The Regulator for Charities in England and Wales
Who should read this consultation paper
This consultation will be of particular interest to you if your charity:
'Must' and 'should' what we mean
In this consultation paper, where we use 'must', we mean it is a specific legal or regulatory requirement affecting trustees of a charity. Trustees must comply with these requirements.
We use 'should' for items we regard as minimum good practice, but for which there is no specific legal requirement. Trustees should follow the good practice guidance unless there’s a good reason not to.
We also offer less formal advice and recommendations that trustees may find helpful in the management of their charity.
Trustees provide the drive and leadership needed to bring about the positive changes to society that all charities strive to achieve. They make important decisions about charities’ priorities and have responsibilities to the charity’s beneficiaries. Where trustees have opportunities to get information about people who could pose a danger to beneficiaries, we advise them to take these opportunities.
In some cases there are specific legal requirements for checks on trustees through the Criminal Records Bureau (CRB). The most important aim of these checks is to identify people who should not be working with or have influence over vulnerable people and so to limit the risk that they could harm them. CRB checks also help to protect trustees and the reputation of the sector, maintaining the public trust and confidence that is crucial to the work of charities.
All charity trustees have a legal duty of care and a duty to act prudently. As part of their duty of care, charity trustees should ensure that they do not recruit trustees who are disqualified or might present a danger to any children or vulnerable adults in the charity’s care. Checks of charities we have undertaken suggest that not all charities with vulnerable beneficiaries are regularly undertaking CRB checks and in some cases are unaware of their responsibilities in this area. Our existing policy is that to fulfill their duties, trustees must carry out CRB checks for all trustees when they are legally required to do so and should obtain them when they are entitled to do so.1 This applies to new charities registering for the first time and to established charities recruiting new trustees. This consultation reviews our policy.
The consultation also covers particular issues relating to trustees of organisations seeking charitable status for the first time. In early 2006 we became aware that registration systems for identifying trustees who may pose a danger to vulnerable beneficiaries needed review. It was not immediately clear whether (aside from any checks by charities themselves) there were any other control mechanisms to ensure:
As an interim measure we strengthened the requirements for charities with vulnerable beneficiaries which apply to register with us, asking them to provide CRB disclosures to prove that their trustees had been through satisfactory CRB checks where appropriate. This interim policy has now applied for over six months and we are reviewing how it is working in practice, what impact it has had on charities and whether there are other satisfactory controls in place.
We are also considering how the new vetting and barring system under the Safeguarding Vulnerable Groups Act 2006 will work and how it will affect charity trustees. This consultation paper seeks views from trustees, staff working for charities, representative bodies and other interested parties.
As the independent regulator of charities in England and Wales the Commission works closely with charities to ensure that they are accountable and well run and meet their legal obligations, in order to promote the public’s trust and confidence in charities.
We provide a wide range of advice and guidance to charities and their trustees, and can often help with problems. We are not allowed to act directly in the administration of a charity, but we do have powers to intervene where things have gone wrong. This includes powers to protect charitable assets and appoint, suspend and remove charity trustees. If we consider it a necessary and proportionate response to an issue, we do use these powers.
Charities must register with the Commission, unless they are exempt or excepted charities. About 190,000 charities are registered with us. They have an annual income of about £38 billion, employ about 600,000 paid staff and have some 900,000 trustees.
When considering applications to register, we request information to help us decide whether an organisation is a charity and whether it falls within our jurisdiction. We also check at this stage that the charity trustees are not disqualified from acting as trustees. A person may be disqualified on various grounds, for example if they have been convicted of an offence involving dishonesty or deception or if we have ever removed them from a trustee position.
An individual is also disqualified from holding a trustee position with certain charities if they have been convicted of an offence against children or if they appear on the Protection of Children Act List, the Protection of Vulnerable Adults List or List 99. We therefore ask for information as part of the registration process to help us check that the trustee in question is not likely to pose a threat to children or vulnerable adults in the charity’s care.
You can find more information about our role on our website.
Trustees serve on the governing body of a charity and are responsible for controlling its management and administration. You can find information about trustees’ responsibilities in our publication The Essential Trustee: what you need to know.
