Guidance

Automatic disqualification: Waiver decision process and appeals

Updated 1 August 2018

When to apply for a waiver

If you are disqualified from being a trustee or holding a senior manager position within a charity as a result of the automatic disqualification rules you can apply to the Commission for a waiver.

The Commission’s starting point when deciding your application

Unless your circumstances are such that we must give you a waiver, our starting point is that you should normally remain disqualified until the legal disqualifying reasons that affect you, no longer apply.

But we recognise that giving a waiver will be justified in some cases.

Our decision depends on whether we think giving a waiver is in the best interests of:

• the charity or charities you list
• a class of charities
• all charities, where a general waiver is applied for

We will also need to be satisfied that giving a waiver is not likely to damage public trust and confidence in a charity or charities.

To consider whether giving a waiver is likely to be damaging to public trust and confidence in a charity or charities, we will look at factors such as:

• the seriousness of the conduct and circumstances that led to the disqualification
• how long ago the conduct that led to disqualification occurred
• whether the conduct that led to disqualification damaged a charity

To make a decision about the best interests of a charity or charities we will balance the risks and benefits which may result from you acting as a trustee or in a senior manager position. We will only give a waiver where the benefits outweigh the risks.

Circumstances where we can’t grant a waiver

The Charity Commission cannot give you a waiver where the rules of the charity you want to work with disqualify you from being a trustee or from holding a senior manager position. For example, where the charity’s rules say that a person who is an undischarged bankrupt cannot be a trustee, a waiver cannot override that.

If you are applying for a waiver, you need to check that the charity’s rules (in its governing document) do not prevent a person with your disqualification reason from acting in the position you wish to take up.

The following reasons will also prevent you being given a waiver:

• you are, or will become, disqualified, not because of automatic disqualification rules but because of other legal rules
• the charity is a company or Charitable Incorporated Organisation (CIO), and either you are disqualified as a company director, are an undischarged bankrupt under the Insolvency Act 1986 or failed to pay a county court administration order and you have not been granted leave to act as a director, or trustee of a CIO, by the court

A CIO is a type of incorporated charity.

Circumstances where we must give you a waiver

The Charity Commission must give you a waiver (if applied for) if you are disqualified because:

• you have been removed by the Charity Commission from office as a trustee, officer, agent or employee of a charity and
• 5 years or more have passed since the removal, and none of the following exceptions apply:

The waiver application relates to a charitable company or Charitable Incorporated Organisation (CIO) and either:

• you are disqualified as a company director or trustee of a CIO
• you are an undischarged bankrupt
• you have defaulted under a county court administration order and
• you have not been granted leave to act as a director of another company or trustee of another CIO

The Charity Commission is satisfied that there are special circumstances which mean that the waiver should be refused, such as where:

• there is evidence to suggest that there is a real risk that you will repeat the behaviour which led to the original disqualification
• there is evidence of your unsuitability to act as a trustee or hold a senior manager position at a charity
• the trustees of a charity or charities that you want to work with in a trustee or senior manager position don’t support your application for a waiver

Factors which make your disqualification more likely to be waived

The conduct that led to your disqualification

The nature of the conduct that led to your disqualification does not indicate strongly that:

• you are unsuitable to be a charity trustee or hold a senior manager position at a charity. For example, your disqualification is for reasons related to financial management but the relevant conduct was not reckless, dishonest or incompetent
• giving you a waiver is likely to damage public trust and confidence in a charity or charities

The length of time since your disqualifying reason happened

Your unspent conviction, or other disqualification reason, occurred a long time ago and you can show evidence of good conduct since then which indicates that:

• you no longer represent a risk in a trustee or senior management position at a charity
• giving you a waiver is unlikely to damage public trust and confidence in a charity or charities

Financial management issues beyond your control

Your disqualification relates to financial management and you can show that the underlying financial issues were beyond your control.

But the Charity Commission does not always have the power to give a waiver in respect of a charitable company or Charitable Incorporated Organisation (CIO) if the reason for disqualification is bankruptcy.

Conviction or other disqualifying reason – near to becoming spent or lapsing

For example, if someone has been offered a trustee position but the reason for their disqualification will expire a few weeks later. We will consider whether disruption to any charity or charities should be avoided when considering waiver applications in these types of cases.

Factors about the charity or charities - where you want to hold a trustee or senior manager position, which make your disqualification more likely to be waived

The views of the charity trustees

Your application involves one or more named charities, and there is support for your application by the trustees of the charity or charities. We normally expect, as a minimum, a majority of the trustees to support your application to waive disqualification.

The purposes of the charity

Your application relates to a charity or charities established for purposes which include the rehabilitation of people with criminal records. In these cases the Commission recognises that appointing someone who is disqualified because of their criminal record, can directly contribute towards furthering the charity’s purposes.

The importance to the charity of your involvement

Your application clearly demonstrates the importance of your involvement to the effectiveness of the charity because your qualities, skills, or experience if lost to the charity, would mean that it was less effective.

