Advice for Visionary Members from Russell Cooke Solicitors
UK charities are under increasing scrutiny to be vigilant and proactive in maintaining safeguarding measures and protecting the good name and integrity of the sector. The guidance from the Charity Commission on this topic is extensive but it is not always easy to apply. Many of these duties overlap with standard legal requirements applicable to other businesses and organisations, such as the duty to comply with Health and Safety, Employment, Criminal and Data Protection legislation.
Somewhat controversially the Commission no longer uses the phrase “Safeguarding” only in reference to the protection of children and vulnerable adults but also to cover harm to anyone who comes into contact with the charity in its work. This means that an allegation of bullying or harassment against a trustee or senior staff member may require a Serious Incident report.
Careful consideration and preparation of robust safeguarding policies are crucial to preventing harm and avoiding safeguarding risks. Where existing policies are focused on the vulnerable they need to be changed or supplemented to cover all contact with the charity. These policies should be widely accessible to everyone within the organisation and adequate training should be provided to trustees, staff and volunteers if necessary.
What is Serious Incident Reporting?
The scope of what constitutes a Serious Incident is broad. Serious Incidents are defined as an adverse event, actual or alleged which results in or risks significant;
- harm to your charity’s beneficiaries, staff, volunteers or others who come into contact with your charity through its work (who are collectively referred to throughout this guidance as people who come into contact with your charity through its work)
- loss of your charity’s money or assets
- damage to your charity’s property
- harm to your charity’s work or reputation.
The Commission has recently updated its guidance to provide some further clarity to assist charities in deciding where the line can be drawn on whether an incident warrants a Serious Incident report. The Commission has produced a helpful ‘Examples Table’ providing a list that gives some direction as part of their guidance note. However, this should not be relied upon exclusively and whether or not an event is ‘significant’ will depend on a charity’s size, the level of publicity or media interest, current Commission concern and the nature and seriousness of the event in question. Trustees should use their judgment and common sense in deciding what is proportionately ‘significant.’
What should you do?
Charities should have in place clear policies and procedures that deal specifically with the process of Serious Incident Reporting.
Responsibility for making the Serious Incident report lies with a charity’s trustees but it may be advisable to get professional advice prior to making the report to the Charity Commission to ensure that the event is being dealt with appropriately. Charities must make the report as soon as is reasonably possible after an event or immediately after the charity becomes aware of it.
If a charity is sufficient large, the trustees meet infrequently or may not available within the narrow timeframe required to deal with a Serious Incident, trustees may wish to delegate responsibility to an appropriate employee to decide whether or not an incident should be categorised as ‘serious’ and then reported. However the trustees must ensure that this authority is written as ultimate responsibility for Serious Incident reporting rests with them.
Charities should be mindful that their obligation to report a Serious Incident could involve one of their partner organisations. Partner organisations include: another charity to which you are linked, a trading subsidiary, a delivery partner or subcontractor, or even an organisation that receives funding from the charity.
The closer the link between a charity and a partner organisation, the greater the risk that an incident will be need to be reported by you. Links could include: charity staff or volunteers being on a partner’s premises or providing services to a partner organisation, the charity or partner sharing branding or the two organisations being involved in a joint event. For example, several galleries and museums have recently come under criticism for their ongoing links to BP and the accusation that BP is engaged in ‘reputation laundering’. A charity’s trustees and management should give due consideration to potential risks of damage to the charity’s funding, people and activities when choosing partner organisations. These needs to be regularly reviewed and issues reported, acted on and recorded.
Trustees should make sure that their charity possesses comprehensive Safeguarding and Serious Incident policies that are readily available throughout the organisation and easily understood by all relevant individuals.
Guidance on good Safeguarding Practice is available online from both the NCVO and Bond’s ‘Good governance for safeguarding’ both of whom are recommended by the Commission.
Charity Commission Guidance
Specialist advice for Visionary Members
Further guidance can be sought by Visionary members from Visionary’s legal partner Russell-Cooke using the Visionary Telephone Helpline. The helpline is a free telephone and email helpline service and is open to take calls between 9.30am and 5.00pm on all weekdays, except bank holidays though an immediate response cannot always be guaranteed. The duration of each call or time available to review or comment on emails to the Helpline is limited to 15 minutes. A full review of documentation cannot be undertaken. Response to emails will be by telephone.
Emails should be addressed to: Charity.NewEnquiries@russell-cooke.co.uk marked ‘Visionary helpline’ in the subject line.
Calls should be made to: 020 3826 7538