As part of their role many trustees make regular visits to observe their charity’s work with beneficiaries. Although the approach varies between charities, some trustees, particularly those of smaller charities, also have more contact with their beneficiaries, helping to support them directly.
Whatever the size of a charity or the nature of its work, trustees have an important influence over beneficiaries’ lives. In the case of charities working with children or vulnerable adults, trustees should undergo rigorous recruitment processes before appointment, to ensure that vulnerable groups are properly protected. Our guidance Finding New Trustees gives general information about some of the practical steps charities can take when appointing trustees.
This section summarises the role of the Criminal Records Bureau (CRB). This is covered in more detail in Annex B.
The CRB helps organisations in the public, private and voluntary sectors to identify people who are unsuitable for certain types of work, especially work involving contact with children and other vulnerable members of society. It checks sensitive information on criminal convictions and other relevant records held about individuals. This system is important for charities working with vulnerable groups that are considering appointing trustees.
The law surrounding CRB checks is complex and it can be difficult for charities to understand how it applies to them and their trustees. Charities and their trustees have to decide whether they are legally entitled to carry out CRB checks and in some cases whether they are legally required to do so. In broad terms where it is a legal requirement for checks to be carried out, it is because there is a higher level of access to or control over the beneficiaries, such as a trustee of a childcare organisation.
Charities also have to decide whether they are entitled to request a 'standard' or 'enhanced' CRB check and whether a check on one of the lists of individuals barred from working with vulnerable people is appropriate.
The process for obtaining CRB checks also involves the CRB application form being counter-signed by a representative of a 'registered body' . These bodies ensure that only those who are entitled to request information from the CRB can do so and that the information obtained from the CRB is used fairly and sensitively. When registered bodies provide their services on behalf of a third party they are known as 'umbrella bodies'.
Annex B provides further information about CRB checks including legal entitlements and requirements, levels of CRB check, how to obtain a CRB disclosure and the role of registered and umbrella bodies.
This section explains our policy on CRB checks of trustees. We would like you to consider the questions in boxes throughout the section. The questions are duplicated in Annex A, which contains a complete list of the questions we would like you to consider.
This section explains our general policy on CRB checks of trustees. How this applies in different circumstances is explained in sections 3.2-3.4 below.
Which trustees should be CRB checked?
All charity trustees have a legal duty of care and a duty to act prudently. As part of their duty of care, charity trustees should ensure that they do not recruit trustees who are disqualified or might present a danger to any children or vulnerable adults in the charity’s care. Our existing policy is that to fulfill their duties, trustees must carry out CRB checks for all trustees when they are legally required to do so and should obtain them when they are entitled to.2 This applies to new charities registering for the first time and to established charities recruiting new trustees, in the following categories:
Our policy also applies to charities which have general objects which do occasional work with children or vulnerable adults (such as religious charities).
CRB disclosures are only allowed for certain trustee positions where there is a risk that an unsuitable trustee could abuse their position and harm vulnerable people. If we find that a charity has not carried out checks (whether as part of our registration process or through any other route with established charities), we will ask why and will take this into consideration in any deliberation as to whether the charity trustees are properly administering the charity. We will always do this on a case-by-case basis.
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1. Should CRB checks on trustees be carried out by charities wherever they are legally allowed, not just in the limited circumstances where they are legally required? 2. If not, in what circumstances do you consider that CRB checks should be carried out? 3. Should trustees of charities with general objects which do occasional but regular work with children or vulnerable adults get CRB disclosures for trustees wherever this is legally allowed? If not, what would be an appropriate approach? 4. Where only some of a charity’s trustees have direct contact with vulnerable beneficiaries, do you think that only those trustees with contact should be CRB checked or should all the trustees be checked? 5. Are other safeguards in place which you believe ensure that trustees are unable to abuse their positions and which mean that CRB checks are not necessary? |
Level of checks
We also think that trustees should carry out an enhanced CRB check and/or check one or more of the lists of people barred from working with vulnerable people, where this is legally allowed.3 Again, the logic behind this approach is that this type of check is only legally allowed where there is a particular risk, so responsible trustees should take the opportunity to carry out the check to help protect their beneficiaries.
