Leading charities with conviction – Guidance for individuals on changes to the rules on being a trustee or senior manager of a charity with a criminal record

Introduction

This guidance is for individuals in England and Wales. It summarises the changes to the automatic disqualification rules that happened in 2018 that relate to people being a trustee or senior manager of a charity and how they apply to people with criminal records.

It’s designed to help individuals understand these changes and look at what steps they might need to take if they have a criminal record.

It’s been written by Unlock, an independent charity for people with convictions, with the support of Clinks, the national infrastructure charity that supports the voluntary sector working in criminal justice in England and Wales.

It’s part of our guidance on working and volunteering in charities.

We have developed separate guidance for charities to help them understand the changes.

There are a number of terms used in this guidance, including “new rules”, “disqualification” and “relevant criminal record”.  Find out what we mean by these.

Separate to criminal records (which is the focus of this guidance), there are a number of other factors which can mean an individual cannot be a trustee or senior manager without obtaining a waiver first. More details about these other factors are covered in the Charity Commission guidance.

Aim of this guidance

From 1 August 2018, the rules in England and Wales as to who can be a trustee or hold certain senior manager positions in charities changed. This guidance aims to set out what the changes were, who may be affected by them and what steps you can take if you are affected.

If you find that you are prevented (‘disqualified’ as it’s technically known) because of your specific criminal record, you can apply for clearance from the Charity Commission (technically known as a ‘waiver’). Importantly, you can apply for a waiver before the new rules come into force in August. This guidance covers that process in some detail.

The guidance doesn’t cover other rules, regulations or checks that may apply depending on the nature of the work of the charity – such as enhanced criminal record checks or prison vetting.

Why this guidance is important

People with convictions often feel that they want to ‘give something back’ after having had personal experiences themselves of the problems that other people are now facing. This can include working in the criminal justice system or for drug and alcohol rehabilitation services etc. Becoming a trustee gives you the opportunity to make decisions on how a charity is run which will have an impact on many people’s lives. Increasingly, charities see that involving people with convictions is an extremely positive step and means they have a board made up of people with very diverse skills and experiences.

Previous rules (from the Charities Act 2011) set out factors that prevented some people from being trustees of a charity. However, the changes which came in on 1 August 2018 (as a result of the Charities (Protection and Social Investment) Act 2016 made two key changes:

1. The rules are extended to include senior manager positions
2. More types of criminal convictions included

So if you’re already a trustee or in a senior manager position, or you’re considering applying for such a position, then it’s important to know whether you will be disqualified and if so, whether you should consider applying for a waiver from the Charity Commission.Roles that the rules apply to

Roles that the rules apply to

The new rules apply to two main groups in charities – Trustees and certain senior manager positions. For the purposes of this guidance, the roles the new rules apply to are referred to here as restricted positions.

• Trustees – Trustee roles are normally quite clear, and although the Charity Commission have separate definitions for ‘charity trustee’ and ‘trustee of a charity’ (see the Charity Commission website), the rules apply to both.
• Certain senior manager positions – The rules applied to these roles from 1 August 2018. See below for more detail on this.

What is meant by ‘certain senior manager positions’?

This is a new type of role covered by these rules, so it might take time for charities to get to grips with which roles are covered.

Based on guidance from the Charity Commission, it will include anybody who either acts as the charity’s most senior executive and in a managerial capacity reporting only to the charity’s trustees, or who controls the charity’s finances. This will usually cover the role of chief executive and finance director. It’s important to note that it’s the function of the job not the job title that determines who is classed as a senior manager – the Charity Commission has produced a helpful graphic (see below) and we cover this in more detail in our guidance for charities.

The rules don’t apply if you’re looking to work or volunteer for a charity in other roles. They may still ask you about your criminal record, so you will need to think about whether and how to disclose your criminal record, but in most cases it will be down to the charity as to how relevant they think your criminal record is, and they may carry out some form of assessment before considering whether to offer you a role.

What if I don’t think my role is a restricted position?

There should be little dispute about trustee roles.

If you’re working or going to work, as a senior manager then the responsibilities of your role will determine whether it is classed as a restricted position. You would generally be required to have overall responsibility for the day to day management and control of the charity and/or be accountable to the CEO or trustees.

Further guidance and examples of roles are available from the Charity Commission. If you don’t believe that your role is a restricted position, you should raise this with the charity directly. You might also contact the Charity Commission.

Criminal records that the new rules cover – Relevant criminal records

You are prevented from the restricted positions above if you have a certain type of criminal record, which we’ll refer to here as “relevant criminal record”.

