The Regulator for Charities in England and Wales

CC29 - Charities and Local Authorities

(Version March 2001)


Contents

What is this guidance about?

1. This guidance describes, very briefly, some of the ways in which local authorities may be involved in how charities are run and in what they do.

Meaning of words or expressions used in this guidance

2. In this guidance:

Trustees means charity trustees. Charity trustees are the people who, under the charity’s governing document, are responsible for the general control and management of the administration of the charity. In the charity’s governing document they may be called trustees, managing trustees, committee members, governors, or directors, or they may be referred to by some other title.

Sometimes a charity also has a custodian trustee or holding trustees. Custodian trustees and most holding trustees have no power to make management decisions and can only act on the lawful instructions of the charity trustees.

Ecclesiastical charity means a charity whose endowment is held for one or more of the following purposes:

  • for any spiritual purpose which is a legal purpose; or
  • for the benefit of any spiritual person or ecclesiastical officer; or
  • for use, if a building, as a church, a chapel, a mission room, or Sunday school, or otherwise by any particular church or denomination; or
  • for the maintenance, repair or improvement of any such building, or for the maintenance of divine service in it; or
  • otherwise for the benefit of a particular church or denomination, or for any members of it.

A trust for the benefit of the members of a particular denomination or church may be an "ecclesiastical charity" even though the persons who benefit are poor.

Local charity for the relief of poverty means a registered charity (but not an ecclesiastical charity) whose sole or primary purpose is the relief of poverty wholly or mainly within a particular area. That area may be:

  • not more than five adjoining parishes;
  • a county;
  • Greater London; or
  • an area which, when the charity was originally established, was, or fell wholly within, one or more of the parishes now specified in its trusts.

The 1993 Act means the Charities Act 1993.

Governing document means any document which sets out the charity’s purposes and, usually, how it is to be administered. It may be a trust deed, constitution, conveyance, will, Royal Charter or Scheme of the Commissioners.

Parochial charity means a charity which is limited to benefiting the inhabitants of:

  • a particular parish or (in Wales) community; or
  • that parish or community and not more than four neighbouring parishes or communities; or
  • a single ancient ecclesiastical parish which included the whole or part of that parish or community.

Must is used to refer to actions that trustees, or their agents or employees, are obliged to take by law.

Recommend or advise are used where we are suggesting to the trustees actions which we consider to be good practice but which do not represent a legal requirement.

Trustees

Can a local authority be the trustee of a charity?

3. Yes, in some cases. Under section 139 of the Local Government Act 1972, all local authorities (but not parish meetings) may hold and accept gifts of land or other property for the benefit of people living in the whole or part of their area. However, under that same section, a local authority cannot be the trustee of an ecclesiastical charity or a charity for the relief of poverty.

Are there any advantages in a local authority being the trustee?

4. Yes. The administration of a charity by a local authority can have advantages:

  • as a body corporate, a local authority enjoys perpetual succession, so that it is not necessary to make individual appointments of charity trustees or to vest the charity’s property in them; and
  • often the local authority will be willing to subsidise the operation of the charity out of its statutory funds, either directly by way of grant aid, or indirectly, for example, by meeting the cost of maintaining the charity’s property or by providing professional services free of charge.

Are there any disadvantages in a local authority being the trustee?

5. Yes, our experience suggests that:

  • local authorities often fail to appreciate that they are not free to deal with the property of a charity in the same way as they can deal with their corporate property held for statutory purposes. This can result in property being treated in a way which is inconsistent with the charitable trusts. For instance, where the property in question is a recreation ground, a lease may be granted on preferential terms to a (non-charitable) sports club;
  • conflicts often arise between the interests of the local authorities and their council tax and rate payers on the one hand, and those of charities and their beneficiaries on the other hand (Party political interests may even play a part in decisions made);
  • local authorities sometimes give the administration of charities less attention than would bodies of individual trustees constituted solely for the purpose of administering them. Much of the day-to-day administration of the charity may be delegated to a committee, or even to officers in the exercise of their Local Government Act powers; and
  • in the event of local government reorganisation, a successor authority might not appreciate that property transferred to it from a predecessor authority is held on trust for charitable purposes, with the result that it mistakenly treats it as part of its corporate property.

Will we appoint a local authority as trustee?

