Charities Act 2011

Part 1 U.K. Meaning of “charity” and “charitable purpose”

CHAPTER 1 U.K. General

Charity U.K.

1 Meaning of “charity” U.K.

(1) For the purposes of the law of England and Wales, “charity” means an institution which—

(a) is established for charitable purposes only, and

(b) falls to be subject to the control of the High Court in the exercise of its jurisdiction with respect to charities.

(2) The definition of “charity” in subsection (1) does not apply for the purposes of an enactment if a different definition of that term applies for those purposes by virtue of that or any other enactment.

Modifications etc. (not altering text)

C1 S. 1(1) restricted (1.4.2012) by The Finance Act 2010, Schedule 6, Part 1 (Further Consequential and Incidental Provision etc) Order 2012 (S.I. 2012/735), arts. 1, 5(1) (with art. 2)

C2 S. 1(1) restricted (1.4.2012) by The Finance Act 2010, Schedule 6, Part 1 (Further Consequential and Incidental Provision etc) Order 2012 (S.I. 2012/735), arts. 1, 6(1) (with art. 3)

Charitable purpose U.K.

2 Meaning of “charitable purpose” U.K.

(1) For the purposes of the law of England and Wales, a charitable purpose is a purpose which—

(a) falls within section 3(1), and

(b) is for the public benefit (see section 4).

(2) Any reference in any enactment or document (in whatever terms)—

(a) to charitable purposes, or

(b) to institutions having purposes that are charitable under the law relating to charities in England and Wales,

is to be read in accordance with subsection (1).

(3) Subsection (2) does not apply where the context otherwise requires.

(4) This section is subject to section 11 (which makes special provision for Chapter 2 of this Part onwards).

3 Descriptions of purposes U.K.

(1) A purpose falls within this subsection if it falls within any of the following descriptions of purposes—

(a) the prevention or relief of poverty;

(b) the advancement of education;

(c) the advancement of religion;

(d) the advancement of health or the saving of lives;

(e) the advancement of citizenship or community development;

(f) the advancement of the arts, culture, heritage or science;

(g) the advancement of amateur sport;

(h) the advancement of human rights, conflict resolution or reconciliation or the promotion of religious or racial harmony or equality and diversity;

(i) the advancement of environmental protection or improvement;

(j) the relief of those in need because of youth, age, ill-health, disability, financial hardship or other disadvantage;

(k) the advancement of animal welfare;

(l) the promotion of the efficiency of the armed forces of the Crown or of the efficiency of the police, fire and rescue services or ambulance services;

(m) any other purposes—

(i) that are not within paragraphs (a) to (l) but are recognised as charitable purposes by virtue of section 5 (recreational and similar trusts, etc.) or under the old law,

(ii) that may reasonably be regarded as analogous to, or within the spirit of, any purposes falling within any of paragraphs (a) to (l) or sub-paragraph (i), or

(iii) that may reasonably be regarded as analogous to, or within the spirit of, any purposes which have been recognised, under the law relating to charities in England and Wales, as falling within sub-paragraph (ii) or this sub-paragraph.

(2) In subsection (1)—

(a) in paragraph (c), “religion” includes—

(i) a religion which involves belief in more than one god, and

(ii) a religion which does not involve belief in a god,

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

(c) paragraph (e) includes—

(i) rural or urban regeneration, and

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

(d) in paragraph (g), “sport” means sports or games which promote health by involving physical or mental skill or exertion,

(e) paragraph (j) includes relief given by the provision of accommodation or care to the persons mentioned in that paragraph, and

(f) in paragraph (l), “fire and rescue services” means services provided by fire and rescue authorities under Part 2 of the Fire and Rescue Services Act 2004.

(3) Where any of the terms used in any of paragraphs (a) to (l) of subsection (1), or in subsection (2), has a particular meaning under the law relating to charities in England and Wales, the term is to be taken as having the same meaning where it appears in that provision.

(4) In subsection (1)(m)(i), “the old law” means the law relating to charities in England and Wales as in force immediately before 1 April 2008.

Modifications etc. (not altering text)

C3 S. 3(1)(b) applied (28.4.2022) by 2010 c. 32, s. 12(5)(6) (as inserted by Police, Crime, Sentencing and Courts Act 2022 (c. 32), ss. 164(2), 208(4)(t))

4 The public benefit requirement U.K.

(1) In this Act “the public benefit requirement” means the requirement in section 2(1)(b) that a purpose falling within section 3(1) must be for the public benefit if it is to be a charitable purpose.

(2) In determining whether the public benefit requirement is satisfied in relation to any purpose falling within section 3(1), it is not to be presumed that a purpose of a particular description is for the public benefit.

(3) In this Chapter any reference to the public benefit is a reference to the public benefit as that term is understood for the purposes of the law relating to charities in England and Wales.

(4) Subsection (3) is subject to subsection (2).

Recreational trusts and registered sports clubs U.K.

5 Recreational and similar trusts, etc. U.K.

(1) It is charitable (and is to be treated as always having been charitable) to provide, or assist in the provision of, facilities for—

(a) recreation, or

(b) other leisure-time occupation,

if the facilities are provided in the interests of social welfare.

(2) The requirement that the facilities are provided in the interests of social welfare cannot be satisfied if the basic conditions are not met.

(3) The basic conditions are—

(a) that the facilities are provided with the object of improving the conditions of life for the persons for whom the facilities are primarily intended, and

(b) that—

(i) those persons have need of the facilities because of their youth, age, infirmity or disability, poverty, or social and economic circumstances, or

(ii) the facilities are to be available to members of the public at large or to male, or to female, members of the public at large.

(4) Subsection (1) applies in particular to—

(a) the provision of facilities at village halls, community centres and women's institutes, and

(b) the provision and maintenance of grounds and buildings to be used for purposes of recreation or leisure-time occupation,

and extends to the provision of facilities for those purposes by the organising of any activity.

But this is subject to the requirement that the facilities are provided in the interests of social welfare.

(5) Nothing in this section is to be treated as derogating from the public benefit requirement.

6 Registered sports clubs U.K.

(1) A registered sports club established for charitable purposes is to be treated as not being so established, and accordingly cannot be a charity.

(2) In subsection (1), “registered sports club” means a registered club within the meaning of Chapter 9 of Part 13 of the Corporation Tax Act 2010 (community amateur sports clubs).

Supplementary U.K.

7 Application of this Chapter in relation to Scotland U.K.

(1) This Chapter affects the law of Scotland only in so far as it affects the construction of references to—

(a) charities, or

(b) charitable purposes,

in enactments which relate to matters falling within Section A1 of Part 2 of Schedule 5 to the Scotland Act 1998 (reserved matters: fiscal policy etc.).

(2) In so far as this Chapter affects the law of Scotland—

(a) references in sections 1(1) and 2(1) to the law of England and Wales are to be read as references to the law of Scotland, and

(b) the reference in section 1(1) to the High Court is to be read as a reference to the Court of Session.

8 Application of this Chapter in relation to Northern Ireland U.K.

(1) This Chapter affects the law of Northern Ireland only in so far as it affects the construction of references to—

(a) charities, or

(b) charitable purposes,

in enactments which relate to matters falling within paragraph 9 of Schedule 2 to the Northern Ireland Act 1998 (excepted matters: taxes and duties).

(2) In so far as this Chapter affects the law of Northern Ireland—

(a) references in sections 1(1) and 2(1) to the law of England and Wales are to be read as references to the law of Northern Ireland, and

(b) the reference in section 1(1) to the High Court is to be read as a reference to the High Court in Northern Ireland.

9 Interpretation U.K.

(1) In this Chapter “enactment” includes—

(a) any provision of subordinate legislation (within the meaning of the Interpretation Act 1978), and

(b) a provision of a Measure of the Church Assembly or of the General Synod of the Church of England,

and references to enactments include enactments whenever passed or made.

(2) In section 2(2) the reference to a document includes a document whenever made.

(3) In this Act “institution” means an institution whether incorporated or not, and includes a trust or undertaking.

(4) Subsections (1) to (3) apply except where the context otherwise requires.

CHAPTER 2 E+W Special provision for this Act

10 Ecclesiastical corporations etc. not charities in certain contexts E+W

(1) In the rest of this Act, “charity”, except in so far as the context otherwise requires, has the meaning given by section 1(1).

(2) But in the rest of this Act (apart from Chapter 3 of Part 17) “charity” is not applicable to—

(a) any ecclesiastical corporation in respect of the corporate property of the corporation, except a corporation aggregate having some purposes which are not ecclesiastical in respect of its corporate property held for those purposes,

(b) any Diocesan Board of Finance, or any subsidiary of such a Board, in respect of the diocesan glebe land of the diocese, or

(c) any trust of property for purposes for which the property has been consecrated.

(3) “Ecclesiastical corporation” means any corporation in the Church of England, whether sole or aggregate, which is established for spiritual purposes [F1 but does not include the Chapter of a cathedral to which the Cathedrals Measure 2021 applies].

[F2 (4) In this section—

• “Diocesan Board of Finance” has the same meaning as “DBF” in the Church Property Measure 2018;

• “diocesan glebe land” has the same meaning as in that Measure;

• “subsidiary” has the same meaning as “management subsidiary” in that Measure.]

Textual Amendments

F1 Words in s. 10(3) inserted (coming into force in accordance with s. 53(6)(7) of the amending Measure) by Cathedrals Measure 2021 (No. 2), s. 8(1) (with ss. 42(4), 48, 52(1))

F2 S. 10(4) substituted (1.3.2019) by Church Property Measure 2018 (No. 8), s. 53(2), Sch. 1 para. 29; S.I. 2019/97, art. 2

11 Charitable purposes E+W

In the rest of this Act, “charitable purposes” means, except in so far as the context otherwise requires, purposes which are exclusively charitable purposes (as defined by section 2(1)).

12 Directions as to what is (or is not) a separate charity E+W

(1) The Commission (see section 13) may direct that for all or any of the purposes of this Act an institution established for any special purposes of or in connection with a charity (being charitable purposes) is to be treated—

(a) as forming part of that charity, or

(b) as forming a distinct charity.

(2) The Commission may direct that for all or any of the purposes of this Act two or more charities having the same charity trustees are to be treated as a single charity.

Part 2 E+W The Charity Commission and the Official Custodian for Charities

The Commission E+W

13 The Charity Commission E+W

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

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

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

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

(5) But subsection (4) 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) Schedule 1 contains provisions relating to the Commission.

14 The Commission's objectives E+W

The Commission has the following objectives—

1 The public confidence objective

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

2 The public benefit objective

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

3 The compliance objective

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

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

5 The accountability objective

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

15 The Commission's general functions E+W

(1) The Commission has the following general functions—

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 in the administration of charities.

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.

(2) The Commission may, in connection with its second general function, give such advice or guidance with respect to the administration of charities as it considers appropriate.

(3) 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.

(4) The Commission's fifth general function includes (among other things) the maintenance of an accurate and up-to-date register of charities under sections 29 (the register) and 34 (removal of charities from register).

(5) 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.

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

16 The Commission's general duties E+W

The Commission has the following general duties—

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.

17 Guidance as to operation of public benefit requirement E+W

(1) The Commission must issue guidance in pursuance of its public benefit objective (see paragraph 2 of section 14).

(2) The Commission may from time to time revise any guidance issued under this section.

(3) The Commission must carry out such public and other consultation as it considers appropriate—

(a) before issuing any guidance under this section, or

(b) (unless it considers that it is unnecessary to do so) before revising any guidance under this section.

(4) The Commission must publish any guidance issued or revised under this section in such manner as it considers appropriate.

(5) The charity trustees of a charity must have regard to any such guidance when exercising any powers or duties to which the guidance is relevant.

18 Supply by Commission of copies of documents E+W

The Commission must, at the request of any person, provide that person with copies of, or extracts from, any document in the Commission's possession which is for the time being open to or available for inspection under any provision of this Act.

19 Fees and other amounts payable to Commission E+W

(1) The [F3 Secretary of State] may by regulations require the payment to the Commission of such fees as may be prescribed by the regulations in respect of—

(a) the discharge by the Commission of such functions under the enactments relating to charities as may be so prescribed;

(b) the inspection of the register of charities or of other material kept by the Commission under those enactments, or the provision of copies of or extracts from documents so kept.

(2) Regulations under this section may—

(a) confer, or provide for the conferring of, exemptions from liability to pay a prescribed fee;

(b) provide for the remission or refunding of a prescribed fee (in whole or in part) in circumstances prescribed by the regulations.

(3) The Commission may impose charges of such amounts as it considers reasonable in respect of the supply of any publications produced by it.

(4) Any fees and other payments received by the Commission by virtue of this section are to be paid into the Consolidated Fund.

Textual Amendments

F3 Words in s. 19(1) substituted (9.11.2016) by The Transfer of Functions (Elections, Referendums, Third Sector and Information) Order 2016 (S.I. 2016/997), art. 1(2), Sch. 2 para. 25(2)(a) (with art. 12)

20 Incidental powers E+W

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

(2) But 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 84[F4 , 84A][F5 , 84B] or 85 (power of Commission to direct specified action to be taken or to direct application of charity property).

Textual Amendments

F4 Word in s. 20(3) inserted (31.7.2016) by Charities (Protection and Social Investment) Act 2016 (c. 4), ss. 6(3), 17(4); S.I. 2016/815, reg. 2(e)

F5 Word in s. 20(3) inserted (31.7.2016) by Charities (Protection and Social Investment) Act 2016 (c. 4), ss. 7(3), 17(4); S.I. 2016/815, reg. 2(f)

The official custodian E+W

21 The official custodian for charities E+W

(1) There continues to be an officer known as the official custodian for charities (in this Act referred to as “the official custodian”).

(2) The official custodian's function is to act as trustee for charities in the cases provided for by this Act.

(3) The official custodian is such individual as the Commission may from time to time designate.

(4) The official custodian's duties must be performed in accordance with such general or special directions as may be given by the Commission.

(5) Schedule 2 contains provisions relating to the official custodian.

Part 3 E+W Exempt charities and the principal regulator

Exempt charities E+W

22 Meaning of “exempt charity” and Sch.3 E+W

(1) In this Act “exempt charity” means any institution, so far as it is a charity, that is within Schedule 3.

(2) Subsection (1) is subject to any other enactment by virtue of which a charity is an exempt charity.

23 Power to amend Sch.3 so as to add or remove exempt charities E+W

(1) The [F6 Secretary of State] may by order make such amendments of Schedule 3 as the [F6 Secretary of State] considers appropriate for securing—

(a) that (so far as they are charities) institutions of a particular description become or (as the case may be) cease to be exempt charities, or

(b) that (so far as it is a charity) a particular institution becomes or (as the case may be) ceases to be an exempt charity.

(2) An order under subsection (1) may be made only if the [F7 Secretary of State] is satisfied that the order is desirable in the interests of ensuring appropriate or effective regulation of the charities or charity concerned in connection with compliance by the charity trustees of the charities or charity with their legal obligations in exercising control and management of the administration of the charities or charity.

(3) The [F8 Secretary of State] may by order make such amendments or other modifications of any enactment as the [F8 Secretary of State] considers appropriate in connection with—

(a) charities of a particular description becoming, or ceasing to be, exempt charities, or

(b) a particular charity becoming, or ceasing to be, an exempt charity,

as a result of provision made under subsection (1).

(4) In subsection (3), “enactment” includes—

(a) any provision of subordinate legislation (within the meaning of the Interpretation Act 1978), and

(b) a provision of a Measure of the Church Assembly or of the General Synod of the Church of England,

and references to enactments include enactments whenever passed or made.

Textual Amendments

F6 Words in s. 23(1) substituted (9.11.2016) by The Transfer of Functions (Elections, Referendums, Third Sector and Information) Order 2016 (S.I. 2016/997), art. 1(2), Sch. 2 para. 25(2)(b) (with art. 12)

F7 Words in s. 23(2) substituted (9.11.2016) by The Transfer of Functions (Elections, Referendums, Third Sector and Information) Order 2016 (S.I. 2016/997), art. 1(2), Sch. 2 para. 25(2)(b) (with art. 12)

F8 Words in s. 23(3) substituted (9.11.2016) by The Transfer of Functions (Elections, Referendums, Third Sector and Information) Order 2016 (S.I. 2016/997), art. 1(2), Sch. 2 para. 25(2)(b) (with art. 12)

24 Power to remove defunct institutions from Sch.3 E+W

The [F9 Secretary of State] may by order make such amendments of Schedule 3 as the [F9 Secretary of State] considers appropriate for removing from that Schedule an institution that has ceased to exist.

Textual Amendments

F9 Words in s. 24 substituted (9.11.2016) by The Transfer of Functions (Elections, Referendums, Third Sector and Information) Order 2016 (S.I. 2016/997), art. 1(2), Sch. 2 para. 25(2)(c) (with art. 12)

The principal regulator E+W

25 Meaning of “the principal regulator” E+W

In this Act “the principal regulator”, in relation to an exempt charity, means such body or Minister of the Crown as is prescribed as its principal regulator by regulations made by the [F10 Secretary of State].

Textual Amendments

F10 Words in s. 25 substituted (9.11.2016) by The Transfer of Functions (Elections, Referendums, Third Sector and Information) Order 2016 (S.I. 2016/997), art. 1(2), Sch. 2 para. 25(3) (with art. 12)

26 General duty of principal regulator in relation to exempt charity E+W

(1) This section applies to any body or Minister of the Crown who is the principal regulator in relation to an exempt charity.

(2) The body or Minister must do all that the body or Minister reasonably can to meet the compliance objective in relation to the charity.

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

27 Power to make amendments in connection with s.26 E+W

(1) Regulations under section 25 may make such amendments or other modifications of any enactment as the [F11 Secretary of State] considers appropriate for the purpose of facilitating, or otherwise in connection with, the discharge by a principal regulator of the duty under section 26(2).

(2) In subsection (1), “enactment” includes—

(a) any provision of subordinate legislation (within the meaning of the Interpretation Act 1978), and

(b) a provision of a Measure of the Church Assembly or of the General Synod of the Church of England,

and references to enactments include enactments whenever passed or made.

Textual Amendments

F11 Words in s. 27(1) substituted (9.11.2016) by The Transfer of Functions (Elections, Referendums, Third Sector and Information) Order 2016 (S.I. 2016/997), art. 1(2), Sch. 2 para. 25(2)(d) (with art. 12)

28 Commission to consult principal regulator E+W

Before exercising in relation to an exempt charity any specific power exercisable by it in relation to the charity, the Commission must consult the charity's principal regulator.

Part 4 E+W Registration and names of charities

The register E+W

29 The register E+W

(1) There continues to be a register of charities, to be kept by the Commission in such manner as it thinks fit.

(2) The register must contain—

(a) the name of every charity registered in accordance with section 30, and

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

(3) In this Act, except in so far as the context otherwise requires, “the register” means the register of charities kept under this section and “registered” is to be read accordingly.

Modifications etc. (not altering text)

C4 S. 29 modified (2.1.2013) by The Charitable Incorporated Organisations (General) Regulations 2012 (S.I. 2012/3012), regs. 1, 6(2)(a)

Charities required to be registered E+W

30 Charities required to be registered: general E+W

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

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

(a) an exempt charity (see section 22 and Schedule 3),

(b) a 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) a charity which for the time being—

(i) is, or is of a description, permanently or temporarily excepted by regulations made by the [F12 Secretary of State], and

(ii) complies with any conditions of the exception,

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

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

(3) A charity within—

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

(b) subsection (2)(d),

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

(4) In this section any reference to a charity's gross income is to be read, 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.

Textual Amendments

F12 Words in s. 30(2)(c)(i) substituted (9.11.2016) by The Transfer of Functions (Elections, Referendums, Third Sector and Information) Order 2016 (S.I. 2016/997), art. 1(2), Sch. 2 para. 25(2)(e) (with art. 12)

Modifications etc. (not altering text)

C5 Ss. 30-34 excluded (2.1.2013) by The Charitable Incorporated Organisations (General) Regulations 2012 (S.I. 2012/3012), regs. 1, 6(3)

31 Restrictions on extending the range of excepted charities etc. E+W

(1) No order may be made under section 30(2)(b) so as to except any charity that was not excepted immediately before 31 January 2009.

(2) Subject to subsection (3), no regulations may be made under section 30(2)(c) so as to except any charity or description of charities that was not excepted immediately before 31 January 2009.

(3) Such regulations must be made under section 30(2)(c) as are necessary to secure that any institution ceasing to be an exempt charity by virtue of an order made under section 23 is excepted under section 30(2)(c) (subject to compliance with any conditions of the exception and the financial limit mentioned in section 30(2)(c)).

(4) Subsection (1) does not prevent an order which—

(a) was in force immediately before 31 January 2009, and

(b) has effect (by virtue of paragraph 4 of Schedule 8) as if made under section 30(2)(b),

from being varied or revoked.

(5) Subsection (2) does not prevent regulations which—

(a) were in force immediately before 31 January 2009, and

(b) have effect (by virtue of paragraph 4 of Schedule 8) as if made under section 30(2)(c),

from being varied or revoked.

Modifications etc. (not altering text)

C5 Ss. 30-34 excluded (2.1.2013) by The Charitable Incorporated Organisations (General) Regulations 2012 (S.I. 2012/3012), regs. 1, 6(3)

C6 S. 31(3) applied by 1998 c. 31, s. 23(3) (as substituted (14.3.2012) by Charities Act 2011 (c. 25), s. 355, Sch. 7 para. 75(2) (with s. 20(2), Sch. 8))

C7 S. 31(3) applied by 1855 c. 81, s. 9(1) (as substituted (14.3.2012) by Charities Act 2011 (c. 25), s. 355, Sch. 7 para. 5(1)(a) (with s. 20(2), Sch. 8))

C8 S. 31(3) applied by 1998 c. 31, Sch. 1 para. 10 (as substituted (14.3.2012) by Charities Act 2011 (c. 25), s. 355, Sch. 7 para. 78 (with s. 20(2), Sch. 8))

32 Power to alter sums specified in s.30(2) E+W

(1) The [F13 Secretary of State] may by order amend—

(a) section 30(2)(b) and (c), or

(b) section 30(2)(d),

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

(2) The [F13 Secretary of State] may only make an order under subsection (1)—

(a) so far as it amends section 30(2)(b) and (c), if the [F13 Secretary of State] considers it expedient to do so with a view to reducing the scope of the exceptions provided by section 30(2)(b) and (c);

(b) so far as it amends section 30(2)(d), if the [F13 Secretary of State] considers it expedient to do so—

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

(ii) with a view to extending the scope of the exception provided by section 30(2)(d).

(3) No order may be made by the [F14 Secretary of State] under subsection (1)(a) unless a copy of a report under section 73 of the Charities Act 2006 has been laid before Parliament in accordance with that section.

Textual Amendments

F13 Words in s. 32(1)(2) substituted (9.11.2016) by The Transfer of Functions (Elections, Referendums, Third Sector and Information) Order 2016 (S.I. 2016/997), art. 1(2), Sch. 2 para. 25(2)(f) (with art. 12)

F14 Words in s. 32(3) substituted (9.11.2016) by The Transfer of Functions (Elections, Referendums, Third Sector and Information) Order 2016 (S.I. 2016/997), art. 1(2), Sch. 2 para. 25(2)(f) (with art. 12)

Modifications etc. (not altering text)

C5 Ss. 30-34 excluded (2.1.2013) by The Charitable Incorporated Organisations (General) Regulations 2012 (S.I. 2012/3012), regs. 1, 6(3)

33 Power to repeal provisions relating to excepted charities E+W

The following provisions—

(a) section 30(2)(b) and (c) and (3)(a),

(b) section 31,

(c) section 32(1)(a), (2)(a) and (3), and

(d) this section,

cease to have effect on such day as the [F15 Secretary of State] may by order appoint for the purposes of this section.

Textual Amendments

F15 Words in s. 33 substituted (9.11.2016) by The Transfer of Functions (Elections, Referendums, Third Sector and Information) Order 2016 (S.I. 2016/997), art. 1(2), Sch. 2 para. 25(2)(g) (with art. 12)

Modifications etc. (not altering text)

C5 Ss. 30-34 excluded (2.1.2013) by The Charitable Incorporated Organisations (General) Regulations 2012 (S.I. 2012/3012), regs. 1, 6(3)

Removal of charities from register E+W

34 Removal of charities from register E+W

(1) The Commission must 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.

(2) If the removal of an institution under subsection (1)(a) is due to any change in its trusts, the removal takes effect from the date of the change.

(3) A charity which is for the time being registered under section 30(3) (voluntary registration) must be removed from the register if it so requests.

Modifications etc. (not altering text)

C5 Ss. 30-34 excluded (2.1.2013) by The Charitable Incorporated Organisations (General) Regulations 2012 (S.I. 2012/3012), regs. 1, 6(3)

Registration: duties of trustees and claims and objections E+W

35 Duties of trustees in connection with registration E+W

(1) If a charity required to be registered by virtue of section 30(1) is not registered, the charity trustees must—

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

(b) 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 [F16 Secretary of State], and

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

(3) If an institution is for the time being registered, the charity trustees (or the last charity trustees) must—

(a) 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, 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) 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 the person refers the Commission to a document or copy already in the Commission's possession, to supply a further copy of the document.

Textual Amendments

F16 Words in s. 35(2)(b) substituted (9.11.2016) by The Transfer of Functions (Elections, Referendums, Third Sector and Information) Order 2016 (S.I. 2016/997), art. 1(2), Sch. 2 para. 25(2)(h) (with art. 12)

Modifications etc. (not altering text)

C9 S. 35 modified (2.1.2013) by The Charitable Incorporated Organisations (General) Regulations 2012 (S.I. 2012/3012), regs. 1, 6(4)

36 Claims and objections to registration E+W

(1) A 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—

(a) object to its being entered by the Commission in the register, or

(b) apply to the Commission for it to be removed from the register.

(2) Provision may be made by regulations made by the [F17 Secretary of State] as to the manner in which any such objection or application is to be made, prosecuted or dealt with.

(3) Subsection (4) applies if there is an appeal to the Tribunal against any decision of the Commission—

(a) to enter an institution in the register, or

(b) not to remove an institution from the register.

(4) Until the Commission is satisfied whether the decision of the Commission is or is not to stand, the entry in the register—

(a) is to be maintained, but

(b) is in suspense and must be marked to indicate that it is in suspense.

(5) Any question affecting the registration or removal from the register of an institution—

(a) may be considered afresh by the Commission, even though it has been determined by a decision on appeal under Chapter 2 of Part 17 (appeals and applications to Tribunal), and

(b) is not concluded by that decision, if it appears to the Commission that—

(i) there has been a change of circumstances, or

(ii) the decision is inconsistent with a later judicial decision.