There are two elements that make up a relevant criminal record:

1. If you have an unspent conviction (with one exception), and
2. Where your unspent conviction is for a certain category of offences.

Unspent convictions only (with one exception*)

If your conviction is unspent under the Rehabilitation of Offenders Act 1974, it might disqualify you if it’s for one of the offences listed below.

If your conviction is spent under the ROA, it doesn’t disqualify you*. You can check if your convictions are spent by using our online tool: www.disclosurecalculator.org.uk.

The vast majority of convictions are spent. There are over 11 million people with a criminal record, but only about three-quarters of a million are unspent.

Simple cautions become spent immediately, which means they don’t disqualify people under the automatic disqualification rules.

*There is one situation where a spent criminal record disqualifies you. This is if you are on the sex offenders register. This disqualifies you, regardless of whether the conviction is unspent or spent. See the offences covered below for more details.

Offences covered

The following offence types are covered by the new rules. For trustee roles, those marked with an asterisk are new and in addition to those that already exist. For senior manager positions, all these offences apply for the first time. Remember – these only apply if the offence is unspent (with the exception of being on the sex offenders register).

If you have an unspent conviction for an offence not listed above, you wouldn’t be prevented under these roles and so do not need to apply for clearance to be involved in a charity as a trustee or senior manager. However, you might still need to disclose your criminal record to the charity, depending on their policy.

Examples of dishonesty or deception offences

The majority of people with convictions covered by these rules will be because they have an unspent conviction for dishonesty or deception. But what does that cover?

A dishonesty or deception offence includes theft, fraud by false representation, and fraud by failing to disclose information.

Many offences can be committed by using dishonesty or deception, but that’s not the same. Offences not covered by this definition (and so are not covered by the rules) include TV licence evasion, most motoring offences, benefit fraud, assault and possession of classified drugs.

Getting certainty on whether something is classed as dishonesty or deception

You will have to look at each individual offence that you have been convicted of to see if dishonesty or deception forms an element of the offence that has to be proved for someone to be convicted of the offence.

Dishonesty and deception are separately defined in relation to different offences. If you are in doubt as to whether your conviction involved dishonesty or deception, and if it’s not clear from the legislation you would need to seek your own legal advice to get certainty. We would also suggest that you contact the Charity Commission as they should be willing to advise on this matter. Otherwise, you may wish to submit an application for waiver from the Charity Commission.

How else could I be disqualified?

There are other reasons that mean you could be disqualified,such as being an undischarged bankrupt. Our guidance focuses specifically on criminal records, but the Charity Commission has guidance on these other reasons.

Action – Check if you’re affected

1. If you are currently a trustee or looking to become one, you need to check if any of the new rules will apply to you
2. If you’re currently in, or looking to work as, a relevant senior manager position, you need to check if any of the rules will apply to you
3. We have developed a useful online tool

If you’re disqualified ….

If your role is a restricted position, and you have a relevant criminal record, you are prevented from doing that role unless you have clearance (known as a waiver).

Senior manager positions

If, after the 1 August 2018, you are, or become, disqualified from working in a senior manager position, you must have a waiver in place to continue. If you don’t have a waiver in place, you will need to stop acting in that position. You may need to seek legal advice about how this will affect your employment rights.

Trustee positions

If you are, or become, disqualified as a trustee you must have a waiver in place to continue. If you don’t have a waiver in place, you will need to formally resign from any trustee positions you hold.

What if you continue in a restricted position while disqualified?

If  you hold a role as a trustee or senior manager and are disqualified from that role, then you will need to immediately inform the charity. If you continue to work and the charity finds out, they would usually view this as a serious incident. The charity might then report the matter to the Charity Commission and/or the police.

Do you need clearance (a waiver)?

We’ve got two things to help you work out if you need clearance: a flow chart and an online tool.

Flow chart

The flow chart below should help you to work out whether you need to apply for a waiver from the Charity Commission or whether you can be involved in a charity without one.

Online tool

Our online tool is designed to help you understand if the changes will affect you. By working through a series of questions, the tool will help you to determine whether you need to apply for a waiver. This tool is very new and we would like to know what you think of it, especially if you’ve encountered any problems with it or can suggest ways in which it might be improved.

Understanding the clearance/waiver process

If you are disqualified from a restricted position because of your criminal record, you will need to apply for a waiver. If granted, this will bring your disqualification to an end.

When can a waiver be applied for?

