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Trustees Urged to Take Action on Safeguarding

on Tuesday, 30 January 2018.

The Charity Commission has published a new strategy and a regulatory alert, which all trustees should read. In this article we summarise the key points.

The Charity Commission's position on safeguarding issues is dispersed through several documents, principally their guidance on 'safeguarding children and young people' as well as relevant sections in other guidance like 'the essential trustee,' 'finding new trustees' and of course the Commission's risk framework. The Charity Commission's 'strategy for dealing with safeguarding issues in charities' is a major source of information, both on the Commission's approach and also on trustee duties. 

The Commission published its new strategy on 6 December 2017. The new strategy paper is much sharper than the original and describes a much wider safeguarding duty which applies to beneficiaries and to everyone that charities come into contact with. 

On 19 December 2017, the Commission amplified the message in a regulatory alert. It explains this was published in response to serious incident reports and media reports relating to safeguarding incidents affecting beneficiaries, charity workers and others coming into contact with charities. It places workplace harassment squarely under a charity's safeguarding duties.

Regulatory alerts are not common. This one has been presented as formal regulatory guidance addressed to all charities, making it essential reading for charity trustees and officers leading in safeguarding and those leading on relations with employees, volunteers or anyone else the charity comes into contact with.

Setting the Tone

Anyone familiar with the Commission's previous strategy paper will recall the tone. The section headed 'what is the Commission's regulatory role' opened with the words, "The commission is not responsible for safeguarding…". Its section on 'oversight and supervision' opened with a passive section about how the Commission is "kept informed" whilst the section on 'co-operation' implied work-in-progress as it explained that the Commission aimed to strengthen its co-operation and liaison with other agencies. "What the Commission does not do" was not only a running theme, but it too had its own dedicated section.

The new paper describes a more confident, proactive regulator. It opens with a positive statement that trustees should proactively safeguard and moves on to assert that the Commission has an important regulatory role. Oversight and supervision is described in positive, active terms and it asserts the effectiveness of its co-operation.

The new tone is of a regulator, confident of its role. The pro-active regulatory alert issued less than two weeks later underlines the point.

Trustee Safeguarding Duties

Although the strategy paper relates to the Commission's strategy, its opening gambit is to focus on the duty and responsibility of trustees for safeguarding in their own charities. The duty includes:

  • a proactive duty to safeguard and promote the welfare of beneficiaries
  • a duty of care to ensure beneficiaries and others the charity comes into contact with do not come to harm

The proactive duty to safeguard and promote welfare is a duty to:

  • protect the rights of adults to live in safety, free from abuse and neglect
  • protect children from maltreatment, impairment of health or development, ensuring they grow up with safe and effective care and take action to enable them to have the best outcomes

The duties apply whether or not the charity's core work involves children or adults at risk. The duty is about far more than preventing abuse. As the regulatory alert explains, it is about "protecting people from harm generally, including neglect, emotional abuse, exploitation, radicalisation, and the consequences of the misuse of personal data." 

In the Annex to the strategy paper, the Commission provides further detail of these duties:

  • duties in connection with recruitment including a helpful outline roadmap of safeguarding rules around the recruitment of trustees and staff, including when different types of DBS check are available and should be requested

  • having clear lines of accountability and reporting, emphasising the importance of due diligence of third parties and the responsibility of trustees for organisations involved in delivery of services or which they fund

  • how to respond to safeguarding allegations and incidents

  • the importance of safeguarding policies

  • the risk faced by charities of being targeted by individuals who want to gain access to vulnerable people and their information

  • the relevance of the 'prevent duty' (relating to counter-terrorism)

The regulatory alert goes further:

  • trustees should create an organisational culture where safeguarding is a priority and those affected are able to come forward knowing concerns will be handled sensitively - a culture where everyone is aware of their responsibilities

