Our weekly round up of news and updates from across the sector

Cost of living crisis

NCVO has launched an open letter calling on the chancellor to ensure public service contracts are uplifted in the Autumn Statement.

Charity Commission

My Charity Commission Account updates

The Commission has updated its My Charity Commission Account homepage and published some new guidance, aiming to simplify the resources for different types of user. The landing page previously housed all the guidance for different users of the portal, but now it just links to separate guidance pages for each individual type of user:

There is also a new Common issues page containing troubleshooting tips for the most frequently asked questions about using My Charity Commission Account.

Charity Commission Annual Public Meeting

The Charity Commission held its Annual Public Meeting on 15 November. Orlando Fraser gave a speech on his priorities as Chair of the Commission. He discussed issues including trusteeship, political activity and campaigning, the events in the Middle East and philanthropy. Orlando noted that the Commission is assessing "a significant number" of allegations of antisemitism linked to some charities.

Helen Stephenson also gave a speech reflecting on her seven years as Commission CEO as her tenure comes to an end. She mentioned issues faced by the Commission during her seven-year tenure including data & technology, the COVID-19 pandemic, the cost of living crisis and the recent problems with charity banking (see below).

The Commission's senior leadership team took questions during the final session of the meeting, and these included questions and comments on the difficulties of using the new portal, the Register of charities and guidance and communications issues.

Letters from UK charity regulators to Chief Executives of UK Banks

One of the themes of the Commission's Annual Public Meeting was charity banking services, and Helen Stephenson announced in her speech that the Chief Executives of the Charity Commission, the Scottish Regulator (OSCR) and the Charity Commission for Northern Ireland (CCNI) have written jointly to UK banks highlighting the difficulties charities experience in opening a bank account and maintaining a banking relationship. See the press releases here from OSCR and CCNI.

There were also a number of comments and questions from the floor at the end of the Commission's Annual Public Meeting reinforcing that banking services are problematic for charities at the moment.

Charity law cases

Zedra Fiduciary Services (UK) Ltd v Attorney General [2023] EWCA Civ 1332 (CA)

The Court of Appeal has upheld the High Court's judgment that The National Fund should be used towards paying off the national debt, rejecting the claim by the trustee that it should be distributed to charitable causes. In considering the appropriate application of funds under a cy-près scheme made by the court under section 67 Charities Act 2011, the court determined that the fund, which had been created by a trust deed in 1928 in order to discharge the national debt, and which was now valued at £600 million (whereas the national debt was around £2,600 billion at the end of September 2023), was to be applied to reduce the national debt rather than be applied to general charitable purposes. The judgment provides charity practitioners with some detailed judicial consideration of section 67 Charities Act 2011 including what it means to have charitable purposes which are "suitable" and "effective". Civil Society comments on it here.

Tax and VAT

Charity Tax Group's (CTG) latest newsletter flags that the Digital Markets, Competition and Consumers Bill may have unintended negative consequences for charity membership subscriptions and Gift Aid. CTG explains the Bill is intended to protect consumers from being trapped into unwanted subscriptions where there is an auto-renewing contract for the supply of goods, services or digital content. If goods, services or digital content are provided under an auto-renewing contract and in exchange for payment, then the Bill is likely to apply to the transaction. The protections introduced in the Bill may, in the case of charity membership subscriptions, result in Gift Aid being disallowed on the subscription. CTG is asking any charity that may be affected to contact CTG with details of the charity's membership scheme.

Sector General

Research conducted by the Personio Foundation and Impact46 shows that more than half of not-for-profits are struggling to attract and retain skilled staff. The research found that a lack of funding was a major contributor to this issue – of the 121 UK-based organisations surveyed, 90% said they could not offer a competitive salary compared with the private sector.

The National Lottery Community Fund has doubled the size of one of its flagship grant programmes, Awards for All, meaning a maximum of £20,000 will now be available to grassroots organisations.

Volunteering

The winners of the first King's Award for Voluntary Service were announced last week. It is the highest award given to local volunteer groups, equivalent to an MBE.

Climate change

A4ID is hosting an event during the gathering of global leaders at COP28 in Dubai next month. Entitled "How the Law can Unite and Act to Deliver the UN SDGs"will comprise two panels of experts who will discuss the critical role of the law and lawyers in energy transition and how they can ensure energy transition is a just transition for communities worldwide. They will dissect the complexities of energy transition and explore strategies to mitigate the impact of climate change from a legal perspective.

Equality, Diversity and inclusion

For Women Scotland Ltd v Scottish Ministers [2023] CSIH 37

The Scottish equivalent of the Court of Appeal, the Inner House of the Court of Session, has confirmed that the definition of "woman" in sections 11 and 212(1) of the Equality Act 2010 includes trans women. This decision is not binding in England, but English courts may regard it as persuasive.

The case is the latest in a long line of litigation relating to the Gender Representation on Public Boards (Scotland) Act 2018, an Act which aims to ensure gender balance on public boards in Scotland. Scottish Ministers had issued guidance which stated that, as a result of section 9(1) of the Gender Recognition Act 2004 (the GRA), the definition of "woman" in the Equality Act 2010 included trans women with a Gender Recognition Certificate (GRC). Therefore, trans women with a GRC could be counted as women for the purposes of gender representation on public boards. This interpretation was challenged by For Women Scotland, an organisation that campaigns for the strengthening of women's and children's rights in Scotland.

