Charities and related third-sector organisations play a vital role in our society. Led by altruistic and passionate individuals, they understand and recognise the need where it is greatest and give a voice to those who previously had none. However, the role of these organisations has become ever more difficult to fulfil as recession-led welfare cuts mean demands have risen as funds have decreased. This disharmony now requires the third sector to govern, manage and fund organisations in the most efficient and effective way possible as well as continuing to fulfil strict legal obligations. At the end of 2016, YouGov interviewed over 1000 UK SMEs and we had the stats analysed by the Centre of Business and Economics Research (CEBR). According to this research, the Charities Sector loses over £1.2 billion through not taking care of their legal business so now it is even more important to make sure you know your rights and obligations with regards to the law. This is Part 1 of the LawBite legal guide to setting up a charity so you can fulfil your mission knowing your organisation is safe and sound at a price you can afford.
Choosing Your Organisation’s Structure
So you have a cause you feel passionately about and would like to make it your life’s mission to see that it gets the attention it deserves from the government and public to help alleviate that problem. This likely means steering your entrepreneurialism into the ‘third-sector’ (an organisation which is neither ‘public’ nor ‘private’) and creating and running an organisation there. But how do you go about executing this mission in practise? Everyone has heard of ‘charities’ but what is the best kind of charity for your situation and is your cause even suited to a ‘charity’ status? In some cases it might be best served under a different ‘third-sector’ banner. Here we will outline the different types and what you should be thinking about for each one, as each ‘charity’ status will demand different legal obligations from you as a trustee.
You probably know that there are different types of charities, each of which has a different legal status.
Choosing the right legal structure for your charity from the outset can save the charity money, help to protect the charity’s trustees, and make more funding sources available. This is because the structure will directly affect how your charity will operate in practise in these three key ways:
Who will run the charity and whether it will be open to a wider membership.
Whether the charity’s ‘trustees’ (see below for a more detailed description of what these are) will be personally liable for what the charity does and its losses.
Whether the charity can enter into contracts, own property or employ staff in its own name like a ‘company’ can.
Before we tackle the structures, if we are going to talk about charities it would be good to explain what a ‘trustee’ is as it is a term that gets used a lot. A trustee is someone who takes legal responsibility for the charity. Whether they are called ‘directors’, ‘governors’, ‘committee members’ on a day to day basis, a trustee is simply someone who takes decisions and is in control of the management of the charity. Often, there is more than one trustee and decisions are made collectively at trustee board meetings. One trustee does not usually have the authority to act alone unless that authority has been collectively given to him or her.
The Charitable Trust (‘Trust’)
This is the simplest form of charity. A charitable trust has a group of trustees who manage the charity’s assets in accordance with a trust deed. The key point to note is that a trust does not have a legal identity in its own right, so it is the trustees who are personally responsible if the charity is unable to pay its debts.
The Charitable Unincorporated Association
The charitable unincorporated association is similar to a trust, but in addition to the trustees the unincorporated association has a group of members who have a say in the running of the charity. It may have a constitution or governing document. Like a trust, a charitable unincorporated association is not a legal entity in its own right, so the trustees are at risk if the charity gets into difficulty.
The Charitable Company Limited by Guarantee
In most cases, the charitable company limited by guarantee will be one of the most sensible options for a new charity, and it is a structure that is common and well understood. Crucially, the charitable company has a legal identity in its own right, which means that the trustees are generally protected from personal liability. In addition to its trustees, the charitable company has a group of members who have a say in the running of the charity. The membership may be very small (perhaps only the trustees), or it may be much wider. A charitable company is regulated by Companies House as well as by the Charity Commission, which means a bit of additional administration and expense. The charitable company itself can enter into contracts, own property and employ people.
The Charitable Incorporated Organisation (CIO)
This is a new structure designed specifically for charities. Like the charitable company, the CIO has its own legal identity, so the trustees are protected from personal liability. Again, the CIO has a group of trustees and a membership. There are 2 types of CIO: the Association CIO with trustees and a membership distinct from the trustees, and a Foundation CIO where the trustees and membership are the same people. The key difference from the charitable company is that the CIO is regulated solely by the Charity Commission. There are many pros and cons when comparing the CIO to the charitable company. Advantages of the CIO include the fact that it only has one regulator, is not subject to company law, has simpler accounting requirements for smaller charities and has charitable status even if the charity’s income is less than £5,000. Disadvantages include the fact that the structure is relatively unknown and has not been tried and tested, that greater involvement of the Charity Commission could lead to delays, and that CIOs could face serious difficulties when trying to use their assets as security for borrowing.
