If you have been convicted of an offence involving dishonesty or deception, and the conviction remains unspent, you are disqualified from becoming a trustee of a charity, and therefore must seek a waiver from the Charity Commission before acting as a trustee. This document sets out who is disqualified and how you can apply for a waiver.
Who is disqualified
Section 178 of The Charities Act 2011 sets out those who are disqualified from becoming a trustee of a charity. This includes those who have been convicted of any offence involving dishonesty or deception.
However, this section is covered by the Rehabilitation of Offenders Act 1974. If all of your convictions relating to dishonesty or deception are spent, you are able to undertake the role of trustee without having to seek a waiver. However, depending on the charity, they may require the disclosure of spent convictions due to the nature of your role as trustee. This will often depend on the specific activities of trustees for that charity, although in this situation, a spent conviction doesn’t disqualify you; it will then be up to the organisation to make a decision.
Section 178 is in addition to other elements of this section of the 2011 Act, which also disqualifies people on the basis of other things, including undischarged bankruptcy and those who have been placed on the list of those unable to become a trustee (which is maintained by the Charity Commission) on grounds of any misconduct or mismanagement in the administration of a charity. You need to make sure that you are not disqualified for one of these other reasons. This rest of this information focuses on criminal convictions specifically.
If you act as a charity trustee or trustee for a charity while disqualified from being such a trustee by virtue of section 178 you are guilty of an offence and liable to a maximum sentence of 12 months imprisonment or to a fine, or both. Civil penalties may also accrue against persons acting as a charity trustee whilst disqualified.
The meaning of dishonesty/deception
The definition of dishonesty or deception is written in statute. It is not something that the Charity Commission is willing to either add to or expand upon. You will have to look at each individual offence that you have been convicted of to see if dishonesty or deception forms an element of the offence that has to be proved for someone to be convicted of the offence.
Dishonesty and deception is separately defined in relation to different offences. If you are in doubt as to whether your conviction involved dishonesty or deception you would need to seek your own legal advice. We would also suggest that you contact the Charity Commission as they should be willing to advise on this matter. Otherwise, you may wish to submit an application for waiver from the Charity Commission.
Working out if your convictions are spent
If you have been convicted of an offence involving dishonesty or deception, you need to establish whether the conviction is spent or unspent. If it is unspent, you will have to obtain a waiver before acting as a trustee.
What if you’re disqualified
Section 181(2) states that there is the ability for an individual to apply for a waiver of disqualification, either generally or in relation to a particular charity or a particular class of charities.
Until you have been granted a waiver, you are unable to act as a trustee.
The Charity Commission power of waiver does not extend to trustees disqualified under legislation other than s.178 of the 2011 Act. This includes those individuals convicted of offences under Schedule 4 of the Criminal Justice and Court Services Court Act 2000 which specifically disqualifies individuals with convictions for certain offences against children from being trustees of children’s charities.
Looking at the charity’s governing document
In 2014, we clarified with the Charity Commission their approach towards exclusions that charities commonly have in their governing documents regarding being barred from being a trustee if they are disqualified under charity law.
The Charity Commission confirmed that if an individual was able to obtain a waiver from them, the individual would no longer be regarded as disqualified under the relevant sections of the charities governing documents, and so could be appointed as a trustee.
Applying for a waiver
The Charity Commission starts from the basis that anybody currently disqualified should normally remain disqualified until those circumstances no longer exist. In the case of criminal convictions, that means when the conviction(s) become spent.
However, if you are disqualified, under section 181(2) you may apply, with the support of the charity trustees, for your disqualification to be waived. The onus on satisfying the Commissioners that a disqualification under section 178 should be waived remains with the applicant seeking a waiver. The Commission has absolute discretion in granting waivers under section 178.
The application for a waiver should be done in writing and must be signed by you. Whilst there is no specific form for an application, there are certain factors that you should include in your letter, which are listed below. However, every case will have specific factors which may mean the Charity Commission may ask you for more information.
What to include in your waiver application
The following is a checklist of factors the Charity Commission will take into account when considering your case. These are the areas that the letter you submit should cover:
- In relation to a conviction:
a) the specific nature of the offence which results in a disqualification
b) the gravity of the offence and the sentence passed by the Court.
- The nature of the charity’s property, for instance:
a) whether it consists only of land used for the purposes of the charity; or
b) whether there are investments and money which would or might pass through your own hands.
- The degree of risk to the funds or property of any charity concerned, including:
a) whether you are likely to receive or have custody of charitable funds or property; and
- Whether and, if so, how seriously, the reputation of charity in general or of a particular charity would be damaged by the grant of a waiver.
- The purposes and interests of the charity or class of charity, for instance, the rehabilitation of offenders through charitable works.
- Whether you are prohibited from acting as a director of any company by a disqualification order under the Company Directors Disqualification Act 1986; and if so, whether leave has been granted under that Act for you to act as a director of any other company. Also whether you are similarly disqualified as a result of proceedings under the Insolvency Act 1986.
- If a disqualification order as in (i) above has not been made in circumstances where you have been convicted of a criminal offence involving dishonesty or deception in the course of company administration, the reason why no such order was made.
- Whether you have ever been associated with any other charity which has been the subject of a formal Charity Commission inquiry as a result of which a report critical of your involvement has been made.