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6. Should trustees ensure that wherever enhanced checks are legally allowed they are carried out (rather than standard checks)? |
Portability of disclosures
Some trustees undergo CRB checks in another capacity, for example if they are teachers. The CRB does not state whether such CRB disclosures can be accepted in place of a new check specific to the position the person is applying for. However, it does give examples of the factors that organisations may wish to consider when looking at whether disclosures for one job may be relevant to others (known as ‘portability’). These include the:
Our current position is that a charity should decide whether a disclosure for a trustee is relevant and whether to accept it, although we advise that such a disclosure should not be more than three months old. In most cases we will be satisfied with the charity’s decision.
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7. In the case of both new and existing charities, should a trustee that has already been CRB-checked in another capacity (for example because they are a teacher) be checked again as part of the process of appointing trustees? 8. The CRB recommends that the following factors should be considered in making judgements about portability: the length of time since the disclosure was issued; the level of disclosure; the nature of the position for which the disclosure was issued; and the nature of the position for which the individual is applying. Are there other factors that you think are important? |
Validity period for disclosures
A CRB disclosure can only be guaranteed to be complete and accurate at the time it is issued, as a conviction or other concern could be recorded against an individual at any time after the disclosure. The CRB does not say how long disclosures are valid. Instead it advises that this will depend on the level of risk a charity agrees is acceptable to the vulnerable groups that the applicant will deal with.
The Commission for Social Care Inspection advises that the national minimum standards for fostering agencies and adoption agencies are three-yearly CRB checks. We advise charities to periodically obtain new disclosures, normally every three years.
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9. How often should CRB checks be carried out on trustees? 10. Should there be different periods of validity for CRB disclosures for trustees in different circumstances (for example, dealing with different groups of vulnerable beneficiaries)? If so, which groups should be checked more often and at what intervals? |
We think that where CRB checks are allowed, they should be carried out to ensure trustees are not barred from working with vulnerable beneficiaries and to protect those beneficiaries.
As part of the charity registration process in the past, the Commission asked charities working with vulnerable groups to provide a self-declaration confirming that they had carried out appropriate CRB checks on their trustees. We intended to ensure that trustees were aware of their responsibilities and were doing what they could to prevent harm to beneficiaries, and to satisfy ourselves that trustees were not disqualified from acting as trustees – as making a false declaration is a criminal offence.
In early 2006 we became aware that registration systems for identifying trustees who may pose a danger to vulnerable beneficiaries needed review, and we adopted an interim registration policy in June 2006.
Under our interim policy, before we register a charity we now ask to see evidence of satisfactory CRB disclosures for:
We have designated a person who has been CRB checked to look at the disclosures we receive. Where CRB checks indicate that a charity trustee has a conviction, but it is not one that which would disqualify them from office, we will take no further action, unless the conviction makes us doubt whether the person is suitable for the position in question. If so, we must satisfy ourselves that the charity trustees’ decision to appoint that trustee is reasonable.
In applying this policy we try to ease any burden on charities by taking a flexible approach. If registration is exceptionally urgent, we may be prepared to register a charity as long as its trustees undertake to obtain disclosures within three months. Examples of such circumstances include:
However, it does depend on how significant the delay would be and the risk it would pose to the charity and its operation.
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11. Does the Commission’s policy of asking to see CRB disclosures before registering a charity help to safeguard vulnerable beneficiaries? 12. Does this approach cause an unreasonable administrative burden for charities? 13. In your view, what information should the Commission seek to reassure itself that CRB disclosures have been obtained when registering charities (for example, a disclosure, a letter from a registered body or a self declaration that the trustee is not disqualified)? Please provide reasons. 14. Is supplying the original CRB disclosure to the Commission more burdensome than supplying a copy of a letter from a registered body? If so, why? 15. Are you asked to provide original CRB disclosures for charity trustees to any other regulator? If so, please specify. |
The Commission has produced the guidance Registering as a charity: evidence of CRB disclosures to explain our policy.
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16. Were you previously aware of our guidance Registering as a charity: evidence of CRB disclosures? 17. Is the guidance clear and helpful? What could we do to improve it? |
It is the responsibility of trustees of existing charities to ensure that appropriate CRB checks are carried out on trustees. We have produced the guidance Finding new trustees: what charities need to know which includes more information about checking new trustees of existing charities.
