Paragraph 6 – Oversight in relation to working names
143.A charity’s official name is subject to oversight in a number of ways—
its name is considered as part of the process of applying for charitable status and an application must be refused if the name is objectionable (section 5(2)(a) of the 2005 Act),
if OSCR later concludes that the charity’s name is objectionable, it must direct the charity to change the name (section 12 of the 2005 Act),
where a charity wishes to change its name, either voluntarily or following a direction, OSCR’s permission must be obtained and can be refused where the name is objectionable (section 11 of the 2005 Act).
144.In all cases, the test as to what is objectionable is the same (see paragraph 137).
145.In addition to an official name, some charities also have one or more working names by which they are known. For example, the Earl Haig Fund (Scotland) (charity number SC014096) is known as Poppyscotland, while Charity Projects (charity numbers 326568 and SC039730) is known as Comic Relief. This differs from the situation where a specific project run by a charity is known by a particular name (for example, Sport Relief is an event run by Comic Relief).
146.The 2005 Act did not originally regulate working names (although, under the Charities References in Documents (Scotland) Regulations 2007 (SSI 2007/203), charities other than SCIOs are required to include on various documents both their name and any other name by which they are commonly known).
147.This paragraph of the Act introduces the ability for OSCR to exercise a degree of oversight of working names. This applies in two different ways.
148.First, the existing rule in section 10 of the 2005 Act on what is objectionable as an official name is extended so that it also covers a charity’s official name being the same as, or too similar to, another charity’s working name. This would mean that, for example, if a prospective charity applied to use the name Poppyscotland, that could be denied on the basis of the existing use of that as a working name for a charity. However, the onus is not put on OSCR to investigate working names. For example, if OSCR is processing an application for charitable status, it is not expected to spend time searching for charities which might have that working name already without OSCR being aware of that use. There is no obligation on charities to register their working names and OSCR cannot check these in the same way as it can check official names.
149.In consequence of this extension, the existing ability which a charity has under section 12 of the 2005 Act to complain about another charity’s name is extended to cover another charity’s working name being the same as, or too like, that charity’s official name. Further, this right of objection is also expanded to allow a charity to complain about a clash between its own and another charity’s working names.
150.The outcomes available to OSCR on such a complaint being made are extended accordingly to accommodate the fact that the outcome could be to direct that the charity’s working name stop being used. The position is as follows—
Where the complaint relates to a clash between two official names, the position is unchanged. If the objection is upheld then OSCR must act and either one or both charities will be directed to change name.
Where the complaint relates to a clash between two working names, if the objection is upheld then OSCR may (but does not have to) act. If it does act, either one or both charities could be directed to stop using that working name.
Where the complaint relates to a clash between an official name and a working name, if the objection is upheld then OSCR may (but does not have to) act. If it does act, it could act by directing that the official name be changed or that the working name stops being used (or both).
151.Second, a new standalone power is granted to OSCR to issue a direction to a charity in relation to its use of a working name. This power (found at inserted section 12(3)(b)) is similar to the existing power in relation to official names (restated at inserted section 12(3)(a)). However, in contrast with section 5 of the 2005 Act, this power to take action in response to a charity’s working name does not apply at the application stage, so a proposed charity’s application for charitable status will not be affected by any working name it intends to use. But, once registered, OSCR will be empowered to direct the charity to stop using a working name if that working name is objectionable. For these purposes, the test of what is objectionable is the same as it is for official names.
152.A direction to stop using a working name must specify a period within which it is to be implemented. A direction to a charity to stop using a working name could be implemented by the charity changing to a different working name or ceasing to use a working name altogether. If the charity opts to change to a different working name, there is no approval process in respect of the new working name but if the replacement is also objectionable then it could be the subject of a separate direction.
153.As a result of these changes, section 12 will now deal with directions to stop using a working name as well as directions to change an official name. Provision is therefore made under which any direction under section 12 can be revoked or varied by extending the period specified in it. In the case of a direction to stop using a working name, that means the period within which the charity is to stop using it. In the case of a direction to change name, that means the period referred to in section 12(4) of the 2005 Act – i.e. the period within which the charity must give notice of its proposed new name.
154.Changes are also made by the Act to sections 12(4) and 12(5) of the 2005 Act in order to confine those provisions to directions to change name (i.e. directions under section 12(2), (2A)(a) or (3)(a)). Section 12(4) is not relevant to a direction to stop using a working name because, as noted at paragraph 152, there is no approval process in relation to the adoption of a new working name. Section 12(5) is not relevant to a direction to stop using a working name because just as a charity’s working name is not a bar to it being entered onto the Register, nor will it put a charity at risk of removal from the Register. However, failure to comply with a direction to stop using a working name would, as with failure to comply with any other direction, be misconduct in the administration of the charity under section 66(4) of the 2005 Act. It could lead to OSCR initiating an inquiry into the charity under section 28 of the 2005 Act.
155.By dint of the changes made to section 71 of the 2005 Act, the decision to issue a direction under new subsection (2A) will be subject to the 2005 Act’s normal review processes. The issuing of a direction under subsection (3) is already subject to those review processes and this will cover the expansion of that provision. In the event of the issuing of a direction of any kind under section 12, the charity will be given notice of the decision to issue a direction and the decision will be suspended until both the notice has been given and either any appeal process has been exhausted or the period during which OSCR can be required to carry out a review passes without a review being requested.
156.Finally, a consequential modification is made to section 3 of the 2005 Act so that the issuing of any direction under section 12 continues to be flagged on a charity’s Register entry.