Textual Amendments

F17 Words in s. 36(2) substituted (9.11.2016) by The Transfer of Functions (Elections, Referendums, Third Sector and Information) Order 2016 (S.I. 2016/997), art. 1(2), Sch. 2 para. 25(2)(i) (with art. 12)

Modifications etc. (not altering text)

C10 S. 36 modified (2.1.2013) by The Charitable Incorporated Organisations (General) Regulations 2012 (S.I. 2012/3012), regs. 1, 6(5)(a)

Effect of registration and right to inspect register E+W

37 Effect of registration E+W

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

(2) For the purposes of subsection (1) an institution is to be treated as not being on the register during any period when the entry relating to it is in suspense under section 36(4).

38 Right to inspect register E+W

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

(2) If any information contained in the register is not in documentary form, subsection (1) is to be read as requiring the information to be available for public inspection in legible form at all reasonable times.

(3) If the Commission so determines, subsection (1) does not apply to any particular information contained in the register that is specified in the determination.

(4) Copies (or particulars) of the trusts of any registered charity as supplied to the Commission under section 35 (duties of trustees in connection with registration) must, 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.

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

(a) is not required to be supplied to the Commission as the result of section 35(4), but

(b) is in the Commission's possession,

a copy of the document must be open to inspection under subsection (4) as if supplied to the Commission under section 35.

Modifications etc. (not altering text)

C11 S. 38 modified (2.1.2013) by The Charitable Incorporated Organisations (General) Regulations 2012 (S.I. 2012/3012), regs. 1, 6(6)

Disclosure of registered charity status E+W

39 Statement required to be made in official publications etc. E+W

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

(2) If this section applies to a registered charity, the fact that it is a registered charity must be stated 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.

(3) The statement required by subsection (2) must 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 “elusen cofrestredig” (the Welsh equivalent of “registered charity”).

(4) Subsection (2)(a) has effect—

(a) whether the solicitation is express or implied, and

(b) whether or not the money or other property is to be given for any consideration.

40 Power to alter sum specified in s.39(1) E+W

The [F18 Secretary of State] may by order amend section 39(1) by substituting a different sum for the sum for the time being specified there.

Textual Amendments

F18 Words in s. 40 substituted (9.11.2016) by The Transfer of Functions (Elections, Referendums, Third Sector and Information) Order 2016 (S.I. 2016/997), art. 1(2), Sch. 2 para. 25(2)(j) (with art. 12)

41 Offences E+W

(1) It is an offence for a person, in the case of a registered charity to which section 39 applies, to issue or authorise the issue of any document falling within section 39(2)(a) or (c) which does not contain the statement required by section 39(2).

(2) It is an offence for a person, in the case of a registered charity to which section 39 applies, to sign any document falling within section 39(2)(b) which does not contain the statement required by section 39(2).

(3) A person guilty of an offence under subsection (1) or (2) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

[F19 Names and working names] E+W

Textual Amendments

F19 S. 42 cross-heading substituted (14.6.2023) by Charities Act 2022 (c. 6), s. 41(4), Sch. 2 para. 31; S.I. 2023/643, Sch. para. 20(n)

42 Power to require name [F20 or working name] to be changed E+W

[F21 (1) If one or more of the conditions in subsection (2) are met in relation to the name or a working name of a charity, the Commission may give a direction—

(a) requiring the name of the charity to be changed to a name determined by the charity trustees with the approval of the Commission, or

(b) requiring that that working name of the charity no longer be used as a working name (as the case may be).

(1A) A direction given under this section must specify the period within which the charity is to comply with the direction.]

(2) [F22 The conditions are—

(a) that the name or working name is the same as, or in the opinion of the Commission too like, the name or a working name of another charity,]

(b) [F23 that the name or working name] of the charity is in the opinion of the Commission likely to mislead the public as to the true nature of—

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

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

(c) [F24 that the name or working name] of the charity includes any word or expression for the time being specified in regulations made by the [F25 Secretary of State] and the inclusion in [F26 the name or working name] of that word or expression is in the opinion of the Commission likely to mislead the public in any respect as to the status of the charity,

(d) [F27 that the name or working name] is in the opinion of the Commission 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) [F28 that the name or working name] is in the opinion of the Commission offensive.

F29 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F30 (4) In this Act, any reference to a working name of a charity is a reference to a name that is not the name of the charity but which is used to designate the charity and under which activities of the charity are carried out.]

(5) Any direction given under this section with respect to a charity must be given to the charity trustees.

Textual Amendments

F20 Words in s. 42 heading inserted (14.6.2023) by Charities Act 2022 (c. 6), ss. 25(a), 41(4); S.I. 2023/643, Sch. para. 12

F21 S. 42(1)(1A) substituted for s. 42(1) (14.6.2023) by Charities Act 2022 (c. 6), ss. 25(b), 41(4); S.I. 2023/643, Sch. para. 12

F22 Words in s. 42(2) substituted (14.6.2023) by Charities Act 2022 (c. 6), ss. 25(c)(i), 41(4); S.I. 2023/643, Sch. para. 12

F23 Words in s. 42(2)(b) substituted (14.6.2023) by Charities Act 2022 (c. 6), ss. 25(c)(ii), 41(4); S.I. 2023/643, Sch. para. 12

F24 Words in s. 42(2)(c) substituted (14.6.2023) by Charities Act 2022 (c. 6), ss. 25(c)(iii), 41(4); S.I. 2023/643, Sch. para. 12

F25 Words in s. 42(2)(c) substituted (9.11.2016) by The Transfer of Functions (Elections, Referendums, Third Sector and Information) Order 2016 (S.I. 2016/997), art. 1(2), Sch. 2 para. 25(2)(k) (with art. 12)

F26 Words in s. 42(2)(c) substituted (14.6.2023) by Charities Act 2022 (c. 6), ss. 25(c)(iv), 41(4); S.I. 2023/643, Sch. para. 12

F27 Words in s. 42(2)(d) substituted (14.6.2023) by Charities Act 2022 (c. 6), ss. 25(c)(v), 41(4); S.I. 2023/643, Sch. para. 12

F28 Words in s. 42(2)(e) substituted (14.6.2023) by Charities Act 2022 (c. 6), ss. 25(c)(vi), 41(4); S.I. 2023/643, Sch. para. 12

F29 S. 42(3) omitted (14.6.2023) by virtue of Charities Act 2022 (c. 6), ss. 25(d), 41(4); S.I. 2023/643, Sch. para. 12

F30 S. 42(4) substituted (14.6.2023) by Charities Act 2022 (c. 6), ss. 25(e), 41(4); S.I. 2023/643, Sch. para. 12

43 Duty of charity trustees on receiving direction under s.42 E+W

(1) On receiving a direction under section 42 the charity trustees must give effect to it regardless of anything in the trusts of the charity.

(2) If the name of any charity is changed by virtue of section 42, the charity trustees must without delay notify the Commission of—

(a) the charity's new name, and

(b) the date on which the change occurred.

(3) Subsection (2) does not affect section 35(3) (duty of charity trustees to notify changes in registered particulars).

Modifications etc. (not altering text)

C12 S. 43 applied (2.1.2013) by The Charitable Incorporated Organisations (Insolvency and Dissolution) Regulations 2012 (S.I. 2012/3013), regs. 1, 37(6)

44 Change of name not to affect existing rights and obligations etc. E+W

A change of name by a charity by virtue of section 42 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.

Modifications etc. (not altering text)

C13 S. 44 applied (2.1.2013) by The Charitable Incorporated Organisations (Insolvency and Dissolution) Regulations 2012 (S.I. 2012/3013), regs. 1, 37(6)

45 Change of name where charity is a company E+W

(1) In relation to a charitable company, any reference in section 42 or 43 to the charity trustees of a charity is to be read as a reference to the directors of the company.

(2) Subsections (3) to (5) apply if a direction is given under section 42 with respect to [F31 the name of] a charitable company.

(3) The direction is to be treated as requiring the name of the company to be changed by resolution of the directors of the company.

(4) Where a resolution of the directors is passed in accordance with subsection (3), the company must give notice of the change to the registrar of companies.

(5) Where the name of the company is changed in compliance with the direction, the registrar of companies must—

(a) 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) 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.

Textual Amendments

F31 Words in s. 45(2) inserted (14.6.2023) by Charities Act 2022 (c. 6), s. 41(4), Sch. 2 para. 32; S.I. 2023/643, Sch. para. 20(o)

[F32 45A Power to delay registration following s. 42 direction E+W

(1) The Commission may delay the registration of a charity if the Commission has given a direction under section 42 (“the section 42 direction”) requiring the name of the charity to be changed.

(2) A delay under subsection (1) may last until the first to occur of—

(a) the charity trustees notifying the Commission of the charity’s new name and the date of the name change, or

(b) the expiry of the maximum postponement period.

(3) The “maximum postponement period” is the period of 60 days beginning at the end of the period specified in the section 42 direction for giving effect to the direction.

(4) If any relevant proceedings are commenced, any day on which the relevant proceedings are ongoing is to be disregarded for the purposes of determining whether the period of 60 days mentioned in subsection (3) has elapsed.

(5) Each of the following are “relevant proceedings”—

(a) proceedings on an appeal brought to the Tribunal under section 319 against the section 42 direction or against any steps taken by the Commission with a view to securing compliance with the section 42 direction;

(b) proceedings on an application made to the Tribunal under section 321 for the review of the Commission’s decision to institute an inquiry under section 46 in respect of matters connected with the section 42 direction;

(c) proceedings on an application for judicial review of the Commission’s decision to give the section 42 direction or to take any steps with a view to securing compliance with the section 42 direction;

(d) proceedings on an application under section 336 in respect of disobedience to the section 42 direction.

(6) Relevant proceedings are commenced when a notice, claim form or other document is sent or delivered to, or filed with, the Tribunal or court for the purpose of commencing the proceedings.

(7) Relevant proceedings are ongoing until—

(a) the proceedings (including any proceedings on appeal or further appeal) have been concluded, and

(b) any period during which an appeal (or further appeal) may ordinarily be made has passed.]

Textual Amendments

F32 S. 45A inserted (14.6.2023) by Charities Act 2022 (c. 6), ss. 26, 41(4); S.I. 2023/643, Sch. para. 13

[F33 45B Power to delay entry of name in register following a s. 42 direction E+W

(1) If the charity trustees of a charity notify the Commission under section 35(3) of a change of name of the charity, the Commission may delay changing the charity’s name in the register if the Commission has given a direction under section 42 (“the section 42 direction”) requiring the new name to be changed.

(2) A delay under subsection (1) may last until the first to occur of—

(a) the charity trustees notifying the Commission of the charity’s further new name and the date of the further name change, or

(b) the expiry of the maximum postponement period.

(3) The “maximum postponement period” is the period of 60 days beginning at the end of the period specified in the section 42 direction for giving effect to the direction.

(4) If any relevant proceedings are commenced, any day on which the relevant proceedings are ongoing is to be disregarded for the purposes of determining whether the period of 60 days mentioned in subsection (3) has elapsed.

(5) Each of the following are “relevant proceedings”—

(a) proceedings on an appeal brought to the Tribunal under section 319 against the section 42 direction or against any steps taken by the Commission with a view to securing compliance with the section 42 direction;

(b) proceedings on an application made to the Tribunal under section 321 for the review of the Commission’s decision to institute an inquiry under section 46 in respect of matters connected with the section 42 direction;

(c) proceedings on an application for judicial review of the Commission’s decision to give the section 42 direction or to take any steps with a view to securing compliance with the section 42 direction;

(d) proceedings on an application under section 336 in respect of disobedience to the section 42 direction.

(6) Relevant proceedings are commenced when a notice, claim form or other document is sent or delivered to, or filed with, the Tribunal or court for the purpose of commencing the proceedings.

(7) Relevant proceedings are ongoing until—

(a) the proceedings (including any proceedings on appeal or further appeal) have been concluded, and

(b) any period during which an appeal (or further appeal) may ordinarily be made has passed.]

Textual Amendments

F33 S. 45B inserted (14.6.2023) by Charities Act 2022 (c. 6), ss. 27, 41(4); S.I. 2023/643, Sch. para. 14

Part 5 U.K. Information powers

Inquiries instituted by Commission E+W

46 General power to institute inquiries E+W

(1) The 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.

(2) But no such inquiry is to extend to any exempt charity except where this has been requested by its principal regulator.

(3) The Commission may—

(a) conduct such an inquiry itself, or

(b) appoint a person to conduct it and make a report to the Commission.

(4) This section and sections 47 to 49 (obtaining evidence and search warrants) have effect in relation to a body entered in the Scottish Charity Register which is managed or controlled wholly or mainly in or from England or Wales as they have effect in relation to a charity.

47 Obtaining evidence etc. for purposes of inquiry E+W

(1) In this section “inquiry” means an inquiry under section 46.

(2) For the purposes of an inquiry, the Commission, or a person appointed by the Commission to conduct it, may direct any person—

(a) if a matter in question at the inquiry is one on which the person has or can reasonably obtain information—

(i) to provide accounts and statements in writing with respect to the matter, or to return answers in writing to any questions or inquiries addressed to the person on the matter, and

(ii) to verify any such accounts, statements or answers by statutory declaration;

(b) to provide copies of documents which are in the custody or under the control of the person and 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.

But this is subject to the provisions of this section.

(3) For the purposes of an inquiry—

(a) evidence may be taken on oath, and the person conducting the inquiry may for that purpose administer oaths, or

(b) the person conducting the inquiry may instead of administering an oath require the person examined to make and subscribe a declaration of the truth of the matters about which that person is examined.

(4) The Commission may pay to any person attending to give evidence or produce documents for the purpose of an inquiry the necessary expenses of doing so.

(5) A direction under subsection (2)(c) may not require a person to go more than 10 miles from the person's place of residence unless those expenses are paid or tendered to the person.

48 Power to obtain search warrant for purposes of inquiry E+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) is satisfied.

(2) The conditions are—

(a) that an inquiry has been instituted under section 46,

(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 provided under section 52(1), and

(c) that, if the Commission were to make an order requiring the document or information to be so produced or provided—

(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 (“P”)—

(a) to enter and search the premises specified in it;

(b) to take such other persons with P as the Commission considers are needed to assist P in doing anything that P is authorised to do under the warrant;

(c) to take possession of any documents which appear to fall within subsection (2)(b), 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 P such assistance as P may reasonably require for the taking of copies or extracts as mentioned in paragraph (e).

49 Execution of search warrant E+W

(1) Entry and search under a warrant under section 48 must be at a reasonable hour and within one month of the date of its issue.

(2) The member of the Commission's staff who is authorised under such a warrant (“P”) must, if required to do so, produce—

(a) the warrant, and

(b) documentary evidence that P is a member of the Commission's staff,

for inspection by the occupier of the premises or anyone acting on the occupier's behalf.

(3) P must make a written record of—

(a) the date and time of P's entry on the premises,

(b) the number of persons (if any) who accompanied P on to the premises and the names of any such persons,

(c) the period for which P (and any such persons) remained on the premises,

(d) what P (and any such persons) did while on the premises, and

(e) any document or device of which P took possession while there.

(4) If required to do so, P must give a copy of the record to the occupier of the premises or someone acting on the occupier's behalf.

(5) Unless it is not reasonably practicable to do so, P must before leaving the premises comply with—

(a) the requirements of subsection (3), and

(b) any requirement made under subsection (4) before P leaves the premises.

(6) Where possession of any document or device is taken under section 48—

(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 46, 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.

(7) Once it appears to the Commission that the retention of any document or device has ceased to be so necessary, it must 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.

For the purposes of this subsection as it has effect by virtue of section 46(4), the reference in paragraph (b) to the charity trustees of the charity is to be read as a reference to the persons having the general control and management of the administration of the body entered in the Scottish Charity Register.

(8) It is an offence for a person intentionally to obstruct the exercise of any rights conferred by a warrant under section 48.

(9) A person guilty of an offence under subsection (8) is 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.

50 Publication of results of inquiries E+W

(1) This section applies where an inquiry has been held under section 46.

(2) The Commission may—

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

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

51 Contributions by local authorities to inquiries into local charities E+W

(1) A council may contribute to the expenses of the Commission in connection with inquiries under section 46 into local charities in the council's area.

(2) In subsection (1) “council” means—

(a) a district council;

(b) a county council;

(c) a county borough council;

(d) a London borough council;

(e) the Common Council of the City of London.

Power to call for documents and search records E+W

52 Power to call for documents E+W

(1) The Commission may by order—

(a) require any person to provide the Commission with any information which is in that person's possession and which—

(i) relates to any charity, and

(ii) is relevant to the discharge of the functions of the Commission or of the official custodian;

(b) require any person who has custody or control of any document which relates to any charity and is relevant to the discharge of the functions of the Commission or of the official custodian—

(i) to provide the Commission with a copy of or extract from the document, or

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

(2) The Commission is entitled without payment to keep any copy or extract provided to it under subsection (1).

(3) If a document transmitted to the Commission under subsection (1) for it to inspect—

(a) relates only to one or more charities, and

(b) is not held by any person entitled as trustee or otherwise to the custody of it,

the Commission may keep it or may deliver it to the charity trustees or to any other person who may be so entitled.

(4) This section has effect in relation to any body entered in the Scottish Charity Register which is managed or controlled wholly or mainly in or from England or Wales as it has effect in relation to a charity.

53 Power to search records E+W

(1) Any member of the staff of the Commission, if so authorised by it, is entitled without payment to inspect and take copies of or extracts from the records or other documents of—

(a) any court, or

(b) any public registry or office of records,

for any purpose connected with the discharge of the functions of the Commission or of the official custodian.

(2) The reference in subsection (1) to a member of the staff of the Commission includes the official custodian even if not a member of the staff of the Commission.

(3) The rights conferred by subsection (1), in relation to information recorded otherwise than in legible form, include the right to require the information to be made available in legible form—

(a) for inspection, or

(b) for a copy or extract to be made of or from it.

Disclosure of information U.K.

54 Disclosure to Commission: general U.K.

(1) A 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) Subsection (1) is subject to section 55.

(3) In this section “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).

55 Disclosure to Commission: Revenue and Customs information U.K.

(1) Revenue and Customs information may be disclosed under section 54(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 tax exemption has at any time been made;

(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.

(2) In subsection (1)(d) “subsidiary undertaking of a charity” means an undertaking (as defined by section 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 section 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.

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

(a) in subsection (2), and

(b) in section 1162 of, and Schedule 7 to, the Companies Act 2006 as they apply for the purposes of subsection (2),

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

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

(5) For the purposes of subsection (1)(c), “claim for tax exemption” means—

(a) a claim for exemption under section 505(1) of the Income and Corporation Taxes Act 1988,

(b) a claim for exemption under Part 10 of the Income Tax Act 2007, or

(c) a claim for exemption under Part 11 of the Corporation Tax Act 2010, if it is not—

(i) a claim for exemption under section 475, 476 or 477 (reliefs for eligible bodies and scientific research organisations), or

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

56 Disclosure by Commission: general U.K.

(1) The Commission may disclose to any relevant public authority any information received by the Commission in connection with any of the Commission's functions if—

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

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

(2) Subsection (1) is subject to subsection (3) and section 57(1) and (2).

(3) In the case of information disclosed to the Commission under section 54(1), the Commission's power to disclose the information under subsection (1) is exercisable subject to any express restriction subject to which the information was disclosed to the Commission.

(4) In this section “relevant public authority” has the same meaning as in section 54, except that it also includes any body or person within section 54(3)(d) in a country or territory outside the United Kingdom.

57 Disclosure by Commission: Revenue and Customs information U.K.

(1) Section 56(3) does not apply in relation to Revenue and Customs information disclosed to the Commission under section 54(1).

(2) But any such information may not be further disclosed (whether under section 56(1) or otherwise) except with the consent of the Commissioners for Her Majesty's Revenue and Customs.

(3) It is an offence for a responsible person to disclose information in contravention of subsection (2).

(4) A person guilty of an offence under subsection (3) is 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 2 years or to a fine, or both.

(5) It is a defence, where a responsible person is charged with an offence under subsection (3) of disclosing information, to prove that that person 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 Northern Ireland, the reference to 12 months in subsection (4) is to be read as a reference to 6 months.

[F34 (6A) In the application of this section to England and Wales, the reference in subsection (4)(a) to 12 months is to be read as a reference to the general limit in a magistrates’ court]

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

(8) 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—

(i) the Commission, or

(ii) a member of the staff of the Commission, or

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

Textual Amendments

F34 S. 57(6A) inserted (7.2.2023 at 12.00 p.m.) by The Judicial Review and Courts Act 2022 (Magistrates’ Court Sentencing Powers) Regulations 2023 (S.I. 2023/149), regs. 1(2), 24(2)

Modifications etc. (not altering text)

C14 S. 57 modified (1.9.2013) by The Charities Act 2011 (Principal Regulators of Exempt Charities) Regulations 2013 (S.I. 2013/1764), regs. 1, 5(1)

C15 S. 57 modified (1.9.2013) by The Charities Act 2011 (Principal Regulators of Exempt Charities) Regulations 2013 (S.I. 2013/1764), regs. 1, 5(2)

C16 S. 57 modified (9.1.2023) by S.I. 2011/1726, reg. 6(3) (as inserted by The Charities Act 2006 (Principal Regulators of Exempt Charities) (Amendment) Regulations 2022 (S.I. 2022/1290), regs. 1(1), 2(3)(c))

C17 S. 57 modified (9.1.2023) by S.I. 2011/1726, reg. 6(2) (as amended by The Charities Act 2006 (Principal Regulators of Exempt Charities) (Amendment) Regulations 2022 (S.I. 2022/1290), regs. 1(1), 2(3)(b)(i))

58 Disclosure to and by principal regulators of exempt charities U.K.

(1) Sections 54 to 57 apply with the modifications in subsections (2) to (4) 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 55 has effect as if for subsections (1) and (2) there were substituted—

“(1) Revenue and Customs information may be disclosed under section 54(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.

(2) In subsection (1)(b) “subsidiary undertaking of the exempt charity” means an undertaking (as defined by section 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 section 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 57 has effect as if for the definition of “responsible person” in subsection (8) there were substituted a definition specified by regulations under section 25 (meaning of “ principal regulator ”).

(5) Regulations under section 25 may also make such amendments or other modifications of any enactment as the [F35 Secretary of State] 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 as principal regulator.

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

(7) In subsection (5) “enactment” includes—

(a) any provision of subordinate legislation (within the meaning of the Interpretation Act 1978), and

(b) a provision of a Measure of the Church Assembly or of the General Synod of the Church of England,

and references to enactments include enactments whenever passed or made.

Textual Amendments

F35 Words in s. 58(5) substituted (9.11.2016) by The Transfer of Functions (Elections, Referendums, Third Sector and Information) Order 2016 (S.I. 2016/997), art. 1(2), Sch. 2 para. 25(2)(l) (with art. 12)

59 Disclosure: supplementary U.K.

[F36 (1)] Nothing in sections 54 to 57 (or in those sections as applied by section 58(1) to (4)) authorises the making of a disclosure which—

(a) contravenes [F37 the data protection legislation], or

(b) is prohibited by [F38 any of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory Powers Act 2016].

[F39 (2) In this section, “the data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act).]

Textual Amendments

F36 S. 59 renumbered as s. 59(1) (25.5.2018) by Data Protection Act 2018 (c. 12), s. 212(1), Sch. 19 para. 166(2) (with ss. 117, 209, 210); S.I. 2018/625, reg. 2(1)(g)

F37 Words in s. 59(1)(a) substituted (25.5.2018) by Data Protection Act 2018 (c. 12), s. 212(1), Sch. 19 para. 166(3) (with ss. 117, 209, 210); S.I. 2018/625, reg. 2(1)(g)

F38 Words in s. 59(1)(b) substituted (27.6.2018) by Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch. 10 para. 27 (with Sch. 9 paras. 7, 8, 10); S.I. 2018/652, reg. 12(g)(iii)

F39 S. 59(2) inserted (25.5.2018) by Data Protection Act 2018 (c. 12), s. 212(1), Sch. 19 para. 166(4) (with ss. 117, 209, 210); S.I. 2018/625, reg. 2(1)(g)

Supply of false or misleading information to Commission etc. E+W

60 Supply of false or misleading information to Commission etc. E+W

(1) It is an offence for a person knowingly or recklessly to provide the Commission with information which is false or misleading in a material particular if the information is provided—

(a) in purported compliance with a requirement imposed by or under this Act, or

(b) otherwise than as mentioned in paragraph (a) but in circumstances in which the person providing the information—

(i) intends, or

(ii) could reasonably be expected to know,

that it would be used by the Commission for the purpose of discharging its functions under this Act.

(2) It is an offence for a person wilfully to alter, suppress, conceal or destroy any document which the person is or is liable to be required, by or under this Act, to produce to the Commission.

(3) A person guilty of an offence under this section is 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 2 years or to a fine, or both.

(4) In this section references to the Commission include references to any person conducting an inquiry under section 46.

Part 6 E+W+N.I. Cy-près powers and assistance and supervision of charities by court and Commission

Cy-près powers and variation of charters E+W+N.I.

61 Duty of trustees in relation to application of property cy-près E+W

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.

62 Occasions for applying property cy-près E+W

(1) Subject to subsection (3), 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 are—

(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,

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

(c) where—

(i) the property available by virtue of the gift, and

(ii) other property applicable for similar purposes,

can be more effectively used in conjunction, and to that end can suitably, regard being had to the appropriate considerations, be made applicable to common purposes,

(d) where the original purposes were laid down by reference to—

(i) an area which then was but has since ceased to be a unit for some other purpose, or

(ii) a class of persons or an area which has for any reason since ceased to be suitable, regard being had to the 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,

(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 the appropriate considerations.

(2) In subsection (1) “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.

(3) Subsection (1) does 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.

(4) References in subsections (1) to (3) to the original purposes of a gift are to be read, 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.

(5) 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 column 1 in Schedule 4, provide for enlarging the area to any such area as is mentioned in column 2 in the same entry in that Schedule.

(6) Subsection (5) does not affect the power to make schemes in circumstances falling within subsection (1).

[F40 63A Failure of specific charitable purposes: application cy-près E+W

(1) Property given for specific charitable purposes which fail is applicable cy-près as if given for charitable purposes generally, if—

(a) the court or the Commission by order so direct, or

(b) the condition specified in subsection (3), (4) or (6) is met.

(2) An order may be made under subsection (1)(a) if it appears to the court or the Commission—

(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.