6. We will consider carefully any proposal whereby a local authority be appointed as trustee, as long as it is not disallowed by the Local Government Act 1972 (see paragraph 3 above). However, we will accept it only if we are satisfied, after considering all other possibilities, that it would be the most beneficial arrangement, having regard to the need to:

  • avoid conflicts of interest;
  • safeguard the charity’s property;
  • safeguard the beneficiaries’ interests.

7. When making a Scheme for some other purpose in relation to a charity which is administered by a local authority as trustee, we will consider whether other trusteeship arrangements might not be more appropriate. For example, we may suggest to the local authority that it retires in favour of a body of individual trustees, while perhaps retaining the right to appoint some of those trustees.

Can a local authority be the custodian trustee of a charity?

8. Section 139 of the Local Government Act 1972 (see paragraph 3) applies to custodian trustees as much as to managing trustees. A local authority (but not a parish meeting) may act as the custodian trustee of a charity, but only if the charity is for the benefit of the people living in the whole or part of its area. For example, parish councils are often appointed custodian trustees of charitable village halls, recreation grounds and youth clubs. However, a local authority cannot act as custodian trustee of an ecclesiastical charity or a local charity for the relief of poverty.

What does a custodian trustee do?

9. The main duty of a custodian trustee is to hold the property of a charity (except, if it agrees, dividends and other income) and to have the custody of all securities and documents relating to the property owned by the charity. A custodian trustee:

  • cannot manage a charity - that is a matter for the managing trustees; and
  • cannot act for the managing trustees even if there are none; and
  • must carry out the managing trustees’ instructions unless that would involve the custodian trustee in a breach of trust or some personal liability.

How is a custodian trustee appointed?

10. A custodian trustee can be appointed in any of the following ways under section (1) of the Public Trustee Act 1906:

  • by the governing document of the charity when it is first established;
  • by the person or persons having power to appoint new trustees; and
  • by an Order or Scheme of the Court; or can be appointed by an Order or Scheme of the Commissioners under section 16 of the 1993 Act.

When can a local authority appoint trustees of a charity?

11. In some cases the governing document of a charity may give a local authority power to appoint some or all of the trustees of the charity.

12. Section 79 of the 1993 Act gives some local authorities powers to appoint trustees of certain types of charities. Those powers replace powers which were formerly in section 37 of the Charities Act 1960 and which first appeared in the Local Government Act 1894. Details of the present position are set out in the Annex to this guidance.

What are the duties of trustees appointed by a local authority?

13. Trustees appointed by a local authority (sometimes referred to as nominative or representative trustees) have exactly the same duties and responsibilities as other trustees. They must act independently of the local authority which appointed them and act only in the best interests of the charity. There may well be occasions where such trustees will have to act in a way which conflicts with the interests of the local authority appointing them. In such circumstances the best interests of the charity must come first; this duty overrides all other considerations.

14. Where a conflict of interest arises in relation to a particular issue, for example in relation to a property transaction, the trustee concerned should not vote on it and should withdraw from any meeting at which it is considered.

15. The duties and responsibilities of trustees are more fully explained in our booklet Responsibilities of Charity Trustees (CC3).

For how many years are trustees appointed by a local authority?

16. The number of years for which trustees can be appointed by a local authority will normally by a local authority? be stated in the governing document.

17. Section 79 of the 1993 Act (see paragraph 12 above and the Annex to this booklet) provides that trustees be appointed by a local authority under that section for a period of four years except:

  • when the trustees are being appointed to fill casual vacancies (for example, when they are replacing trustees who have resigned or died before they reached the end of their period of office) - in this case the new trustees must be appointed for the rest of the term of the trustees they are replacing; or
  • on a first appointment when more than one additional trustee is being appointed (see the section headed Additional trustees in the Annex to this guidance) – in this case half of the additional trustees (or as nearly as possible) must be appointed for two years so that all the appointed trustees do not retire at the same time.

18. Trustees who reach the end of their period of office may be reappointed.

Can trustees transfer a recreation ground or other property to a parish or community council?

19. If trustees hold property:

  • for the purposes of a public recreation ground, or of allotments, for the benefit of inhabitants of a parish or community having a parish or community council; or
  • for other charitable purposes connected with a parish or community having a parish or community council;

they may transfer the property to the parish or community council or to persons appointed by the council provided that:

  • we approve; and
  • the parish or community council consents.

