OG42 B2 - DECISIONS ON APPLICATIONS

In this section...

OPERATIONAL GUIDANCE

WAIVER OF DISQUALIFICATION FOR ACTING AS A CHARITY TRUSTEE

DECISIONS ON APPLICATIONS

OG 42 B2 – 27 February 2007

Purpose

This guidance describes the levels of authority for making decisions on waivers and how to make submissions to the Heads of Unit, or, in exceptional cases, to the Board.

Contents

1. Levels of authority
2. Format for submission to Head of Unit
3. Application to be considered by the Board
3.1 Criteria for referrals to the Board
3.2 Submission to the Board
Glossary of Terms used in this Guidance

Index to further related information


The Law	Refer to a lawyer	Refer to an accountant

1. Levels of authority
	Decisions on applications should be made by a Head of Unit (Advice and Orders, Quick Response Unit or Large Charities Unit as appropriate) if he or she has been appointed as an Assistant Commissioner (authorised officer). (But see also OG 42 B1 section 4). However, in cases where disqualification has arisen other than as a result of bankruptcy – see B1 section 5 – before any waiver is granted the case should be submitted to the Head of Charity Services (with the factors leading to the recommendation to grant the waiver) for him or her to confirm whether or not the proposed waiver should be granted.
	The Board should be informed of all decisions made in this way through the Head of Function's quarterly reports.
	Referral to the Board of the Commission will be made on an exceptional basis only and in accordance with the criteria set in section 3 below. These referrals will generally be considered by two nominated Commissioners, rather than the Board as a whole.

2. Format for submission to Head of Unit
	Once all the relevant information has been received and considered, a recommendation should be made to the relevant Head of Unit as to whether or not a waiver should be granted. The submissions should be made in the following format:
	A: Recommendation
	whether or not the waiver should be granted.
	B: General background
	details of the applicant and circumstances of the application.
	C: Details of the charity
	(a)	the charity’s name;
	(b)	the date it was established;
	(c)	the date it was registered;
	(d)	a summary of its objects and activities;
	(e)	a summary of its property.
	D: Assessment of application
	evaluation of application;
	the value of the applicant’s contribution to the charity;
	consideration and evaluation of supporting material supplied by the trustees.
	E: Qualifying factors and risk assessment
	an evaluation of the circumstances leading to the bankruptcy – only to be completed if it is recommended that a waiver is granted;
	an assessment of possible risk to charity property if the person is granted a waiver (relevant factors here may be the circumstances behind the bankruptcy, the nature of the charity property and the office which the applicant would occupy).
	an assessment of risk to the reputation of the charity (and to the reputation of charity generally) if it is recommended that a waiver should be granted.
	If it is recommended that an application under section 72(4A) be rejected, a summary of the special circumstances for doing so.
	F: Special conditions to be attached
	any conditions to be attached to the grant of a waiver, legal advice having been taken (relevant factors here may be the nature of the charity property, and the degree of risk to the charity’s funds or property if the trustee remains in office)
	G: Reasons for recommendation
	a conclusion based on the assessments made at D and E above.

3. Application to be considered by the Board
	3.1 Criteria for referrals to the Board
	Waiver cases, whatever the reason for disqualification, should generally only be referred to the Board on an exceptional basis.
	The following types of case are considered appropriate for such referral, namely cases:
	involving politicians or publicly prominent figures;
	involving major national charities or charities with a high public profile;
	where refusal to grant a waiver is based on a fine balance of judgement and the case is likely to go to review and/or give rise to adverse publicity in the national media;
	in cases where disqualification is unconnected to bankruptcy, and the recommendation is to grant a waiver – see B1 section 6.4.
	cases to be reviewed as part of the Decision Review process – see B3 section 4.
	3.2 Submission to the Board
	The submission to the Board should include all the details set out in section 2 plus additional information required by virtue of the criteria set out in section 3.1. This may include:
	the name and address of the applicant and any relevant background information;
	details of any particular charities involved, including date and type of governing document, objects, date of registration, income, nature and value of assets, main activities and any relevant background information;
	the reason for disqualification and the nature and seriousness of the event which gave rise to the disqualification;
	how and when the application was made;
	information and evidence submitted in support of the application;
	information and evidence submitted against the application;
	where the application is in respect of a particular charity or charities, the views of the other trustees;
	an assessment of the merits of the application, particularly with regard to the factors set out in OG 42 X1 and to the case made by the applicant;
	a recommendation as to whether or not a waiver should be granted, with conditions, if any.

Glossary of Terms used in this Guidance
	The following words and phrases are defined in the Glossary of Terms:
	trustees

Index to further related information