(3) The condition in this subsection is met if—

(a) the property is a single gift of £120 or less, and

(b) the charity trustees reasonably believe that during the financial year of the charity in which it is given the total amount given by the donor to the charity for the specific charitable purposes is £120 or less,

unless at the time of giving the gift the donor states in writing that the gift must be returned if the specific charitable purposes fail.

(4) The condition in this subsection is met if the property is given by a donor who, after the agreed actions are taken, is not identified or is not found.

(5) The “agreed actions” are those agreed in writing between the charity trustees and the Commission as being reasonable in all the circumstances of the case to identify and find donors.

(6) The condition in this subsection is met if the property consists of—

(a) the proceeds of cash collections made—

(i) by means of collecting boxes, or

(ii) by other means not adapted for distinguishing one gift from another, or

(b) 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.

(7) The Secretary of State may by regulations amend subsection (3)(a) or (b) by substituting a different sum for the time being specified there.]

Textual Amendments

F40 S. 63A substituted for ss. 63-65 (31.10.2022) by Charities Act 2022 (c. 6), ss. 6(1), 41(4) (with s. 6(3)); S.I. 2022/1109, Sch. para. 3 (with reg. 5)

66 [F41 Section 63A: supplementary] E+W

(1) For the purposes of [F42 section 63A], charitable purposes are to be treated as failing if 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.

[F43 (1A) Where property is applied cy-près by virtue of section 63A, all the donor’s interest in it is treated as having been relinquished when the gift was made.]

(2) In [F44 section 63A] and this section—

(a) references to a donor include persons claiming through or under the original donor, and

(b) references to property given include the property for the time being representing the property originally given or property derived from it.

(3) Subsection (2) applies except in so far as the context otherwise requires.

F45 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F45 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F45 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F41 S. 66 heading substituted (31.10.2022) by Charities Act 2022 (c. 6), s. 41(4), Sch. 2 para. 13(a); S.I. 2022/1109, Sch. para. 11(d) (with reg. 5)

F42 Words in s. 66(1) substituted (31.10.2022) by Charities Act 2022 (c. 6), s. 41(4), Sch. 2 para. 13(b); S.I. 2022/1109, Sch. para. 11(d) (with reg. 5)

F43 S. 66(1A) inserted (31.10.2022) by Charities Act 2022 (c. 6), s. 41(4), Sch. 2 para. 13(c); S.I. 2022/1109, Sch. para. 11(d) (with reg. 5)

F44 Words in s. 66(2) substituted (31.10.2022) by Charities Act 2022 (c. 6), s. 41(4), Sch. 2 para. 13(d); S.I. 2022/1109, Sch. para. 11(d) (with reg. 5)

F45 S. 66(4)-(6) omitted (31.10.2022) by virtue of Charities Act 2022 (c. 6), s. 41(4), Sch. 2 para. 13(e); S.I. 2022/1109, Sch. para. 11(d) (with reg. 5)

67 Cy-près schemes E+W

(1) The power of the court or the Commission to make schemes for the application of property cy-près must 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,

(b) to the charity trustees,

(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.

(7) In this section references to the original purposes of a gift are to be read, 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.

[F46 67A Proceeds of fund-raising: power of charity trustees to apply cy-près E+W+N.I.

(1) Subsection (2) applies if—

(a) money or other property is solicited to enable a charity to further specific charitable purposes,

(b) money or other property is given as a result of that solicitation, and

(c) some or all of that money or other property (or the property for the time being representing it or derived from it) is applicable cy-près by virtue of section 62(1)(a) or (b) or 63A.

(2) The charity trustees of the charity may resolve that all the money or other property which is applicable cy-près by virtue of section 62(1)(a) or (b) or 63A be applied for such charitable purposes specified in the resolution as they consider appropriate, having regard to—

(a) the desirability of securing that the purposes are, so far as reasonably practicable, similar to the specific charitable purposes for which the money or other property was given;

(b) the need for the purposes to be suitable and effective in the light of current social and economic circumstances.

(3) A resolution under this section must be passed by a majority of the charity trustees.

(4) If a resolution passed under this section concerns money or other property with a value exceeding £1,000—

(a) the charity trustees must send a copy of the resolution to the Commission, together with a statement of their reasons for passing it, and

(b) the resolution does not have effect until the date on which the Commission consents to it in writing.

(5) The Secretary of State may by regulations amend subsection (4) by substituting a different sum for the sum for the time being specified there.]

Textual Amendments

F46 S. 67A inserted (31.10.2022) by Charities Act 2022 (c. 6), ss. 7, 41(4); S.I. 2022/1109, Sch. para. 4

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

(1) Subsection (2) applies where a Royal charter establishing or regulating a body corporate is amendable by the grant and acceptance of a further charter.

(2) 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)—

(a) may be made by the court under the court's jurisdiction with respect to charities even though the scheme cannot take effect without the alteration of the charter, but

(b) must 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.

(3) Subsection (4) applies where, under—

(a) the court's jurisdiction with respect to charities or the corresponding jurisdiction of a court in Northern Ireland, or

(b) 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.

(4) Her Majesty may, on the application of the body corporate, 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 the same manner as the charter it amends.

(5) The jurisdiction of the court with respect to charities is not excluded or restricted in the case of a charity of a description mentioned in Schedule 5 by the operation of the enactments or instruments there mentioned in relation to that description.

(6) A scheme established for a charity of a description mentioned in Schedule 5—

(a) 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

(b) may also make any such provision as is authorised by that Schedule.

Powers of Commission to make schemes etc. E+W

69 Commission's concurrent jurisdiction with High Court for certain purposes E+W

(1) The 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) Subsection (1) is subject to the provisions of this Act.

(3) If the court directs a scheme for the administration of a charity to be established—

(a) the court may by order refer the matter to the Commission for it to prepare or settle a scheme in accordance with such directions (if any) as the court sees fit to give, and

(b) any such order may provide for the scheme to be put into effect by order of the Commission as if prepared under subsection (1) and without any further order of the court.

70 Restrictions on Commission's concurrent jurisdiction E+W

(1) The Commission does not have jurisdiction under section 69 to try or determine—

(a) the title at law or in equity to any property as between—

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

(ii) a person holding or claiming the property or an interest in it adversely to the charity, or

(b) any question as to the existence or extent of any charge or trust.

(2) Subject to the following subsections, the Commission must not exercise its jurisdiction under section 69 as respects any charity except—

(a) on the application of the charity,

(b) on an order of the court under section 69(3), or

(c) on the application of the Attorney General.

(3) In the case of a charity whose gross income does not exceed £500 a year, the Commission may exercise its jurisdiction under section 69 on the application of—

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

(b) any person interested in the charity, or

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

(4) Subsection (5) applies where in the case of a charity, other than an exempt charity, the Commission—

(a) is satisfied that the charity trustees—

(i) ought in the interests of the charity to apply for a scheme, but

(ii) have unreasonably refused or neglected to do so, and

(b) has given the charity trustees an opportunity to make representations to it.

(5) The Commission—

(a) may proceed as if an application for a scheme had been made by the charity, but

(b) may not, where it acts by virtue of this subsection, alter the purposes of a charity unless 40 years have elapsed from the date of the charity's foundation.

(6) Where—

(a) a charity cannot apply to the Commission for a scheme because 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 the Commission considers appropriate in the circumstances of the case,

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

(7) The Commission may on the application of any charity trustee or trustee for a charity exercise its jurisdiction under section 69 for the purpose of discharging the applicant from trusteeship.

(8) The Commission must not exercise its jurisdiction under section 69 in any case (not referred to it by order of the court) which—

(a) because of its contentious character, or any special question of law or of fact which it may involve, or

(b) for other reasons,

the Commission may consider more fit to be adjudicated on by the court.

Modifications etc. (not altering text)

C18 S. 70(1) applied by 1987 c. 3, s. 5(8) (as substituted (14.3.2012) by Charities Act 2011 (c. 25), s. 355, Sch. 7 para. 47(2) (with s. 20(2), Sch. 8))

C19 S. 70(2) excluded by 1996 c. 14, Sch. 5 para. 6 (as substituted (14.3.2012) by Charities Act 2011 (c. 25), s. 355, Sch. 7 para. 69(3) (with s. 20(2), Sch. 8))

71 Exercise of Commission's concurrent jurisdiction: notice E+W

(1) Before exercising any jurisdiction under section 69 otherwise than on an order of the court, the Commission must give notice of its intention to do so to each of the charity trustees except any—

(a) that cannot be found or has no known address in the United Kingdom, or

(b) who is party or privy to an application for the exercise of the jurisdiction.

(2) Any such notice—

(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.

Modifications etc. (not altering text)

C20 S. 71 applied by 1987 c. 3, s. 5(8) (as substituted (14.3.2012) by Charities Act 2011 (c. 25), s. 355, Sch. 7 para. 47(2) (with s. 20(2), Sch. 8))

72 Power to alter sum specified in s.70(3) E+W

If the [F47 Secretary of State] 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 the Commission may exercise its jurisdiction under section 69 in accordance with section 70(3),

the [F47 Secretary of State] may by order amend section 70(3) by substituting a different sum for the sum for the time being specified there.

Textual Amendments

F47 Words in s. 72 substituted (9.11.2016) by The Transfer of Functions (Elections, Referendums, Third Sector and Information) Order 2016 (S.I. 2016/997), art. 1(2), Sch. 2 para. 25(2)(m) (with art. 12)

73 Powers to make schemes altering provision made by Acts, etc. E+W

(1) If it appears to the Commission that a scheme should be established for the administration of a charity, but also—

(a) that it is necessary or desirable for the scheme—

(i) to alter the provision made by an Act establishing or regulating the charity, or

(ii) to make any other provision which goes or might go beyond the powers exercisable by the Commission apart from this section, or

(b) that it is for any reason proper for the scheme to be subject to parliamentary review,

the Commission may (subject to subsection (7)) settle a scheme accordingly with a view to its being given effect under this section.

(2) A scheme settled by the Commission under this section may be given effect by order of the [F48 Secretary of State].

F49 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F50 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) F51 ... Any provision of a scheme brought into effect under this section may be modified or superseded by the court or the Commission as if it were a scheme brought into effect by order of the Commission under section 69.

F52 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) The Commission must not proceed under this section without the same application, and the same notice to the charity trustees, as would be required if the Commission was proceeding (without an order of the court) under section 69.

(8) But on any application for a scheme, or in a case where it acts by virtue of section 70(5) or (6), the Commission may proceed under this section or section 69 as appears to it appropriate.

Textual Amendments

F48 Words in s. 73(2) substituted (9.11.2016) by The Transfer of Functions (Elections, Referendums, Third Sector and Information) Order 2016 (S.I. 2016/997), art. 1(2), Sch. 2 para. 25(2)(n) (with art. 12)

F49 S. 73(3) omitted (31.10.2022) by virtue of Charities Act 2022 (c. 6), ss. 5(a), 41(4); S.I. 2022/1109, Sch. para. 2

F50 S. 73(4) omitted (31.10.2022) by virtue of Charities Act 2022 (c. 6), ss. 5(a), 41(4); S.I. 2022/1109, Sch. para. 2

F51 Words in s. 73(5) omitted (31.10.2022) by virtue of Charities Act 2022 (c. 6), ss. 5(b), 41(4); S.I. 2022/1109, Sch. para. 2

F52 S. 73(6) omitted (31.10.2022) by virtue of Charities Act 2022 (c. 6), ss. 5(c), 41(4); S.I. 2022/1109, Sch. para. 2

Modifications etc. (not altering text)

C21 Ss. 73(1)-(6) applied by 1987 c. 3, s. 5(8) (as substituted (14.3.2012) by Charities Act 2011 (c. 25), s. 355, Sch. 7 para. 47(2) (with s. 20(2), Sch. 8))

74 Restriction on expenditure on promoting Bills E+W

(1) No expenditure incurred in preparing or promoting a Bill in Parliament is to be defrayed without the consent of the court or the Commission out of any money applicable for the purposes of a charity.

(2) Subsection (1) applies regardless of anything in the trusts of a charity.

Modifications etc. (not altering text)

C22 S. 74 excluded (15.7.2013) by The Charities Act 2011 (Commencement No. 2) Order 2013 (S.I. 2013/1775), Sch. 2 para. 2

C23 S. 74 applied by 1987 c. 3, s. 5(8) (as substituted (14.3.2012) by Charities Act 2011 (c. 25), s. 355, Sch. 7 para. 47(2) (with s. 20(2), Sch. 8))

75 Further powers to alter application of charitable property E+W

(1) Subsection (2) applies where the Commission is satisfied that—

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

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

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

(2) The 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.

(3) Any application of accrued or accruing income authorised by an order under subsection (2) is to be treated as being within the purposes of the charity.

(4) An order under subsection (2) must not extend—

(a) to more than £300 out of income accrued before the date of the order,

(b) to income accruing more than 3 years after that date, or

(c) to more than £100 out of the income accruing in any of those 3 years.

[F53 Power of the court and the Commission to make schemes E+W+N.I.

Textual Amendments

F53 S. 75ZA and cross-heading inserted (31.10.2022) by Charities Act 2022 (c. 6), ss. 8, 41(4); S.I. 2022/1109, Sch. para. 5

75ZA Power of the court and the Commission to make schemes E+W+N.I.

(1) Any power of the court or the Commission to make a scheme in relation to a charity that is a charitable trust is also exercisable in relation to any other institution which is a charity.

(2) Subsection (1)—

(a) is subject to the provisions of this Act;

(b) is to be treated as always having had effect.]

Powers of Commission to act for protection of charities etc. E+W

[F54 75A Official warnings by the Commission E+W

(1) The Commission may issue a warning—

(a) to a charity trustee or trustee for a charity who it considers has committed a breach of trust or duty or other misconduct or mismanagement in that capacity, or

(b) to a charity in connection with which it considers a breach of trust or duty or other misconduct or mismanagement has been committed.

(2) The Commission—

(a) may publish a warning it has issued;

(b) may issue or publish a warning in any way it considers appropriate.

(3) Before issuing a warning under this section, the Commission must give notice of its intention to do so to the charity, and each charity trustee or trustee for the charity, except any who cannot be found or who has no known address in the United Kingdom.

(4) Any such notice—

(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.

(5) The notice must specify—

(a) the power under subsection (1) to give the warning, and the grounds for the warning;

(b) any action that the Commission considers should be taken, or that the Commission is considering taking, to rectify the misconduct or mismanagement referred to in subsection (1);

(c) whether and, if so, how the Commission proposes to publish the warning;

(d) a period within which representations may be made to the Commission about the content of the proposed warning.

(6) Where the Commission gives notice under subsection (3) of its intention to issue a warning—

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

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

(7) The Commission may vary or withdraw a warning under this section.

(8) Subsection (2) applies to the variation or withdrawal of a warning as it applies to a warning.

(9) Subsections (3) to (6) apply to the variation of a warning as they apply to a warning, except that—

(a) in subsection (5)(a) references to the warning are to be read as references to the warning as varied, and

(b) the matter to be specified under subsection (5)(b) is any change as a result of the variation in the action previously proposed by the Commission.]

Textual Amendments

F54 S. 75A inserted (1.11.2016) by Charities (Protection and Social Investment) Act 2016 (c. 4), ss. 1, 17(4); S.I. 2016/815, reg. 4(a)

76 Suspension of trustees etc. and appointment of interim managers E+W

(1) Subsection (3) applies where, at any time after it has instituted an inquiry under section 46 with respect to any charity, the Commission is satisfied—

(a) that there is or has been [F55 a failure to comply with an order or direction of the Commission, a failure to remedy any breach specified in a warning under section 75A, or any other] misconduct or mismanagement in the administration of the charity, or

(b) that it is necessary or desirable to act for the purpose of—

(i) protecting the property of the charity, or

(ii) securing a proper application for the purposes of the charity of that property or of property coming to the charity.

(2) The reference in subsection (1) to misconduct or mismanagement extends (regardless of anything in the trusts of the charity) to the employment—

(a) for the remuneration or reward of persons acting in the affairs of the charity, or

(b) 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.

(3) The Commission may of its own motion do one or more of the following—

(a) by order suspend any person who is a trustee, charity trustee, officer, agent or employee of the charity from office or employment pending consideration being given to the person's removal (whether under section 79 or 80 or otherwise);

(b) by order appoint such number of additional charity trustees as it considers necessary for the proper administration of the charity;

(c) by order—

(i) vest any property held by or in trust for the charity in the official custodian,

(ii) require the persons in whom any such property is vested to transfer it to the official custodian, or

(iii) appoint any person to transfer any such property to the official custodian;

(d) 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 the Commission;

(e) order any debtor of the charity not to make any payment in or towards the discharge of the debtor's liability to the charity without the approval of the Commission;

(f) by order restrict (regardless of 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 the Commission;

(g) by order appoint (in accordance with section 78) an interim manager, to act as receiver and manager in respect of the property and affairs of the charity.

(4) The Commission may not make an order under subsection (3)(a) so as to suspend a person from office or employment for a period of more than 12 months[F56 , subject to any extension under subsection (7)].

(5) But any order under subsection (3)(a) made in the case of any person (“P”) may make provision, as respects the period of P's suspension for matters arising out of it, and in particular—

(a) for enabling any person to execute any instrument in P's name or otherwise act for P, and

(b) 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.

This does not affect the generality of section 337(1) and (2).

(6) The Commission—

(a) must, at such intervals as it thinks fit, review any order made by it under paragraph (a), or any of paragraphs (c) to (g), of subsection (3), and

(b) if on any such review it appears to the Commission that it would be appropriate to discharge the order in whole or in part, must so discharge it (whether subject to any savings or other transitional provisions or not).

[F57 (7) At any time before the expiry of an order under paragraph (a) of subsection (3) the Commission may extend or further extend the suspension by an order under that paragraph, provided that—

(a) the order does not extend the suspension for a period of more than 12 months, and

(b) the total period of suspension is not more than 2 years.]

Textual Amendments

F55 Words in s. 76(1)(a) substituted (31.7.2016 for specified purposes, 1.11.2016 in so far as not already in force) by Charities (Protection and Social Investment) Act 2016 (c. 4), ss. 2(2), 17(4); S.I. 2016/815, regs. 2(a), 4(b)

F56 Words in s. 76(4) inserted (31.7.2016) by Charities (Protection and Social Investment) Act 2016 (c. 4), ss. 2(3), 17(4); S.I. 2016/815, reg. 2(a)

F57 S. 76(7) added (31.7.2016) by Charities (Protection and Social Investment) Act 2016 (c. 4), ss. 2(4), 17(4); S.I. 2016/815, reg. 2(a)

[F58 76A Exercise of powers where section 76(1)(a) applies E+W

(1) This section applies to any power under this Part which is exercisable in cases where the Commission is satisfied as mentioned in section 76(1)(a) in relation to a charity (misconduct or mismanagement), with or without any other condition.

(2) If in such a case the Commission is also satisfied—

(a) that a particular person has been responsible for the misconduct or mismanagement,

(b) that a particular person knew of the misconduct or mismanagement and failed to take any reasonable step to oppose it, or

(c) that a particular person's conduct contributed to it or facilitated it,

the Commission may take into account the matters mentioned in subsection (3) in deciding whether or how to exercise the power.

(3) Those matters are—

(a) the conduct of that person in relation to any other charity;

(b) any other conduct of that person that appears to the Commission to be damaging or likely to be damaging to public trust and confidence in charities generally or particular charities or classes of charity.]

Textual Amendments

F58 S. 76A inserted (31.7.2016) by Charities (Protection and Social Investment) Act 2016 (c. 4), ss. 3, 17(4); S.I. 2016/815, reg. 2(b)

77 Offence of contravening certain orders under s.76 E+W

(1) It is an offence for a person to contravene an order under—

(a) section 76(3)(d) (order prohibiting person from parting with property),

(b) section 76(3)(e) (order prohibiting debtor of charity from discharging liability), or

(c) section 76(3)(f) (order restricting transactions or payments).

(2) A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(3) This section is not to be treated as precluding 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 section 76(3)(d) or (f) (whether or not proceedings in respect of the contravention are brought against the trustee under this section).

78 Interim managers: supplementary E+W

(1) The Commission may under section 76(3)(g) appoint to be interim manager in respect of a charity such person (other than a member of its staff) as it thinks fit.

(2) An order made by the Commission under section 76(3)(g) may make provision with respect to the functions to be discharged by the interim manager appointed by the order.

This does not affect the generality of section 337(1) and (2).

(3) Those functions are to be discharged by the interim manager under the supervision of the Commission.

(4) In connection with the discharge of those functions, an order under section 76(3)(g) may provide—

(a) for the interim 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 specified by virtue of paragraph (a) to be exercisable or performed by the interim manager to the exclusion of those trustees.

(5) Where a person has been appointed interim manager by any such order—

(a) section 110 (power to give advice and guidance) applies to the interim manager and the interim manager's functions as it applies to a charity trustee of the charity concerned and to the charity trustee's duties as such, and

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

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

(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.

(7) The costs of an application under subsection (5)(b) must be paid by the charity concerned.

(8) Regulations made by the [F59 Secretary of State] 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 the Commission by such persons.

(9) Regulations under subsection (8) may, in particular, authorise the Commission—

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

(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.

Textual Amendments

F59 Words in s. 78(8) substituted (9.11.2016) by The Transfer of Functions (Elections, Referendums, Third Sector and Information) Order 2016 (S.I. 2016/997), art. 1(2), Sch. 2 para. 25(2)(o) (with art. 12)

[F60 79 Removal of trustee or officer etc for protective etc purposes E+W

(1) Subsection (2) applies where, at any time after it has instituted an inquiry under section 46 with respect to any charity, the Commission is satisfied either as mentioned in section 76(1)(a) (misconduct or mismanagement) or as mentioned in section 76(1)(b) (need to protect property etc ).

(2) The Commission may of its own motion by order establish a scheme for the administration of the charity.

(3) Subsection (4) applies where, at any time after it has instituted an inquiry under section 46 with respect to any charity, the Commission is satisfied both as mentioned in section 76(1)(a) (misconduct or mismanagement) and as mentioned in section 76(1)(b) (need to protect property etc ).

(4) Whether or not it acts under subsection (2), the Commission may of its own motion by order remove any trustee, charity trustee, officer, agent or employee of the charity—

(a) who has been responsible for the misconduct or mismanagement,

(b) who knew of the misconduct or mismanagement and failed to take any reasonable step to oppose it, or

(c) whose conduct contributed to it or facilitated it.

(5) Where the Commission has given notice under section 82 of its intention to make an order under subsection (4) removing a person from an office or employment, the Commission may proceed to make the order even though the person has ceased to hold the office or employment.

(6) Where an order is made relying on subsection (5)—

(a) section 81(1) (power to make supplementary provision) and Case D in section 178(1) (disqualification) apply as if the person was removed by the order, but

(b) the order does not affect the time when the person ceased to hold the office or employment.]

Textual Amendments

F60 S. 79 substituted (31.7.2016) by Charities (Protection and Social Investment) Act 2016 (c. 4), ss. 4(2), 17(4); S.I. 2016/815, reg. 2(c)

[F61 79A Removal of disqualified trustee E+W

The Commission may remove a charity trustee or trustee for a charity by order made of its own motion if the person is disqualified from being a charity trustee or trustee for a charity (generally or in relation to the charity concerned)—

(a) by virtue of section 178, or

(b) by an order under section 181A.]

Textual Amendments

F61 S. 79A inserted (31.7.2016) by Charities (Protection and Social Investment) Act 2016 (c. 4), ss. 5(2), 17(4); S.I. 2016/815, reg. 2(d)

80 Other powers to remove or appoint charity trustees E+W

(1) The Commission may remove a charity trustee by order made of its own motion if—

(a) within the last 5 years, the trustee—

(i) having previously been [F62 made] bankrupt, has been discharged, or

(ii) having previously made a composition or arrangement with, or granted a trust deed for, creditors, has been discharged in respect of it [F63 ; or

(iii) having previously been the subject of a debt relief order, has been discharged from all the qualifying debts under the debt relief order;]

(b) the trustee is a corporation in liquidation;

(c) the trustee is incapable of acting because of mental disorder within the meaning of the Mental Health Act 1983;

(d) the trustee has not acted, and will not make a declaration of willingness or unwillingness to act;

(e) the trustee—

(i) is outside England and Wales or cannot be found, or

(ii) does not act,

and the trustee's absence or failure to act impedes the proper administration of the charity.

(2) The Commission may by order made of its own motion appoint a person to be a charity trustee—

(a) in place of a charity trustee removed by the Commission under section 79 or subsection (1) or otherwise;

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

(c) if there is a single charity trustee who is not a corporation aggregate and the Commission is of opinion that it is necessary to increase the number for the proper administration of the charity;

(d) if the 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—

(i) is outside England and Wales or cannot be found, or

(ii) does not act.

(3) In subsection (1)(a)(i), the reference to the trustee having been [F64 made] bankrupt includes a reference to the trustee's estate having been sequestrated.

(4) This section does not apply in relation to an exempt charity except at a time after the Commission has instituted an inquiry under section 46 with respect to it.

Textual Amendments

F62 Word in s. 80(1)(a)(i) substituted (6.4.2016) by The Enterprise and Regulatory Reform Act 2013 (Consequential Amendments) (Bankruptcy) and the Small Business, Enterprise and Employment Act 2015 (Consequential Amendments) Regulations 2016 (S.I. 2016/481), reg. 1, Sch. 1 para. 17(2)

F63 S. 80(1)(a)(iii) and preceding word inserted (1.10.2012) by The Tribunals, Courts and Enforcement Act 2007 (Consequential Amendments) Order 2012 (S.I. 2012/2404), art. 1, Sch. 2 para. 62(2) (with art. 5)

F64 Word in s. 80(3) substituted (6.4.2016) by The Enterprise and Regulatory Reform Act 2013 (Consequential Amendments) (Bankruptcy) and the Small Business, Enterprise and Employment Act 2015 (Consequential Amendments) Regulations 2016 (S.I. 2016/481), reg. 1, Sch. 1 para. 17(2)

81 Removal or appointment of charity trustees etc.: supplementary E+W

(1) The powers of the Commission under sections 76, 79 and 80 to remove or appoint charity trustees of its own motion include power to make any such order with respect to the vesting in or transfer to the charity trustees of any property as the Commission could make on the removal or appointment of a charity trustee by it under section 69 (Commission's concurrent jurisdiction with High Court for certain purposes).

(2) Any order under any of those sections or this section—

(a) for the removal or appointment of a charity trustee or trustee for a charity, or

(b) for the vesting or transfer of any property,

has the same effect as an order made under section 69.

