7) to (10) above shall be construed as one with the [F286Land Registration Act 2002].

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Amendments (Textual)

F282S. 37(6) repealed (1.1.1997) by 1996 c. 47, s. 25(2), Sch. 4 (with s. 24(2), 25(4)); S.I. 1996/2974, art. 2

F286Words in s. 37(11) substituted (13.10.2003) by Land Registration Act 2002 (c. 9), s. 136(2), Sch. 11 para. 29(4) (with s. 129); S.I. 2003/1725, art. 2(1)

38 Restrictions on mortgaging.E+W

(1)Subject to subsection (2) below, no mortgage of land held by or in trust for a charity shall be granted without an order of the court or of [F287the Commission].

[F288(2)Subsection (1) above shall not apply to a mortgage of any such land if the charity trustees have, before executing the mortgage, obtained and considered proper advice, given to them in writing, on the relevant matters or matter mentioned in subsection (3) or (3A) below (as the case may be).

(3)In the case of a mortgage to secure the repayment of a proposed loan or grant, the relevant matters are—

(a)whether the loan or grant is necessary in order for the charity trustees to be able to pursue the particular course of action in connection with which they are seeking the loan or grant;

(b)whether the terms of the loan or grant are reasonable having regard to the status of the charity as the prospective recipient of the loan or grant; and

(c)the ability of the charity to repay on those terms the sum proposed to be paid by way of loan or grant.

(3A)In the case of a mortgage to secure the discharge of any other proposed obligation, the relevant matter is whether it is reasonable for the charity trustees to undertake to discharge the obligation, having regard to the charity's purposes.

(3B)Subsection (3) or (as the case may be) subsection (3A) above applies in relation to such a mortgage as is mentioned in that subsection whether the mortgage—

(a)would only have effect to secure the repayment of the proposed loan or grant or the discharge of the proposed obligation, or

(b)would also have effect to secure the repayment of sums paid by way of loan or grant, or the discharge of other obligations undertaken, after the date of its execution.

(3C)Subsection (3D) below applies where—

(a)the charity trustees of a charity have executed a mortgage of land held by or in trust for a charity in accordance with subsection (2) above, and

(b)the mortgage has effect to secure the repayment of sums paid by way of loan or grant, or the discharge of other obligations undertaken, after the date of its execution.

(3D)In such a case, the charity trustees must not after that date enter into any transaction involving—

(a)the payment of any such sums, or

(b)the undertaking of any such obligations,

unless they have, before entering into the transaction, obtained and considered proper advice, given to them in writing, on the matters or matter mentioned in subsection (3)(a) to (c) or (3A) above (as the case may be).]

(4)For the purposes of [F289this section] proper advice is the advice of a person—

(a)who is reasonably believed by the charity trustees to be qualified by his ability in and practical experience of financial matters; and

(b)who has no financial interest in [F290relation to the loan, grant or other transaction in connection with which his advice is given];

and such advice may constitute proper advice for those purposes notwithstanding that the person giving it does so in the course of his employment as an officer or employee of the charity or of the charity trustees.

(5)This section applies notwithstanding anything in the trusts of a charity; but nothing in this section applies to any mortgage for which general or special authority is given as mentioned in section 36(9)(a) above.

(6)In this section—

  • land” means land in England or Wales;

  • mortgage” includes a charge.

(7)Nothing in this section applies to an exempt charity.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F287Words in s. 38(1) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 130; S.I. 2007/309, art. 2, Sch.

F288S. 38(2)-(3D) substituted for s. 38(2) (27.2.2007) by Charities Act 2006 (c. 50), ss. 27(2), 79(2); S.I. 2007/309, art. 2, Sch.

F289Words in s. 38(4) substituted (27.2.2007) by Charities Act 2006 (c. 50), ss. 27(3)(a), 79(2); S.I. 2007/309, art. 2, Sch.

F290Words in s. 38(4) substituted (27.2.2007) by Charities Act 2006 (c. 50), ss. 27(3)(b), 79(2); S.I. 2007/309, art. 2, Sch.

Modifications etc. (not altering text)

39 Supplementary provisions relating to mortgaging.E+W

(1)Any mortgage of land held by or in trust for a charity shall state—

(a)that the land is held by or in trust for a charity,

(b)whether the charity is an exempt charity and whether the mortgage is one falling within subsection (5) of section 38 above, and

(c)if it is not an exempt charity and the mortgage is not one falling within that subsection, that the mortgage is one to which the restrictions imposed by that section apply;

and where the mortgage will be a registered disposition any such statement shall be in such form as may be prescribed [F291by land registration rules].

