OPERATIONAL GUIDANCE

NAMES OF CHARITIES

ACTION WHERE NAME DOES NOT MEET S.6(2) REQUIREMENTS

OG 18 B3 - 29 June 2001

Divisional responsibility

For action:

Charity Support Division
Charity Database Division
Registration Division

For information:

Investigation Division

Contents

1. Charity Names Officer and Names Legal Officer
2. General approach and extent of our powers
3. Cases involving similar or identical names: s.6(2)(a)
4. All other cases: s.6(2)(b)-(e)
5. Where period for s.6(2)(a) direction has expired

Meaning of expressions - list of Glossary terms used in this Guidance
Index to further related information

1. Charity Names Officer and Names Legal Officer

All cases of contention will be dealt with by case officers in consultation with a designated site Charity Names Officer (CNO) and a Names Legal Officer (NLO) assigned locally to advise on names cases.

The CNO (an Assistant Commissioner of PB3 and above) is responsible for giving general "names" advice and guidance to caseworkers in Registration and Charity Support Divisions through surgeries and referrals. The CNO has power to make directions under s.6(2) for Registration Division cases only - subject to the approval of the Registration Head of Division (HoD) and the NLO.

2. General approach and extent of our powers

The procedures outlined in this OG apply to both initial proposals for registration and changes of name for existing registered charities.

Case officers will need to consider all the provisions of s.6(2) in the case of every application for registration or change to an existing name of a registered charity. In the former case it should be noted that Information Sheet 6 of the Registration application pack now sets out the position on charity names and indicates what checks will be made to ensure compliance with s.6(2).

Searches of CDB need to be as comprehensive as possible and should be carried out by designated staff in RTN and Charity Support Divisions.

It is important to note that in respect of registered charities our power to make a direction extends only to the name by which a charity is primarily identified on the Register (not to working or campaigning names - see OG 18 C5).

It is emphasised that we cannot guarantee the use of a particular name even where at the time of any enquiry there appears to be no objection to its use. We have no power to agree in advance of (or in the absence of) registration to the use of a particular name - or to reserve a name.

It is impossible for us to know the names used by all non-registered charities or names that have been legally protected by another charity. Similarly it may not be apparent at the time whether a name is misleading or offensive and if the name is in a non-English language (see OG 18 C4) we need to ensure we are provided with a translation at the outset.

Where we are concerned about the use of a particular name we should make it absolutely clear to the trustees what the precise nature of our objection is and (in the case of identical and similar names) highlight the potential damage to the charity and its beneficiaries. We should ensure that our views are fair and reasonable and are clearly relevant to the context in which the charity operates.

We will not usually need to seek the views of other charities with names entered on the Register which are clearly the same as or too likethe one under consideration. It is our responsiblity to ensure that any potentially confusing or damaging duplication or similarity is avoided.

3. Cases involving similar or identical names: s.6(2)(a)

3.1 Where we are registering a charity or considering an amendment to a name on the Register
3.2 Complaints about identical or similar names

3.1 Where we are registering a charity or considering an amendment to a name on the Register

It should therefore be borne in mind that any case approaching this 12 month deadline should be given priority.

The case officer is responsible for ensuring in the first instance that CDB is checked for names which are the same as or too like that of another registered charity (or of any unregistered charity we are aware of - if it has had a case opened for it on CDB).

The CNO should be consulted at an early stage in any case where there is doubt as to whether a name complies with s.6 requirements. It is recognised that some "names" cases can be complex and may present problems which if not addressed early might prove difficult to rectify at a later stage. In cases of potential controversy it is advisable for the matter to be referred without delay to the NLO.

Where (after such consultation) a name is not considered acceptable a letter will be issued (assuming in the case of a proposed registration that the organisation is considered charitable) explaining that the charity will need to either find a new name or (if appropriate) resolve the issue to our satisfaction with an existing charity having the same or a similar name.

Our approach at this stage is to make every effort to try to resolve the issue voluntarily. However there may be instances where we will need to make it clear to trustees that rather than delay registration simply because of a disputed name we will make a s.6 direction as soon as their charity is entered on the Register. We should not in any circumstances suggest alternative names.

The case will be diaried for 6 weeks to await the trustees' response.

If the argument is accepted:

• the case will proceed to completion of registration or amendment of the Register.

In the case of a proposed amendment (either proposed or purportedly already made) if no response is received:

• we will not amend the Register in any case where a name contravenes s.6; the case should be referred via the CNO to Legal Division to consider what further steps should be taken to prevent the use of the name and to ensure that the amendment is constitutionally revoked.