(3) Subsection (1) does not apply in relation to an exempt charity except at a time after the Commission has instituted an inquiry under section 46 with respect to it.

82 Removal of trustees etc.: notice E+W

(1) Before exercising any jurisdiction by virtue of section 79[F65 , 79A] or 80, the Commission must 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.

(2) Any such notice—

(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.

Textual Amendments

F65 Word in s. 82(1) inserted (31.7.2016) by Charities (Protection and Social Investment) Act 2016 (c. 4), ss. 5(3), 17(4); S.I. 2016/815, reg. 2(d)

83 Power to suspend or remove trustees etc. from membership of charity E+W

(1) Subsection (2) applies where—

(a) the Commission makes an order under section 76(3) suspending from office or employment a person who is a trustee, charity trustee, officer, agent or employee of a charity, and

(b) the person is a member of the charity.

(2) The Commission may also make an order suspending the person's membership of the charity for the period for which the person is suspended from office or employment.

(3) Subsection (4) applies where—

(a) the Commission makes an order under section [F66 79(4)] removing from office or employment a person who is [F67 a trustee, charity trustee, officer,] agent or employee of a charity, and

(b) the person is a member of the charity.

(4) The Commission may also make an order—

(a) terminating the person's membership of the charity, and

(b) prohibiting the person from resuming membership of the charity without the Commission's consent.

(5) If an application for the Commission's consent under subsection (4)(b) is made 5 years or more after the order was made, the Commission must grant the application unless satisfied that, because of any special circumstances, it should be refused.

Textual Amendments

F66 Word in s. 83(3) substituted (31.7.2016) by Charities (Protection and Social Investment) Act 2016 (c. 4), ss. 4(3)(a), 17(4); S.I. 2016/815, reg. 2(c)

F67 Words in s. 83(3) substituted (31.7.2016) by Charities (Protection and Social Investment) Act 2016 (c. 4), ss. 4(3)(b), 17(4); S.I. 2016/815, reg. 2(c)

84 Power to direct specified action to be taken E+W

(1) This section applies where, at any time after the Commission has instituted an inquiry under section 46 with respect to any charity, it is satisfied either as mentioned in section 76(1)(a) (misconduct or mismanagement etc.) or as mentioned in section 76(1)(b) (need to protect property etc.).

(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 [F68 or Measure] 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 is to be treated as properly done in the exercise of the powers mentioned in subsection (3)(a).

(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.

[F69 (6) In this section and sections 84B and 85, “Measure” means a Measure of the Church Assembly or of the General Synod of the Church of England.]

Textual Amendments

F68 Words in s. 84(3)(b) inserted (coming into force in accordance with s. 53(6)(7) of the amending Measure) by Cathedrals Measure 2021 (No. 2), s. 8(2) (with ss. 42(4), 48, 52(1))

F69 S. 84(6) inserted (coming into force in accordance with s. 53(6)(7) of the amending Measure) by Cathedrals Measure 2021 (No. 2), s. 8(3) (with ss. 42(4), 48, 52(1))

[F70 84A Power to direct specified action not to be taken E+W

(1) This section applies where, at any time after the Commission has instituted an inquiry under section 46 with respect to any charity, the Commission considers that any action, if taken or continued by a person listed in section 84(2), would constitute misconduct or mismanagement in the administration of the charity.

(2) The Commission may make an order specifying the action and directing the person not to take it or continue it.

(3) While an order under this section is in force, the Commission must review it at intervals of not more than 6 months.]

Textual Amendments

F70 S. 84A inserted (31.7.2016) by Charities (Protection and Social Investment) Act 2016 (c. 4), ss. 6(2), 17(4); S.I. 2016/815, reg. 2(e)

[F71 84B Power to direct winding up E+W

(1) This section applies where the conditions in section 84(1) are met for that section to apply, but the Commission is satisfied—

(a) that the charity does not operate, or

(b) that its purposes can be promoted more effectively if it ceases to operate,

and that exercising the power in subsection (2) is expedient in the public interest.

(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 for the purpose of having the charity wound up and dissolved, and any remaining property transferred to a charity with the same purposes.

(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 winding up and dissolution of the charity or to its property, and

(b) in particular, may require the person or persons concerned to do anything for the purpose of having the charity wound up and dissolved and its property transferred that could otherwise only be done by the members of the charity or any of them,

but may not require any action to be taken which is prohibited by any Act [F72 or Measure].

(4) Before making an order under this section the Commission must give public notice of its intention to make the order, inviting representations to be made to it within a period specified in the notice.

(5) The Commission—

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

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

(6) An order under this section may not be made less than 60 days after the first day on which public notice under subsection (4) is given, unless the Commission is satisfied after complying with subsections (4) and (5) that it is necessary to make the order to prevent or reduce misconduct or mismanagement in the administration of the charity or to protect the property of the charity or property that may come to the charity.

(7) Anything done by a person or body under the authority of an order under this section is to be treated as properly done in the exercise of the powers mentioned in subsection (3)(a).

(8) Subsection (7) does not affect any contractual or other rights arising in connection with anything which has been done under the authority of such an order.]

Textual Amendments

F71 S. 84B inserted (31.7.2016) by Charities (Protection and Social Investment) Act 2016 (c. 4), ss. 7(2), 17(4); S.I. 2016/815, reg. 2(f)

F72 Words in s. 84B(3) inserted (coming into force in accordance with s. 53(6)(7) of the amending Measure) by Cathedrals Measure 2021 (No. 2), s. 8(2) (with ss. 42(4), 48, 52(1))

85 Power to direct application of charity property E+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 [F73 or unable] 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 [F74 or Measure] or expressly prohibited by the trusts of the charity.

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

(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.

[F75 (6) Subsection (5) does not apply to rights of the charity or of a charity trustee or trustee for the charity in that capacity.]

Textual Amendments

F73 Words in s. 85(1)(a) inserted (31.7.2016) by Charities (Protection and Social Investment) Act 2016 (c. 4), ss. 8(2), 17(4); S.I. 2016/815, reg. 2(g)

F74 Words in s. 85(3)(b) inserted (coming into force in accordance with s. 53(6)(7) of the amending Measure) by Cathedrals Measure 2021 (No. 2), s. 8(2) (with ss. 42(4), 48, 52(1))

F75 S. 85(6) inserted (31.7.2016) by Charities (Protection and Social Investment) Act 2016 (c. 4), ss. 8(3), 17(4); S.I. 2016/815, reg. 2(g)

86 Copy of certain orders, and reasons, to be sent to charity E+W

(1) Where the Commission makes an order under a provision mentioned in subsection (2) it must send the documents mentioned in subsection (3)—

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

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

(2) The provisions are—

• section 76 (suspension of trustees etc. and appointment of interim managers);

• section 79 (removal of trustee or officer etc. for protective etc. purposes);

• section 80 (other powers to remove or appoint charity trustees);

• section 81 (removal or appointment of charity trustees etc.: supplementary);

• section 83 (power to suspend or remove trustees etc. from membership of charity);

• section 84 (power to direct specified action to be taken);

• [F76 section 84A (power to direct specified action not to be taken),]

• [F77 section 84B (power to direct winding up),]

• section 85 (power to direct application of charity property).

(3) The documents are—

(a) a copy of the order, and

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

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

(5) The Commission need not comply with subsection (4) 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.

(6) Nothing in this section requires any document to be sent to a person who—

(a) cannot be found, or

(b) has no known address in the United Kingdom.

(7) Any documents required to be sent to a person under this section may be sent to, or otherwise served on, the person in the same way as an order made by the Commission under this Act could be served on the person in accordance with section 339.

Textual Amendments

F76 Words in s. 86(2) inserted (31.7.2016) by Charities (Protection and Social Investment) Act 2016 (c. 4), ss. 6(4), 17(4); S.I. 2016/815, reg. 2(e)

F77 Words in s. 86(2) inserted (31.7.2016) by Charities (Protection and Social Investment) Act 2016 (c. 4), ss. 7(4), 17(4); S.I. 2016/815, reg. 2(f)

87 Supervision by Commission of certain Scottish charities E+W

(1) Sections 76 to 82 (except section [F78 79(1) and (2)]) and sections 84 to 86 have effect in relation to any body which—

(a) is entered in the Scottish Charity Register, and

(b) is managed or controlled wholly or mainly in or from England or Wales,

as they have effect in relation to a charity.

(2) Subsection (3) applies where—

(a) a body entered in the Scottish Charity Register is managed or controlled wholly or mainly in or from Scotland, but

(b) any person in England and Wales holds any property on behalf of the body or of any person concerned in its management or control.

(3) If the Commission is satisfied, on the basis of such information as may be supplied to it by the Scottish Charity Regulator, as to the matters mentioned in subsection (4), it may make an order requiring the person holding the property not to part with it without the Commission's approval.

(4) The matters are—

(a) that there has been any misconduct or mismanagement in the administration of the body, and

(b) that it is necessary or desirable to make an order under subsection (3) for the purpose of protecting the property of the body or securing a proper application of such property for the purposes of the body.

(5) Subsection (6) applies where—

(a) any person in England and Wales holds any property on behalf of a body entered in the Scottish Charity Register or of any person concerned in the management or control of such a body, and

(b) the Commission is satisfied (whether on the basis of such information as may be supplied to it by the Scottish Charity Regulator or otherwise)—

(i) that there has been any misconduct or mismanagement in the administration of the body, and

(ii) that it is necessary or desirable to make an order under subsection (6) for the purpose of protecting the property of the body or securing a proper application of such property for the purposes of the body.

(6) The Commission may by order—

(a) vest the property in such body or charity as is specified in the order in accordance with subsections (7) and (8),

(b) require any persons in whom the property is vested to transfer it to any such body or charity, or

(c) appoint any person to transfer the property to any such body or charity.

(7) The Commission may specify in an order under subsection (6)—

(a) such other body entered in the Scottish Charity Register, or

(b) such charity,

as it considers appropriate, if the purposes of the body or charity are, in the opinion of the Commission, as similar in character to those of the body referred to in subsection (5)(a) as is reasonably practicable.

(8) But the Commission must not so specify any body or charity unless it has received from—

(a) the persons concerned in the management or control of the body, or

(b) (as the case may be) the charity trustees of the charity,

written confirmation that they are willing to accept the property.

Textual Amendments

F78 Words in s. 87(1) substituted (31.7.2016) by Charities (Protection and Social Investment) Act 2016 (c. 4), ss. 4(4), 17(4); S.I. 2016/815, reg. 2(c)

Publicity relating to schemes and orders E+W

88 Publicity relating to schemes E+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 [F79 Secretary of State] for an order giving it effect,

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

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

(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—

(i) the parish council or, if the parish has no council, the chairman of the parish meeting, or

(ii) the community council or, if the community has no council, the county council or county borough council.

(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) because 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—

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

(b) it 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.

(7) Subsection (6)(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.

(8) 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.

Textual Amendments

F79 Words in s. 88(1)(b) substituted (9.11.2016) by The Transfer of Functions (Elections, Referendums, Third Sector and Information) Order 2016 (S.I. 2016/997), art. 1(2), Sch. 2 para. 25(2)(p) (with art. 12)

Modifications etc. (not altering text)

C24 S. 88 applied (with modifications) (2.1.2013) by The Charitable Incorporated Organisations (Insolvency and Dissolution) Regulations 2012 (S.I. 2012/3013), regs. 1, 25(4)

C25 S. 88 applied by 1987 c. 3, s. 5(8) (as substituted (14.3.2012) by Charities Act 2011 (c. 25), s. 355, Sch. 7 para. 47(2) (with s. 20(2), Sch. 8))

89 Publicity for orders relating to trustees or other individuals E+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 76(3)(b) (appointment of additional charity trustees),[F80 or

(c) an order under section 79A (removal of disqualified trustee),]

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

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

(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[F81 , other than an order under section 79A,] to remove a person who is—

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

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

without the person's consent, the Commission must give the person 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—

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

(b) it 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.

Textual Amendments

F80 S. 89(1)(c) and word inserted (31.7.2016) by Charities (Protection and Social Investment) Act 2016 (c. 4), ss. 5(4), 17(4); S.I. 2016/815, reg. 2(d)

F81 Words in s. 89(5) inserted (31.7.2016) by Charities (Protection and Social Investment) Act 2016 (c. 4), ss. 5(5), 17(4); S.I. 2016/815, reg. 2(d)

Modifications etc. (not altering text)

C26 S. 89 applied by 1987 c. 3, s. 5(8) (as substituted (14.3.2012) by Charities Act 2011 (c. 25), s. 355, Sch. 7 para. 47(2) (with s. 20(2), Sch. 8))

Property vested in official custodian E+W

90 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 the official custodian, or

(c) appoint any person to transfer any such land to the official custodian.

(2) But subsection (1) does not apply to any interest in land by way of mortgage or other security.

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

(4) Where—

(a) the official custodian is discharged from the trusteeship of any property, or

(b) the trusts on which the official custodian 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.

(5) No person is liable for any loss occasioned by—

(a) acting in conformity with an order under this section, or

(b) giving effect to anything done in pursuance of such an order.

(6) No person is excused from—

(a) acting in conformity with an order under this section, or

(b) giving effect to anything done in pursuance of such an order,

because the order has been in any respect improperly obtained.

91 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, the official custodian—

(a) must not exercise any powers of management, but

(b) as trustee of any property—

(i) has all the same powers, duties and liabilities,

(ii) is entitled to the same rights and immunities, and

(iii) is subject to the control and orders of the court in the same way,

as a corporation appointed custodian trustee under section 4 of the Public Trustee Act 1906.

(2) Subsection (1) does not confer on the official custodian a power to charge fees.

(3) Subject to subsection (4), where any land is vested in the official custodian in trust for a charity, the charity trustees may, in the name and on behalf of the official custodian, 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.

(4) If any land is so vested in the official custodian by virtue of an order under section 76(3)(c), the power conferred on the charity trustees by subsection (3) is not exercisable by them in relation to any transaction affecting the land, unless the transaction is authorised by order of the court or of the Commission.

(5) Where any land is vested in the official custodian in trust for a charity—

(a) the charity trustees have the same power to make obligations entered into by them binding on the land as if it were vested in them, and

(b) any covenant, agreement or condition which is enforceable by or against the official custodian because the land is vested in the official custodian is enforceable by or against the charity trustees as if the land were vested in them.

(6) In relation to a corporate charity, subsections (3) to (5) apply with the substitution of references to the charity for references to the charity trustees.

(7) Subsections (3) to (5) do not authorise any charity trustees or charity to impose any personal liability on the official custodian.

(8) 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, the official custodian may permit them to be in the possession or under the control of the charity trustees without incurring any liability by doing so.

Official custodian and Reverter of Sites Act 1987 E+W

92 Divestment of official custodian where 1987 Act due to operate E+W

(1) Subsection (2) applies where—

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

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

(2) The jurisdiction which, under section 69, is exercisable by the Commission for the purpose of discharging a trustee for a charity may, at any time before section 1 of the 1987 Act operates in relation to the land, be exercised by the Commission of its own motion for the purpose of—

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

(b) making such vesting orders and giving such directions as appear to the Commission to be necessary or expedient in consequence.

(3) In this section and sections 93 to 95—

(a) “the 1987 Act” means the Reverter of Sites Act 1987, and

(b) any reference to section 1 of the 1987 Act operating in relation to any land is a reference to a trust arising in relation to the land under that section.

93 Divestment of official custodian where 1987 Act has operated E+W

(1) Subsection (2) applies 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 the official custodian but on the trust arising under that section.

(2) The court or the Commission (of its own motion) may—

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

(b) (subject to sections 94 and 95) make such vesting orders and give such directions as appear to it to be necessary or expedient in consequence.

94 Vesting of land in relevant charity trustees following divestment E+W

(1) Subsection (2) applies where an order discharging the official custodian from the trusteeship of any land—

(a) is made by—

(i) the court under section 90(3), or

(ii) the Commission under section 69,

on the ground 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 the Commission under section 93.

(2) The persons in whom the land is to be vested on the discharge of the official custodian are the relevant charity trustees, unless the court or (as the case may be) the Commission is satisfied that it would be appropriate for it to be vested in some other persons.

(3) In subsection (2) “the relevant charity trustees” means—

(a) in relation to an order made as mentioned in subsection (1)(a), 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 section 93, 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.

95 Supplementary provisions in connection with 1987 Act E+W

(1) Subsection (2) applies where—

(a) section 1 of the 1987 Act has operated in relation to any such land as is mentioned in section 93(1)(a), and

(b) the land remains vested in the official custodian as mentioned in section 93(1)(b).

(2) Subject to subsection (3)—

(a) all the powers, duties and liabilities that would, apart from this section, be those of the official custodian as trustee of the land are instead to be those of the charity trustees of the charity concerned, and

(b) those trustees may, in the name and on behalf of the official custodian, 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) Subsection (2) is not to be treated as requiring or authorising those trustees to sell the land at a time when it remains vested in the official custodian.

(4) Where—

(a) the official custodian has been discharged from the trusteeship of any land by an order under section 93, and

(b) the land has, in accordance with section 94, been vested in the charity trustees concerned or (as the case may be) in any persons other than those trustees,

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

(5) The official custodian is not liable to any person in respect of any loss or misapplication of any land vested in the official custodian in accordance with section 1 of the 1987 Act unless it is occasioned by or through any wilful neglect or default of—

(a) the official custodian, or

(b) any person acting for the official custodian.

(6) But the Consolidated Fund is liable to make good to any person any sums for which the official custodian may be liable because of any such neglect or default.

Establishment of common investment or deposit funds E+W+N.I.

96 Power to make common investment schemes E+W+N.I.

(1) The court or the Commission may by order make and bring into effect 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) In this section and sections 97 to 99 “common investment scheme” means a scheme under subsection (1).

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

97 Bodies which may participate in common investment schemes E+W+N.I.

(1) A common investment scheme—

(a) may be made in terms admitting any charity to participate, or

(b) may restrict the right to participate in any manner.

(2) 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.

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

(a) a Scottish recognised body, F82 ...

(b) a Northern Ireland charity [F83 ; or

(c) any body of persons or trust that—

(i) is established in an EEA state other than the United Kingdom, and

(ii) is a charity as defined by paragraph 1 of Schedule 6 to the Finance Act 2010.]

and, in the application of the relevant provisions in relation to a scheme which contains provisions authorised by subsection (2), “charity” includes an appropriate body.

(4) The relevant provisions are—

(a) section 96(1) (power to make common investment schemes),

(b) section 98 (provisions which may be included in common investment schemes),

(c) section 99(1) (provisions relating to rights of participating charity etc.), and

(d) (in relation only to a Northern Ireland charity) section 99(2) (power to participate in common investment schemes).

Textual Amendments

F82 Word in s. 97(3)(a) omitted (22.7.2013) by virtue of The Alternative Investment Fund Managers Regulations 2013 (S.I. 2013/1773), reg. 1, Sch. 1 para. 44(a)

F83 S. 97(3)(c) and preceding word inserted (22.7.2013) by The Alternative Investment Fund Managers Regulations 2013 (S.I. 2013/1773), reg. 1, Sch. 1 para. 44(b)

98 Provisions which may be included in common investment schemes E+W+N.I.

(1) 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 even though the person 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.

(2) A common investment scheme, in addition to the provision for property to be transferred to the fund on the basis that the charity is to 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 is to be entitled—

(a) to repayment of the sums deposited, and

(b) to interest on them at a rate determined by or under the scheme.

(3) Where a scheme makes any such provision it must 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—

(a) for the repayment of deposits, and

(b) for the interest on deposits,

including amounts required by way of reserve.

99 Further provisions relating to common investment schemes and funds E+W+N.I.

(1) Except in so far as a common investment scheme provides to the contrary—

(a) the rights under it of a participating charity are not capable of being assigned or charged;

(b) a trustee or other person concerned in the management of the common investment fund is not required or entitled to take account of any trust or other equity affecting a participating charity or its property or rights.

(2) The powers of investment of every charity 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.

(3) A common investment fund is to be treated for all purposes as being a charity.

(4) Subsection (3) applies not only to common investment funds established under section 96, 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 charities.

100 Power to make common deposit schemes E+W+N.I.

(1) The court or the Commission may by order make and bring into effect 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 on them at a rate determined under the scheme.

(2) In this section and sections 101 to 103 “common deposit scheme” means a scheme under subsection (1).

(3) The court or the Commission may make a common deposit scheme on the application of any two or more charities.

101 Bodies which may participate in common deposit schemes E+W+N.I.

(1) A common deposit scheme—

(a) may be made in terms admitting any charity to participate, or

(b) may restrict the right to participate in any manner.

(2) 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.

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

(a) a Scottish recognised body, F84 ...

(b) a Northern Ireland charity [F85 ; or

(c) any body of persons or trust that—

(i) is established in an EEA state other than the United Kingdom, and

(ii) is a charity as defined by paragraph 1 of Schedule 6 to the Finance Act 2010.]

and, in the application of the relevant provisions in relation to a scheme which contains provisions authorised by subsection (2), “charity” includes an appropriate body.

(4) The relevant provisions are—

(a) section 100(1) (power to make common deposit schemes),

(b) section 102 (provisions which may be included in common deposit schemes),

(c) section 103(1) (provisions relating to rights of participating charity etc.), and

(d) (in relation only to a Northern Ireland charity) section 103(2) (power to participate in common deposit schemes).

Textual Amendments

F84 Word in s. 101(3)(a) omitted (22.7.2013) by virtue of The Alternative Investment Fund Managers Regulations 2013 (S.I. 2013/1773), reg. 1, Sch. 1 para. 44(a)

F85 S. 101(3)(c) and preceding word inserted (22.7.2013) by The Alternative Investment Fund Managers Regulations 2013 (S.I. 2013/1773), reg. 1, Sch. 1 para. 44(b)

102 Provisions which may be included in common deposit schemes E+W+N.I.

A common deposit scheme may make provision for, and for all matters connected with, the establishment, investment, management and winding up of the common deposit 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 even though the person is also a charity trustee of or trustee for a participating charity;

(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;

(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.

103 Further provisions relating to common deposit schemes and funds E+W+N.I.

(1) Except in so far as a common deposit scheme provides to the contrary—

(a) the rights under it of a participating charity are not capable of being assigned or charged;

(b) a trustee or other person concerned in the management of the common deposit fund is not required or entitled to take account of any trust or other equity affecting a participating charity or its property or rights.

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

(3) A common deposit fund is to be treated for all purposes as being a charity.

(4) Subsection (3) applies not only to common deposit funds established under section 100, 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 charities.

104 Meaning of “Scottish recognised body” and “Northern Ireland charity” E+W+N.I.

(1) In sections 97 and 101 “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 HMRC have given intimation, which has not subsequently been withdrawn, that tax relief is due in respect of income of the body which is applicable and applied to charitable purposes only.

(2) In sections 97 and 101 “Northern Ireland charity” means an institution—

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

(b) to which HMRC have given intimation, which has not subsequently been withdrawn, that tax relief is due in respect of income of the institution which is applicable and applied to charitable purposes only.

(3) For the purposes of this section—

• “HMRC” means the Commissioners for Her Majesty's Revenue and Customs;

• “tax relief” means relief under—

  (a)

  Part 10 of the Income Tax Act 2007, or

  (b)

  any provision of Part 11 of the Corporation Tax Act 2010 other than sections 480 (exemption for profits of small-scale trades) and 481 (exemption from charges under provisions to which section 1173 applies).

[F86 Total return investment E+W+N.I.

Textual Amendments

F86 Ss. 104A, 104B inserted (6.4.2013 for specified purposes, 1.1.2014 in so far as not already in force) by Trusts (Capital and Income) Act 2013 (c. 1), ss. 4, 5(3); S.I. 2013/676, art. 3; S.I. 2013/2461, art. 2

104A Investment of endowment fund on total return basis E+W+N.I.

(1) This section applies to any available endowment fund of a charity.

(2) If the condition in subsection (3) is met in relation to the charity, the charity trustees may resolve that the fund, or a portion of it—

(a) should be invested without the need to maintain a balance between capital and income returns, and

(b) accordingly, should be freed from the restrictions with respect to expenditure of capital that apply to it.

(3) The condition is that the charity trustees are satisfied that it is in the interests of the charity that regulations under section 104B(1)(b) should apply in place of the restrictions mentioned in subsection (2)(b).

(4) While a resolution under subsection (2) has effect, the regulations apply in place of the restrictions.

(5) In this section “ available endowment fund ”, in relation to a charity, means—

(a) the whole of the charity's permanent endowment if it is all subject to the same trusts, or

(b) any part of its permanent endowment which is subject to any particular trusts that are different from those to which any other part is subject.

[F87 104AA Total return investment: social investments E+W+N.I.

(1) This section applies to a fund, or a portion of a fund, in respect of which a resolution under section 104A(2) has effect.

(2) The charity trustees may resolve that—

(a) the fund or portion, and

(b) any returns from the investment of the fund or portion,

may be used to make social investments (within the meaning of section 292A) which they could not otherwise make.

(3) While a resolution under subsection (2) has effect, regulations under section 104B(1)(b) and (ba) apply to—

(a) the fund or portion, and

(b) any returns from the investment of the fund or portion.]

Textual Amendments

F87 S. 104AA inserted (14.6.2023) by Charities Act 2022 (c. 6), ss. 13(2), 41(4); S.I. 2023/643, Sch. para. 5

104B Total return investment: regulations E+W+N.I.

(1) The Commission may by regulations make provision about—

(a) resolutions under section [F88 sections 104A(2) and 104AA],

(b) the investment of a relevant fund without the need to maintain a balance between capital and income returns, and expenditure from such a fund, F89 ...

[F90 (ba) the use of a relevant social investment fund to make social investments (within the meaning of section 292A),]

(c) the steps that must be taken by charity trustees in respect of a fund, or portion of a fund, in the event of a resolution under section 104A(2) ceasing to have effect in respect of the fund or portion [F91 , and

(d) any steps that must be taken by charity trustees in respect of a relevant social investment fund in the event of a resolution under section 104AA(2) ceasing to have effect.]

(2) Regulations under subsection (1)(a) may, in particular—

(a) specify steps that must be taken by charity trustees before passing a resolution under section 104A(2) [F92 or 104AA(2)(2)],

(b) make provision about the variation and revocation of such a resolution,

(c) require charity trustees to notify the Commission of the passing, variation or revocation of such a resolution, and

(d) specify circumstances in which such a resolution is to cease to have effect.