- The view of the other trustees of the charity or charities concerned, especially as to any particular benefit to the charity or charities it is considered would result from you acting as a trustee.
- The length of time that has elapsed since the events giving rise to the disqualification.
- Evidence of “good conduct” in the meantime and why it is considered that there is no risk of history repeating itself.
- Whether or not the waiver sought is a specific waiver in relation to a charity or charities or a general waiver in respect of all charities.
The submission of sufficient and relevant evidence to support an application is a matter for you but, generally, the Commission will require:
- 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);
- confirmation that you have never been associated with any other charity which has been subject of a formal Charity Commission inquiry as a result of which a report critical of your involvement was made.
- 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.
This is not an exhaustive list and you may put before the Commission any other matter you feel is relevant to the application.
The Charity Commission do not state in their guidance whether it is necessary to provide a copy of your unspent criminal convictions (i.e. a basic disclosure), but it may be that it is required at a later date. If you have a copy which has all your currently unspent criminal convictions, it may be worthwhile including it in your waiver application. If you do not have a copy, you may wish to wait until being asked for one before obtaining one, as the current cost is £25 and there is a relatively quick turnaround if you later need to apply for one.
- The letter you submit must be signed by you
- You should make it clear whether you are seeking a waiver generally, or specific to a certain charity or group of charities (see below for what type of waiver you should apply for).
- You must make it clear under which section of the 2011 Act you are applying for a waiver – the section for disqualification because of an unspent conviction for any offence involving dishonesty or deception is s.181(4).
The other trustees of the charity should support the application for a waiver by setting out the reasons why they think it necessary for the waiver to be granted. For example the expertise the applicant may bring to the post outweighs the public need to disqualify the candidate.
Where to send it to
All applications for waiver of disqualification should be sent to the Charity Commission direct via post or email.
Address: Charity Commission Direct, PO Box 1227, Liverpool, L69 3UG
The Charity Commission have a target of responding substantively in 15 working days to postal enquiries, and 5-10 working days to email enquiries, so if you are in a hurry emailing your application for a waiver may be quickest.
Supporting your application
In the case of any application for a waiver, the Charity Commission would normally expect all the other trustees to support the application to waive disqualification in relation to one or more specific charities. They will need to know from trustees:
- Why they believe the charity and the charitable beneficiaries need to have this person appointed as a trustee;
- What steps they have taken to find alternatives;
- What special skills you possess which are not otherwise available;
- Why you cannot advise rather than be a trustee;
- What reassurance they can provide that you will be no risk to the charity or its assets; and
- Their views on the impact on the standing of the charity and the integrity of charity generally if you are is free to become a trustee of this charity.
It is for you to ensure that the written views of the trustees are made available to the Charity Commission either by being attached to the application or by letters being sent direct to the Commission. The Charity Commission also advise that the trustees might wish to ensure that, if they are otherwise content, you should not:
- be the Chairman or Treasurer of the charity;
- be a signatory to the charity’s cheques or have access to the charity’s accounts at banks, building societies etc; or
- have any of the charity’s property vested you.
This is for the other trustees to decide, although the Charity Commission may impose conditions on a waiver.
How the Charity Commission make their decisions
By the very nature of the circumstances giving rise to the disqualification in the first place, the Charity Commission are very cautious about agreeing to a waiver. They will carefully consider the following:
- The factors set out in the checklist above;
- What led to the disqualification in the first place;
- The length of time that has elapsed since the events giving rise to the disqualification;
- Evidence of “good conduct” in the meantime and why it is considered that there is no risk of history repeating itself;
- Balancing risks against the rewards of granting a waiver
- Whether there is evidence that there are no reasonable alternatives who could be appointed;
- Whether they can place conditions on a waiver, including whether there is a higher threshold in assessing the impact of the special circumstances and the risk against reward test if the waiver applied for is subject to condition
- If they grant a waiver after considering these points what would it cover
Chances of success
It is more usual for the Charity Commission to consider applications for waivers of disqualification in respect of a particular charity or even a group of charities with similar characteristics. An application for a general waiver of disqualification will require closer scrutiny and is generally more difficult to accept.
In the last ten years, with the exception of a spike in applications in 2011 (due to specific work around insolvency), the Commission has received no more than 6 waiver applications per year. 90% of waiver applications over the last ten years were successful.
- If you have been granted a waiver, you will be notified in writing with reasons provided
- If you have been refused a waiver, you should be notified in writing, including concise reasons and a warning of the consequences of a disqualified person continuing to act as trustee.
Appealing the decision
You should be informed on your right to have the decision made reviewed. Any decision taken by the Head of Charity Services to reject an application for a waiver may be reviewed. Any decision not to grant a waiver taken by the Board will not be eligible to be reviewed as decisions involving Commissioners are final. However, you can still appeal to the Charity Tribunal.
Still acting as a trustee while disqualified
If you act as a charity trustee or trustee for a charity while disqualified from being such a trustee by virtue of section 72 you are guilty of an offence and liable to a maximum sentence of two years imprisonment or to a fine, or both.
The Charity Commission has contact details for anybody looking for general advice on Charity Commission rules and procedures.
Much of the regulation which dictates the process explained above comes from the Charities Act 2011.