The Scottish appeal court held that the purpose of the GRA was far-reaching. Under section 9(1), once a GRC was issued, a person's gender became "for all purposes" their acquired gender. Parliament's decision to enact the GRA in such wide terms pointed away from a strict biological definition of terms such as "male", "female", "man" and "woman", and even "sex" and "gender", unless the context necessarily dictated otherwise. This interpretation is not inconsistent with previous case law and does not make the Equality Act unworkable. The only area where difficulties arise under the Equality Act 2010 and where a different interpretation might be necessary are pregnancy and maternity discrimination.

Bates Wells' Mindy Jhittay comments

"This case helpfully clarifies the way that the Gender Recognition Act 2004 and the Equality Act 2010 work together, which has been the subject of some debate. It confirms that a trans woman with a gender recognition certificate can bring a claim for sex discrimination as a woman (and vice versa). As the court itself observed: "The interpretation which we have identified will meet the objective of non- discrimination between the sexes and the intent behind the GRA that individuals with a GRC should be able to live as fully as they can within their acquired sex or gender." The only exception to this is for the provision of certain services, because the Equality Act expressly states that these can be restricted to one sex (male or female) if specific legal tests are met."

Advertising

The Advertising Standards Authority (ASA) has ruled that a tweet from Essex County Cricket Club which promoted non-fungible tokens for FanCraze technologies was not obviously identifiable as a marketing communication, as required by the CAP Code. The ruling also sets out in the background which ads are regulated by the Financial Conduct Authority (FCA) and which by the ASA. From 8 October 2023, the FCA took over regulation for ads for 'qualifying cryptoassets' – cryptoassets which are transferable and fungible. The ASA still regulates ads for crypto-assets which are non-fungible.

AI

The Competition and Markets Authority (CMA) has announced that it intends to publish an update on its initial review of artificial intelligence foundation models in March 2024. The CMA says it welcomes views from stakeholders on its report and proposed principles by 12 January 2024.

Data Protection

The Information Commissioner's Office (ICO) has published draft guidance on transparency in the health and social care sector. The consultation period runs until 7 January 2024. The draft guidance notes the importance of transparency in health and social care given new technologies that use large amounts of personal data to support direct and secondary care. It is aimed at anyone in health and social care who delivers transparency information to the public, such as:

  • Policy makers.
  • Information governance staff.
  • Data protection officers.
  • Service managers.
  • Communications and media teams.

The ICO is also seeking views on a draft summary economic impact assessment for the guidance.

Online safety

The government has opened a consultation on its 'super-complaints' system which will be introduced under the Online Safety Act. The government is seeking views from expert groups, including children's charities, to help define who can make super-complaints to Ofcom about online content. The consultation will be open until 11 January 2024.

Public procurement and subsidy control

The Cabinet Office has published new guidance Transforming Public Procurement: Our Innovation Ambition. The guidance sets out how the new public procurement regime under the Procurement Act 2023 will, in the government's view, enable contracting authorities to "embrace innovation more, and procure in more flexible and innovative ways".

Scotland

The Scottish Charity Regulator, OSCR has removed 30 more charities from the register as they no longer meet the 'charity test' – OSCR cannot find any evidence suggesting that the charity is still operating, and the charity has failed to engage with OSCR communications.

Also see Charity Commission – letters from UK charity regulators to Chief Executives of UK Banks – above.

Northern Ireland

The Charity Commission for Northern Ireland has published guidance helping charities to submit annual returns, accounts and reports.

They have also published a list of registration applications which are currently in progress, and a list of organisations governed by the law of another jurisdiction but operating in Northern Ireland.

Also see Charity Commission – letters from UK charity regulators to Chief Executives of UK Banks – above.

Health and social care

The National Audit Office has published a new report Reforming adult social care in England. The report examines the government's responses to the challenges facing adult social care in England, and its progress in delivering the reforms, including proposals to introduce a cap on care costs.

Social Housing

The Regulator of Social Housing has published its Sector Risk Profile, detailing its view of the key risks facing the social housing sector. The government announcement highlights the difficult economic environment including high inflation, high borrowing costs and a declining housing market, combined with increased consumer regulation under the Social Housing Regulation Act as significant challenges to navigate.

Education

Further Education

Robert Halfon, the Minister for Skills, Apprenticeships and Higher Education, spoke at the Association of Colleges' Annual Conference 2023 about the importance he places on further education, the challenges it will face over the next few years and upcoming projects such as the Advanced British Standard and T-Levels.

Amanda Spielman, Chief Inspector of Ofsted, also spoke at this conference, reflecting on her tenure, Ofsted's accomplishments in improving colleges ratings and issues going forward, such as T-Levels.

Higher Education

Robert Halfon also spoke at the Committee of University Chairs about the Lifelong Learning Entitlement and his belief that it will be "transformative for both further and higher education".

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.