You can apply to the Charity Commission at any time for a waiver of your disqualification.

If you will be disqualified as a result of the changes coming into effect, you will not be able to act as a trustee or a senior manager until you have applied for and been granted a waiver.

Types of waiver

There are three types of waiver:

1. General waiver – for all charities
2. Waiver for a specific class of charity – this is a group of charities that share a characteristic. This could, for example, be charities working towards the “rehabilitation of offenders” (as it’s often referred to)
3. Waiver for a specific names charity (or charities)

You can apply for more than one type of waiver at once, which means that you can apply for a waiver that allows you to:

• be a trustee, or hold a senior manager position, at a named charity or charities
• be a trustee, or hold a senior manager position, at any charity (general waiver)
• be a trustee, or hold a senior manager position, at a class of charities
• hold a senior manager position only at a named charity or charities. If this type of waiver is given, your disqualification from acting as a trustee remains
• hold senior manager positions only at a class of charities. If this type of waiver is given, your disqualification from acting as a trustee remains
• hold senior manager positions only at any charity. This is a general waiver. If this type of waiver is given, your disqualification from acting as a trustee remains

What type of waiver should I apply for?

Think carefully about what you’re looking to do. If you have a clear reason for applying for a waiver – for example, you’ve been offered a job as a senior manager, it’s likely to be in your best interest to target your waiver application for that particular purpose.

However, you can apply for more than one waiver at the same time, so there is no harm in potentially applying for more than one type, so long as you consider the different factors that the Charity Commission will consider for these different types of waiver, and make sure that you include the relevant information for each of these factors for each of the waivers.

Will I be granted clearance/a waiver?

The Charity Commission will decide each case on its own merits. However, there is guidance available on how they will make their decisions, and it can seem like quite a high bar. They state that their “starting point is that you should normally remain disqualified until the legal disqualifying reasons that affect you, no longer apply.”

For example, they say they will only give waivers where they believe that:

1. It is in the best interest of the charity or charities for which the disqualified person asks for a waiver, and
2. It is not likely to damage public trust and confidence in a charity or charities.

The Charity Commission do give guidance on things that make it more or less likely for your application for a waiver to be granted.

For example, they say that when looking at whether it will damage public trust and confidence in a charity or charities, they will look at factors including:

1. The severity of what you did and the circumstances
2. How long ago it happened
3. Whether it caused damage to a charity.

Things that make it more likely you’ll get clearance

Things that make it more likely you’ll get clearance is to show in your waiver application that:

1. Your relevant criminal record relates to a long time ago and you can show evidence of good conduct since then.
2. Your unspent conviction is near to becoming spent – especially if you can show that by granting a waiver it will avoid unnecessary disruption to a charity.
3. Your offence was not against or damaged a charity.
4. It involves one or more named charities and there is support for your application by the trustees – with a minimum of the majority of trustees supporting.
5. It relates to a charity or charities established for purposes which include the rehabilitation of people with criminal records.
6. Your involvement to the charity is important because of your qualities, skills or experience which, if lost to the charity, would mean that it was less effective.
7. It is for a named charity or charities, rather than a general waiver or a class of charities.
8. You have a relevant user perspective that the charity needs in a trustee or senior manager position. In the example the Charity Commission use, they state “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.”

The points above are important to consider when looking at what to include in your waiver application.

Things that make it less likely you’ll get clearance

Things that make it less likely you’ll get clearance are generally the opposite of the points above, but in particular include if:

1. Your unspent conviction is recent.
2. Your application involves a named charity and there is no majority support of their trustees.
3. Your application is for a general waiver or a waiver for a specific class of charity, rather than a waiver for a specific charity. This is because the Charity Commission say that they need to be confident that the risk in giving a waiver is outweighed by the benefit to the charity sector generally. The decision is likely to be easier in relation to a named charity where there may be supporting documentation from the charity’s trustees.

Waiver applications will be decided using the same approach, whether the application is

• For a waiver of a current disqualification;
• Made after 1 August 2018.

Charities can use this guidance to find out more about when and how individuals can apply for a waiver, and how they can support this process.

What are my chances of success?

In the past, the number of waiver applications that the Charity Commission has received has been very low, however, they have been granted to the vast majority of applications.

There are no specific figures about the number of waiver applications processed each year which relate specifically to criminal records. In more general terms, in 2012 the Commission received 5 waivers, of which all were granted. In 2013, the Commission received 3 waiver applications, all of which were granted. In the last ten years, with the exception of a spike in applications in 2011 (due to specific work around insolvency), the Commission has received no more than 6 waiver applications per year, 90% of waiver applications over the last ten years were successful.

