OPERATIONAL GUIDANCE
WAIVER OF DISQUALIFICATION FOR ACTING AS A CHARITY TRUSTEE
MODEL LETTER: RESPONSE TO INQUIRY CONCERNING A WAIVER, OR APPLICATION FOR A WAIVER UNDER SECTION 72 (4A) OF THE 1993 ACT WHERE DISQUALIFICATION IS A RESULT OF REMOVING A TRUSTEE BECAUSE OF MISCONDUCT OR MISMANAGEMENT IN THE ADMINISTRATION OF THE CHARITY
OG 42 L2 – 27 February 2007
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Refer to an accountant |
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Dear |
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Thank you for your letter of [ ] applying for/inquiring about a waiver from disqualification for being a charity trustee/trustee for a charity generally/in relation to [(charity])/in relation to [(class of charities)]. |
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The Commission has determined a general policy regarding waivers and the criteria which will be taken into account in considering applications. It may be helpful if I outline this policy for you |
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Any decision of the Commission as to whether or not to grant a waiver will have particular regard to the best interests of the particular charity or charities concerned in the application or, where the application is for a general waiver, of charity generally. They will consider primarily whether there were any special circumstances attaching to the original disqualification which mean that it is not in the interest of the charity or charities for the applicant to act as trustee. They are likely to take into account all or any of a series of factors which are relevant. I attach a list of such factors, but there may be other additional factors which may be relevant to your application. |
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Before submitting an application for a waiver, it is advisable that you ascertain from the governing document(s) of the charity or charities concerned whether there is anything within which prevents the applicant from acting as a trustee. If there is a provision for the determination of trusteeship in your circumstances, a waiver of disqualification would not be effective in respect of that particular charity. |
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The submission of sufficient and relevant evidence to support an application is a matter for the applicant but, generally, the Commission will require: |
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(1) |
documentary evidence, particularly copies of any Court judgement relating to the disqualification (we may ask for further Court documents later if we feel it necessary); |
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(2) |
confirmation that (k) on the checklist does not apply or full details with copies of supporting documents if it does apply; |
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(3) |
the name and registration number of any particular charity involved: |
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(i) |
in the events that led to disqualification; |
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(ii) |
in the application for a waiver; or |
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(iii) |
as in (k) on the checklist; and |
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(4) |
written support for a waiver from all the other trustees of the charity or charities concerned, including any special qualities they feel only you can bring to the administration of the charity, and any other information they feel may be useful with regard to this application. |
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Again, this is not an exhaustive list and you may put before the Commission any other matter you feel is relevant to the application. |
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[If, having read this letter and the accompanying list of factors to be considered, you have/the applicant has any further comments to make or any other documentation to submit in support of your application, I should be glad to receive them.] |
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Finally you will need to state clearly under which section of the 1993 Act you are applying for a waiver. |
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Enc: copy of checklist in OG 42 X1 |
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