So which one? The first two of these entities (charitable trust and charitable unincorporated association), you should think of as being the most simple yet having the most liability as they are not separate legal identities as you would have with a company (corporate) structure. The main difference between them is that the charitable trust is not open to a ‘wider membership’, whereas the unincorporated association is. A ‘wider membership’ is a charity which has members who aren’t trustees who decide and vote on important decisions, at an AGM for example.
The second two options (charitable company limited by guarantee and charitable incorporated organisation) are corporate bodies and are therefore legal entities in their own right. This means trustees are generally not personally liable for what happens, which includes any losses. Remember, either of these two legal company structures is not like that of a regular commercial company, which means it cannot distribute profits to its members (as you would have in a standard company/shareholder relationship), it must be registered with the Charity Commission and in the case of a company limited by guarantee, by Companies House and abide by their rules. All assets it accumulates must be used to carry out its charitable purpose and overall it must operate in the best interests of the charity. Again, you can choose to either open the entity up to a ‘wider membership’ or not.
Other Third-Sector Organisations
The Community Interest Company (CIC)
The CIC is not a structure that is available for charities, but is often a structure that founders of charities consider at the outset as it was set up to provide a structure for non-charitable social enterprises. CICs are companies that are set up for the benefit of the community. Like charities, they are restricted in the way in which they may use their assets, but they can be set up for a wider range of purposes than charities. Unlike charities, CICs have the potential to issue shares to raise capital and may pay limited dividends to their shareholders and limited salaries to their governing body members. They do not however have the considerable tax advantages that charities have, and many funding opportunities will not be available to them. A CIC does benefit from limited liability. A CIC is regulated by the Community Interest Company Regulator.
Aside from CICs which do not operate under the banner of ‘charity’, there are a few other types of community organisations which can be value-driven and therefore might be better suited to your needs. For example, you could set up as a ‘co-operative’ or even a (non-charitable) limited company.
Social enterprises: a social enterprise is not a form of legal structure, it is a broader term used to refer to organisations (charitable or non-charitable) that are set up for social or community purposes and which operate in a commercial way. A social enterprise may choose from a variety of legal forms, with the CIC being a popular choice.
Foundations: again, in the UK a foundation is not a form of legal structure. (It should not be confused with an NHS Foundation Trust which is governed by specific rules). A charitable foundation commonly supports other charities or organisations by giving donations, but like other charities may take a variety of legal forms.
Not-for-profit organisation: this is an organisation (charitable or non-charitable) that is set up on the basis that any profits are used for its specified purposes rather than being shared between its members. A not-for-profit organisation may take a variety of legal forms.
Community Amateur Sports Club (CASC): CASCS are organisations registered with HMRC and may be incorporated or unincorporated and benefit from a range of tax reliefs. However once registered as a CASC, they cannot be registered as a charity. Sports clubs may, subject to certain conditions, be registered as a charity or transfer their assets and activities to a new charity if they no longer want to be a CASC and would be eligible to be a sports charity.
Setting Up a Charity
If you decide setting up a charity is the right option for you, and you have decided on your structure, there are 6 key steps you will take:
The first action point would be to make sure your prospective charity has charitable purposes for the ‘public benefit’. For example, a few from the government list would be ‘relieving poverty’ and ‘animal welfare’. You certainly could not set up a charity whose purpose is to fund the purchase of your new Xbox (jokes aside, you can’t set one up for an individual, even if they are in need).
Secondly, you should find ‘trustees’ for your charity. As explained, a trustee is someone who take legal responsibility for the running of the charity and as such they are very important. The Charity Commission has a good guide here government website as to the best practices for recruiting one- (you usually need at least 3). They generally must be 18 and cannot have previously been disqualified as a trustee or company director, have certain unspent criminal convictions or be an undischarged bankrupt (still going through the process of bankruptcy). If they are working with children or vulnerable adults, they will need to be DBS (Disclosure and Barring Service) checked. There are several other important factors and skills you should keep in mind too to ensure you select the right person.
You’ll also want to choose a name for your charity. Similar rules apply as they do for any kind of traditional company. For example, the name can’t already be trademarked by someone else, it can’t be deemed offensive, misleading or be similar to the name of an existing registered charity or company. You can check the Charities Commission website to see a full list of naming guidelines and search the charity register to make sure you’re not duplicating!
You will need to decide on a structure for your charity, taking into account who will run it, how wide the membership is and whether the trustees will be personally liable for what the charity does and its losses as we have already discussed here.