In the case of a proposed registration if the argument is rejected or no response is received then:

• the charity will be registered (because we cannot give a direction under s.6(2)(a) unless it is registered);

• the CNO (with the approval of the RHoD and NLO) will issue a direction requiring the trustees to change the name. For the legal formalities which need to be complied with see OGs 18 B4 and B5;

• the Register will be marked to show the charity is subject to a direction. The wording used will be: "Subject to direction for change of name under s.6(2)(a) of the Charities Act 1993. Date of direction: [ ]."

• the CNO will diary the case for the trustees' response: 4 weeks to be allowed from the issue of the direction.

If no response is made within that time the procedure set out in OG 18 B5 should be followed.

3.2 Complaints about identical or similar names

Complaints (usually from concerned charities) about identical or similar names will be dealt with by caseworkers in either Registration Division or Charity Support Division according to whether they concern:

• initial acceptance of a name onto the Register by Registration Division; or

• acceptance of a change of name onto the Register by Charity Support Division.

In the case of name which is "too like" or the same as that of another charity we can only give a direction on those grounds within 12 months of the date of entry in the Register. The 12 months could run either from registration of the charity or from the date on which a new name was entered in the Register after a change of name.

Any delay on our part in any case of complaint could deprive a charity of an effective remedy if it is successful in an application for judicial review - ie if the 12 month time limit has expired and we no longer have power to make a direction under s.6(2)(a).

Care must therefore be taken to ensure that replies are given within the existing divisional targets and in accordance with existing casework priorities. If the 12 month time limit is approaching we will need to give priority to the case.

In assessing the strength of the complaint the tests in OG 18 C1 should be applied and the CNO and the NLO should be consulted.

If (after consultation) it is considered that the complaint is valid we should write to the trustees of the "offending" charity explaining the reasons why and ask them to propose another name. No alternatives will be suggested by us. The complainant should also be advised of our action and be kept informed of any developments.

Again although our approach is to make every effort to try to resolve the issue voluntarily the offending charity will need to be advised of our powers to make a direction (though whether under s.6(2)(a) will depend upon whether it is within the requisite time limit). The case should be diaried for four weeks.

If an alternative name is proposed which is in our view acceptable (ie we do not seek the approval of the complainant to the new name) the Register should be amended.

The complainant should be advised in writing of the resolution of the matter and the case should be closed.

If the name proposed is not considered acceptable by us then:

• A direction under s.6(2)(a) will be issued requiring the trustees to change the name. The direction will be made by:

• the CNO (with RHoD and NLO approval) in the case of an initial acceptance onto the Register;

• the appropriate Charity Support Division PB5 in the case of acceptance of a change of name.

(The direction may need to be made under s.6(2)(d) if the time period for a s.6(2)(a) direction has expired - see OG 18 C2 for guidance on this point. For the legal formalities which need to be complied with see OGs 18 B4 and B5).

• The Register will be marked to show the charity is subject to a direction.

• The case will be diaried for the trustees' response: 4 weeks to be allowed from the issue of the direction.

If no response is made within that time the procedure set out in OG 18 B5 should be followed.

4. All other cases: s.6(2)(b)-(e)

This section applies to cases where a name might be considered:

• likely to mislead in terms of:

• misrepresenting a charity's purposes or activities: s.6(2)(b);

• misrepresenting its status: s.6(2)(c);

• giving a false impression of a charity's connections: s.6(2)(d);

• in our view offensive: s.6(2)(e).

It is important to recognise that under any of the above subsections of s.6(2) a direction will not be dependent upon a charity being registered: ie we do not need to place a charity on the register prior to issuing a direction in any of these circumstances. We can in fact make a direction under s.6(2)(b)-(d) for any charity which is not registered and which is not an exempt charity.

In all other respects the procedures set down in section 2 should be followed.

5. Where period for s.6(2)(a) direction has expired

Where the time period for a direction under s.6(2)(a) has expired consideration should be given as to whether a direction can be given under s.6(2)(d).

A charity may not adopt a name which suggests a connection with (and therefore endorsement by) theGovernment a local authority any other body of persons or an individual. An implied association with a well known popular figure such as a sportsman or an actor or with another charity whether incorporated or unincorporated or whether registered or unregistered would fall into this category unless it were genuine.

However our interpretation of s.6(2)(d) is that the implied association will cover circumstances where one charity gives an impression of a connection with another. This could arise where two or more names are considered so similar as to cause public confusion and seriously mislead by giving an impression of a connection where there is none.

A direction to change a charity's name in these circumstances could be given after the name was entered in the Register. The time restriction found in s.6(2)(a) would not apply even though the charity which is to be the subject of the direction is registered.

The following words and phrases are defined in the Glossary of Terms:

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1993 Act
Charitable company
CDB
Trustees

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