The Charity Commission yesterday updated its coronavirus guidance to signal what seems to be the beginning of the end to the benevolent approach it has taken to charities needing to postpone or cancel meetings, or hold them remotely, during the pandemic.
Next steps for charities will depend on whether or not they would like to retain the flexibility from which they have benefited in this respect during the last year or so, and, if so, whether they are able to amend their governing documents.
Most charities will have the necessary power to make amendments set out in their governing document, or be able to use a statutory power.
Any trustee who is unsure about how an amendment might be made can find more information on making changes to a charity's governing document in the Charity Commission's guidance.
For some, the matter may not be quite as straightforward and the charity trustees will need to seek appropriate legal advice.
However the amendments are made, though, charity trustees of registered charities should remember that any changes to a governing document will have to be notified to the Commission online.
Charities that can amend their governing documents
The updated guidance encourages charities without provisions in their governing documents to allow for:
- online, telephonic or hybrid meetings, or
- the postponement or cancelling of meetings,
but who wish to retain these options in relation to their meetings after the pandemic and have the power necessary to amend their governing documents, to use that power to amend their governing documents to contain the necessary provisions for future use.
Such charities are also reminded to approve any previous decisions made as soon as possible.
What if a charity can’t amend its governing document...?
If a charity cannot make changes to its rules on meetings, the Commission in its updated guidance advises trustees who plan to do something which is not permitted by the governing document of the charity to contact the Commission about those plans as soon as they reasonably can, as the Commission may be able either to give advice or to authorise the trustees’ actions.
The Commission also confirms that it intends to continue to take an “understanding” and “proportionate” approach to the decisions of trustees of such charities either to hold meetings remotely or on a hybrid basis, or even to postpone or cancel a required meeting, where there are no provisions in the charity’s governing document to allow for this - but only “in the short term as Government restrictions are lifted" and provided:
- the circumstances at the time are such that the trustees could not reasonably have previously made the necessary changes to the governing document to allow for this, and
- the trustees can demonstrate that they had considered all the relevant factors in coming to their decision, including possible alternatives, and
- all other provisions relating to meeting governance are followed by the trustees.
In such cases, the trustees of the charity should ensure they can demonstrate that their decision is in the best interests of the charity taking into account all the circumstances.
The Commission, however, warns charity trustees who make such a decision about a charity's meeting that other people with an interest in the charity may disagree with their decision. It advises, therefore, that trustees should take advice to make sure they fully understand the possible implications of making such a decision.
It would also be prudent for the trustees to ensure they record both the decision and the reasons for the decision appropriately, in case they find themselves required to justify the decision later on.