One of the most recent changes to have been made with the guidelines laid down by the Office of the Scottish Charity Regulator (OSCR) is discreet. But it is distinct if you need to notify them about a serious issue which has happened or, indeed, is happening. Notifiable events reporting has been replaced with the ‘raise a concern’ process.
On 1 April 2024, rules came into force which mean that, when notifying the regulator of an incident, trustees should submit a ‘raise a concern’ form if they find themselves with an issue which they themselves are unable to resolve. It is important to understand where this has come from.
OSCR’s notifiable events regime was introduced in 2016 for charities to report any serious issues to prevent them from developing and affecting not only the individual charity, but the sector as a whole. Recently, however, concerns have been expressed about a lack of clarity as to when a charity should file a notifiable event.
A notifiable event was defined as ‘events that have a significant impact on a charity’. But, with no statutory definition or obligation to file a notifiable event, the unintended consequence has been confusion. OSCR has said that reports are mainly received from large, high-income or cross border charities and were not seen as representative of the Scottish charity sector as a whole. Furthermore, there was a lack of evidence that the regime ultimately contributed to a notifiable event being handled successfully by the charity.
The ‘raise a concern’ form is the attempt to resolve that.
Good governance, of course, involves trustees staying abreast of their legal duties and responsibilities. That includes knowing what to do in the event that something goes wrong.
One of the common misconceptions is about when OSCR should become involved. Trustees should first try to resolve issues themselves. If they are successful in doing so there is no requirement to notify the regulator. If they cannot - potentially due to the seriousness of the issue, possibly indicating a failure of trustees to meet their legal duties, trustees should now consider raising a concern with OSCR instead of reporting a notifiable event.
OSCR has provided guidance as to the nature of concerns they are able to deal with and when they will take regulatory action. If your charity is facing difficulties, it is important to consider how your own policies and internal experience might be able to diffuse the situation.
Raising a concern with OSCR need not be the first port of call, unless of course you have concerns with the governance or charity law breaches. If you are in any doubt, you would be wise to seek legal advice.
Published on 14 June 2024.
