Asking if the Charity Commission will give advice may seem like a strange question because surely that is what it does via its online guidance etc. However, tucked away in the Charities Act 2011 is section 110 which states that the Commission may give its opinion or advice to a charity trustee if they apply to it in writing, provided that it relates to the performance of the trustee's duties or the proper administration of the charity.
The icing on the cake (I am still thinking about the GB Bake Off semi-final!) is that (subject to some caveats) if a trustee then acts in accordance with that advice, they are to be treated as having acted in accordance their duties as a trustee.
So why don't more trustees ask for advice under section 110? The answer is that, sadly, the Commission’s policy is to give section 110 advice in only three types of situation. These are where a trustee (i) asks for advice about whether an action is within or outside their powers, (ii) is contemplating a "particularly momentous decision"; or (iii) is requiring comfort on costs incurred in litigation.
In relation to "momentous decisions" the trustees may be considering an action that it is so momentous that they wish to be satisfied that it is a proper exercise of their powers within the scope of their trusts and duties. The Commission suggests that "momentous decisions" may include:
- when proposed actions are high profile, high risk, complex, innovative, contentious (ie. likely to be challenged);
- when the decision involves large sums of money when considered in the context of the charity's income and assets; or
- a proposed action that will significantly affect the way the charity will operate, such as a significant merger or restructuring.
So, whilst section 110 may not help in every situation, it is definitely worth remembering as a possible option when trustees are really struggling with a key decision.