Charity Commission sets out expectations on reporting safeguarding concerns

5 October 2016

Last month the Charity Commission published a report stating its expectation that trustees should report safeguarding concerns under its serious incidents reporting regime.

Background

In October 2011 the Charity Commission was notified by a congregational member of the Bristol Community Church Trust that sexual abuse allegations had been made against the charity’s youth pastor.

The Charity Commission then opened an operational compliance case and liaised with the charity, together with the local authority’s designated person for safeguarding (LADO) and the police.  The trustees also engaged the Churches Child Protection Advisory Service (CCPAS) to conduct an independent review of the charity's safeguarding procedures, policies and practices.

Following initial responses and information provided by the charity, the Charity Commission escalated the case to a statutory inquiry under section 46 of the Charities Act 2011.

Regulatory approach to safeguarding

The Charity Commission’s approach in relation to safeguarding is set out in its strategy document published in May 2014. The Commission’s focus is on the conduct of charity trustees and the steps they take to protect their charity and its beneficiaries. The Commission’s main interest is therefore to ensure that from a charity law perspective:

1. charities working with children or vulnerable adults act in their best interests; and
2. trustees comply with their duty of prudence by ensuring there are proper and adequate safeguarding procedures and policies in place to protect their beneficiaries.

Scope of the inquiry

The scope of the Charity Commission’s statutory inquiry was therefore limited to the following specific matters:

1. whether appropriate actions were taken by the charity’s trustees to mitigate any further or emerging risks to vulnerable beneficiaries following the allegations;
2. whether there were any current risks to the vulnerable beneficiaries;
3. whether the trustees were managing and mitigating risks to the charity by ensuring that appropriate safeguarding policies and procedures were in place and properly implemented; and
4. how the trustees managed and continued to manage the risk to the charity’s reputation in relation to the allegations.

Findings

On 23 September 2016 the Charity Commission published its report on Bristol Community Church Trust.

The key findings were that the charity’s trustees had failed to take reasonable steps to protect the charity's beneficiaries in relation to allegations of sexual abuse made against the charity's youth pastor, and this failure amounted to misconduct and mismanagement on the trustees’ part.

Wider issues for the charity sector

The Charity Commission is clear in its report that a charity working with children or vulnerable adults must:

1. have adequate safeguarding procedures and policies which reflect the law and best practice;
2. ensure that its trustees know and understand their safeguarding responsibilities;
3. ensure that its procedures and policies are fully implemented and followed; and
4. regularly review its procedures and policies to ensure they remain up-to-date and fit for purpose.

Furthermore, if a charity is dealing with a safeguarding incident, as well as reporting these to the appropriate statutory agencies, it should promptly report it to the Charity Commission as a serious incident if:

1. there has been an incident where a beneficiary has been or is being abused or mistreated while under the care of the charity or by someone connected with the charity (e.g. a founder, trustee, member of staff or volunteer);
2. there has been an incident where someone has been abused or mistreated and this is connected with the activities of the charity or someone connected with the charity; or
3. allegations have been made that an incident may have happened, regardless of when the alleged abuse or mistreatment took place, and you have grounds to suspect that such an incident may have occurred.

As well as reporting the incident or allegation to the Charity Commission, charities must also notify the appropriate statutory agencies.

The Commission’s conclusions mirrors the statement made in its guidance on reporting serious incidents that:

“as a matter of good practice, any serious incident that has resulted or could result in … a significant risk to a charity’s … beneficiaries or reputation should be reported to [the Charity Commission] immediately, not just on completion of the annual return. This will enable [the Commission] to offer [trustees] guidance as soon as possible and help protect the charity and its beneficiaries.”

It is significant that the Charity Commission’s report and guidance both use the word “should”. The Commission uses the word “should” to refer to something that is good practice and which it expects trustees to follow and apply.  Furthermore, when the Commission looks into cases of potential breach of trust or duty or other misconduct or mismanagement, it may take account of evidence that trustees have exposed the charity, its assets or its beneficiaries to harm or undue risk by not following good practice. This is an important point for trustees to note.

The Charity Commission’s policy paper on safeguarding children and young people makes no specific mention of its expectation that safeguarding incidents should be reported to the Commission as serious incidents.  It is therefore to be hoped that the Commission will update its formal guidance to make this expectation explicit.

Future developments

The findings in the Charity Commission’s report, together with a number of its other recent statutory inquiries, indicate that safeguarding is being more frequently cited as a regulatory concern for the Commission.

Paula Sussex, CEO of the Charity Commission, has recently said that the Commission will likely refresh its safeguarding strategy in light of the Independent Inquiry into Child Sexual Abuse (IICSA).  In a recent blog she stated that the IICSA is “likely to have significant implications for all charities working with children and vulnerable adults”, as well as public authorities, including the Charity Commission itself.  The Commission intends to communicate safeguarding lessons to trustees in due course and to update its safeguarding strategy accordingly. 

Practical tips

In the meantime charities working with children or vulnerable adults should wish to review their safeguarding policies, procedures and practices to take account of the Charity Commission’s stated expectation and other issues raised by the investigation:

• What training and skills do your trustees, staff and volunteers need in relation to safeguarding?
• Should safeguarding be a standard agenda item for your charity's trustee meetings?
• What checks are carried out when recruiting new trustees, staff and volunteers?
• Does your safeguarding policy include an effective mechanism to enable individuals to raise concerns, including concerns about the lead safeguarding officer?
• Are your charity's safeguarding policy, procedures and practices reviewed and updated regularly?

Chris Hook is an associate solicitor based in Newcastle upon Tyne. He provides specialist legal advice to charities, social enterprises and educational institutions on a wide range of charity, commercial and public law matters. You may also be interested in his other articles below.

Disclaimer: This article contains information which is necessarily general. It does not constitute legal advice. It is essential that, before proceeding with a particular course of action, you take specialist legal advice on any relevant considerations which may apply in your specific circumstances so that you can properly assess your options and any associated risks and benefits.

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