[F292(1A)Where any such mortgage will be one to which section 4(1)(g) of the Land Registration Act 2002 applies—

(a)the statement required by subsection (1) above shall be in such form as may be prescribed by land registration rules; and

(b)if the charity is not an exempt charity, the mortgage shall also contain a statement, in such form as may be prescribed by land registration rules, that the restrictions on disposition imposed by section 36 above apply to the land (subject to subsection (9) of that section).

(1B)Where—

(a)the registrar approves an application for registration of a person’s title to land in connection with such a mortgage as is mentioned in subsection (1A) above,

(b)the mortgage contains statements complying with subsections (1) and (1A) above, and

(c)the charity is not an exempt charity,

the registrar shall enter in the register a restriction reflecting the limitation under section 36 above on subsequent disposal.

(1C)Section 37(9) above shall apply in relation to any restriction entered under subsection (1B) as it applies in relation to any restriction entered under section 37(8).]

(2)Where subsection (1) or (2) of section 38 above applies to any mortgage of land held by or in trust for a charity, the charity trustees shall certify in the mortgage—

(a)(where subsection (1) of that section applies) that the mortgage has been sanctioned by an order of the court or of [F293the Commission] (as the case may be), or

(b)(where subsection (2) of that section applies) that the charity trustees have power under the trusts of the charity to grant the mortgage, and that they have obtained and considered such advice as is mentioned in that subsection.

(3)Where subsection (2) above has been complied with in relation to any mortgage, then in favour of a person who (whether under the mortgage or afterwards) acquires an interest in the land in question for money or money’s worth, it shall be conclusively presumed that the facts were as stated in the certificate.

(4)Where—

(a)subsection (1) or (2) of section 38 above applies to any mortgage of land held by or in trust for a charity, but

(b)subsection (2) above has not been complied with in relation to the mortgage,

then in favour of a person who (whether under the mortgage or afterwards) in good faith acquires an interest in the land for money or money’s worth, the mortgage shall be valid whether or not—

(i)the mortgage has been sanctioned by an order of the court or of [F294the Commission], or

(ii)the charity trustees have power under the trusts of the charity to grant the mortgage and have obtained and considered such advice as is mentioned in subsection (2) of that section.

[F295(4A)Where subsection (3D) of section 38 above applies to any mortgage of land held by or in trust for a charity, the charity trustees shall certify in relation to any transaction falling within that subsection that they have obtained and considered such advice as is mentioned in that subsection.

(4B)Where subsection (4A) above has been complied with in relation to any transaction, then, in favour of a person who (whether under the mortgage or afterwards) has acquired or acquires an interest in the land for money or money's worth, it shall be conclusively presumed that the facts were as stated in the certificate.]

F296(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)In this section—

  • mortgage” includes a charge, and “mortgagee” shall be construed accordingly;

  • land” means land in England or Wales;

[F297and subsections (1) to (1B) above shall be construed as one with the Land Registration Act 2002].

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Amendments (Textual)

F292S. 39(1A)-(1C) substituted for s. 39(1A)(1B) (13.10.2003) by Land Registration Act 2002 (c. 9), s. 136(2), Sch. 11 para. 29(6) (with s. 129); S.I. 2003/1725, art. 2(1)

F293Words in s. 39(2)(a) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 131(2); S.I. 2007/309, art. 2, Sch.

F294Words in s. 39(4) substituted (27.2.2007) by Charities Act 2006 (c. 50), s. 79(2), Sch. 8 para. 131(2); S.I. 2007/309, art. 2, Sch.

F296S. 39(5) repealed (1.1.1997) by 1996 c. 47, s.,25(2), Sch. 4 (with s. 24(2), 25(3)(4)(5); S.I. 1996/2974, art. 2

40 Release of charity rentcharges.E+W

(1)Section 36(1) above shall not apply to the release by a charity of a rentcharge which it is entitled to receive if the release is given in consideration of the payment of an amount which is not less than ten times the annual amount of the rentcharge.

(2)Where a charity which is entitled to receive a rentcharge releases it in consideration of the payment of an amount not exceeding [F298£1,000], any costs incurred by the charity in connection with proving its title to the rentcharge shall be recoverable by the charity from the person or persons in whose favour the rentcharge is being released.

(3)Neither section 36(1) nor subsection (2) above applies where a rentcharge which a charity is entitled to receive is redeemed under sections 8 to 10 of the M17Rentcharges Act 1977.

(4)The [F299Minister] may by order amend subsection (2) above by substituting a different sum for the sum for the time being specified there.

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Amendments (Textual)

Marginal Citations