It is possible to be disqualified from serving as a trustee. When someone has been automatically disqualified it means they can no longer continue (or commence) their trusteeship and would have to apply to the Charity Commission for a waiver. Without obtaining a waiver, were the person to continue acting, they could be committing a criminal offence punishable with a fine, imprisonment or both. It is important that anyone who thinks they may be captured under automatic trusteeship disqualification seek guidance as to their position as well as to stop acting immediately until their position can be clarified. The Charity Commission has powers to investigate, and order repayment of any monies paid to someone whilst they were automatically disqualified and can refer a breach to the police.
Everything mentioned in this note is applicable to the situation in England and Wales. Different rules can apply in Scotland, Northern Ireland, and other jurisdictions in the UK. The rules also apply to disqualify a person from acting as chief executive officer and chief finance officer in senior management of a charity, without technically being a trustee or an officer of the organisation.
There are various circumstances under which a person will be automatically disqualified. These include certain unspent criminal convictions particularly those involving terrorism, dishonesty, money laundering, bribery, breaching a Charity Commission Order, public misconduct, being a registered sex offender, and being in contempt of Court.
Also, where someone has been removed and disqualified as a director usually this means automatic disqualification from being a trustee although not always. There can additionally be circumstances that prevent someone from serving as a trustee because they already are rendered ineligible to work and volunteer with children and other vulnerable groups. People can also be specifically subject to an Order of the Charity Commission preventing them from being a trustee.
Whilst a person awaits a decision from the Charity Commission as to waiver of their trustee disqualification, or whilst awaiting a decision from any appeals process through the Charity Tribunal, a person could continue his or her involvement in the charity through employment or volunteering. This, however, gets complicated especially regarding senior management roles and as with everything it is best to seek detailed guidance on your position before resuming or commencing anything until it can be clarified.
If someone’s waiver has been accepted, it can be on the basis of waiving their disqualification for one particular charity or more than one particular charity; a class of charities e.g., any charities which have as their charitable purpose the relief of poverty; or it can be waived across all charities. An applicant requesting waiver from automatic disqualification can specify to the Charity Commission which of these they want. The Charity Commission will base their decision not on the interests of the individual applicant but on the interests of the charity or charities concerned as well as the public’s confidence in that sector.
Some waiver applications will be rejected on a mandatory basis. Other waiver applications will by default be granted in the absence of special reasons. All of the different outcomes depending on the precise set of circumstances for which we will need more information from you when we are having our consultation.
It is possible for the constitution of a charity itself to disqualify someone from acting as a trustee in which case the waiver application cannot work. Other reasons preventing you from being able to get disqualification waived can include where you are already disqualified as a company director or are undischarged bankrupt, the charity itself is incorporated, and you have not been granted permission to work as director or trustee by the Court.
As mentioned, there are circumstances under which the Charity Commission must grant the waiver e.g., where five years have elapsed since the last time the Charity Commission removed your trusteeship. There can still be numerous exceptions to this general situation however and these will be discussed with you at our consultation.
At Third Sector Experts we can help trustees and senior managerial officers of charities when they are being disqualified or when they think they might be automatically disqualified. Our initial guidance is always to stop acting or do not commence acting until your position is clear. We can then work towards formulating a plan to either have robust policies and procedures in place to avoid the risk getting disqualified, or to apply for a waiver on disqualification and where necessary go through the appeals process to the Charity Tribunal.
Please contact us today. You can reach us by email at info@thirdsectorexperts.co.uk, at our Birmingham office by phone on 0044 (0) 121 368 0056, at our Leeds office by phone on 0044 (0) 113 868 0240, or through our website contact form accessible here: CONTACT | Third Sector Experts | Charity Experts
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