(3) Regulations under subsection (1)(b) may, in particular—

(a) make provision requiring a relevant fund to be invested, and the returns from that investment to be allocated, in such a way as to maintain (so far as practicable) the long-term capital value of the fund,

(b) make provision about the taking of advice by charity trustees in connection with the investment of, and expenditure from, a relevant fund,

(c) confer on the charity trustees of a relevant fund a power (subject to such restrictions as may be specified in the regulations) to accumulate income,

(d) make provision about expenditure from a relevant fund (including by imposing limits on expenditure and specifying circumstances in which expenditure requires the Commission's consent), and

(e) require charity trustees to report to the Commission on the investment of, and expenditure from, a relevant fund.

(4) A power to accumulate income conferred by regulations under subsection (1)(b) or (c) is not subject to section 14(3) of the Perpetuities and Accumulations Act 2009 (which provides for certain powers to accumulate income to cease to have effect after 21 years).

(5) Any regulations made by the Commission under this section must be published by the Commission in such manner as it thinks fit.

(6) In this [F93 section—

• “relevant”] fund means a fund, or portion of a fund, in respect of which a resolution under section 104A(2) has effect, and includes the returns from the investment of the fund or portion.

• [F94 “relevant social investment fund” means a fund, or a portion of a fund, and any returns from the investment of the fund, or portion, in respect of which a resolution under section 104AA(2) has effect.]]

Textual Amendments

F88 Words in s. 104B(1)(a) substituted (14.6.2023) by Charities Act 2022 (c. 6), ss. 13(3)(a), 41(4); S.I. 2023/643, Sch. para. 5

F89 Word in s. 104B omitted (14.6.2023) by virtue of Charities Act 2022 (c. 6), ss. 13(3)(b), 41(4); S.I. 2023/643, Sch. para. 5

F90 S. 104B(ba) inserted (14.6.2023) by Charities Act 2022 (c. 6), ss. 13(3)(c), 41(4); S.I. 2023/643, Sch. para. 5

F91 S. 104B(d) and word inserted (14.6.2023) by Charities Act 2022 (c. 6), ss. 13(3)(d), 41(4); S.I. 2023/643, Sch. para. 5

F92 Words in s. 104B(2)(a) inserted (14.6.2023) by Charities Act 2022 (c. 6), ss. 13(3)(e), 41(4); S.I. 2023/643, Sch. para. 5

F93 Words in s. 104B(6) substituted (14.6.2023) by Charities Act 2022 (c. 6), ss. 13(3)(f), 41(4); S.I. 2023/643, Sch. para. 5

F94 Words in s. 104B(6) inserted (14.6.2023) by Charities Act 2022 (c. 6), ss. 13(3)(g), 41(4); S.I. 2023/643, Sch. para. 5

Power to authorise dealings with charity property, ex gratia payments etc. E+W

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

(1) Subject to the provisions of this section, where it appears to the Commission that any action proposed or contemplated in the administration of a charity is expedient in the interests of the charity, the 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.

(2) Anything done under the authority of an order under this section is to be treated as properly done in the exercise of those powers.

(3) An order under this section—

(a) 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

(b) 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.

Paragraph (b) does not affect the generality of subsection (1).

(4) An order under this section may give directions—

(a) as to the manner in which any expenditure is to be borne, and

(b) as to other matters connected with or arising out of the action authorised by the order.

(5) Where anything is done in pursuance of an authority given by an order under this section, any directions given in connection with that authority—

(a) are binding on the charity trustees for the time being as if contained in the trusts of the charity, but

(b) may on the application of the charity be modified or superseded by a further order.

(6) The directions which may be given by an order under this section in particular include directions—

(a) for meeting any expenditure out of a specified fund,

(b) for charging any expenditure to capital or to income,

(c) for requiring expenditure charged to capital to be recouped out of income within a specified period,

(d) for restricting the costs to be incurred at the expense of the charity, or

(e) for the investment of money arising from any transaction.

This does not affect the generality of subsection (4).

(7) An order under this section may authorise any act even though—

(a) [F95 it is prohibited by the Ecclesiastical Leases Act 1836, or]

(b) the trusts of the charity provide for the act to be done by or under the authority of the court.

(8) But an order under this section may not—

(a) authorise the doing of any act expressly prohibited by any Act [F96 other than the Ecclesiastical Leases Act 1836,] or by the trusts of the charity, or

(b) extend or alter the purposes of the charity.

(9) In the case of a charitable company, an order under this section may authorise an act even though 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).

(10) An order under this section does 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 or treated as having effect under or by virtue of the Mission and Pastoral Measure 2011.

(11) The reference in subsection (10) to a building is to be treated as including—

(a) part of a building, and

(b) any land which under such a scheme is to be used or disposed of with a building to which the scheme applies.

Textual Amendments

F95 S. 105(7)(a) repealed (E.) (1.7.2018) by Statute Law (Repeals) Measure 2018 (No. 1), s. 2(3), Sch. Pt. 3; S.I. 2018/718, art. 2

F96 Words in s. 105(8) repealed (E.) (1.7.2018) by Statute Law (Repeals) Measure 2018 (No. 1), s. 2(3), Sch. Pt. 3; S.I. 2018/718, art. 2

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

(1) Subject to subsection (5), the Commission may by order exercise the same power as is exercisable by the Attorney General to authorise the charity trustees of a charity to take any action falling within subsection (2)(a) or (b) in a case where the charity trustees—

(a) (apart from this section) have no power to take the action, but

(b) in all the circumstances regard themselves as being under a moral obligation to take it.

(2) The actions are—

(a) making any application of property of the charity, or

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

(3) The power conferred on the Commission by subsection (1) is exercisable by the Commission under the supervision of, and in accordance with such directions as may be given by, the Attorney General.

(4) Any such directions may in particular require the Commission, in such circumstances as are specified in the directions—

(a) to refrain from exercising the power conferred by subsection (1), or

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

(5) Where—

(a) an application is made to the Commission for it to exercise the power conferred by subsection (1) in a case where it is not precluded from doing so by any such directions, but

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

the Commission must refer the application to the Attorney General.

(6) It is hereby declared that where—

(a) an application is made to the Commission as mentioned in subsection (5)(a), and

(b) the Commission determines the application by refusing to authorise charity trustees to take any action falling within subsection (2)(a) or (b),

that refusal does not preclude the Attorney General, on an application subsequently made to the Attorney General by the charity trustees, from authorising them to take that action.

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

107 Power to direct transfer of credits in dormant bank accounts E+W

(1) The Commission may give a direction under subsection (2) where—

(a) it is 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) it is unable, after making reasonable inquiries, to locate that charity or any of its trustees.

(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), 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 Commission—

(a) may specify in a direction under subsection (2) such other charity or charities as it considers appropriate, having regard, in a case where the purposes of the relevant charity are known to the Commission, to those purposes and to the purposes of the other charity or charities, but

(b) must not so specify any charity unless it 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 is to be received by the charity on terms that—

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

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

(5) 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 is a complete discharge of the institution in respect of that amount.

108 Accounts which cease to be dormant before transfer E+W

(1) This section applies where—

(a) the Commission has been informed as mentioned in section 107(1)(a) by any relevant institution, and

(b) before any transfer is made by the institution in pursuance of a direction under section 107(2), 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.

(2) The institution must without delay notify those circumstances in writing to the Commission.

(3) If it appears to the Commission that the account or accounts in question is or are no longer dormant, it must revoke any direction under section 107(2) which has previously been given by it to the institution with respect to the relevant charity.

109 Dormant bank accounts: supplementary E+W

(1) No obligation as to secrecy or other restriction on disclosure (however imposed) precludes a relevant institution from disclosing any information to the Commission for the purpose of enabling the Commission to discharge its functions under sections 107 and 108.

(2) For the purposes of sections 107 and 108 and this section, an account is dormant if no transaction, other than—

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

(b) 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 5 years immediately preceding the date when the Commission is informed as mentioned in section 107(1)(a).

(3) For the purposes of sections 107 and 108 and this section, a “relevant institution” means—

(a) the Bank of England [F97 (acting otherwise than in its capacity as the Prudential Regulation Authority)],

(b) a person who has permission under [F98 Part 4A] of the Financial Services and Markets Act 2000 to accept deposits,

F99 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . or

(d) such other person who may lawfully accept deposits in the United Kingdom as may be prescribed by the [F100 Secretary of State].

(4) In subsection (3), paragraphs (b) to (d) are to 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.

(5) For the purposes of sections 107 and 108, references to the transfer of any amount to a charity are references to its transfer—

(a) to the charity trustees, or

(b) to any trustee for the charity,

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

(6) For the purpose of determining the matters in respect of which any of the powers conferred by sections 46 to 53 (inquiries and searches) may be exercised it is to be assumed that the Commission has no functions under section 107 or 108 in relation to accounts to which this subsection applies.

(This has the result that, for example, a relevant institution is not, in connection with the Commission's functions under sections 107 and 108, required under section 47(2)(a) to provide any statements, or answer any questions or inquiries, with respect to any such accounts held by the institution.)

(7) Subsection (6) applies to accounts which—

(a) are dormant accounts by virtue of subsection (2), but

(b) would not be dormant accounts if subsection (2)(a) were omitted.

Textual Amendments

F97 Words in s. 109(3)(a) inserted (1.3.2017) by The Bank of England and Financial Services (Consequential Amendments) Regulations 2017 (S.I. 2017/80), reg. 1, Sch. para. 20

F98 Words in s. 109(3) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 18 para. 136 (with Sch. 20); S.I. 2013/423, Sch.

F99 S. 109(3)(c) omitted (31.12.2020) by virtue of The EEA Passport Rights (Amendment, etc., and Transitional Provisions) (EU Exit) Regulations 2018 (S.I. 2018/1149), reg. 1(3), Sch. para. 42 (with reg. 4); 2020 c. 1, Sch. 5 para. 1(1)

F100 Words in s. 109(3)(d) substituted (9.11.2016) by The Transfer of Functions (Elections, Referendums, Third Sector and Information) Order 2016 (S.I. 2016/997), art. 1(2), Sch. 2 para. 25(2)(q) (with art. 12)

Additional powers of Commission E+W

110 Power to give advice E+W

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

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

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

(2) A person (“P”) who—

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

(b) acts in accordance with any opinion or advice given by the Commission under subsection (1) (whether to P or another trustee),

is to be treated, as regards P's responsibility for so acting, as having acted in accordance with P's trust.

(3) But subsection (2) does not apply to P if, when so acting—

(a) P 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.

111 Power to determine membership of charity E+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 46 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.

112 Power to order assessment of solicitor's bill E+W

(1) The 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, is to be assessed, together with the costs of the assessment—

(a) by a costs officer in such division of the High Court as may be specified in the order, or

(b) by the costs officer of any other court having jurisdiction to order the assessment of the bill.

(2) On any order under this section for the assessment of a solicitor's bill—

(a) the assessment is to proceed,

(b) the costs officer has the same powers and duties, and

(c) the costs of the assessment are to 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 assessed.

(3) No order under this section for the assessment of a solicitor's bill is to be made after payment of the bill, unless the Commission is of opinion that it contains exorbitant charges.

(4) No order under this section is to be made in any case where the solicitor's costs are not subject to assessment on an order of the High Court because of—

(a) an agreement as to the solicitor's remuneration, or

(b) the lapse of time since payment of the bill.

Legal proceedings relating to charities E+W

113 Petitions for winding up charities under Insolvency Act E+W

(1) This section applies where a charity may be wound up by the High Court under the Insolvency Act 1986.

(2) A petition for the charity to be wound up under the 1986 Act by any court in England or Wales having jurisdiction may be presented by the Attorney General, as well as by any person authorised by that Act.

(3) Such a petition may also be presented by the Commission if, at any time after it has instituted an inquiry under section 46 with respect to the charity, it is satisfied either as mentioned in section 76(1)(a) (misconduct or mismanagement etc.) or as mentioned in section 76(1)(b) (need to protect property etc.).

(4) The power exercisable by the Commission by virtue of this section is exercisable—

(a) by the Commission of its own motion, but

(b) only with the agreement of the Attorney General on each occasion.

114 Proceedings by the Commission E+W

(1) Subject to subsection (2), the 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) does not apply to the power of the Attorney General under section 113(2) 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 the Commission under subsection (1) are 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 is to be treated as requiring the Attorney General to be a party to any such proceedings.

(5) The powers exercisable by the Commission by virtue of this section are exercisable—

(a) by the Commission of its own motion, but

(b) only with the agreement of the Attorney General on each occasion.

115 Proceedings by other persons E+W

(1) Charity proceedings may be taken with reference to a charity by—

(a) the charity,

(b) any of the charity trustees,

(c) any person interested in the charity, or

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

but not by any other person.

(2) Subject to the following provisions of this section, no charity proceedings relating to a charity are to be entertained or proceeded with in any court unless the taking of the proceedings is authorised by order of the Commission.

(3) The Commission must not, without special reasons, authorise the taking of charity proceedings where in its opinion the case can be dealt with by the Commission under the powers of this Act other than those conferred by section 114.

(4) This section does not require an order for the taking of proceedings—

(a) in a pending cause or matter, or

(b) for the bringing of any appeal.

(5) Where subsections (1) to (4) require the taking of charity proceedings to be authorised by an order of the 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 subsections (1) to (5) applies—

(a) to the taking of proceedings by the Attorney General, with or without a relator, or

(b) to the taking of proceedings by the Commission in accordance with section 114.

(7) If it appears to the Commission, on an application for an order under this section or otherwise, that it is desirable—

(a) for legal proceedings to be taken with reference to any charity or its property or affairs, and

(b) for the proceedings to be taken by the Attorney General,

the Commission must so inform the Attorney General and send the Attorney General such statements and particulars as the Commission thinks necessary to explain the matter.

(8) In this section “charity proceedings” means proceedings in any court in England or Wales brought under—

(a) the court's jurisdiction with respect to charities, or

(b) the court's jurisdiction with respect to trusts in relation to the administration of a trust for charitable purposes.

Supplementary E+W

116 Effect of provisions relating to vesting or transfer of property E+W

No vesting or transfer of any property in pursuance of any provision of this Part operates as a breach of a covenant or condition against alienation or gives rise to a forfeiture.

Part 7 E+W Charity land

Restrictions on dispositions of land in England and Wales E+W

117 Restrictions on dispositions of land: general E+W

(1) No land held by or in trust for a charity is to be conveyed, transferred, leased or otherwise disposed of without an order of—

(a) the court, or

(b) the Commission.

But this is subject to the following provisions of this section, sections 119 to 121 (further provisions about restrictions on dispositions) and section 127 (release of charity rentcharges).

[F101 (1A) For the purposes of this Part, land is held by or in trust for a charity only if the whole of the land which forms the subject matter of the disposition is held—

(a) by the charity solely for its own benefit (and, accordingly, is not being held as nominee or in trust for another person), or

(b) in trust solely for the charity.]

(2) Subsection (1) does 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 section 118), or

(ii) a trustee for, or nominee of, a connected person, and

(b) the requirements of—

(i) section 119(1) (dispositions other than certain leases), or

(ii) section 120(2) (leases which are for 7 years or less etc.),

have been complied with in relation to it.

(3) The restrictions on disposition imposed by this section and sections 119 to 121 apply regardless of anything in the trusts of a charity; but nothing in this section or sections 119 to 121 applies to—

(a) 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—

(i) any statutory provision contained in or having effect under an Act, or

(ii) any scheme legally established,

[F102 (aa) any disposition by a liquidator, provisional liquidator, receiver, mortgagee or an administrator,]

(b) any disposition for which the authorisation or consent of the Secretary of State is required under the Universities and College Estates Act 1925,

[F103 (c) any disposition of land held by or in trust for a charity which is made to another charity otherwise than as—

(i) a disposition made with a view to achieving the best price that can reasonably be obtained, or

(ii) a disposition that is a social investment for the purposes of Part 14A (social investments),] or

(d) 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.

(4) Nothing in this section or sections 119 to 121 applies to—

(a) any disposition of land held by or in trust for an exempt charity,

(b) any disposition of land by way of mortgage or other security, or

(c) any disposition of an advowson.

Textual Amendments

F101 S. 117(1A) inserted (14.6.2023) by Charities Act 2022 (c. 6), ss. 17, 41(4); S.I. 2023/643, Sch. para. 7

F102 S. 117(3)(aa) inserted (7.3.2024) by Charities Act 2022 (c. 6), ss. 18(2)(a), 41(4); S.I. 2024/265, reg. 3, Sch. 1 para. 4(b)

F103 S. 117(3)(c) substituted (7.3.2024) by Charities Act 2022 (c. 6), ss. 18(2)(c), 41(4); S.I. 2024/265, reg. 3, Sch. 1 para. 4(c)

Modifications etc. (not altering text)

C27 S. 117(3)(a) excluded (coming into force in accordance with s. 13 of the amending Act) by Monken Hadley Common Act 2022 (c. ii), ss. 9(6), 12(4) (with s. 8(3))

118 Meaning of “connected person” in s.117(2) E+W

(1) In section 117(2) “connected person”, in relation to a charity, means any person who falls within subsection (2)—

(a) at the time of the disposition in question, or

(b) at the time of any contract for the disposition in question.

(2) [F104 Subject to subsection (2A), the] persons are—

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

(b) a person who is the donor of any land to the charity (whether the gift was made on or after the establishment of the charity),

(c) a child, parent, grandchild, grandparent, brother or sister of any such trustee or donor,

(d) an officer, agent or employee of the charity,

(e) the spouse or civil partner of any person falling within any of paragraphs (a) to (d),

(f) a person carrying on business in partnership with any person falling within any of paragraphs (a) to (e),

(g) an institution which is controlled—

(i) by any person falling within any of paragraphs (a) to (f), or

(ii) by two or more such persons taken together, or

(h) a body corporate in which—

(i) any connected person falling within any of paragraphs (a) to (g) has a substantial interest, or

(ii) two or more such persons, taken together, have a substantial interest.

[F105 (2A) A person who is an employee of the charity does not fall within subsection (2)(d) if the disposition in question is the grant of a tenancy—

(a) for a fixed term of one year or less or which is a periodic tenancy and the period is one year or less, and

(b) which confers the right to occupy a dwelling as a home.]

(3) Sections 350 to 352 (meaning of child, spouse and civil partner, controlled institution and substantial interest) apply for the purposes of subsection (2).

Textual Amendments

F104 Words in s. 118(2) substituted (14.6.2023) by Charities Act 2022 (c. 6), s. 41(4), Sch. 2 para. 28; S.I. 2023/643, Sch. para. 20(l)

F105 S. 118(2A) inserted (14.6.2023) by Charities Act 2022 (c. 6), ss. 22, 41(4); S.I. 2023/643, Sch. para. 11

119 Requirements for dispositions other than certain leases E+W

(1) The requirements mentioned in section 117(2)(b) 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 [F106 designated adviser] instructed by the trustees and acting exclusively for the charity,

F107 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . and

(c) decide that they are satisfied, having considered the [F108 adviser’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.

(2) Subsection (1) does not apply where the proposed disposition is the granting of such a lease as is mentioned in section 120(1).

(3) For the purposes of subsection (1) a [F109 designated adviser] is a person who—

(a) is a fellow or professional associate of the Royal Institution of Chartered Surveyors or satisfies such other requirement or requirements as may be prescribed by regulations made by the Minister, and

(b) 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.

(4) Any report prepared for the purposes of subsection (1) must F110 ... deal with such matters F111 ... as may be prescribed by regulations made by the [F112 Secretary of State].

Textual Amendments

F106 Words in s. 119(1)(a) substituted (14.6.2023) by Charities Act 2022 (c. 6), ss. 20(a), 41(4); S.I. 2023/643, Sch. para. 9

F107 S. 119(1)(b) omitted (14.6.2023) by virtue of Charities Act 2022 (c. 6), ss. 19(a), 41(4); S.I. 2023/643, Sch. para. 8

F108 Word in s. 119(1)(c) substituted (14.6.2023) by Charities Act 2022 (c. 6), ss. 20(b), 41(4); S.I. 2023/643, Sch. para. 9

F109 Words in s. 119(3) substituted (14.6.2023) by Charities Act 2022 (c. 6), ss. 20(c), 41(4); S.I. 2023/643, Sch. para. 9

F110 Words in s. 119(4) omitted (14.6.2023) by virtue of Charities Act 2022 (c. 6), ss. 19(b)(i), 41(4); S.I. 2023/643, Sch. para. 8

F111 Comma in s. 119(4) omitted (14.6.2023) by virtue of Charities Act 2022 (c. 6), ss. 19(b)(ii), 41(4); S.I. 2023/643, Sch. para. 8

F112 Words in s. 119(4) substituted (9.11.2016) by The Transfer of Functions (Elections, Referendums, Third Sector and Information) Order 2016 (S.I. 2016/997), art. 1(2), Sch. 2 para. 25(2)(r) (with art. 12)

120 Requirements for leases which are for 7 years or less etc. E+W

(1) Subsection (2) applies where the proposed disposition is the granting of a lease for a term ending not more than 7 years after it is granted (other than one granted wholly or partly in consideration of a fine).

(2) The requirements mentioned in section 117(2)(b) 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.

121 Additional restrictions where land held for stipulated purposes E+W

(1) Subsection (2) applies 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.

(2) The land must not be conveyed, transferred, leased or otherwise disposed of unless the charity trustees have before the relevant time—

(a) given public notice of the proposed disposition, inviting representations to be made to them within a time specified in the notice, which must be not less than one month from the date of the notice, and

(b) taken into consideration any representations made to them within that time about the proposed disposition.

(3) Subsection (2)—

(a) is subject to subsections (5) and (6), and

(b) does not affect the operation of sections 117 to 120.

(4) In subsection (2) “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.

(5) Subsection (2) does 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 subsection (1)(b), or

(b) the disposition is the granting of a lease for a term ending not more than 2 years after it is granted (other than one granted wholly or partly in consideration of a fine).

(6) The Commission may, if the condition in subsection (7) is met, direct—

(a) that subsection (2) is not to 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 subsection (2) is not to apply to a particular disposition of land held by or in trust for a charity.

(7) The condition is that the Commission, on an application made to it in writing by or behalf of the charity or charities in question, is satisfied that it would be in the interests of the charity or charities for the Commission to give the direction.

122 Instruments concerning dispositions of land: required statements, etc. E+W

(1) Subsection (2) applies to any of the following instruments—

(a) a 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) a conveyance, transfer, lease or other instrument effecting a disposition of such land.

[F113 (2) An instrument to which this subsection applies must—

(a) state that the land is held by or in trust for a charity,

(b) state whether the charity is an exempt charity,

(c) if the charity is not an exempt charity, state whether the disposition is one falling within section 117(3)(a), (aa), (c) or (d), and

(d) if the charity is not an exempt charity and the disposition is not one falling within section 117(3)(a), (aa), (c) or (d), include the statement required by subsection (2A).

(2A) The statement is—

(a) in a case where section 117(1) applies to the disposition to which the instrument relates, a statement that the disposition has been sanctioned by an order of the court or of the Charity Commission, or

(b) in a case where section 117(2) applies to the disposition to which the instrument relates, a statement that there is power under the trusts of the charity to effect the disposition and that sections 117 to 121 have been complied with.]

F114 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F115 (4) Where subsection (2)(d) has been complied with in relation to a contract for the disposition of land it is conclusively presumed, for the purposes of enforcing the contract, that the statement is true.

(4A) Where subsection (2)(d) has been complied with in relation to an instrument effecting the disposition of land it is conclusively presumed, in favour of a person who (whether under the disposition or afterwards) acquires an interest in the land for money or money’s worth, that the statement is true.]

[F116 (5) Where subsection (2)(d) applies in relation to a contract for the disposition of land but the statement required by subsection (2A) has not been included in it, then in favour of a person who has entered into the contract in good faith the contract is enforceable as if—

(a) the disposition to which the contract relates had been sanctioned by an order of the court or of the Charity Commission, or

(b) there is power under the trusts of the charity to effect such a disposition and sections 117 to 121 have been complied with.

(5A) Where subsection (2)(d) applies in relation to an instrument effecting the disposition of land but the statement required by subsection (2A) has not been included in it, 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 is valid even if—

(a) the disposition has not been sanctioned by an order of the court or of the Charity Commission, or

(b) there is no power under the trusts of the charity to effect the disposition or sections 117 to 121 have not been complied with in relation to it (or both).]

(7) Subsection (8) applies to any of the following instruments—

(a) a 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) a conveyance, transfer, lease or other instrument effecting a disposition of such land.

(8) An instrument to which this subsection applies must state—

(a) that the land will, as a result of the disposition, be held by or in trust for a charity,

(b) whether the charity is an exempt charity, and

(c) if it is not an exempt charity, that the restrictions on disposition imposed by sections 117 to 121 will apply to the land (subject to section 117(3)).

(9) In this section and section 123 references to a disposition of land do not include references to—

(a) a disposition of land by way of mortgage or other security,

(b) any disposition of an advowson, or

(c) any release of a rentcharge falling within section 127(1).

Textual Amendments

F113 S. 122(2)(2A) substituted for s. 122(2) (7.3.2024) by Charities Act 2022 (c. 6), ss. 23(2)(a), 41(4); S.I. 2024/265, reg. 3, Sch. 1 para. 5 (with regs. 9, 10)

F114 S. 122(3) omitted (7.3.2024) by virtue of Charities Act 2022 (c. 6), ss. 23(2)(b), 41(4); S.I. 2024/265, reg. 3, Sch. 1 para. 5 (with reg. 9)

F115 S. 122(4)(4A) substituted for s. 122(4) (7.3.2024) by Charities Act 2022 (c. 6), ss. 23(2)(c), 41(4); S.I. 2024/265, reg. 3, Sch. 1 para. 5 (with reg. 9)

F116 S. 122(5)(5A) substituted for s. 122(5)(6) (7.3.2024) by Charities Act 2022 (c. 6), ss. 23(2)(d), 41(4); S.I. 2024/265, reg. 3, Sch. 1 para. 5 (with reg. 9)

123 Charity land and land registration E+W

(1) Where the disposition to be effected by any such instrument as is mentioned in section 122(1)(b) or (7)(b) will be—

(a) a registrable disposition, or

(b) a disposition which triggers the requirement of registration,

the statement which, by virtue of section 122(2) or (8), is to be contained in the instrument must be in such form as may be prescribed by land registration rules.

(2) 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 section 122(8) and subsection (1), the registrar must enter in the register a restriction reflecting the limitation under sections 117 to 121 on subsequent disposal.

(3) 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 must apply to the registrar for the removal of the entry.

(4) On receiving any application duly made under subsection (3) the registrar must remove the entry.