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18. Were you previously aware of our guidance Finding new trustees: what charities need to know? 19. Is the guidance clear and helpful? What could we do to improve it? |
The Commission carries out monitoring activity to find out how existing charities protect vulnerable beneficiaries.
Spot checks
During 2006 the Commission carried out a pilot, spot checking 500 registered charities that work with vulnerable groups, to find out more about their approach to carrying out CRB checks on their trustees. The sample comprised charities registered both before and after the inception of the CRB, with a view to identifying differences in behaviours. It focused on three areas:
From the responses received so far, we have identified 80 charities where we feel there is a need to take further action through casework or proactive monitoring. This is because:
This represents 16% of the sample of 500 charities we have checked to date.
We will be carrying out further analysis of the data collected to identify trends, which will help us to refine and more accurately focus our risk based approach to spot checks. We will be reviewing the approach following the consultation.
Where we have a cause for concern we do take it very seriously. For example in one charity, we became aware that one of its trustees (Trustee X) had convictions that were relevant to the work the charity undertook and made him unsuitable to be either a trustee or a volunteer with direct access to beneficiaries. The other trustees had failed to undertake background checks including CRB checks to establish Trustee X’s suitability. We took the immediate action of suspending and later removing Trustee X from the charity. Trustee X is no longer involved in the charity and the trustees have now put measures in place to ensure this does not happen again, including putting in place a child protection policy and carrying out CRB checks.
Annual return
The Commission has been considering the most appropriate way to monitor that charities are undertaking these checks rigorously. We have asked questions in the annual return form in the past about whether charities obtain CRB checks for trustees. The proposed annual return form for 2007 sees a new approach. It means that all charities with an income of over £25,000 will have to report to us specific incidents which relate to trustee eligibility and safeguarding vulnerable beneficiaries, as part of the new Serious Incident Reporting section of the form.
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20. Do you agree that it is appropriate to monitor that CRB checks are carried out for existing charities through the annual return? |
Sometimes the Commission appoints trustees. For example, when we are helping a charity update some or all of its trusts, we may need to update the ways in which it appoints the trustee body. Also we may appoint trustees as a result of an inquiry into a charity. Our policy is that we will only appoint someone as a trustee of a charity that works with children or vulnerable adults after we have established through the CRB that there is nothing in the individual's record either to disqualify them from acting or to suggest that they are unsuitable to act. So we will always obtain a CRB disclosure for trustees of charities that work with children and vulnerable adults.4 This is to:
We have always been clear that trustees are ultimately responsible for ensuring that all trustees of their charity are fit to act as such. We want to intervene as little as possible and avoid imposing any dual regulation on charities, provided that there is an adequate system to ensure:
Because requests for CRB checks must be made through registered bodies, these bodies ensure that only those who are entitled to request information can do so. They also make sure that the information disclosed is used fairly and sensitively, and the CRB provides assurance for this system. Therefore trustees of charities applying for CRB checks already appear to be subject to controls.
We may be able to change some aspects of our policy and its application, as we do not wish to review disclosure information if other qualified organisations have already done so. This may mean that instead of seeing CRB disclosures we could receive a copy of a letter from a registered body confirming that it has countersigned an application and that it has received a disclosure for a trustee. We would like to explore this option and would welcome your thoughts.
This would affect charities applying for charity registration, and we would have to consider how it would also affect the way we monitor existing charities.
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21. Do you think that the Commission is duplicating regulation carried out by registered bodies, the CRB or any other regulators? 22. What do you think of the proposal that instead of seeing a CRB disclosure, the Commission could rely on information (such as a copy of a letter) from a registered body as assurance that CRB checks have been carried out appropriately? 23. Do you think the system of registered and umbrella bodies works well and are you aware of any problems? If you have used an umbrella body to obtain CRB checks: 24. Was it easy to find an umbrella body? 25. Did the umbrella body interpret the disclosure information on your charity’s behalf or pass you the disclosure to consider? 26. Have you had to pay umbrella bodies to obtain CRB checks? Roughly how much did this cost? If you represent an umbrella body: 27. Do you normally pass disclosure information to your charity clients or do you take decisions about the information on their behalf? If this varies, please indicate roughly the percentage split between the two approaches? |
The Safeguarding Vulnerable Groups Act 2006 introduces a new vetting and barring scheme for those who work closely with children or vulnerable adults. Its phased implementation will start in 2008 and the Department for Education and Skills (DfES) is leading this work. The changes will include a new role for the CRB in regularly monitoring individuals in certain positions.