20. If the transfer is made, the new trustees will hold the property on the same trusts and subject to the same conditions as the transferring trustees did.

21. Property belonging to an ecclesiastical charity can not be transferred in this way.

Can a local authority make bye-laws for recreation grounds?

22. Yes, where a local authority:

  • is the trustee or custodian trustee of; or
  • has given money to; or
  • has supplied goods or services, such as grass cutting to

a charitable recreation ground or open space, the authority may have power to make enforceable bye-laws for the land. This can be very helpful to a charity, since they may allow fines to be imposed or for an official of the local authority or the police to remove anyone who ignores those bye-laws. The trusts of the charity may also contain a power to make bye-laws, but these are generally not enforceable in the same ways and are, therefore, much less useful.

23. Bye-laws made by a local authority in respect of land held on charitable trusts to which the provisions of the Open Spaces Act 1906 and the Public Health Act 1875 apply, require confirmation by the Home Office to be effective. The conveyance of the land or the governing document of the charity will usually indicate whether either of these Acts applies.

Charity Accounts

Do charities have to send their accounts to local authorities?

24. No. Under Part VI of the 1993 Act, there is no longer any requirement for any charity to submit its accounts to local authorities. Most charities (depending on their income) will, however, have to submit accounts to us as a matter of course. All charities now also have a duty to provide accounts to any member of the public who requests them, but may charge an appropriate fee to cover photocopying costs.

25. For further information on the accounting regime, and how it affects charities of various sizes, trustees are recommended to read our guidance Charity Accounts 2001: The framework (CC61).

Rates

Do charities have to pay non-domestic rates?

26. A charity has to pay only 20% of the non domestic rates charged on a property by the charging authority if:

  • the property is occupied by the charity and is used wholly or mainly for charitable purposes; or
  • the property is used wholly or mainly for selling goods donated to the charity and the net proceeds are applied for the purposes of the charity.

27. In either case, a charging authority has power to reduce further the amount of rates which a charity is required to pay or to allow a charity to pay no rates at all. If the property is unoccupied and the next envisaged use will be for wholly or mainly charitable purposes, the charity is only liable for 10% of the standard rate.

28. Non-domestic property which is exempt from local rating includes agricultural land and buildings, places of religious worship (including ancillary buildings such as church halls) and property used for the disabled.

29. In all cases, charities are required to pay water and sewerage charges in full.

Fund-raising

Do charities need the permission of local authorities to raise funds?

30. The permission of a local authority or some other authority may be needed in certain cases:

  • house-to-house collections which include visits from house to house and to pubs, factories and offices to collect money or to sell things on behalf of a charity;
  • street collections which include collecting money or selling things on behalf of a charity in streets and other public places;
  • lotteries.

House-to-house collections

31. House-to-house collections must have a licence or an exemption. Licences are granted by either the appropriate local authority or if the collection is in London, the local police or the Common Council of the City of London.

32. Exemptions from the need to obtain a licence may be granted by:

  • the Home Secretary - for a collection over a wide area (the whole of England and Wales or a substantial part of it); or
  • the local Police - for a local collection to be completed within a short period.

Street collections

33. Raising money or selling goods for charity in streets or public places usually requires a permit or licence from either the appropriate local authority or if the collection takes place in London, the local police or the Common Council of the City of London.

Lotteries for charity

34. There are two main types of lotteries of interest to charities both regulated by the

Lotteries and Amusements Act 1976, as amended by the National Lottery Act 1993:

  • small lotteries; and
  • society lotteries.

35. Small lotteries do not need to be registered, but they have to be incidental to an exempt entertainment, and certain conditions have to be met. Exempt entertainments are defined by the Lotteries and Amusements Act 1976 and include fêtes, bazaars and dinner dances.

36. Society lotteries which put on sale less than £20,000 worth of tickets in one lottery, or which put on sale tickets with a total cumulative worth of less than £250,000 in any one calendar year, must be registered with the local authority in whose area the office or head office of the charity is situated.

37. If either of the above thresholds is exceeded in any one calendar year, the lottery will require to be registered with the Gambling Commission for that year and the next three, rather than a local authority. If the thresholds are not exceeded again during this period, then the lottery may revert to local authority registration.

Altering a charity’s trusts

Is a local authority involved when the Commission makes a Scheme altering the trusts of a charity?

