Memorandum from Barnardo's (DCH 80)
1. BARNARDO'S
1.1 Barnardo's is the UK's leading children's
charity, working annually with almost 100,000 children, young
people and their families across the UK through over 300 services.
This figure includes over 55,000 children, young people and their
families who we work directly with on an ongoing basis, nearly
7,000 who we support through one-off sessions, and almost 35,000
others whom we assist through our work with community groups.
1.2 We work with the most vulnerable children
and young people, helping them to transform their lives and fulfil
their potential. We help young people and their families to overcome
severe disadvantage by enabling them to address problems like
abuse, homelessness and poverty, and to tackle the challenges
of disability.
1.3 Barnardo's helps children to overcome
challenging experiences in childhood. We work with them over the
long term to tackle the effects of disadvantage and to help them
develop into well-rounded adults. We call this "Giving children
back their future". We work hard to give every disadvantaged
young person the possibility of a different and better life ahead.
1.4 We also use our expertise and knowledge
to campaign for better care for children, and to champion the
rights of every child.
2. FLEXIBILITY
AND ACCOUNTABILITY
2.1 We welcome the reform to the working
practices, composition of the Charity Commission and the establishment
of an independent appeals tribunal. We are concerned, however,
that there is no statutory obligation on the Charity Commission
to act in observance of proper principles of substantive and procedural
fairness: we would urge that this matter be considered.
3. PUBLIC CONFIDENCE
3.1 We welcome the clarity of definition
of charitable purpose and the rigour of regulation as a contribution
to an increased public confidence in charities. We are hopeful
that reform in respect of trustees will lead to greater and wider
participation in the running of charities. We would seek greater
encouragement to young people to participate in the work of charities.
4. CHARITABLE
PURPOSES
4.1 We support the 12 proposed charitable
purposes. Declining to define "public benefit" maintains
flexibility and enables an iterative process, but would engender
repeated recourse to case law. We would welcome further consideration
of whether there is, now, an opportunity to helpfully codify "public
benefit".
5. DELIVERY OF
PUBLIC SERVICES
5.1 Much that would enable the children's
voluntary sector to further contribute to the delivery of public
services falls outwith the scope of this Bill; increased numbers
of local "compacts", the adoption of the principle of
full cost recovery, regulation and other levers to enable strategy
as well as "delivery led" contributions to Children's
Trusts.
6. TRADE
6.1 We favour but do not strongly support
the recommendation in Private Action, Public Benefit that charities
be enabled to trade as part of their normal activities ie without
setting up a trading company.
7. FUNDRAISING
7.1 We welcome the introduction of an integrated
licensing system. We consider that the solution presented within
the Bill clearly addresses the core issues affecting public fundraising,
and applies a risk-focused solution. Excluding the collection
of goods and house to house collection from activities requiring
permits is welcome. It reflects the useful distinction made in
the consultation process between those activities which require
greater regulation in order to restore and preserve public confidence,
and avoid nuisance, and those which do not.
7.2 We would like to comment specifically
on the following:
7.2.1 Integrated Licensing System operated
by "Lead" Local Authorities
7.2.1.1 We welcome the introduction of the
five year "fitness test" to engage in public fundraising.
We consider that Local Authorities, with clear guidance, are well
placed to issue this permit. We also welcome the recognition that
the profitability of fundraising activity is a matter for trustees,
and should not routinely be considered by licensing authorities.
7.2.1.2 Restricting the need to apply for
permits for individual fundraising activities, to those where
public confidence and nuisance issues are most prevalent, is welcome.
This will help to alleviate administrative burdens on both charities
and Local Authorities.
7.2.1.3 We are satisfied that this solution
addresses our concerns about the removal of the National Exemption
Certificate.
7.2.2 The definition of "public place"
in relation to "small collections"
7.2.2.1 We seek clarification of this definition.
The Charities Bill provides that, under the new scheme, public
collections would have to be licensed if they took place in areas
where the public has unrestricted access. We are concerned that
there may be some confusion about whether "small" collections,
such as carol singing or rag raids, taking place at railway stations
or supermarkets, may require a permit.
7.2.3 Provisions for collection of goods house
to house
7.2.3.1 It is appropriate that the Collection
of Goods does not fall within those activities requiring permits.
The proposed new scheme requires that notification be given in
advance of the areas in which collections will take place. For
practical reasons we recommend that this notification be given
at postcode level, not at street level.
7.2.4 "Capacity Based" System for
Granting Permits for Street Collections
7.2.4.1 The introduction of permits for
street collections is an essential step towards restoring public
confidence in this fundraising method, and overcoming negative
media coverage. We are concerned that the guidance to local authorities
will require very careful consideration, and would welcome consultation
during the development of this guidance.
7.2.5 Process for appealing against refusal
of permit for street collections
7.2.5.1 The introduction of a formalised
appeals structure is welcome. We recognise that, with clear guidance
given to Local Authorities, there should be little cause to appeal.
However we are concerned that in the instance of a local authority
blocking certain, or all, charities there may need to be a point
of higher authority to which the matter can be referred, in order
to avoid repeated and costly appeals to magistrates courts. We
suggest that the Home Office may be the appropriate authority.
7.2.6 Associated costs
7.2.6.1 We consider that the new system
has been developed with sufficient priority being given to the
need to keep additional costs and administrative burden to a minimum,
for both charities and local authorities.
8. SPECIFIC PROPOSALS
8.1 We note the proposed creation of a new
legal form for charities, and that a Charitable Incorporated Organisation
(CIO) can be created as a new entity or an existing charity can
opt to be converted into such. We understand the intended benefit
as reducing the burden of registration with both Companies House
and the Charity Commission, and the attendant double reporting
requirements. We welcome this, together with the simplified process
for amalgamation of two CIOs and the transfer of undertakings
from one to another. We are concerned, however, that:
8.1.1 Provisions relating to CIOs are to
be amplified in Regulation. Until these are available, it is difficult
to determine what genuine advantage a CIO will offer.
8.1.2 It is as yet unclear how much company
law will be replicated in the Regulations eg as to the maintenance
of registers, registration of charges, types of resolution required
for specified matters, required filings etc. Similarly, it is
not yet known what will be on public record. Principles of good
governance would determine that there is much of value in company
law worth mirroring in the Regulations.
8.1.3 CIOs will present yet another tier
of charitable entity (for so long as there exists the option to
remain or register in one of the existing forms).
8.1.4 It is unclear what incentive exists
for existing charities to convert to this new entity, given the
administrative effort entailed and novelty of compliance with
a new legal form
8.1.5 CIOs operating a trading subsidiary
will still need to maintain Companies House filings and compliance
with company law.
8.2. We seek further detailed consideration
of the practical consequences of introducing the Charitable Incorporated
Organisation.
9. OVERALL
9.1 Barnardo's welcomes a Draft Bill that
is balanced, measured, workable and responsive to comments made
during the considered consultation on Private Action, Public Benefit.
9.2 Much that is given little or no attention
in this evidence—the remuneration and liability of trustees,
provisions regarding the power to spend capital etc—are
not referenced only because they are both pragmatic and welcome.
Alan Coombe
June 2004
| 
