Children and Families Bill

Memorandum submitted by the Charity Commission for England and Wales (CF 92)

1. Summary and recommendation

1.1 Part 3 of the Children and Families Bill 2012-13 affects the rights and duties of independent charities, for example by imposing specific duties on them. There is no apparent recognition on the face of the Bill of charitable status issues or of the impact on charity law of imposing additional duties. This is of regulatory concern to the Charity Commission and other charity regulators.

1.2 We would ask the Public Bill Committee to ensure that charity law considerations and the existing duties of trustees are fully taken into account and where appropriate reflected in the Bill.

2. Introduction

2.1 The Charity Commission is the independent regulator and registrar for charities in England and Wales. We regulate 162,000 registered charities, and a similar number of ‘excepted’ and small charities that do not have to register, but are subject to our jurisdiction.

2.2 Some charities are exempt from registration and regulation by the Commission. The Charities Act 2006 (consolidated into the Charities Act 2011) reformed the regulatory framework for exempt charities. It provided for the appointment of principal regulators, responsible for overseeing exempt charities’ compliance with charity law. We can use our powers in consultation with the appropriate principal regulator. We therefore have some degree of regulatory oversight for these charities too. Exempt charities with no principal regulator will lose their exempt status.

2.3 On 1 August 2011, the Secretary of State for Education was appointed principal regulator for academy proprietors, sixth form college corporations and the governing bodies of foundation and voluntary schools in England, all of which are exempt charities. (Community schools are not charities.) An increasing proportion of maintained schools are becoming academies. As of 1 March 2013, there are 2724 academies open in England, and over 7,000 foundation and voluntary schools.

2.4 Other bodies mentioned in the Bill may also be charities, depending on how they are set up: nursery schools, non-maintained special schools, independent schools, further education colleges, and children’s centres (which may be, or may be run by, charities).

2.5 Charity trustees have a number of duties under charity law, but their overriding duty is to act only in the interests of the charity and its beneficiaries (i.e. all who currently or potentially may benefit from it). This requires the trustees to exercise independent and informed judgement, not simply comply with the wishes or policies of other bodies.

3. Comments on Part 3 of the Bill

3.1 Clauses 28 and 29 impose specific duties to co-operate on specified types of "local partners" and schools. These include governing bodies of maintained schools (including foundation and voluntary schools), academy proprietors, non-maintained special schools, further education bodies and independent special schools, all of which may be charities.

3.2 It is unclear how these duties will work in practice; how they will sit with the trustees’ overriding duty to act in the interests of the charity, who if anyone will independently assess whether it has been complied with or not (on either side), what are the consequences of non-compliance and what kind of process of appeal or arbitration there might be between a charity and a local authority.

3.3 Clause 33(2) requires that EHC plans must provide for education in a maintained or mainstream educational establishment unless this is incompatible with (a) the wishes of the child’s parents or the young person or (b) the provision of efficient education for others. Sub-clauses (3), (4) and (5) set out the respective responsibilities of the local authority and the governing body/proprietor in determining whether (2)(b) applies, but the local authority is ultimately responsible for securing the plan. Does this ensure a appropriate balance in decision making when the governing body or proprietor is a charity, particularly in view of clause 43 which would impose on the charity a duty to admit a child or young person where their school is named in the EHC.

3.4 Clause 33(6) allows a child or young person to be educated in an independent school, non-maintained special school or special post-16 institution if the cost is not met by the local authority. It is not completely clear to us how this sits with clauses 56-58 which provide for the local authority to pay for such provision.

3.5 Clause 34, in particular sub-clause (9), is likely to affect the terms of existing funding agreements between the Secretary of State and academy proprietors, which may need to be rewritten as a result. For example, charging for educational provision is generally prohibited (under DfE policy).

3.6 Clause 61 imposes an additional duty on governing bodies and proprietors (including charities) to use their "best endeavours" to secure appropriate special education provision. Clause 62 imposes a duty to appoint a SEN co-ordinator. Clause 63 imposes a duty to inform parents. Clause 64 imposes a duty to prepare a report on SEN information. All of these duties are in addition to charity trustees’ duties.

4. Terminology used in Part 3 of the Bill

4.1 The Bill makes frequent reference to the child’s "parent". The term does not appear to be defined. Does it include foster parents, other carers, or (where applicable) a children’s home (which may be a charity)?

4.2 The Bill uses the term "independent school" in certain contexts without definition. An academy, as a non-maintained school, is technically a type of independent school.

April 2013

Prepared 24th April 2013