We have worked with the Charity Commission on improving their waiver process, and we expect the Charity Commission to grant a waiver where an individual can demonstrate the factors that the Charity Commission say will make a disqualification more likely to be waived.

What could happen if I don’t get a waiver?

It’s important that, if you’re disqualified under the rules and plan to continue in the role, you get a waiver in place. Otherwise, if you don’t have a waiver and so remain disqualified, there are some possible consequences:

1. It is usually a criminal offence to act as a trustee or senior manager of a charity whilst disqualified.
2. If you’re a serving trustee, you will have to resign. The Charity Commission can make an order to bring about a resignation if necessary.
3. If you’re a senior manager, you might have to move roles or the charity may try to terminate your contract. Legally, you’ll not be able to do the role anymore.
4. If it appears that you will remain disqualified from a relevant senior management role, then the charity must conduct a fair investigation into the circumstances providing you with an opportunity to make representation, and a right of appeal. As an interim/temporary measure, the charity could ask you to undertake alternative duties or place you on paid special leave.
5. If it is confirmed that you are disqualified from the relevant senior management role, the charity will need to consider redeploying you to another role within the charity that you would not be disqualified from. If there are no suitable roles available, then potentially the charity will have a fair reason to dismiss you. The charity will need to have followed a fair process in reaching that conclusion, including consulting with you and giving you the opportunity to make representation and a right of appeal.
6. If you are disqualified, the Charity Commission can order you to repay any expenses or benefits gained whilst disqualified.

If you are disqualified from being a trustee or from holding a senior manager position, it is important to remember that just because you are disqualified from these roles, you are not completely barred from being involved with charities. It may be that the charity could offer you another role until you receive your waiver from the Charity Commission or until such time as your conviction becomes spent.

Circumstances where you can’t get a waiver

The Charity Commission are unable to give you a waiver if the rules of the charity would disqualify you from being a trustee or a senior manager. For example, if the charity’s rules say that an undischarged bankrupt can’t be a trustee, a waiver would not override that.

In 2014, we clarified with the Charity Commission their approach towards exclusions that charities commonly have in their governing documents regarding being barred from being a trustee if they are disqualified under charity law. The Charity Commission confirmed that if an individual was able to obtain a waiver from them, the individual would no longer be regarded as disqualified under the relevant sections of the charities governing documents, and so could be appointed as a trustee.

Applying for clearance and getting a waiver

You can apply for a waiver by completing an online application form.  The Charity Commission will not accept paper applications although if you’re unable to use the online form, you can apply by email. You will need to include all the information outlined and send this to CCWaivers@charitycommission.gsi.gov.uk.  Remember – you can check if you need a waiver by using our flowchart or online form.

You will need to answer the questions on the online form, as well as submitting the supporting documentation required.

The Charity Commission has published a checklist, to help you make sure you include everything you need to include as part of your waiver application.

You can apply for it yourself, or somebody can do it for you, acting on your behalf. However, the waiver application cannot be submitted from the charity itself.

The waiver form includes the following sections:

Applicant details

This is a straightforward section where you enter your personal details.

Application details

This is where you choose the type of waiver you are applying for.

If you’re applying for a waiver for a specific charity, you’ll be asked to provide details of the charity’s name, address and charity number, together with information about your role and responsibilities. If you will be working as a senior manager, this could be a copy of your job description.

If you’re applying for a waiver to work as a senior manager you’ll be asked to confirm that one of the statements below is true. If you can’t then you don’t need to apply for a waiver to work as a senior manager.

• I am a Chief Executive Officer with overall responsibility for the day-to-day management and control of the charity and accountable only to the charity trustees.
• I am finance director with responsibility for the overall management and control of the charity’s finances and accountable only to the Chief Executive or the trustees.

Reason for your disqualification

This is where you need to provide details of your criminal record that means you are currently disqualified. The online application form asks you to provide the following details about your criminal record:

1. The circumstances and details that led to your conviction.
2. When you were convicted.
3. What sentence you received.
4. When your disqualification ends – this is likely to be when your conviction becomes spent, and our disclosure calculator can help you to work this out. If you’re on the sex offenders register, it will be when this period finishes.
5. It doesn’t provide a space for providing evidence of what positive things you’ve done since, so we’d suggest you include this later in the form.

Supporting information from trustees

If you are applying for a waiver specifically to work as a trustee or senior manager position of a charity, you will be asked to supply details of the views of your trustees.