Specific rather than general or class waiver applied for

Your application is for a named charity or charities, rather than for a general waiver or waiver in respect of a class of charities.

User perspective

You have relevant user perspective which the charity needs in a trustee or senior manager position. For example, the skills and experience of a person who also has a criminal conviction might well benefit a housing charity or relief of poverty charity, whose service users include a high proportion of people with criminal records.

Factors which make your disqualification less likely to be waived

The conduct that led to your disqualification

The nature of the conduct that led to your disqualification is strong evidence that:

• you are unsuitable to be a charity trustee or to hold a senior manager position at a charity. For example, acting with personal gain in mind or with recklessness, dishonesty or incompetence in financial matters
• giving you a waiver is likely to damage public trust and confidence in a charity or charities

The length of time since your disqualifying reason happened

Either your unspent conviction is recent or where your disqualification is not because of an unspent conviction the events which led to your disqualification happened recently. Where this is the case the Charity Commission considers that it is more likely that:

• you represent a risk in a trustee or senior management position at a charity
• giving you a waiver is more likely to damage public trust and confidence in a charity or charities

Damage to a charity or charities

Either your offence, or the events which led to your disqualification were against or damaged a charity. Where this is the case the Charity Commission considers that it is more likely that:

• you represent a risk in a trustee or senior management position at a charity
• giving you a waiver is likely to damage public trust and confidence in a charity or charities

Factors about the charity or charities - where you want to hold trustee or senior manager position, which make your disqualification less likely to be waived

The views of the charity trustees

Your application involves one or more named charities, and there is no evidence of support from a majority of their trustees.

The importance to the charity of your involvement

Your application does not clearly demonstrate the importance of your involvement to the effectiveness of the charity. For example, you could provide your expertise to the charity without occupying a relevant position, or the charity could find someone else for the position who was not disqualified.

General or class waiver, rather than specific waiver applied for

Your application is for a general waiver or waiver in respect of a class of charities, rather than for a named charity or charities.

What we need to know from the trustees of any charity or charities where you want to hold a trustee or senior manager position

We will ask you to supply details of the views of the trustees of any charity or charities that you specifically want to work with in a trustee or senior manager position, on the following matters:

• whether a majority of the trustees support your application
• details of the recruitment process that led to your appointment or proposed appointment – if none, then reasons should be given
• details of the duties and responsibilities of the trustee or senior manager position that you hold or want to take up
• why the trustees consider that you are the best person for the position - for example what special skills do the trustees consider you have which are not otherwise available
• why you cannot act in an advisory capacity rather than act as a trustee or senior manager
• whether the trustees have assessed, and can manage any risk to the charity and its assets in making or maintaining your appointment. For example, where the disqualification reason is financial difficulty or mismanagement the trustees may wish to support a waiver application, subject to them deciding that you will not be in a Treasurer /Chair/Finance Director position at the charity, and that you will not have access to the charity’s bank accounts
• the trustees’ views on the position and reputation of the charity if your appointment is made or maintained
• if you are an undischarged bankrupt, the trustees’ views on whether the legal limitations on your activities could damage the charity. For example, for an unincorporated charity, the statutory limitations on obtaining credit could cause difficulties in the relationship between the charity and its bankers

We will consider your application and the information you provide. We may also contact the trustees for further clarification and check for any other relevant details, using publically available information that we will usually confirm with you.

Getting your waiver decision

When the Charity Commission has assessed your application, we will then either:

• give you one (or more) of the types of waivers available
• refuse to give you a waiver

Our decision will be sent you by email if we have your address. If not it will be given to you in writing by post.

Getting a waiver for a named charity or charities

This type of waiver allows you to act as a trustee or senior manager of the charity or charities named in the waiver, provided that a charity’s governing document does not exclude a person with your disqualification reason from acting in the relevant position.

Getting a senior manager waiver for a named charity or charities

This type of waiver allows you to act as a senior manager of the charity or charities named in the waiver. If this type of waiver is given, your disqualification from acting as a trustee remains.

Getting a general waiver or a waiver for a class of charities

This type of waiver allows you to:

• act as a trustee or senior manager; or
• senior manager only
• at any charity, for a general waiver
• at all charities in the class, for a class waiver

Provided that a charity’s governing document does not exclude a person with your disqualification reason from acting in the relevant position.

Refusing a waiver

The Charity Commission will refuse to give you a waiver if we consider that the risk to a named charity or charities, class of charities, or to the charity sector generally, outweigh the potential benefit of giving you a waiver. Where your application is refused, you remain disqualified under the new rules, until either:

• the conditions of your disqualification no longer apply
• you successfully appeal against our decision as explained below
• you make a later successful application

What you can do if you disagree with the waiver decision

You can ask the Charity Commission to review its decision or appeal the decision to the Charity Tribunal.

You can read this guidance to find out more about requesting a review of a Charity Commission decision which also outlines the timescale for making an application to the Charity Tribunal.