The Regulator for Charities in England and Wales
WAIVER OF DISQUALIFICATION FOR ACTING AS A CHARITY TRUSTEE
CHECKLIST OF FACTORS WHICH MAY BE RELEVANT WHEN CONSIDERING WHETHER OR NOT TO GRANT A WAIVER
| The following is a checklist (not an exhaustive one) of factors we will take into account when considering a case where a waiver of disqualification is being requested. | |||
| In the first place we shall need to establish whether the governing document of the charity otherwise contains provisions disqualifying or determining trusteeship in any of the circumstances covered by the statutory disqualification, because waiver would extend only to the statutory provision: it would not override the trust provisions. | |||
| Following this, these factors will be considered. | |||
| (a) | In relation to a conviction, the specific nature of the offence in respect of which the disqualification arises. | ||
| (b) | The gravity of the offence and the sentence passed by the Court. | ||
| (c) | The circumstances and seriousness of the bankruptcy or composition or the circumstances of any removal by the Court or the Commission as the case may be. | ||
| (d) | The nature of the trust property, for instance: | ||
| whether it consists only of land used for the purposes of the charity; or | |||
| whether there are investments and money which would or might pass through the trustee’s own hands. | |||
| (e) | The degree of risk to the funds or property of any charity concerned if the person returns to office. Factors which may be relevant are: | ||
| whether the applicant is likely to receive or have custody of charitable funds or property; and | |||
| the applicant’s personal circumstances. | |||
| (f) | Whether, in the case of a relevant offence or bankruptcy or composition with creditors, the nature and extent of any misconduct relating to the administration of any charity would itself warrant removal from office as a trustee. | ||
| (g) | 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. | ||
| (h) | Where relevant, the purposes and interests of the charity or class of charity, for instance, the rehabilitation of offenders through charitable works. | ||
| (i) | Whether the applicant is 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 him or her to act as a director of any other company. Also whether the applicant is similarly disqualified as a result of proceedings under the Insolvency Act 1986. | ||
| (j) | If a disqualification order as in (i) above has not been made in circumstances where the applicant has been convicted of a criminal offence involving dishonesty or deception in the course of company administration, the reason why no such order was made. | ||
| (k) | Whether the applicant has 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 the applicant’s involvement has been made. | ||
| (l) | 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 the applicant acting as a trustee. | ||
| (m) | The length of time that has elapsed since the events giving rise to the disqualification. | ||
| (n) | Evidence of "good conduct" in the meantime and why it is considered that there is no risk of history repeating itself. | ||
| (o) | 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 documentary evidence required is listed in the model letters OG 42 L1 and OG 42 L2 to which this list should be attached. | |||
| The following words and phrases are defined in the Glossary of Terms: | ||
| • • |
the 1993 Act trustees | |
| Go to: Index to further related information | ||