(5) 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 must apply to the registrar for such a restriction as is mentioned in subsection (2) to be entered in the register in respect of the land.

(6) On receiving any application duly made under subsection (5) the registrar must enter such a restriction in the register in respect of the land.

Restrictions on mortgages of land in England and Wales E+W

124 Restrictions on mortgages E+W

(1) Subject to subsection (2), no mortgage of land held by or in trust for a charity is to be granted without an order of—

(a) the court, or

(b) the Commission.

(2) Subsection (1) does 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 (4) (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.

(4) 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.

(5) Subsection (3) or (as the case may be) subsection (4) 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.

(6) Subsection (7) 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), 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.

(7) 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 (4) (as the case may be).

(8) For the purposes of this section proper advice is the advice of a person—

(a) who is reasonably believed by the charity trustees to be qualified by ability in and practical experience of financial matters, and

(b) who has no financial interest in relation to the loan, grant or other transaction in connection with which the advice is given.

F117 ...

(9) This section applies regardless of anything in the trusts of a charity; but nothing in this section applies to any mortgage—

(a) for which general or special authority is given as mentioned in section 117(3)(a), or

[F118 (aa) granted by a liquidator, provisional liquidator, receiver, mortgagee or an administrator.]

(b) for which the authorisation or consent of the Secretary of State is required as mentioned in section 117(3)(b).

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

Textual Amendments

F117 Words in s. 124(8) omitted (14.6.2023) by virtue of Charities Act 2022 (c. 6), ss. 21(3), 41(4); S.I. 2023/643, Sch. para. 10

F118 S. 124(9)(aa) inserted (7.3.2024) by Charities Act 2022 (c. 6), ss. 18(3)(a), 41(4); S.I. 2024/265, reg. 3, Sch. 1 para. 4(d)

125 Mortgages: required statements, etc. E+W

[F119 (1) Any mortgage of land held by or in trust for a charity must—

(a) state that the land is held by or in trust for a charity,

(b) state whether the charity is an exempt charity and whether the mortgage is one falling within section 124(9), and

(c) if the charity is not an exempt charity and the mortgage is not one falling within section 124(9), include the statement required by subsection (1A).

(1A) The statement is—

(a) in a case where section 124(1) applies, a statement that the mortgage has been sanctioned by an order of the court or of the Charity Commission, or

(b) in a case where section 124(2) applies, a statement that there is power under the trusts of the charity to grant the mortgage and the requirements of section 124(2) have been complied with.]

F120 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) Where [F121 subsection (1)(c)] 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 is conclusively presumed that the [F122 statement is true].

[F123 (5) Where subsection (1)(c) applies in relation to a mortgage of land but the statement required by subsection (1A) has not been included in it, 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 is valid even if—

(a) the mortgage has not been sanctioned by an order of the court or of the Charity Commission, or

(b) there is no power under the trusts of the charity to grant the mortgage or the requirements of section 124(2) have not been complied with in relation to it (or both).]

(6) Where section 124(7) applies to any mortgage of land held by or in trust for a charity, the charity trustees must certify in relation to any transaction falling within section 124(7) that they have obtained and considered such advice as is mentioned in section 124(7).

(7) Where subsection (6) 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 is conclusively presumed that the facts were as stated in the certificate.

Textual Amendments

F119 S. 125(1)(1A) substituted for s. 125(1) (7.3.2024) by Charities Act 2022 (c. 6), ss. 23(3)(a), 41(4); S.I. 2024/265, reg. 3, Sch. 1 para. 5 (with reg. 9)

F120 S. 125(2) omitted (7.3.2024) by virtue of Charities Act 2022 (c. 6), ss. 23(3)(b), 41(4); S.I. 2024/265, reg. 3, Sch. 1 para. 5 (with reg. 9)

F121 Words in s. 125(3) substituted (7.3.2024) by Charities Act 2022 (c. 6), ss. 23(3)(c)(i), 41(4); S.I. 2024/265, reg. 3, Sch. 1 para. 5 (with reg. 9)

F122 Words in s. 125(3) substituted (7.3.2024) by Charities Act 2022 (c. 6), ss. 23(3)(c)(ii), 41(4); S.I. 2024/265, reg. 3, Sch. 1 para. 5 (with reg. 9)

F123 S. 125(5) substituted for s. 125(4)(5) (7.3.2024) by Charities Act 2022 (c. 6), ss. 23(3)(d), 41(4); S.I. 2024/265, reg. 3, Sch. 1 para. 5 (with reg. 9)

126 Mortgages of charity land and land registration E+W

(1) Where the mortgage referred to in section 125(1) will be a registrable disposition, the statement required by section 125(1) must be in such form as may be prescribed by land registration rules.

(2) 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 section 125(1) must be in such form as may be prescribed by land registration rules, and

(b) if the charity is not an exempt charity, the mortgage must also contain a statement, in such form as may be prescribed by land registration rules, that the restrictions on disposition imposed by sections 117 to 121 apply to the land (subject to section 117(3)).

(3) 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 (2),

(b) the mortgage contains statements complying with section 125(1) and subsection (2), and

(c) the charity is not an exempt charity,

the registrar must enter in the register a restriction reflecting the limitation under sections 117 to 121 on subsequent disposal.

(4) Subsections (3) and (4) of section 123 (removal of entry) apply in relation to any restriction entered under subsection (3) as they apply in relation to any restriction entered under section 123(2).

Release of charity rentcharges E+W

127 Release of charity rentcharges E+W

(1) Section 117(1) does 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 10 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 £1,000, any costs incurred by the charity in connection with proving its title to the rentcharge are recoverable by the charity from the person or persons in whose favour the rentcharge is being released.

(3) Neither section 117(1) nor subsection (2) of this section applies where a rentcharge which a charity is entitled to receive is redeemed under sections 8 to 10 of the Rentcharges Act 1977.

128 Power to alter sum specified in s.127(2) E+W

The [F124 Secretary of State] may by order amend section 127(2) by substituting a different sum for the sum for the time being specified there.

Textual Amendments

F124 Words in s. 128 substituted (9.11.2016) by The Transfer of Functions (Elections, Referendums, Third Sector and Information) Order 2016 (S.I. 2016/997), art. 1(2), Sch. 2 para. 25(2)(s) (with art. 12)

[F125 Advice etc from charity trustees, officers and employees E+W

Textual Amendments

F125 S. 128A and cross-heading inserted (14.6.2023) by Charities Act 2022 (c. 6), ss. 21(2), 41(4); S.I. 2023/643, Sch. para. 10

128A Advice etc from charity trustees, officers and employees E+W

(1) Subsection (2) applies to—

(a) a report by a designated adviser for the purposes of section 119(1)(a),

(b) advice on a proposed disposition for the purposes of section 120(2)(a),

(c) proper advice in connection with a mortgage of land for the purposes of section 124(2), and

(d) proper advice in connection with a mortgage of land for the purposes of section 124(7).

(2) For the purposes of the provisions mentioned in subsection (1), it does not matter if the report or the advice (as the case may be) is provided—

(a) by a charity trustee or an officer or employee of the charity or of the charity trustees, or

(b) in the course of a person’s employment as an officer or an employee of the charity or of the charity trustees.]

Interpretation E+W

129 Interpretation E+W

(1) In sections 117 to 126 “land” means land in England and Wales.

(2) In sections 124 to 126 “mortgage” includes a charge.

(3) Sections 123 and 126 are to be construed as one with the Land Registration Act 2002.

Part 8 E+W Charity accounts, reports and returns

Modifications etc. (not altering text)

C28 Pt. 8 applied (with modifications) (2.1.2013) by The Charitable Incorporated Organisations (Insolvency and Dissolution) Regulations 2012 (S.I. 2012/3013), regs. 1, 41

CHAPTER 1 E+W Individual accounts

130 Accounting records E+W

(1) The charity trustees of a charity must ensure that accounting records are kept in respect of the charity which are sufficient to show and explain all the charity's transactions, and which are such as to—

(a) disclose at any time, with reasonable accuracy, the financial position of the charity at that time, and

(b) enable the trustees to ensure that, where any statements of accounts are prepared by them under section 132(1), those statements of accounts comply with the requirements of regulations under section 132(1).

(2) The accounting records must in particular contain—

(a) entries showing from day to day all sums of money received and expended by the charity, and the matters in respect of which the receipt and expenditure takes place, and

(b) a record of the assets and liabilities of the charity.

131 Preservation of accounting records E+W

(1) The charity trustees of a charity must preserve any accounting records made for the purposes of section 130 in respect of the charity for at least 6 years from the end of the financial year of the charity in which they are made.

(2) Subsection (3) applies if a charity ceases to exist within the period of 6 years mentioned in subsection (1) as it applies to any accounting records.

(3) The obligation to preserve the accounting records in accordance with subsection (1) must continue to be discharged by the last charity trustees of the charity, unless the Commission consents in writing to the records being destroyed or otherwise disposed of.

Modifications etc. (not altering text)

C29 S. 131 applied (1.1.2018) by The Charitable Incorporated Organisations (Conversion) Regulations 2017 (S.I. 2017/1232), regs. 1(1), 13

132 Preparation of statement of accounts E+W

(1) The charity trustees of a charity must (subject to section 133) prepare in respect of each financial year of the charity a statement of accounts complying with such requirements as to its form and contents as may be prescribed by regulations made by the [F126 Secretary of State].

(2) Regulations under subsection (1) may in particular make provision—

(a) for any such statement to be prepared in accordance with such methods and principles as are specified or referred to in the regulations;

(b) as to any information to be provided by way of notes to the accounts.

(3) Regulations under subsection (1) may also make provision for determining the financial years of a charity for the purposes of this Act and any regulations made under it.

(4) But regulations under subsection (1) may not impose on the charity trustees of a charity that is a charitable trust created by any person (“the settlor”) any requirement to disclose, in any statement of accounts prepared by them under subsection (1)—

(a) the identities of recipients of grants made out of the funds of the charity, or

(b) the amounts of any individual grants so made,

if the disclosure would fall to be made at a time when the settlor or any spouse or civil partner of the settlor was still alive.

Textual Amendments

F126 Words in s. 132(1) substituted (9.11.2016) by The Transfer of Functions (Elections, Referendums, Third Sector and Information) Order 2016 (S.I. 2016/997), art. 1(2), Sch. 2 para. 25(2)(t) (with art. 12)

Modifications etc. (not altering text)

C30 S. 132(1) applied (1.1.2018) by The Charitable Incorporated Organisations (Conversion) Regulations 2017 (S.I. 2017/1232), regs. 1(1), 14

133 Account and statement an option for lower-income charities E+W

If a charity's gross income in any financial year does not exceed £250,000, the charity trustees may, in respect of that year, elect to prepare—

(a) a receipts and payments account, and

(b) a statement of assets and liabilities,

instead of a statement of accounts under section 132(1).

134 Preservation of statement of accounts or account and statement E+W

(1) The charity trustees of a charity must preserve—

(a) any statement of accounts prepared by them under section 132(1), or

(b) any account and statement prepared by them under section 133,

for at least 6 years from the end of the financial year to which any such statement relates or (as the case may be) to which any such account and statement relate.

(2) Subsection (3) applies if a charity ceases to exist within the period of 6 years mentioned in subsection (1) as it applies to any statement of accounts or account and statement.

(3) The obligation to preserve the statement or account and statement in accordance with subsection (1) must continue to be discharged by the last charity trustees of the charity, unless the Commission consents in writing to the statement or account and statement being destroyed or otherwise disposed of.

135 Charitable companies E+W

Nothing in sections 130 to 134 (preparation and preservation of individual accounts) applies to a charitable company.

136 Exempt charities E+W

(1) Nothing in sections 130 to 134 (preparation and preservation of individual accounts) applies to an exempt charity.

(2) But the charity trustees of an exempt charity—

(a) must keep proper books of account with respect to the affairs of the charity, and

(b) if not required by or under the authority of any other Act to prepare periodical statements of account must prepare consecutive statements of account consisting on each occasion of—

(i) an income and expenditure account relating to a period of not more than 15 months, and

(ii) a balance sheet relating to the end of that period.

(3) The books of accounts and statements of account relating to an exempt charity must be preserved for a period of at least 6 years unless—

(a) the charity ceases to exist, and

(b) the Commission consents in writing to their being destroyed or otherwise disposed of.

CHAPTER 2 E+W Group accounts

137 Accounting records E+W

(1) The charity trustees of a parent charity or of any charity which is a subsidiary undertaking must ensure that the accounting records kept in respect of the charity under—

(a) section 130(1) (individual accounts: accounting records), or

(b) (as the case may be) section 386 of the Companies Act 2006 (duty to keep accounting records),

are such as to enable the charity trustees of the parent charity to ensure that, where any group accounts are prepared by them under section 138(2), those accounts comply with the requirements of regulations under section 142.

(2) The duty in subsection (1) is in addition to the duty to ensure that the accounting records comply with the requirements of—

(a) section 130(1), or

(b) section 386 of the Companies Act 2006.

(3) Subsection (4) applies if a parent charity has a subsidiary undertaking in relation to which the requirements of—

(a) section 130(1), or

(b) section 386 of the Companies Act 2006,

do not apply.

(4) The charity trustees of the parent charity must take reasonable steps to secure that the undertaking keeps such accounting records as to enable the trustees to ensure that, where any group accounts are prepared by them under section 138(2), those accounts comply with the requirements of regulations under section 142.

138 Preparation of group accounts E+W

(1) This section applies in relation to a financial year of a charity if—

(a) the charity is a parent charity at the end of that year, and

(b) (where it is a company) it is not required to prepare consolidated accounts for that year under section 399 of the Companies Act 2006 (duty to prepare group accounts), whether or not such accounts are in fact prepared.

(2) The charity trustees of the parent charity must prepare group accounts in respect of that year.

(3) If the requirement in subsection (2) applies to the charity trustees of a parent charity (other than a parent charity which is a company) in relation to a financial year—

(a) that requirement so applies in addition to the requirement in section 132(1) (statement of accounts), and

(b) the option of preparing the documents mentioned in section 133 (account and statement) is not available in relation to that year (whatever the amount of the charity's gross income for that year).

(4) If—

(a) the requirement in subsection (2) applies to the charity trustees of a parent charity in relation to a financial year, and

(b) the charity is a company,

that requirement so applies in addition to the requirement in section 394 of the Companies Act 2006 (duty to prepare individual accounts).

(5) Subsection (2) is subject to section 139.

Modifications etc. (not altering text)

C31 S. 138 applied (1.1.2018) by The Charitable Incorporated Organisations (Conversion) Regulations 2017 (S.I. 2017/1232), regs. 1(1), 14

139 Exceptions to requirement to prepare group accounts E+W

(1) The requirement in section 138(2) does not apply to the charity trustees of a parent charity in relation to a financial year if at the end of that year it is itself a subsidiary undertaking in relation to another charity.

(2) The requirement in section 138(2) does not apply to the charity trustees of a parent charity in relation to a financial year if the aggregate gross income of the group for that year does not exceed such sum as is specified in regulations made by the [F127 Secretary of State].

(3) Regulations made by the [F127 Secretary of State] may prescribe circumstances in which a subsidiary undertaking may or (as the case may be) must be excluded from group accounts required to be prepared under section 138(2) for a financial year.

(4) Where, by virtue of such regulations, each of the subsidiary undertakings which are members of a group is—

(a) permitted to be excluded from any such group accounts for a financial year, or

(b) required to be so excluded,

the requirement in section 138(2) does not apply to the charity trustees of the parent charity in relation to that year.

Textual Amendments

F127 Words in s. 139(2)(3) substituted (9.11.2016) by The Transfer of Functions (Elections, Referendums, Third Sector and Information) Order 2016 (S.I. 2016/997), art. 1(2), Sch. 2 para. 25(2)(u) (with art. 12)

140 Preservation of group accounts E+W

(1) The charity trustees of a charity must preserve any group accounts prepared by them under section 138(2) for at least 6 years from the end of the financial year to which the accounts relate.

(2) Subsection (3) applies if a charity ceases to exist within the period of 6 years mentioned in subsection (1) as it applies to any group accounts.

(3) The obligation to preserve the accounts in accordance with subsection (1) must continue to be discharged by the last charity trustees of the charity, unless the Commission consents in writing to the accounts being destroyed or otherwise disposed of.

141 “Parent charity”, “subsidiary undertaking” and “group” E+W

(1) This section applies for the purposes of this Part.

(2) A charity is a parent charity if it is (or is to be treated as) a parent undertaking in relation to one or more other undertakings in accordance with the provisions of section 1162 of, and Schedule 7 to, the Companies Act 2006.

(3) Each undertaking in relation to which a parent charity is (or is to be treated as) a parent undertaking in accordance with those provisions is a subsidiary undertaking in relation to the parent charity.

(4) But subsection (3) does not have the result that any of the following is a subsidiary undertaking—

(a) any special trusts of a charity,

(b) any institution which, by virtue of a direction under section 12(1), is to be treated as forming part of a charity for the purposes of this Part, or

(c) any charity to which a direction under section 12(2) applies for the purposes of this Part.

(5) “The group”, in relation to a parent charity, means that charity and its subsidiary undertaking or undertakings, and any reference to the members of the group is to be read accordingly.

(6) For the purposes of this section and the operation for those purposes of section 1162 of, and Schedule 7 to, the Companies Act 2006 “undertaking” means—

(a) an undertaking as defined by section 1161(1) of the 2006 Act, or

(b) a charity which is not an undertaking as so defined.

142 “Group accounts” E+W

(1) For the purposes of this Part, “group accounts” means consolidated accounts—

(a) relating to the group, and

(b) complying with such requirements as to their form and contents as may be prescribed by regulations made by the [F128 Secretary of State].

(2) Regulations under subsection (1) may in particular make provision—

(a) for any such accounts to be prepared in accordance with such methods and principles as are specified or referred to in the regulations;

(b) for dealing with cases where the financial years of the members of the group do not all coincide;

(c) as to any information to be provided by way of notes to the accounts.

(3) Regulations under subsection (1) may also make provision—

(a) for determining the financial years of subsidiary undertakings for the purposes of this Part;

(b) for imposing on the charity trustees of a parent charity requirements with respect to securing that such financial years coincide with that of the charity.

Textual Amendments

F128 Words in s. 142(1)(b) substituted (9.11.2016) by The Transfer of Functions (Elections, Referendums, Third Sector and Information) Order 2016 (S.I. 2016/997), art. 1(2), Sch. 2 para. 25(2)(v) (with art. 12)

143 Exempt charities E+W

Nothing in sections 137 to 142 (preparation and preservation of group accounts) applies to an exempt charity.

CHAPTER 3 E+W Audit or examination of accounts

Audit or examination of individual accounts E+W

144 Audit of accounts of larger charities E+W

(1) Subsection (2) applies to a financial year of a charity if—

(a) the charity's gross income in that year exceeds [F129 £1 million], or

(b) the charity's gross income in that year exceeds the accounts threshold and at the end of the year the aggregate value of its assets (before deduction of liabilities) exceeds £3.26 million.

“The accounts threshold” means the sum for the time being specified in section 133 (account and statement an option for lower-income charities).

(2) If this subsection applies to a financial year of a charity, the accounts of the charity for that year must be audited by a person who—

(a) is eligible for appointment as a statutory auditor under Part 42 of the Companies Act 2006, or

(b) is a member of a body for the time being specified in regulations under section 154 and is under the rules of that body eligible for appointment as auditor of the charity.

Textual Amendments

F129 Words in s. 144(1)(a) substituted (with application in accordance with art. 5 of the commencing S.I.) by The Charities Act 2011 (Accounts and Audit) Order 2015 (S.I. 2015/321), arts. 1, 3

Modifications etc. (not altering text)

C32 S. 144 applied (1.1.2018) by The Charitable Incorporated Organisations (Conversion) Regulations 2017 (S.I. 2017/1232), regs. 1(1), 14

145 Examination of accounts an option for lower-income charities E+W

(1) If section 144(2) does not apply to a financial year of a charity but its gross income in that year exceeds £25,000, the accounts of the charity for that year must, at the election of the charity trustees, be—

(a) examined by an independent examiner, that is, an independent person who is reasonably believed by the trustees to have the requisite ability and practical experience to carry out a competent examination of the accounts, or

(b) audited by a person within section 144(2)(a) or (b).

(2) Subsection (1) is subject to—

(a) subsection (3), and

(b) any order under section 146(1).

(3) If subsection (1) applies to the accounts of a charity for a year and the charity's gross income in that year exceeds £250,000, a person qualifies as an independent examiner for the purposes of subsection (1)(a) if (and only if) the person is independent and—

(a) a member of one of the bodies listed in subsection (4), or

(b) a Fellow of the Association of Charity Independent Examiners.

(4) The bodies referred to in subsection (3)(a) are—

(a) the Institute of Chartered Accountants in England and Wales;

(b) the Institute of Chartered Accountants of Scotland;

(c) the Institute of Chartered Accountants in Ireland;

(d) the Association of Chartered Certified Accountants;

(e) the Association of Authorised Public Accountants;

(f) the Association of Accounting Technicians;

(g) the Association of International Accountants;

(h) the Chartered Institute of Management Accountants;

(i) the Institute of Chartered Secretaries and Administrators;

(j) the Chartered Institute of Public Finance and Accountancy.

[F130 (k) the Institute of Financial Accountants;

(l) the Certified Public Accountants Association.]

(5) The Commission may—

(a) give guidance to charity trustees in connection with the selection of a person for appointment as an independent examiner;

(b) give such directions as it thinks appropriate with respect to the carrying out of an examination in pursuance of subsection (1)(a);

and any such guidance or directions may either be of general application or apply to a particular charity only.

(6) The [F131 Secretary of State] may by order—

(a) amend subsection (3) by adding or removing a description of person to or from the list in that subsection or by varying any entry for the time being included in that list;

(b) amend subsection (4) by adding or removing a body to or from the list in that subsection or by varying any entry for the time being included in that list.

Textual Amendments

F130 S. 145(4)(k)(l) inserted (with application in accordance with art. 5 of the commencing S.I.) by The Charities Act 2011 (Accounts and Audit) Order 2015 (S.I. 2015/321), arts. 1, 4

F131 Words in s. 145(6) substituted (9.11.2016) by The Transfer of Functions (Elections, Referendums, Third Sector and Information) Order 2016 (S.I. 2016/997), art. 1(2), Sch. 2 para. 25(2)(w) (with art. 12)

146 Commission's powers to order audit E+W

(1) The Commission may by order require the accounts of a charity for a financial year to be audited by a person within section 144(2)(a) or (b) if it appears to the Commission that—

(a) section 144(2), or (as the case may be) section 145(1), has not been complied with in relation to that year within 10 months from the end of that year, or

(b) although section 144(2) does not apply to that year, it would nevertheless be desirable for the accounts of the charity for that year to be audited by a person within section 144(2)(a) or (b).

(2) If the Commission makes an order under subsection (1) with respect to a charity, the auditor must be a person appointed by the Commission unless—

(a) the order is made by virtue of subsection (1)(b), and

(b) the charity trustees themselves appoint an auditor in accordance with the order.

(3) The expenses of any audit carried out by an auditor appointed by the Commission under subsection (2), including the auditor's remuneration, are recoverable by the Commission—

(a) from the charity trustees of the charity concerned, who are personally liable, jointly and severally, for those expenses, or

(b) to the extent that it appears to the Commission not to be practical to seek recovery of those expenses in accordance with paragraph (a), from the funds of the charity.

147 Accounts required to be audited under Companies Act E+W

(1) Nothing in sections 144 to 146 applies in relation to the accounts of a charitable company for a financial year if those accounts are required to be audited in accordance with Part 16 of the Companies Act 2006 (“Part 16 accounts”).

(2) In the case of a charitable company, the Commission may by order require that the condition and Part 16 accounts of the company for such period as the Commission thinks fit are to be investigated and audited by an auditor who—

(a) is eligible for appointment as a statutory auditor under Part 42 of the Companies Act 2006, and

(b) is appointed by the Commission.

(3) An auditor acting under subsection (2)—

(a) has a right of access to all books, accounts and documents relating to the company which are in the possession or control of the charity trustees or to which the charity trustees have access;

(b) is entitled to require from any charity trustee, past or present, and from any past or present officer or employee of the company such information and explanation as the auditor thinks necessary for the performance of the auditor's duties;

(c) must at the conclusion or during the progress of the audit make such reports to the Commission about the audit or about the accounts or affairs of the company as the auditor thinks the case requires, and must send a copy of any such report to the charity trustees.

(4) The expenses of any audit under subsection (2) including the remuneration of the auditor, are to be paid by the Commission.

(5) If any person fails to afford an auditor any facility to which the auditor is entitled under subsection (3), the Commission may by order give to that person or to the charity trustees for the time being such directions as the Commission thinks appropriate for securing that the default is made good.

148 NHS charities: general E+W

Nothing in sections 144 to 146 applies in relation to a financial year of a charity where, at any time in the year, it is—

(a) an English NHS charity (as defined in section 149), or

(b) a Welsh NHS charity (as defined in section 150).

149 Audit or examination of English NHS charity accounts E+W

(1) This section applies in relation to a financial year of a charity where, at any time in the year, it is an English NHS charity.

(2) If section 144(1)(a) or (b) is satisfied in relation to that financial year of the charity, the accounts of the charity for that year must be audited by [F132 a person who—

(a) is eligible for appointment as a statutory auditor under Part 42 of the Companies Act 2006,

(b) is eligible for appointment as a local auditor (see Part 4 of the Local Audit and Accountability Act 2014), or

(c) is a member of a body for the time being specified in regulations under section 154 and is under the rules of that body eligible for appointment as auditor of the charity.]

(3) In any other case, the accounts of the charity for that financial year must, at the election of [F133 the charity trustees], be—

(a) audited by [F134 a person who is within subsection (2)(a), (b) or (c)], or

(b) examined by [F135 a person who is qualified to be an independent examiner].

[F136 (3A) For the purposes of subsection (3)(b), a person is qualified to be an independent examiner if (and only if)—

(a) the person is independent,

(b) the charity trustees reasonably believe that the person has the requisite ability and practical experience to carry out a competent examination of the accounts, and

(c) the person—

(i) falls within a description of person for the time being included in the list in section 145(3), or

(ii) is eligible for appointment as a local auditor (see Part 4 of the Local Audit and Accountability Act 2014).]

F137 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F138 (5) The Commission may—

(a) give guidance to charity trustees of an English NHS charity in connection with the selection of a person for appointment as an independent examiner;

(b) give such directions as it thinks appropriate with respect to the carrying out of an examination in pursuance of subsection (3)(b);

and any such guidance or directions may either be of general application or apply to a particular charity only.]