38. Only in some cases. Where we propose to make a Scheme under section 16 of the 1993 Act for a local charity, other than an ecclesiastical charity, in a parish or (in Wales) a community in order to change the purposes of the charity or the way it is administered, we must send a draft of the Scheme to the parish or community council or, where there is no parish council, to the chairman of the parish meeting.

39. The parish or community council can appeal to the High Court against any Scheme made by us for the administration of a local charity comprised in their area provided:

  • it first obtains either a certificate from us that it is a proper case for an appeal, or the leave of a judge of the Chancery Division of the High Court; and
  • the appeal is made within three months from the date the Scheme is published.

Can charities and local authorities work together?

40. Yes. All charity trustees and all local authorities have power to co-ordinate their activities in the interests of people who benefit from their services.

41. The following authorities have power to keep a local index of charities, which can be inspected by anyone, and to review the working of local charities:

  • county councils;
  • district councils;
  • London borough councils;
  • new unitary authorities; or
  • the Common Council of the City of London.

42. A review may be carried out by a local authority itself or by a voluntary organisation acting for the authority, but under section 77(3) of the 1993 Act any such review cannot include ecclesiastical charities, and can include other charities only with the trustees’ consent.

We aim to make our publications as useful and easy to read as possible. If you have any suggestions about how this booklet may be improved, please write to the Head of Publications at our Taunton office.

Annex

Local authorities’ power to appoint trustees under section 79 of the Charities Act 1993

Additional trustees

A1. If a parochial charity in a parish or (in Wales) a community:

  • is not an ecclesiastical charity;
  • was set up more than 40 years ago; and
  • does not have any trustees elected by the local government electors, ratepayers or inhabitants, or appointed by the parish council or parish meeting or (in Wales) the community council or district council

then the parish council or parish meeting or (in Wales) the community council or district council, may appoint additional trustees to such number as we may allow.

A2. If a parochial charity in a parish or (in Wales) a community:

  • is not an ecclesiastical charity;
  • was set up more than 40 years ago; and
  • has only one trustee (usually called a "sole" trustee) who is not elected by the inhabitants or appointed by the parish council or parish meeting or (in Wales) the community council or district council

then the number of trustees may be increased to three, if we agree. One of the additional trustees may be nominated by the sole trustee and the other may be appointed by the parish council or parish meeting or (in Wales) the community council or district council.

Powers given to the inhabitants or vestry of a rural parish

A3. If, before the passing of the Local Government Act 1894, the inhabitants, the vestry or the select vestry of a rural parish were entitled to appoint trustees of a charity (but not an ecclesiastical charity) those trustees should now be appointed:

  • in England - by the parish council or, if there is no parish council, by the parish meeting;
  • in Wales - by the community council, or if there is no community council, by the district council.

Overseer and churchwarden trustees of parochial charities in rural parishes

A4. If, before the passing of the Local Government Act 1894, overseers were (alone or with others) the trustees of a parochial charity in a rural parish or churchwardens were (alone or with others) the trustees of a parochial charity (but not an ecclesiastical charity) in a rural parish, their place should now be filled by trustees appointed:

  • in England - by the parish council or, if there is no parish council, by the parish meeting;
  • in Wales - by the community council or, if there is no community council, by the district council.

A5. If, before the office of overseer was abolished in 1927, overseers of a parish were (alone or with others) the trustees of any charity outside Greater London (other than the outer London boroughs), their place should now be filled by trustees appointed:

  • in England - by the parish council, or if there is no parish council, by the parish meeting;
  • in Wales - by the community council or, if there is no community council, by the district council;
  • in the case of a former urban parish which is not now part of a parish, by the district council.

A6. None of the powers under section 79 of the 1993 Act can be used to change the trusteeship, control or management of a voluntary school. This publication (excluding the Royal Arms and departmental logos) may be reproduced free of charge in any format or medium for research, private study or for internal circulation within an organisation. This is subject to it being reproduced accurately and not used in a misleading context. The material must be acknowledged as Crown copyright and the title of the publication specified. For any other use of this material, please write to HMSO, The Copyright Unit, St Clements House, 2-16 Colegate, Norwich, NR3 1BQ. Fax 01603 723000 or e-mail: copyright@hmso.gov.uk.

SEC-G5002 V1 8/98