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The Charity Commission’s power to disqualify trustees

judge’s gavel, glasses and a paper tag with the word disqualified. concept of disqualification

With the recent news that the Charity Commission has disqualified Hannah Ingram-Moore and her husband from being a charity trustee for a period of 10 years and 8 years respectively, we look at the Commission’s power to disqualify trustees and the circumstances when it may be used.

The order which has recently been publicly reported was made on 14 May 2024 and came into effect on 25 June 2024, however the Commission’s statutory inquiry into The Captain Tom Foundation is still ongoing. As such, the details of the disqualification order are not known, but the Commission has reported that “In this instance, the legal test for disqualification was met because there has been misconduct and/or mismanagement, the individuals are not fit to be a trustee or hold senior management functions and disqualification is in the public interest.” 

The Commission’s power to disqualify charity trustees

The Charity Commission has the power to disqualify a person from being a charity trustee under section 181A Charities Act 2011. In using this power the Commission can determine the length of the disqualification order (up to 15 years), as well as whether this will apply to all charities (or specified charities) and if it will extend to positions of senior management in charities.

There are 3 tests the Commission will consider when deciding whether to use this power. This power can only be exercised where the Commission is satisfied that:

  • one or more of the six conditions in section 181A (7) are met (“the Conditions”);
  • the individual is unfit to be a charity trustee; and
  • the making of the order is “desirable in the public interest in order to protect public trust and confidence in charities”.

This is a three-step test, and all 3 elements of the test need to be met before the Commission will issue a disqualification order. This is not a power the Commission exercises lightly, and they will only do so where they are satisfied all 3 of the above arms of the test are met. 

The Conditions referred to in subsection (7) of section 181A include:

  1. the individual has been cautioned for a disqualifying offence against or involving the administration of a charity (‘disqualifying offence’ is defined as any offence listed in Case A of section 178(1) Charities Act 2011, which includes offences involving bribery, perverting the course of justice, money laundering offences etc.);
  2. where such an offence has been committed outside the UK, but would have constituted a disqualifying offence (for the purposes of Condition A) if it had been committed in the UK;
  3. the individual has been found by HMRC not to be a fit and proper person;
  4. where the individual was a trustee, employee, officer or agent of a charity at the time where misconduct or mismanagement in the administration of the charity occurred and:
    1. that person was responsible for the misconduct or mismanagement; or
    1. they knew of the misconduct or mismanagement and failed to take reasonable steps to stop it; or
    1. their conduct contributed to or facilitated the misconduct or mismanagement.
  5. Where the individual was an officer or employee of a corporate trustee who was a trustee for a charity, and the conditions in (D) above apply; or
  6. Any other past or continuing conduct by the individual (regardless of whether it is in relation to a charity), that is considered “damaging to public trust and confidence in charities generally or in the charities or classes of charity specified or described in the order”.

How can we check if someone has been disqualified?

You can search the Register of Removed Trustees on the Commission’s website to find out if an individual has been disqualified from acting as a charity trustee, by searching by surname.

Anyone can search this register, and it would be good practice to incorporate this into your new trustee onboarding process and part of your pre-appointment checks.

If you have any questions or would like to speak to one of our Charities team, please get in touch with Kirsteen Hook at [email protected].

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