(6) The Comptroller and Auditor General may at any time examine and inspect—

(a) the accounts of the charity for the financial year,

(b) any records relating to those accounts, and

(c) any report of a person appointed under subsection (2) or (3) to audit or examine those accounts.

(7) In this section, “English NHS charity” means a charitable trust, the trustees of which are—

F139 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F140 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F141 (ba) [F142 NHS England],

[F143 (bb) an integrated care board,]

F144 (bc) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F144 (bd) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

(c) a National Health Service trust all or most of whose hospitals, establishments and facilities are situated in England,

(d) trustees appointed in pursuance of paragraph 10 of Schedule 4 to the National Health Service Act 2006 for a National Health Service trust falling within paragraph (c),

(e) special trustees appointed in pursuance of section 29(1) of the National Health Service Reorganisation Act 1973, section 95(1) of the National Health Service Act 1977 and section 212(1) of the National Health Service Act 2006 for such a National Health Service trust, or

F145 (f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F146 (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F132 S. 149(2)(a)-(c) substituted (1.4.2017) by Local Audit and Accountability Act 2014 (c. 2), s. 49(1), Sch. 12 para. 119(2); S.I. 2015/841, art. 4 (with Sch. para. 11) (as amended (27.6.2016) by S.I. 2016/675, art. 2)

F133 Words in s. 149(3) substituted (1.4.2017) by Local Audit and Accountability Act 2014 (c. 2), s. 49(1), Sch. 12 para. 119(3)(a); S.I. 2015/841, art. 4 (with Sch. para. 11) (as amended (27.6.2016) by S.I. 2016/675, art. 2)

F134 Words in s. 149(3)(a) substituted (1.4.2017) by Local Audit and Accountability Act 2014 (c. 2), s. 49(1), Sch. 12 para. 119(3)(b); S.I. 2015/841, art. 4 (with Sch. para. 11) (as amended (27.6.2016) by S.I. 2016/675, art. 2)

F135 Words in s. 149(3)(b) substituted (1.4.2017) by Local Audit and Accountability Act 2014 (c. 2), s. 49(1), Sch. 12 para. 119(3)(c); S.I. 2015/841, art. 4 (with Sch. para. 11) (as amended (27.6.2016) by S.I. 2016/675, art. 2)

F136 S. 149(3A) inserted (1.4.2017) by Local Audit and Accountability Act 2014 (c. 2), s. 49(1), Sch. 12 para. 119(4); S.I. 2015/841, art. 4 (with Sch. para. 11) (as amended (27.6.2016) by S.I. 2016/675, art. 2)

F137 S. 149(4) omitted (1.4.2017) by virtue of Local Audit and Accountability Act 2014 (c. 2), s. 49(1), Sch. 12 para. 119(5); S.I. 2015/841, art. 4 (with Sch. para. 11) (as amended (27.6.2016) by S.I. 2016/675, art. 2)

F138 S. 149(5) substituted (1.4.2017) by Local Audit and Accountability Act 2014 (c. 2), s. 49(1), Sch. 12 para. 119(6); S.I. 2015/841, art. 4 (with Sch. para. 11) (as amended (27.6.2016) by S.I. 2016/675, art. 2)

F139 S. 149(7)(a) omitted (1.4.2013) by virtue of Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 5 para. 184(a); S.I. 2013/160, art. 2(2) (with arts. 7-10 Sch. para. 1 Sch. para. 6 Sch. para. 16)

F140 S. 149(7)(b) omitted (1.4.2013) by virtue of Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 5 para. 184(b); S.I. 2013/160, art. 2(2) (with arts. 7-10 Sch. para. 1 Sch. para. 6 Sch. para. 16)

F141 S. 149(7)(ba)-(bd) inserted (1.10.2012) by Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 5 para. 184(c); S.I. 2012/1831, art. 2(2)

F142 Words in s. 149 substituted (1.7.2022) by Health and Care Act 2022 (c. 31), s. 186(6), Sch. 1 para. 1(1)(2); S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)

F143 S. 149(7)(bb) substituted (1.7.2022) by Health and Care Act 2022 (c. 31), s. 186(6), Sch. 4 para. 174; S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)

F144 S. 149(7)(bc)(bd) omitted (17.6.2021) by virtue of NHS (Charitable Trusts Etc) Act 2016 (c. 10), s. 5(1), Sch. 1 para. 15; S.I. 2021/712, reg. 3(c)

F145 S. 149(7)(f) omitted (1.4.2013) by virtue of Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 5 para. 184(d); S.I. 2013/160, art. 2(2) (with arts. 7-10 Sch. para. 1 Sch. para. 6 Sch. para. 16)

F146 S. 149(8) omitted (1.4.2017) by virtue of Local Audit and Accountability Act 2014 (c. 2), s. 49(1), Sch. 12 para. 119(7); S.I. 2015/841, art. 4 (with Sch. para. 11) (as amended (27.6.2016) by S.I. 2016/675, art. 2)

150 Audit or examination of Welsh NHS charity accounts E+W

(1) This section applies in relation to a financial year of a charity where, at any time in the year, it is a Welsh NHS charity.

(2) If section 144(1)(a) or (b) is satisfied in relation to that financial year of the charity, the accounts of the charity for that year must be audited by the Auditor General for Wales.

(3) In any other case, the accounts of the charity for that financial year must, at the election of the Auditor General for Wales, be audited or examined by the Auditor General for Wales.

(4) In this section “Welsh NHS charity” means a charitable trust, the trustees of which are—

(a) a Local Health Board,

(b) a National Health Service trust all or most of whose hospitals, establishments and facilities are situated in Wales,

(c) trustees appointed in pursuance of paragraph 10 of Schedule 3 to the National Health Service (Wales) Act 2006 for a National Health Service trust falling within paragraph (b), or

(d) special trustees appointed in pursuance of section 29(1) of the National Health Service Reorganisation Act 1973, section 95(1) of the National Health Service Act 1977 and section 160(1) of the National Health Service (Wales) Act 2006 for such a National Health Service trust.

(5) References in this Act to an auditor or an examiner have effect in relation to this section as references to the Auditor General for Wales acting under this section as an auditor or examiner.

Audit or examination of group accounts E+W

151 Audit of accounts of larger groups E+W

(1) This section applies where group accounts are prepared for a financial year of a parent charity under section 138(2) and—

(a) the aggregate gross income of the group in that year exceeds the relevant income threshold (see section 176(1)), or

(b) the aggregate gross income of the group in that year exceeds the relevant income threshold and at the end of the year the aggregate value of the assets of the group (before deduction of liabilities) exceeds the relevant assets threshold (see section 176(2)).

(2) This section also applies where—

(a) group accounts are prepared for a financial year of a parent charity under section 138(2), and

(b) the appropriate audit provision applies in relation to the parent charity's own accounts for that year.

(3) In this section “the appropriate audit provision”, in relation to a financial year of a parent charity, means—

(a) (subject to paragraph (b), (c) or (d)) section 144(2) (audit of accounts of larger charities);

(b) if section 149 (audit or examination of English NHS charity accounts) applies in relation to that year, section 149(2);

(c) if section 150 (audit or examination of Welsh NHS charity accounts) applies in relation to that year, section 150(2);

(d) if the parent charity is a company—

(i) section 144(2), or

(ii) (as the case may be) Part 16 of the Companies Act 2006.

(4) If this section applies in relation to a financial year of a parent charity by virtue of subsection (1) or (2), the group accounts for that year must be audited—

(a) (subject to paragraph (b) or (c)) by a person within section 144(2)(a) or (b);

(b) if section 149 applies in relation to that year, by [F147 a person, appointed by the charity trustees of the parent charity, who is within section 149(2)(a), (b) or (c)] ;

(c) if section 150 applies in relation to that year, by the Auditor General for Wales.

(5) If this section applies in relation to a financial year of a parent charity by virtue of subsection (1)—

(a) (subject to paragraph (b)) the appropriate audit provision applies in relation to the parent charity's own accounts for that year (whether or not it would otherwise so apply);

(b) if the parent charity is a company and its own accounts for that year are not required to be audited in accordance with Part 16 of the Companies Act 2006, section 144(2) applies in relation to those accounts (whether or not it would otherwise so apply).

(6) [F148 Section 149(6) applies] in relation to any appointment under subsection (4)(b) as [F149 it applies] in relation to an appointment under section 149(2).

(7) References in this Act to an auditor have effect in relation to subsection (4)(c) as references to the Auditor General for Wales acting under subsection (4)(c) as an auditor.

Textual Amendments

F147 Words in s. 151(4)(b) substituted (1.4.2017) by Local Audit and Accountability Act 2014 (c. 2), s. 49(1), Sch. 12 para. 120(2); S.I. 2015/841, art. 4 (with Sch. para. 11) (as amended (27.6.2016) by S.I. 2016/675, art. 2)

F148 Words in s. 151(6) substituted (1.4.2017) by Local Audit and Accountability Act 2014 (c. 2), s. 49(1), Sch. 12 para. 120(3)(a); S.I. 2015/841, art. 4 (with Sch. para. 11) (as amended (27.6.2016) by S.I. 2016/675, art. 2)

F149 Words in s. 151(6) substituted (1.4.2017) by Local Audit and Accountability Act 2014 (c. 2), s. 49(1), Sch. 12 para. 120(3)(b); S.I. 2015/841, art. 4 (with Sch. para. 11) (as amended (27.6.2016) by S.I. 2016/675, art. 2)

152 Examination of accounts an option for smaller groups E+W

(1) This section applies if—

(a) group accounts are prepared for a financial year of a parent charity under section 138(2), and

(b) section 151 (audit of accounts of larger groups) does not apply in relation to that year.

(2) If—

(a) this section applies in relation to a financial year of a parent charity,

(b) the aggregate gross income of the group in that year exceeds the sum specified in section 145(1), and

(c) subsection (6) or (7) (NHS charity: group accounts) does not apply in relation to it,

the group accounts for that year must, at the election of the charity trustees of the parent charity, be examined by an independent examiner (as defined in section 145(1)(a)) or audited by a person within section 144(2)(a) or (b).

(3) Subsection (2) is subject to—

(a) subsection (4), and

(b) any order under section 153(1).

(4) If subsection (2) applies to the group accounts for a year and the aggregate gross income of the group in that year exceeds the sum specified in section 145(3), a person qualifies as an independent examiner for the purposes of subsection (2) if (and only if) the person is independent and meets the requirements of section 145(3)(a) or (b).

(5) The Commission may—

(a) give guidance to charity trustees of a parent charity in connection with the selection of a person for appointment as an independent examiner;

(b) give such directions as it thinks appropriate with respect to the carrying out of an examination in pursuance of subsection (2);

and any such guidance or directions may either be of general application or apply to a particular charity only.

(6) If—

(a) this section applies in relation to a financial year of a parent charity, and

(b) section 149 (audit or examination of English NHS charity accounts) also applies in relation to that year,

the group accounts for that year must at the election of [F150 the charity trustees of the parent charity be audited by a person, appointed by those trustees, who is within section 149(2)(a), (b) or (c); or examined by a person, appointed by those trustees, who is qualified to be an independent examiner] .

Subsections [F151 (3A), (5) and (6)] of section 149 apply for the purposes of this subsection as they apply for the purposes of section 149(3)[F152 ; except that in subsection (3A)(b) of that section the reference to “the charity trustees” is to be read as a reference to “the charity trustees of the parent charity].

(7) If—

(a) this section applies in relation to a financial year of a parent charity, and

(b) section 150 (audit or examination of Welsh NHS charity accounts) also applies in relation to that year,

the group accounts for that year must, at the election of the Auditor General for Wales, be audited or examined by the Auditor General for Wales.

References in this Act to an auditor or an examiner have effect in relation to this subsection as references to the Auditor General for Wales acting under this subsection as an auditor or examiner.

(8) If the group accounts for a financial year of a parent charity are to be examined or audited in accordance with subsection (2), section 145(1) applies in relation to the parent charity's own accounts for that year (whether or not it would otherwise so apply).

(9) Nothing in subsection (6) or (7) affects the operation of section 149(3) to (6) or (as the case may be) section 150(3) in relation to the parent charity's own accounts for the financial year in question.

Textual Amendments

F150 Words in s. 152(6) substituted (1.4.2017) by Local Audit and Accountability Act 2014 (c. 2), s. 49(1), Sch. 12 para. 121(2)(a); S.I. 2015/841, art. 4 (with Sch. para. 11) (as amended (27.6.2016) by S.I. 2016/675, art. 2)

F151 Words in s. 152(6) substituted (1.4.2017) by Local Audit and Accountability Act 2014 (c. 2), s. 49(1), Sch. 12 para. 121(2)(b); S.I. 2015/841, art. 4 (with Sch. para. 11) (as amended (27.6.2016) by S.I. 2016/675, art. 2)

F152 Words in s. 152(6) inserted (1.4.2017) by Local Audit and Accountability Act 2014 (c. 2), s. 49(1), Sch. 12 para. 121(2)(c); S.I. 2015/841, art. 4 (with Sch. para. 11) (as amended (27.6.2016) by S.I. 2016/675, art. 2)

153 Commission's powers to order audit of group accounts E+W

(1) The Commission may by order require the group accounts of a parent charity for a financial year to be audited by a person within section 144(2)(a) or (b) if it appears to the Commission that—

(a) section 151(4)(a), or (as the case may be) section 152(2), has not been complied with in relation to that year within 10 months from the end of that year, or

(b) although section 151(4)(a) does not apply to that year, it would nevertheless be desirable for the group accounts for that year to be audited by a person within section 144(2)(a) or (b).

But this subsection does not apply if section 149 or 150 (audit or examination of NHS charity accounts) applies in relation to the parent charity for that year.

(2) If the Commission makes an order under subsection (1) with respect to group accounts, the auditor must be a person appointed by the Commission unless—

(a) the order is made by virtue of subsection (1)(b), and

(b) the charity trustees of the parent charity themselves appoint an auditor in accordance with the order.

(3) The expenses of any audit carried out by an auditor appointed by the Commission under subsection (2), including the auditor's remuneration, are recoverable by the Commission—

(a) from the charity trustees of the parent charity, who are personally liable, jointly and severally, for those expenses, or

(b) to the extent that it appears to the Commission not to be practical to seek recovery of those expenses in accordance with paragraph (a), from the funds of the parent charity.

Regulations relating to audits and examinations E+W

154 Regulations relating to audits and examinations E+W

(1) The [F153 Secretary of State] may by regulations make provision—

(a) specifying one or more bodies for the purposes of section 144(2)(b);

[F154 (aa) specifying one or more bodies for the purposes of section 149(2)(c);]

(b) with respect to the duties of an auditor carrying out an audit of individual or group accounts, including provision with respect to the making by the auditor of a report on—

(i) the statement of accounts prepared for the financial year in question under section 132(1),

(ii) the account and statement so prepared under section 133,

(iii) the accounts so prepared under section 394 of the Companies Act 2006 (duty to prepare individual accounts), or

(iv) group accounts so prepared under section 138(2),

as the case may be;

(c) with respect to the making of a report in respect of an examination of individual or group accounts by the independent examiner or examiner who has carried out the examination;

(d) conferring on an auditor or on an independent examiner or examiner a right of access with respect to books, documents and other records (however kept) which relate to—

(i) the charity (if the audit or examination is of individual accounts), or

(ii) any member of the group (if the audit or examination is of group accounts);

(e) entitling an auditor or an independent examiner or examiner to require information and explanations from—

(i) past or present charity trustees or trustees for, or past or present officers or employees of, the charity (if the audit or examination is of individual accounts), or

(ii) past or present charity trustees or trustees for, or past or present officers or employees of, any member of the group (if the audit or examination is of group accounts);

(f) enabling the Commission, in circumstances specified in the regulations, to dispense with the requirements of section 144(2), 145(1), 151(4)(a) or 152(2)—

(i) in the case of a particular charity, or

(ii) in the case of any particular financial year of a charity.

(2) Regulations under subsection (1)(e) may in particular make, in relation to audits or examinations of group accounts, provision corresponding or similar to any provision made by section 499 or 500 of the Companies Act 2006 in connection with the rights exercisable by an auditor of a company in relation to a subsidiary undertaking of the company.

(3) In this section—

• “audit of individual or group accounts” means an audit under—

  (a)

  section 144, 145, 146, 149 or 150 (individual accounts), or

  (b)

  section 151, 152 or 153 (group accounts);

• “examination of individual or group accounts” means an examination under—

  (a)

  section 145, 149 or 150 (individual accounts), or

  (b)

  section 152 (group accounts);

and the references in this section and section 155 to an audit or examination of individual accounts and to an audit or examination of group accounts are to be read accordingly.

Textual Amendments

F153 Words in s. 154(1) substituted (9.11.2016) by The Transfer of Functions (Elections, Referendums, Third Sector and Information) Order 2016 (S.I. 2016/997), art. 1(2), Sch. 2 para. 25(2)(x) (with art. 12)

F154 S. 154(1)(aa) inserted (1.4.2017) by Local Audit and Accountability Act 2014 (c. 2), s. 49(1), Sch. 12 para. 122; S.I. 2015/841, art. 4

155 Power of Commission to direct compliance with certain regulations E+W

If any person fails to afford an auditor or an independent examiner or examiner any facility to which the auditor, independent examiner or examiner is entitled by virtue of section 154(1)(d) or (e), the Commission, for securing that the default is made good, may by order give such directions as it thinks appropriate—

(a) to that person,

(b) if the audit or examination is of individual accounts, to the charity trustees for the time being of the charity concerned, or

(c) if the audit or examination is of group accounts, to the charity trustees for the time being of such member of the group as the Commission thinks appropriate.

Duty of auditors etc. to report matters to Commission E+W

156 Duty of auditors etc. to report matters to Commission E+W

(1) This section applies to a person (“P”) who—

(a) is acting as an auditor or independent examiner appointed by or in relation to a charity under sections 144 to 146 (audit or examination of individual accounts),

(b) is acting as an auditor or examiner appointed under section 149(2) or (3) (audit or examination of English NHS charity accounts), or

(c) is the Auditor General for Wales acting under section 150(2) or (3) (audit or examination of Welsh NHS charity accounts).

(2) If, in the course of acting in the capacity mentioned in subsection (1), P becomes aware of a matter—

(a) which relates to the activities or affairs of the charity or of any connected institution or body, and

(b) which P has reasonable cause to believe is likely to be of material significance for the purposes of the exercise by the Commission of its functions under the provisions mentioned in subsection (3),

P must immediately make a written report on the matter to the Commission.

(3) The provisions are—

(a) sections 46, 47 and 50 (inquiries by Commission);

(b) sections 76 and 79 to 82 (Commission's powers to act for protection of charities).

(4) If, in the course of acting in the capacity mentioned in subsection (1), P becomes aware of any matter—

(a) which does not appear to P to be one that P is required to report under subsection (2), but

(b) which P has reasonable cause to believe is likely to be relevant for the purposes of the exercise by the Commission of any of its functions,

P may make a report on the matter to the Commission.

(5) Where the duty or power under subsection (2) or (4) has arisen in relation to P when acting in the capacity mentioned in subsection (1), the duty or power is not affected by P's subsequently ceasing to act in that capacity.

(6) Where P makes a report as required or authorised by subsection (2) or (4), no duty to which P is subject is to be regarded as contravened merely because of any information or opinion contained in the report.

157 Meaning of “connected institution or body” in s.156(2) E+W

(1) In section 156(2) “connected institution or body”, in relation to a charity, means—

(a) an institution which is controlled by, or

(b) a body corporate in which a substantial interest is held by,

the charity or any one or more of the charity trustees acting as such.

(2) Sections 351 and 352 (meaning of controlled institution and substantial interest) apply for the purposes of subsection (1).

158 Application of duty in relation to auditors etc. of group accounts E+W

(1) Subsections (2) to (6) of section 156 (duty of auditors etc. of individual accounts to report matters to Commission) apply in relation to a person appointed to audit, or report on, any group accounts under sections 151 to 153 as they apply in relation to the person referred to in section 156 as “P”.

(2) In section 156(2)(a), as it applies in accordance with subsection (1), the reference to the charity or any connected institution or body is to be read as a reference to the parent charity or any of its subsidiary undertakings.

159 Application of duty in relation to Companies Act auditors E+W

(1) Sections 156(2) to (6) and 157 (duty of auditors etc. of individual accounts to report matters to Commission) apply in relation to a person acting as a Companies Act auditor of a charitable company as they apply in relation to the person referred to in section 156 as “P”, but reading any reference to P's acting in the capacity mentioned in section 156(1) as a reference to the person acting as a Companies Act auditor.

(2) In subsection (1), “Companies Act auditor” means an auditor appointed under Chapter 2 of Part 16 of the Companies Act 2006 (appointment of auditors).

Exempt and excepted charities E+W

160 Exempt charities E+W

(1) Nothing in sections 144 to 155 (audit or examination of accounts) applies to an exempt charity.

(2) Sections 156(2) to (6) and 157 (duty of auditors etc. of individual accounts to report matters to Commission) apply in relation to a person appointed to audit, or report on, the accounts of an exempt charity which is not a company as they apply in relation to the person referred to in section 156 as “P”, but reading—

(a) any reference to P's acting in the capacity mentioned in section 156(1) as a reference to the person acting as a person so appointed, and

(b) any reference to the Commission or to any of its functions as a reference to the charity's principal regulator or to any of the latter's functions as principal regulator in relation to the charity.

(3) Nothing in section 158 (duty of auditors etc. in relation to group accounts) applies to an exempt charity.

161 Excepted charities E+W

(1) Nothing in sections 144 to 146 (audit or examination of individual accounts) applies to any charity which—

(a) falls within section 30(2)(d) (whether or not it also falls within section 30(2)(b) or (c)), and

(b) is not registered.

(2) Except in accordance with subsections (3) and (4), nothing in—

(a) section 154 or 155 (regulations relating to audits and examinations), or

(b) section 156 or 157 (duty of auditors etc. to report matters to Commission),

applies to a charity mentioned in subsection (1).

(3) Sections 154 to 157 apply to a charity mentioned in subsection (1) which is also—

(a) an English NHS charity (as defined in section 149), or

(b) a Welsh NHS charity (as defined in section 150).

(4) Sections 156 and 157 apply in accordance with section 160(2) to a charity mentioned in subsection (1) which is also an exempt charity.

CHAPTER 4 E+W Annual reports and returns and public access to accounts etc.

Annual reports etc. E+W

162 Charity trustees to prepare annual reports E+W

(1) The charity trustees of a charity must prepare in respect of each financial year of the charity an annual report containing—

(a) such a report by the trustees on the activities of the charity during that year, and

(b) such other information relating to the charity or to its trustees or officers,

as may be prescribed by regulations made by the [F155 Secretary of State].

(2) Regulations under subsection (1) may in particular make provision—

(a) for any such report as is mentioned in subsection (1)(a) to be prepared in accordance with such principles as are specified or referred to in the regulations;

(b) enabling the Commission to dispense with any requirement prescribed by virtue of subsection (1)(b)—

(i) in the case of a particular charity or a particular class of charities, or

(ii) in the case of a particular financial year of a charity or of any class of charities.

Textual Amendments

F155 Words in s. 162(1) substituted (9.11.2016) by The Transfer of Functions (Elections, Referendums, Third Sector and Information) Order 2016 (S.I. 2016/997), art. 1(2), Sch. 2 para. 25(2)(y) (with art. 12)

Modifications etc. (not altering text)

C33 S. 162(1) applied (1.1.2018) by The Charitable Incorporated Organisations (Conversion) Regulations 2017 (S.I. 2017/1232), regs. 1(1), 14

[F156 162A Annual reports: fund-raising standards information E+W

(1) If section 144(2) applies to a financial year of a charity, the annual report in respect of that year must include a statement of each of the following for that year—

(a) the approach taken by the charity to activities by the charity or by any person on behalf of the charity for the purpose of fund-raising, and in particular whether a professional fund-raiser or commercial participator carried on any of those activities;

(b) whether the charity or any person acting on behalf of the charity was subject to an undertaking to be bound by any voluntary scheme for regulating fund-raising, or any voluntary standard of fund-raising, in respect of activities on behalf of the charity, and, if so, what scheme or standard;

(c) any failure to comply with a scheme or standard mentioned under paragraph (b);

(d) whether the charity monitored activities carried on by any person on behalf of the charity for the purpose of fund-raising, and, if so, how it did so;

(e) the number of complaints received by the charity or a person acting on its behalf about activities by the charity or by a person on behalf of the charity for the purpose of fund-raising;

(f) what the charity has done to protect vulnerable people and other members of the public from behaviour within subsection (2) in the course of, or in connection with, such activities.

(2) The behaviour within this subsection is—

(a) unreasonable intrusion on a person's privacy;

(b) unreasonably persistent approaches for the purpose of soliciting or otherwise procuring money or other property on behalf of the charity;

(c) placing undue pressure on a person to give money or other property.

(3) In this section—

(a) “commercial participator” and “professional fund-raiser” have the meaning given by section 58 of the Charities Act 1992 (control of fund-raising: interpretation));

(b) “fund-raising” means soliciting or otherwise procuring money or other property for charitable purposes.

(4) Section 58(6) and (7) of the Charities Act 1992 (references to soliciting money etc) apply for the purposes of this section as they apply for the purposes of Part 2 of that Act.]

Textual Amendments

F156 S. 162A inserted (1.11.2016) by Charities (Protection and Social Investment) Act 2016 (c. 4), ss. 13(4), 17(4); S.I. 2016/815, reg. 4(c) (with reg. 5)

163 Transmission of annual reports to Commission in certain cases E+W

(1) Where a charity's gross income in any financial year exceeds £25,000, a copy of the annual report required to be prepared under section 162 in respect of that year must be transmitted to the Commission by the charity trustees within—

(a) 10 months from the end of that year, or

(b) such longer period as the Commission may for any special reason allow in the case of that report.

(2) Where a charity's gross income in any financial year does not exceed £25,000, a copy of the annual report required to be prepared under section 162 in respect of that year must, if the Commission so requests, be transmitted to it by the charity trustees—

(a) in the case of a request made before the end of 7 months from the end of the financial year to which the report relates, within 10 months from the end of that year, and

(b) in the case of a request not so made, within 3 months from the date of the request,

or, in either case, within such longer period as the Commission may for any special reason allow in the case of that report.

(3) In the case of a charity which is constituted as a CIO—

(a) the requirement imposed by subsection (1) applies whatever the charity's gross income is, and

(b) subsection (2) does not apply.