The next stage would be to create your ‘governing document’. This is something every charity must have as it will define how your charity is run. Moreover, what kind of governing document you write will depend on what legal structure you choose for your charity. This document will outline points such as who runs the charity, its charitable purpose, how trustees are appointed and rules about their expenses, payments to trustees and how to close the charity. To make registration easier (the next stage) you should use the appropriate Charity Commission model template for your chosen legal structure.
The point at which you write your ‘governing document’ is when you need to properly state your charitable purpose by putting it into words. Your charitable purpose must fall within any of the 13 description of purposes listed here and be for the public benefit. The 4 points you should address in your description are:
The outcome of your work
Where the outcome will happen
How you will achieve the outcome
As will be mentioned in Part 2 of this guide, complying with your governing document is a legal requirement as a trustee.
Tip: Keep your aims broad yet clear on what you want to achieve but less specific as to how you will achieve it to leave your organisation room for manoeuvre as it matures.
Finally, you must officially register as a charity with the Charity Commission (if you think your income will be over £5,000 per year or if you wish to set up as a CIO- see above). Make sure to check out the government website to see what they’ll ask you so that you are prepared.
If you would like to set up your charity in England and Wales and would like to dig deeper into any of the above, you should refer to the Charity Commission’s Guidance on the government website.
Please note, this section is written from the perspective of setting up an English/Welsh charity. There are slightly different rules for Scottish and Northern Irish charities and we would urge you to check out these linked pages for Scotland and Northern Ireland.
Intellectual Property And Creating a Brand
If you want to create a real name for yourself and become easily recognisable (think the British Red Cross logo) you’re going to have to do a ‘branding’ exercise and from a legal perspective think about your intellectual property (IP). In short, your IP is the intangible property you acquire through creativity or ideas. Doing so will certainly help you to achieve your aims as it will help to foster trust in your organisation, to the ultimate gain of your beneficiaries.
There are 4 main types of IP you could acquire and (importantly) protect:
Copyright: this protects written and artistic works, documents, software, sounds, films, etc, and, in some cases, databases
Trademarks: think of logos and slogans here –Kit-Kat, Coca Cola, Nike’s ‘Just Do It’ slogan. These are to differentiate one organisation’s products and services from another. This protects one organisation ‘passing off’ its products or services as those of another in order to benefit from their more successful reputation.
Design rights: these protect the appearance of products (their shape and configuration)
Patents: used as protection for technical innovations
Logos and design work
One of the main initial part of this ‘branding exercise’ is creating the look and feel of your charity or organisation. Unless you have fantastic design and branding skills (and the time to utilise them) you might want to hire a graphic designer or an agency to create a logo and any other marketing collateral e.g. a slogan for you. If you do hire a designer or agency, make sure you have a contract in place which specifies precisely who owns the intellectual property in whatever they create, as well as stating a deadline for the project and the costs involved. A ‘Supply of Services’ style contract would be a good place to start. Make sure that within this contract, you ultimately ‘own’ the content created.
Again, bear in mind some images and phrases will not be able to be trademarked (an important step outlined below) so check the government’s IP website before making any final decisions.
Once you have these lovely branding creations in your grasp, you really should think about protecting them and this means registering a trademark. Having a trademark allows you to:
Take appropriate legal action against people using your brand without prior consent
Sell and license your brand
Use the famous ® symbol next to images of your brand which will act as a deterrent for those wishing to use it without your knowledge
How Much Does It Cost To Register a Trademark?
It costs £170 to register a trademark in one class, which refers to the type of product or service the trademark refers to. There are 45 different classes available in the UK. Each additional class you need costs £50. These are the ‘official’ government fees though you might be interested in paying for professional help as the forms are quite complicated to fill out. Once you have registered your mark nobody can use the same or similar mark for goods or services in that class or the same or similar mark for goods or services in another class where there is a risk of confusing the public.
Building a website
Whilst having a charitable organisation doesn’t mean you HAVE to have a website, most people do a bit of research before donating large sums, plus it is a great place to go into more depth about your cause or even trade to raise funds for your organisation. If you can make your own website- great! But even if you can, you might not have the time so hiring someone to do it is your likely route. As with anyone you engage with outside your company, for example a freelancer or an agency, you absolutely must have a contract in place before they undertake work with you. This will avoid any conflict over the cost and how it is to be paid, what is to be delivered and when. It will also deal with what is to happen if a problem arises – e.g. use of unauthorised software, correcting bugs, or a delay in delivery.