If you’re applying for a general waiver you should attach references or information from a third party to support your application.

We have covered what should be included in our guidance for charities, and in particular the section on “How to support a waiver application“. We recommend that you ask the charity to provide this as an electronic document on headed paper, so that you can submit it as part of your online waiver application, as it allows you to attach files.

You should attach files that show the support you have from the trustees of each charity you are looking for a waiver for, and you can also attach references or other information (which is particularly important if you are applying for a general waiver).

Additional information

This is where you can provide additional information that you think is relevant. As the ‘Reason for disqualification’ section doesn’t include any questions about what you’ve done since, we suggest you cover that here. So, that might include what work or volunteering you’ve done since your conviction, how you’ve turned your life around, and any additional comments that build on the supporting information you’ve provided from trustees or others.

The Charity Commission doesn’t state in their guidance whether it is necessary to provide a copy of your unspent criminal convictions (i.e. a basic disclosure). If you have a copy which has all your currently unspent criminal convictions, it might be worthwhile including it in your waiver application form. If you do not have a copy, you may wish to wait until you’re asked for one before obtaining it, as the current cost is £18 and there is a relatively quick turnaround if you later need to apply for one.

The Charity Commission has published a checklist, to help you make sure you include what you need to include as part of your application.

We’ve put together a template which can be used to help you explain why you should be granted a waiver. It’s a good way of bringing everything together prior to submitting your application online.

What happens next?

The Charity Commission have stated that where you’re applying for a waiver for a named charity they may wish to contact the charity’s trustees to verify or clarify information which has been raised during the application process. You may wish to consider having a discussion with the trustees around the contents of your application once you’ve applied.

Getting a decision on your waiver application

Once the Charity Commission has assessed your application, they will either decide to give you one or more of the types of waivers available, or refuse to give you a waiver.

The Charity Commission say that they aim to respond to completed waiver applications within 15 working days. It’s important to make sure that you’ve provided everything that you need to so that you get a decision as soon as possible.

Let us know the decision

We are keen to see how the Charity Commission makes its individual decisions in relation to people applying for a waiver because of their criminal record. This will help us in our policy and campaign work. Email policy@unlock.org.uk

Appealing a decision

A waiver decision can be appealed.

You can ask the Charity Commission to review their 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.

If you are disqualified because of your criminal record, your waiver application has been refused and you are looking to appeal the decision, you can contact our helpline so that we can try to support you through this process.

An overview of the steps to take

To summarise a complex set of rules and process, we’ve put together a short overview of 5 steps that you need to take if you think you might be affected by these charity rules.

1.  Check if your role is covered

If you’re a trustee, you’re covered by the new rules. If you’re working in a charity, check if your role is classed as a senior manager under these rules.

2.  Check if your criminal record prevents you from doing the role

If you’re currently a trustee or looking to become one, you’ll need to check if any of the new disqualification reasons coming into effect will apply to you.

If you’re currently in, or looking to work in a relevant senior manager position, you will need to check if any of the disqualification reasons will apply to you.

3.  Use our tool to double-check

We’ve developed a simple, easy to use tool to help you work out if you’re affected by the rules.

4.  Tell the charity

If you’re currently involved in a charity or looking to become involved in a restricted position, and you find that you will be disqualified, you should tell the charity as soon as possible. If you are planning to apply for a waiver, their support will help. See below.

If  you are disqualified you must not act in a trustee position or in a relevant senior manager role.

5.  Apply for a waiver

If you’re looking to be a trustee or senior manager, you can either apply for a general waiver now, or wait until you have a specific position and then apply for a waiver for a named charity.

If you’re a current trustee who already has a waiver, its terms will continue to apply. You will only be disqualified if another or new disqualifying reason applies to you.

More information

1. For practical information – More information can be found on understanding your criminal record and disclosing to employers
2. To discuss this issue with others – Our online forum is a place where people with convictions can share their experiences on a whole range of issues. To participate, we have a section on enabling people with convictions to become trustees.
3. Our policy work – Read about our policy work on enabling people with convictions to become trustees and run charities
4. Questions – If you have any questions about this guidance, you can contact our helpline.

Get involved

Help us to add value to this information. You can:

1. Comment on this page (below)
2. Send your feedback directly to us
3. Discuss your views and experiences with others on our online forum
4. Share your personal stories by contributing to our online magazine, theRecord
5. Help our policy work – enabling people with convictions to become trustees and run charities.