164 Documents to be transmitted with annual report E+W

(1) Subject to subsection (3), any copy of an annual report transmitted to the Commission under section 163 must have attached to it—

(a) a copy of the statement of accounts prepared for the financial year in question under section 132(1), or

(b) (as the case may be) a copy of the account and statement so prepared under section 133,

and a copy of the relevant auditor's or examiner's report.

(2) In subsection (1), “the relevant auditor's or examiner's report” means—

(a) if the accounts of the charity for that year have been audited under section 144, 145, 146, 149 or 150, the report made by the auditor on that statement of accounts or (as the case may be) on that account and statement;

(b) if the accounts of the charity for that year have been examined under section 145, 149 or 150, the report made by the person carrying out the examination.

(3) Subsections (1) and (2) do not apply to a charitable company, and any copy of an annual report transmitted by the charity trustees of a charitable company under section 163 must have attached to it—

(a) a copy of the company's annual accounts prepared for the financial year in question under Part 15 of the Companies Act 2006, and

(b) a copy of the relevant auditor's or examiner's report.

(4) In subsection (3), “the relevant auditor's or examiner's report” means—

(a) if the accounts of the company for that year have been audited under Part 16 of the Companies Act 2006, the report made by the auditor on those accounts;

(b) if the accounts of the company for that year have been audited under section 144, 145 or 146, the report made by the auditor on those accounts;

(c) if the accounts of the company for that year have been examined under section 145, the report made by the person carrying out the examination.

165 Preservation of annual reports etc. E+W

(1) Any copy of an annual report transmitted to the Commission under section 163, together with the documents attached to it, is to be kept by the Commission for such period as it thinks fit.

(2) The charity trustees of a charity must preserve for at least 6 years from the end of the financial year to which it relates an annual report prepared by them under section 162(1) if they have not been required to transmit a copy of it to the Commission.

(3) Subsection (4) applies if a charity ceases to exist within the period of 6 years mentioned in subsection (2) as it applies to any annual report.

(4) The obligation to preserve the annual report in accordance with subsection (2) must continue to be discharged by the last charity trustees of the charity, unless the Commission consents in writing to the annual report being destroyed or otherwise disposed of.

166 Annual reports and group accounts E+W

(1) This section applies where group accounts are prepared for a financial year of a parent charity under section 138(2).

(2) The annual report prepared by the charity trustees of the parent charity in respect of that year under section 162 must include—

(a) such a report by the trustees on the activities of the charity's subsidiary undertakings during that year, and

(b) such other information relating to any of those undertakings,

as may be prescribed by regulations made by the [F157 Secretary of State].

(3) Regulations under subsection (2) may in particular make provision—

(a) for any such report as is mentioned in subsection (2)(a) to be prepared in accordance with such principles as are specified or referred to in the regulations;

(b) enabling the Commission to dispense with any requirement prescribed by virtue of subsection (2)(b) in the case of—

(i) a particular subsidiary undertaking, or

(ii) a particular class of subsidiary undertakings.

(4) Section 163 (transmission of annual report to Commission in certain cases) applies in relation to the annual report referred to in subsection (2) as if any reference to the charity's gross income in the financial year in question were a reference to the aggregate gross income of the group in that year.

(5) When transmitted to the Commission in accordance with subsection (4), the copy of the annual report must have attached to it both a copy of the group accounts prepared for that year under section 138(2) and—

(a) a copy of the report made by the auditor on those accounts, or

(b) if those accounts have been examined under section 152, a copy of the report made by the person carrying out the examination.

(6) The requirements in this section are in addition to those in sections 162 to 165.

Textual Amendments

F157 Words in s. 166(2) substituted (9.11.2016) by The Transfer of Functions (Elections, Referendums, Third Sector and Information) Order 2016 (S.I. 2016/997), art. 1(2), Sch. 2 para. 25(2)(z) (with art. 12)

167 Exempt charities E+W

Nothing in sections 162 to 166 (annual reports etc.) applies to any exempt charity.

168 Excepted charities E+W

(1) Nothing in sections 162 to 165 (annual reports etc.) applies to any charity which—

(a) falls within section 30(2)(d) (whether or not it also falls within section 30(2)(b) or (c)), and

(b) is not registered.

(2) Except in accordance with subsection (5), nothing in sections 162 to 165 applies to any charity which—

(a) falls within section 30(2)(b) or (c) but does not fall within section 30(2)(d), and

(b) is not registered.

(3) If requested to do so by the Commission, the charity trustees of any such charity as is mentioned in subsection (2) must prepare an annual report in respect of such financial year of the charity as is specified in the Commission's request.

(4) Any report prepared under subsection (3) must contain—

(a) such a report by the charity trustees on the activities of the charity during the year in question, and

(b) such other information relating to the charity or to its trustees or officers,

as may be prescribed by regulations made under section 162(1) in relation to annual reports prepared under section 162(1).

(5) The following provisions apply in relation to any report required to be prepared under subsection (3) as if it were an annual report required to be prepared under section 162(1)—

(a) section 163(1) (transmission of annual report in certain cases), with the omission of the words preceding “a copy of the annual report”, and

(b) sections 164 (documents to be transmitted with annual report) and 165(1) (preservation of annual reports etc.).

(6) Subsections (7) and (8) apply where—

(a) a charity is required to prepare an annual report in respect of a financial year by virtue of subsection (3),

(b) the charity is a parent charity at the end of the year, and

(c) group accounts are prepared for that year under section 138(2) by the charity trustees of the charity.

(7) When transmitted to the Commission in accordance with subsection (5), the copy of the annual report must have attached to it both a copy of the group accounts and—

(a) a copy of the report made by the auditor on those accounts, or

(b) if those accounts have been examined under section 152, a copy of the report made by the person carrying out the examination.

(8) The requirement in subsection (7) is in addition to that in subsection (4).

Annual returns E+W

169 Annual returns by registered charities E+W

(1) Subject to subsection (2), every registered charity must prepare in respect of each of its financial years an annual return in such form, and containing such information, as may be prescribed by regulations made by the Commission.

(2) Subsection (1) does not apply in relation to any financial year of a charity in which the charity's gross income does not exceed £10,000 (but this subsection does not apply if the charity is constituted as a CIO).

(3) Any such return must be transmitted to the Commission by the date by which the charity trustees are, by virtue of section 163(1), required to transmit to the Commission the annual report required to be prepared in respect of the financial year in question.

(4) The Commission may dispense with the requirements of subsection (1)—

(a) in the case of a particular charity or a particular class of charities, or

(b) in the case of a particular financial year of a charity or of any class of charities.

Modifications etc. (not altering text)

C34 S. 169 applied (1.1.2018) by The Charitable Incorporated Organisations (Conversion) Regulations 2017 (S.I. 2017/1232), regs. 1(1), 14

Availability of documents to public E+W

170 Public inspection of annual reports etc. kept by Commission E+W

Any document kept by the Commission in pursuance of section 165(1) (preservation of annual reports etc.) must be open to public inspection at all reasonable times—

(a) during the period for which it is so kept, or

(b) if the Commission so determines, during such lesser period as it may specify.

171 Supply by charity trustees of copy of most recent annual report E+W

(1) This section applies if an annual report has been prepared in respect of any financial year of a charity in pursuance of section 162(1) or 168(3).

(2) If the charity trustees of a charity—

(a) are requested in writing by any person to provide that person with a copy of its most recent annual report, and

(b) are paid by that person such reasonable fee (if any) as they may require in respect of the costs of complying with the request,

they must comply with the request within the period of 2 months beginning with the date on which it is made.

(3) The reference in subsection (2) to a charity's most recent annual report is a reference to the annual report prepared in pursuance of section 162(1) or 168(3) in respect of the last financial year of the charity in respect of which an annual report has been so prepared.

172 Supply by charity trustees of copy of most recent accounts E+W

(1) If the charity trustees of a charity—

(a) are requested in writing by any person to provide that person with a copy of the charity's most recent accounts, and

(b) are paid by that person such reasonable fee (if any) as they may require in respect of the costs of complying with the request,

they must comply with the request within the period of 2 months beginning with the date on which it is made.

(2) The reference in subsection (1) to a charity's most recent accounts is—

(a) in the case of a charity other than one falling within paragraph (b) or (c), a reference to—

(i) the statement of accounts prepared in pursuance of section 132(1), or

(ii) the account and statement prepared in pursuance of section 133,

in respect of the last financial year of the charity in respect of which a statement of accounts or account and statement has or have been so prepared;

(b) in the case of a charitable company, a reference to the most recent annual accounts of the company prepared under Part 16 of the Companies Act 2006 in relation to which any of the following conditions is satisfied—

(i) they have been audited,

(ii) they have been examined by an independent examiner under section 145(1)(a), or

(iii) they relate to a year in respect of which the company is exempt from audit under Part 16 of the Companies Act 2006 and neither section 144(2) nor section 145(1) applied to them, and

(c) in the case of an exempt charity, a reference to the accounts of the charity most recently audited in pursuance of any statutory or other requirement or, if its accounts are not required to be audited, the accounts most recently prepared in respect of the charity.

(3) In subsection (1), the reference to a charity's most recent accounts includes, in relation to a charity whose charity trustees have prepared any group accounts under section 138(2), the group accounts most recently prepared by them.

Offences E+W

173 Offences of failing to supply certain documents E+W

(1) If any requirement within subsection (2) is not complied with, each person who immediately before the specified date for compliance was a charity trustee of the charity is guilty of an offence.

(2) A requirement is within this subsection if it is imposed—

(a) by section 163 or by virtue of section 166(4) (requirements to transmit annual report to Commission), taken with sections 164, 166(5) and 168(7) (documents to be supplied with annual report), as applicable,

(b) by section 169(3) (requirement to transmit annual return to Commission),

(c) by section 171(2) (supply by charity trustees of copy of most recent annual report), or

(d) by section 172(1) or by virtue of section 172(3) (supply by charity trustees of copy of most recent accounts);

and in subsection (1) “the specified date for compliance” means the date for compliance specified in the section in question.

(3) It is a defence, where a person is charged with an offence under subsection (1), to prove that the person took all reasonable steps for securing that the requirement in question would be complied with in time.

(4) A person guilty of an offence under subsection (1) is liable on summary conviction to—

(a) a fine not exceeding level 4 on the standard scale, and

(b) for continued contravention, a daily default fine not exceeding 10% of level 4 on the standard scale for so long as the person in question remains a charity trustee of the charity.

CHAPTER 5 E+W Powers to set financial thresholds

174 Powers to alter certain sums specified in this Part E+W

(1) The [F158 Secretary of State] may by order amend any provision listed in subsection (2)—

(a) by substituting a different sum for the sum for the time being specified in that provision, or

(b) if the provision specifies more than one sum, by substituting a different sum for any sum specified in that provision.

(2) The provisions are—

• section 133 (gross income in connection with option to prepare account and statement instead of statement of accounts);

• section 144(1)(a) or (b) (gross income and value of assets in connection with requirements as to audit of larger charities);

• section 145(1) (gross income in connection with option to have accounts examined instead of audited);

• section 145(3) (gross income in connection with requirements as to qualifications of independent examiner);

• section 163(1) or (2) (gross income in connection with requirements to transmit annual report to Commission);

• section 169(2) (gross income in connection with requirement to prepare annual return).

Textual Amendments

F158 Words in s. 174(1) substituted (9.11.2016) by The Transfer of Functions (Elections, Referendums, Third Sector and Information) Order 2016 (S.I. 2016/997), art. 1(2), Sch. 2 para. 25(2)(aa) (with art. 12)

175 Aggregate gross income of group E+W

The [F159 Secretary of State] may by regulations make provision for determining for the purposes of this Part the amount of the aggregate gross income for a financial year of a group consisting of a parent charity and its subsidiary undertaking or undertakings.

Textual Amendments

F159 Words in s. 175 substituted (9.11.2016) by The Transfer of Functions (Elections, Referendums, Third Sector and Information) Order 2016 (S.I. 2016/997), art. 1(2), Sch. 2 para. 25(2)(bb) (with art. 12)

176 Larger groups: “relevant income threshold” and “relevant assets threshold” E+W

(1) The reference to the relevant income threshold in paragraph (a) or (b) of section 151(1) is a reference to the sum prescribed as the relevant income threshold for the purposes of that paragraph.

(2) The reference to the relevant assets threshold in paragraph (b) of section 151(1) is a reference to the sum prescribed as the relevant assets threshold for the purposes of that paragraph.

(3) “Prescribed” means prescribed by regulations made by the [F160 Secretary of State].

Textual Amendments

F160 Words in s. 176(3) substituted (9.11.2016) by The Transfer of Functions (Elections, Referendums, Third Sector and Information) Order 2016 (S.I. 2016/997), art. 1(2), Sch. 2 para. 25(2)(cc) (with art. 12)

Part 9 E+W Charity trustees, trustees and auditors etc.

Meaning of “charity trustees” E+W

177 Meaning of “charity trustees” E+W

In this Act, except in so far as the context otherwise requires, “charity trustees” means the persons having the general control and management of the administration of a charity.

Disqualification of charity trustees and trustees E+W

178 Persons disqualified from being charity trustees or trustees of a charity E+W

(1) A person (“P”) is disqualified from being a charity trustee or trustee for a charity in the following cases—

• Case A

  P has been convicted [F161 of—

  (a)

  an offence specified in section 178A;

  (b)

  an offence, not specified in section 178A, that involves dishonesty or deception.]

• Case B

  P has been [F162 made] bankrupt or sequestration of P's estate has been awarded and (in either case)—

  (a)

  P has not been discharged, or

  (b)

  P is the subject of a bankruptcy restrictions order or an interim order.

• Case C

  P has made a composition or arrangement with, or granted a trust deed for, creditors and has not been discharged in respect of it.

• Case D

  P has been removed [F163 as a trustee, charity trustee, officer, agent or employee of a charity ] by an order made—

  (a)

  by the Commission under section [F164 79(4)] or by the Commission or the Commissioners under a relevant earlier enactment (as defined by section 179(5)), or

  (b)

  by the High Court,

  on the ground of any misconduct or mismanagement in the administration of the charity for which P was responsible or [F165 which P knew of and failed to take any reasonable step to oppose,] or which P's conduct contributed to or facilitated.

• Case E

  P has been removed, under section 34(5)(e) of the Charities and Trustee Investment (Scotland) Act 2005 (asp 10) (powers of the Court of Session) or the relevant earlier legislation (as defined by section 179(6)), from being concerned in the management or control of any body.

• Case F

  P is subject to—

  (a)

  a disqualification order or disqualification undertaking under the Company Directors Disqualification Act 1986 or the Company Directors Disqualification (Northern Ireland) Order 2002 (S.I. 2002/3150 (N.I.4)), or

  (b)

  an order made under section 429(2) of the Insolvency Act 1986 (disabilities on revocation of county court administration order).

• [F166 Case G

  P is subject to—

  (a)

  a moratorium period under a debt relief order under Part 7A of the Insolvency Act 1986; or

  (b)

  a debt relief restrictions order or interim order under Schedule 4ZB to that Act]

• [F167 Case H

  P has been found to be in contempt of court under Civil Procedure Rules for—

  (a)

  making a false disclosure statement, or causing one to be made, or

  (b)

  making a false statement in a document verified by a statement of truth, or causing one to be made.

• Case I

  P has been found guilty of disobedience to an order or direction of the Commission on an application to the High Court under section 336(1).

• Case J

  P is a designated person for the purposes of—

  (a)

  F168 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

  (aa)

  [F169 regulations 8 to 12 of the ISIL (Da'esh) and Al-Qaida (United Nations Sanctions) (EU Exit) Regulations 2019 (S.I. 2019/466), ]

  (c)

  [F170 regulations 11 to 15 of the Counter-Terrorism (International Sanctions) (EU Exit) Regulations 2019 (S.I. 2019/573), or]

  (d)

  [F171 regulations 11 to 15 of the Counter-Terrorism (Sanctions) (EU Exit) Regulations 2019 (S.I. 2019/577).]

• Case K

  P is subject to the notification requirements of Part 2 of the Sexual Offences Act 2003.]

(2) Subsection (1) is subject to sections 179 to 181.

[F172 (3) While a person is disqualified under this section in relation to a charity, the person is also disqualified from holding an office or employment in the charity with senior management functions.

(4) A function of an office or employment held by a person “(A)” is a senior management function if—

(a) it relates to the management of the charity, and A is not responsible for it to another officer or employee (other than a charity trustee or trustee for the charity), or

(b) it involves control over money and the only officer or employee (other than a charity trustee or trustee for the charity) to whom A is responsible for it is a person with senior management functions other than ones involving control over money.]

Textual Amendments

F161 Words in s. 178(1) substituted (1.2.2018 for specified purposes, 1.8.2018 in so far as not already in force) by Charities (Protection and Social Investment) Act 2016 (c. 4), ss. 9(3), 17(4); S.I. 2018/47, regs. 2, 3(a) (with reg. 4)

F162 Word in s. 178(1) substituted (6.4.2016) by The Enterprise and Regulatory Reform Act 2013 (Consequential Amendments) (Bankruptcy) and the Small Business, Enterprise and Employment Act 2015 (Consequential Amendments) Regulations 2016 (S.I. 2016/481), reg. 1, Sch. 1 para. 17(3)

F163 Words in s. 178(1) substituted (1.2.2018 for specified purposes, 1.8.2018 in so far as not already in force) by Charities (Protection and Social Investment) Act 2016 (c. 4), ss. 9(4)(a), 17(4); S.I. 2018/47, regs. 2, 3(a) (with reg. 4)

F164 Word in s. 178(1) substituted (31.7.2016) by Charities (Protection and Social Investment) Act 2016 (c. 4), ss. 4(5), 17(4); S.I. 2016/815, reg. 2(c)

F165 Words in s. 178(1) substituted (31.7.2016) by Charities (Protection and Social Investment) Act 2016 (c. 4), ss. 9(4)(b), 17(4); S.I. 2016/815, reg. 2(h)

F166 Words in s. 178(1) inserted (1.10.2012) by The Tribunals, Courts and Enforcement Act 2007 (Consequential Amendments) Order 2012 (S.I. 2012/2404), art. 1, Sch. 2 para. 62(3) (with art. 6)

F167 Words in s. 178(1) inserted (1.2.2018 for specified purposes, 1.8.2018 in so far as not already in force) by Charities (Protection and Social Investment) Act 2016 (c. 4), ss. 9(5), 17(4); S.I. 2018/47, regs. 2, 3(a) (with reg. 4)

F168 Words in s. 178(1) repealed (31.12.2020) by Sanctions and Anti-Money Laundering Act 2018 (c. 13), s. 64(2), Sch. 3 para. 9 (with ss. 52(3), 53, 58); S.I. 2020/1535, reg. 3(e)

F169 Words in s. 178(1) inserted (31.12.2020) by S.I. 2019/466, reg. 58A(2) (as inserted by The Sanctions (EU Exit) (Consequential Provisions) (Amendment) Regulations 2020 (S.I. 2020/1289), regs. 1(2), 2(2); S.I. 2020/1514, reg. 21)

F170 Words in s. 178(1) substituted (31.12.2020) by S.I. 2019/573, reg. 60A(2) (as inserted by The Sanctions (EU Exit) (Consequential Provisions) (Amendment) Regulations 2020 (S.I. 2020/1289), regs. 1(2), 3(2); S.I. 2020/1514, reg. 21)

F171 Words in s. 178(1) inserted (31.12.2020) by S.I. 2019/577, reg. 34A(2) (as inserted by The Sanctions (EU Exit) (Consequential Provisions) (Amendment) Regulations 2020 (S.I. 2020/1289), regs. 1(2), 4(2); S.I. 2020/1514, reg. 21)

F172 S. 178(3)(4) inserted (1.2.2018 for specified purposes, 1.8.2018 in so far as not already in force) by Charities (Protection and Social Investment) Act 2016 (c. 4), ss. 9(6), 17(4); S.I. 2018/47, regs. 2, 3(a) (with reg. 4)

[F173 178A Case A: specified offences E+W

(1) The following offences are specified for the purposes of Case A—

1	An offence to which Part 4 of the Counter-Terrorism Act 2008 applies (see sections 41 to 43 of that Act).
2	An offence under section 13 or 19 of the Terrorism Act 2000 (wearing of uniform etc, and failure to disclose information).
3	A money laundering offence within the meaning of section 415 of the Proceeds of Crime Act 2002.
4	An offence under any of the following provisions of the Bribery Act 2010— (a) section 1 (bribing another person), (b) section 2 (offences relating to being bribed), (c) section 6 (bribery of foreign public officials), (d) section 7 (failure of commercial organisations to prevent bribery).
5	An offence under section 77 of this Act.
6	An offence of— (a) misconduct in public office, (b) perjury, (c) perverting the course of justice.

(2) An offence which has been superseded (directly or indirectly) by an offence specified in subsection (1) is also specified for the purposes of Case A.

(3) In relation to an offence specified in subsection (1) or (2), the following offences are also specified for the purposes of Case A—

(a) an offence of attempt, conspiracy or incitement to commit the offence;

(b) an offence of aiding, abetting, counselling or procuring the commission of the offence;

(c) an offence under Part 2 of the Serious Crime Act 2007 (encouraging or assisting) in relation to the offence.

(4) The Secretary of State may amend this section by regulations to add or remove an offence.]

Textual Amendments

F173 S. 178A inserted (1.2.2018 for specified purposes, 1.8.2018 in so far as not already in force) by Charities (Protection and Social Investment) Act 2016 (c. 4), ss. 9(7), 17(4) (as amended (9.11.2016) by S.I. 2016/997, art. 1(2), Sch. 25(2)(dd) (with art. 12); S.I. 2018/47, regs. 2, 3(a) (with reg. 4)

179 Disqualification: pre-commencement events etc. E+W

(1) Case A—

(a) applies whether the conviction occurred before or after the commencement of section 178(1) [F174 or section 178A or any amendment of that section ] , but

(b) does not apply in relation to any conviction which is a spent conviction for the purposes of the Rehabilitation of Offenders Act 1974.

(2) Case B applies whether the [F175 making bankrupt] or the sequestration or the making of a bankruptcy restrictions order or an interim order occurred before or after the commencement of section 178(1).

(3) Case C applies whether the composition or arrangement was made, or the trust deed was granted, before or after the commencement of section 178(1).

(4) Cases D to F apply in relation to orders made and removals effected before or after the commencement of section 178(1).

(5) In Case D—

(a) “the Commissioners” means the Charity Commissioners for England and Wales, and

(b) “relevant earlier enactment” means—

(i) section 18(2)(i) of the Charities Act 1993 (power to act for protection of charities),

(ii) section 20(1A)(i) of the Charities Act 1960, or

(iii) section 20(1)(i) of the 1960 Act (as in force before the commencement of section 8 of the Charities Act 1992).

(6) In Case E, “the relevant earlier legislation” means section 7 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (powers of Court of Session to deal with management of charities).

[F176 (7) Case H does not apply in relation to a finding of contempt which, if it had been a conviction for which P was dealt with in the same way, would be a spent conviction for the purposes of the Rehabilitation of Offenders Act 1974.]

Textual Amendments

F174 Words in s. 179(1) inserted (1.2.2018 for specified purposes, 1.8.2018 in so far as not already in force) by Charities (Protection and Social Investment) Act 2016 (c. 4), ss. 9(9), 17(4); S.I. 2018/47, regs. 2, 3(a) (with reg. 4)

F175 Words in s. 179(2) substituted (6.4.2016) by The Enterprise and Regulatory Reform Act 2013 (Consequential Amendments) (Bankruptcy) and the Small Business, Enterprise and Employment Act 2015 (Consequential Amendments) Regulations 2016 (S.I. 2016/481), reg. 1, Sch. 1 para. 17(4)

F176 S. 179(7) added (1.2.2018 for specified purposes, 1.8.2018 in so far as not already in force) by Charities (Protection and Social Investment) Act 2016 (c. 4), ss. 9(10), 17(4); S.I. 2018/47, regs. 2, 3(a) (with reg. 4)

180 Disqualification: exceptions in relation to charitable companies E+W

(1) Where (apart from this subsection) a person (“P”) is disqualified under Case B [F177 or G] from being a charity trustee or trustee for a charitable company [F178 or a CIO], P is not so disqualified if leave has been granted under section 11 of the Company Directors Disqualification Act 1986 (undischarged bankrupts) for P to act as director of the company [F179 or charity trustee of the CIO (as the case may be)].

(2) Similarly, a person (“P”) is not disqualified under Case F from being a charity trustee or trustee for a charitable company [F180 or a CIO] if, in a case set out in the first column of the table, leave has been granted as mentioned in the second column for P to act as director of the company [F181 or charity trustee of the CIO (as the case may be)]—

P is subject to a disqualification order or disqualification undertaking under the Company Directors Disqualification Act 1986.	Leave has been granted for the purposes of section 1(1)(a) or 1A(1)(a) of the 1986 Act.
P is subject to a disqualification order or disqualification undertaking under the Company Directors Disqualification (Northern Ireland) Order 2002 (S.I. 2002/3150 (N.I.4)).	Leave has been granted by the High Court in Northern Ireland.
P is subject to an order under section 429(2) of the Insolvency Act 1986.	Leave has been granted by the court which made the order.

Textual Amendments

F177 Words in s. 180(1) inserted (1.10.2012) by The Tribunals, Courts and Enforcement Act 2007 (Consequential Amendments) Order 2012 (S.I. 2012/2404), art. 1, Sch. 2 para. 62(4) (with art. 5)

F178 Words in s. 180(1) inserted (2.1.2013) by The Charitable Incorporated Organisations (Consequential Amendments) Order 2012 (S.I. 2012/3014), arts. 1, 5(a)(i)

F179 Words in s. 180(1) inserted (2.1.2013) by The Charitable Incorporated Organisations (Consequential Amendments) Order 2012 (S.I. 2012/3014), arts. 1, 5(a)(ii)

F180 Words in s. 180(2) inserted (2.1.2013) by The Charitable Incorporated Organisations (Consequential Amendments) Order 2012 (S.I. 2012/3014), arts. 1, 5(b)(i)

F181 Words in s. 180(2) inserted (2.1.2013) by The Charitable Incorporated Organisations (Consequential Amendments) Order 2012 (S.I. 2012/3014), arts. 1, 5(b)(ii)

181 Power to waive disqualification E+W

(1) This section applies where a person (“P') is disqualified under section 178(1).

(2) The Commission may, if P makes an application under this subsection, waive P's disqualification—

(a) generally, or

(b) in relation to a particular charity or a particular class of charities.

[F182 (2A) A waiver under subsection (2)—

(a) may relate to the whole of P's disqualification o