Once you have built your website, there are certain legal requirements you must abide by as well which should be stated explicitly on your website, usually in the footer of the page or in an ‘About’ section. There are four main documents you should be aware of which cover these obligations, though not all will necessarily apply:
Terms and Conditions of Website Use (Ts and Cs): This document gives details about you which you are legally required to provide (e.g. trading name, registered office, trading address, and VAT number), grants a licence to users to use your site subject to compliance with the T’s and C’s, sets out the limits of your responsibilities when people use your website, and clarifies that you own the website.
Acceptable Use: This document sets some rules for the users in the way that they are allowed to use your website – e.g. not introducing worms or viruses, not uploading illegal content, not breaching relevant laws, not breaching copyright.
Cookies: You will need this if you are utilising software which places a cookie on a user’s computer, so that you can identify them when they return to your site.
What are my obligations with regards to collecting data?
We get asked a lot about this, as it’s a particularly hot topic at the moment. The Data Protection Act 1998 defines how information about living people may be legally processed and handled. Businesses are required to comply with eight data protection principles and failure to do so may result in regulatory action by the Information Commissioners Office (ICO). The fundamental principles of data protection enshrined in the Act provide that personal data must:
be processed fairly and lawfully;
be obtained only for lawful purposes and not processed in any manner incompatible with those purposes;
be adequate, relevant and not excessive;
be accurate and where necessary, kept up to date;
not be retained for longer than necessary;
be processed in accordance with the rights and freedoms of data subjects under the Act;
be protected against unauthorised or unlawful processing and against accidental loss, destruction or damage; and
not be transferred to a country or territory outside the European Economic Area (EEA) unless that country or territory protects the rights and freedoms of data subjects.
If these principles are complied with, personal data may be processed for core business purposes (i.e. staff administration/business marketing activities) without the need to notify the Information Commissioner. If data is processed for other purposes, the Information Commissioner must be notified.
Subject Access Requests
It should also be noted that individuals have a right under the Act to obtain a copy of the information held about them. This is not limited to employees. If a business receives such a ‘subject access request’, a response must be given promptly and no later than 40 days and this covers all data, whether it is held electronically, in paper form or in any other form.
Review of Data Protection
SMEs should consider conducting a review of the personal data that they process. If sensitive personal data is processed, specialist advice may be needed and extra care taken where sensitive personal data (including details about race, political opinion, religious belief, trade union affiliation, physical or mental health, sexual life and the alleged commission of any offence) is concerned as conditions for processing such data are much more stringent than in relation to general personal data.
The ICO has developed an online self-assessment tool which can be used by small and medium-sized organisations (SMEs) to assess their compliance with the Data Protection Act and improve data handling procedures. The tool provides a rating of compliance with the Act based on responses to a questionnaire and includes links to relevant guidance and information.
New EU General Data Protection Regulation (GDPR)
In light of the foregoing and several recent high-profile ICO decisions and a heightened awareness of data protection by the general public, all businesses including SMEs need to have a proper understanding of their obligations under the Data Protection Act when handling personal data. Furthermore, with the forthcoming EU General Data Protection Regulation (GDPR), an even more stringent data protection regime, increased financial penalties and a wider definition of ‘personal data’, due to come into being in 2018, the need for small businesses to tighten up their data protection procedures has never been greater.
The GDPR is expected to become law in 2018 and whilst the UK may have voted to leave the EU, the regulation will affect all UK businesses due to the expanded territorial reach provided for in the Regulation. The GDPR applies to data controllers and processors outside the EU whose processing activities relate to the offering of goods or services to, or the monitoring the behaviour (within the EU) of, EU data subjects.
This means in practice that companies outside the EU targeting customers in the EU will be subject to the GDPR. As such, UK companies will be obliged to comply and in any event, it appears that the UK will still be within the EU in 2018 when the Regulation is due to come into force. Therefore, legal services for businesses going forward must necessarily include compliance with current data protection principles and with the new GDPR by 2018, in order to minimise the risk of finding themselves at odds with the new rules and open to hefty fines.
We hope you’ve enjoyed our brief guide to setting up your charity, keeping the organisation’s legal matters in mind. Whether you decide to go down the official ‘charity’ route or not, you should (hopefully!) take some wisdom and heed the best practice guidance of the Charity Commission and all those other wonderful organisations that are mentioned through parts 1, 2 and 3. Finally, as this is only to be used as a guide, we would recommend you seek professional advice if you’re confused about any of the above- don’t get bitten. LawBite can assist with your organisation’s legal queries for around half the price of a standard law firm, with relevant documents and advice. If you’re unsure of what you need, we offer a free consultation too!
Clive Rich, Founder and Chairman
Gwynne Jarvis, Charity LawBrief (LawBite lawyer)