  • emphasising the importance of clarity over how incidents should be handled (including reporting to the Commission and other agencies) and the need for clear lines of accountability including where third parties are involved

  • it specifically includes HR law and best practice within policies on safeguarding

  • it emphasises the importance of policies being reviewed, up-to-date, fit-for-purpose, effective and implemented

  • it talks not just about having policies and procedures in place to respond promptly to incidents and allegations but also mechanisms to act on emerging trends and issues

  • trustees must have assurance that policies are complied with

Key Changes in Strategy

The comprehensive safeguarding duty described above has been expressly rooted in key charity governance duties - a positive duty in the interests of beneficiaries and a duty of care towards anyone it is in contact with. Trustees must of course comply with specific legal requirements around safeguarding, but this is set in a wider charity law duty.

This duty is described in more active terms than was previously the case, focusing on the protection of rights and in respect of children at least, adding a duty to take action to enable them to have the best outcomes.

The scope of these duties are much wider than the duties previously described. The Commission previously focussed its scope on children and vulnerable adults in receipt of regulated activities. This time, by focussing on core charity law rather than a regulatory regime addressing very particular risks in safeguarding, the Commission finds that charities have a duty to safeguard many more people.

The duties to beneficiaries apply to all beneficiaries, not just those in receipt of regulated activities. The press release that accompanied the strategy paper puts this new emphasis in the context of their work with some veterans' charities which had not recognised the need to safeguard some of their beneficiaries.

The duty of care can apply to anyone the charity comes into contact with - which places treatment of the public during fundraising and the treatment and protection of staff and volunteers within the scope of the safeguarding duty - and by extension, within the requirement to report safeguarding allegations to the Commission as serious incidents.

In the regulatory alert, the Commission talks about the importance of creating "a safe and trusted environment which safeguards anyone who comes into contact with it including beneficiaries, staff and volunteers".

What Has Stayed the Same in the Strategy

The message remains that safeguarding is the trustees' responsibility. The Commission's strategy to ensuring trustees meet their duty continues to be grouped around awareness and prevention, oversight and supervision (by the Commission), co-operation (with other regulators) and intervention. 

The messages are sharper and less defensive. They are about what the Commission can and will do and less about what it won't do or what it will try to do.

Advice in the Regulatory Alert

We recommend that trustees and their safeguarding leads read and consider the strategy document and the regulatory alert. The regulatory alert in particular advises trustees to take concrete action to:

  • undertake a thorough review of their charity’s safeguarding governance and management arrangements and performance if one has not been recently conducted within the last 12 months
  • contact the Commission about safeguarding issues, or serious safeguarding incidents, complaints or allegations which have not previously been disclosed to the charity regulator.

Having issued this advice, directed to all charities, in such a formal way, it is clear that the Commission is aiming for maximum engagement and maximum impact and clearly expects any charity with safeguarding incidents or allegations which haven't been reported to the Commission to come forward.  The Commission adds that failing to manage safeguarding risk is a serious regulatory concern and may involve misconduct or mismanagement - the threshold for the Commission to exercise its compliance powers.

Conclusion 

Safeguarding remains a regulatory focus for the Commission. The strategy paper shows it now recognises and holds trustees to account against a duty which is much wider in scope, encompassing positive duties to promote the welfare of beneficiaries and a duty of care towards everyone it comes into contact with, including employees, volunteers and the public.

The regulatory alert shows that the Commission responds to information in serious incident reports and in the press. It reveals an area of active regulatory activity for the Commission. It is an important resource for charities to consider, likely reflecting risks and trends it is currently processing. 

Amongst the advice in the regulatory alert is a clear call to action for charities. The Commission is clearly concerned, based on emerging experience, that charities may not have reported safeguarding incidents and allegations within the scope of the wide safeguarding duty owed to everyone the charity comes into contact with, and has urged charities to do this now if they have not already.


For more information, please contact Andrew Wherrett in the Charity Law team on 0117 314 5269.

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