By law, individuals holding certain positions will have to apply to become 'subject to monitoring'. This means that the CRB will then check criminal records, lists of people barred from working with children or vulnerable adults and other relevant information about the individual to ensure that they are not barred from working with the vulnerable people concerned or do not pose a risk to them. The CRB will carry out this search regularly to ensure that the individual has not become barred since the last check.
If this requirement is extended to charity trustees, one person for each charity will be nominated to check that each trustee has applied for and is subject to the CRB’s monitoring. The nominated person will probably be able to check online that each trustee is subject to monitoring – a one-off process for each trustee. The CRB would alert the nominated person if it stopped monitoring one of their trustees, indicating a problem. This should be an improvement on the current system of CRB checks as the information will be checked regularly and the burden on charities appears to be minimal.
The Department for Education and Skills is developing an implementation plan. We will explore further the implications for charities and make more information available when the plan has been finalised.
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28. We think that trustees of charities whose beneficiaries include children or vulnerable adults should be subject to monitoring under the Safeguarding Vulnerable Groups Act. This would mean that their criminal records and other relevant information would be regularly checked by the CRB. Do you agree? If not, why not? 29. Charities will probably need to nominate a person responsible for checking that each trustee is regularly monitored by the CRB. What do you think would be the best way to check that this nominated person is also subject to monitoring by the CRB? |
We would welcome your views on the questions that we have posed throughout the document. A list of all the questions is included as Annex A. Please feel free to respond just to those questions which are most relevant to you and your organisation.
Please respond by: Friday 11th May 2007.
We would be grateful for replies in writing or by email. Please send responses to:
Jane Harris
Senior Policy Advisor
Charity Commission
Harmsworth House
13-15 Bouverie Street
London
EC4Y 8DP
Where appropriate, we encourage you to provide evidence to support your response. If you are a representative group, it would be helpful if you could include a summary of the people and organisations that you represent. Please note that we may publish responses, including the name and address of respondents, unless you specifically request confidentiality.
If you have any queries about the consultation that you would like to discuss please use the following contact telephone numbers:
Jane Harris: 020 7674 2445
Sue Smith: 020 7674 2461
We are keen to take account of the opinion of everyone who can help us develop our policy and guidance. However, we know that we don’t always hear from those representing the black and minority ethnic sector who could make a contribution.
We want to make sure that everyone who wants to do so has the opportunity to contribute, but we need some help. To help us monitor the responses to this consultation, please complete and return the monitoring form.
It is not compulsory to complete this form but, if you do respond, we will ensure that it is detached from your consultation response on receipt and keep the information confidential. Alternatively you can send this form separately to:
Terry Wiles
Customer Services Manager
Charity Commission
Woodfield House
Tangier
Taunton
Somerset
TA1 4BL
We will consider the feedback we receive and use it to help us to review our policy on CRB checks for trustees of charities. We will aim to publish a summary of the responses to this consultation on our website within three months of the closing date of the consultation.
A copy of this consultation document has been sent to a number of key sector umbrella bodies and other organisations and individuals who have an interest in our policy. If you think of other interested parties who should be consulted, please let us know.
If you have queries about any other aspect of our work or would like to order any of our publications, please telephone:
Charity Commission Direct: 0845 3000 218
This consultation has been designed to comply with the six consultation criteria in the Cabinet Office Code of Practice on Consultation:
Please comment on how far we have upheld the criteria and how we could further improve the consultation process. If you have comments or complaints about the consultation process, you should contact:
Sue Smith
Policy Advisor
Charity Commission
Harmsworth House
13-15 Bouverie Street
London
EC4Y 8DP
1. More information about legal entitlements and requirements is included in Annex B.
2. More information about legal entitlements and requirements is included in Annex B.
3. More information about different types of CRB check is included in Annex B.
4. In very exceptional cases the Commission will make an appointment pending receipt of the disclosure.