27 March 2020 - Article
The Charities and Benevolent Fundraising (Scotland) Regulations 2009 (the ‘Scottish Regulations’), which were made under the Charities and Trustee Investment (Scotland) Act 2005 (the ‘Scottish Act’) in March and which will come into force on 1 July 2009, will regulate the activities of professional fundraisers, benevolent fundraisers (a term that includes charity employees, volunteers and trustees) and commercial participators raising money for charities and other benevolent organisations and purposes in Scotland. The provisions are similar to those contained in the Charities Act 1992 (as amended by the Charities Act 2006) and the Charitable Institutions (Fund-Raising) Regulations 1994 that regulate such activities in England and Wales (the *‘*_English Regulations’_), however, there are some important differences of which charities that raise money in Scotland should be aware.
The similarities with the English Regulations include:
- Commercial participators and professional fundraisers are required to enter into signed written agreements with the charities for which they are raising funds;
- A statement made by a professional fundraiser must contain details of the manner in which their remuneration will be calculated and the amount of remuneration that they will receive or, where the actual amount is not known at the time the statement is made, an estimate of that amount;
- Professional fundraisers who make solicitations in the course of television or radio programmes or by telephone must inform potential donors that people who donate £100 or more by credit or debit card have a right to cancel their donations within 7 days;
- Professional fundraisers and commercial participators must transfer money and other property to the charity as soon as reasonably practical and at any rate within 28 days of receipt of that money;
- Professional fundraisers and commercial participators must keep records of their activities relating to their agreement with the charity for which they are raising money and make them available to the charity;
- Employees of charities are required to state the name of the charity for which they are raising money and the fact that they are paid but are not required to state how much they are paid.
Promises of Money
Whereas the English Regulations governing professional fundraisers apply only to the solicitation of money or other property on behalf of a charity, the Scottish Regulations also apply to the solicitation of promises of money including direct debits and standing orders on behalf of a charity. Thus the circumstances in which professional fundraising statements must be made are wider in Scotland than in England.
Under the Scottish Regulations, when a professional fundraiser makes an oral solicitation, in addition to making an oral statement about their remuneration they must inform the potential donor that the information is available in writing. If the solicitation is made in person, the written information must be provided immediately if requested, if the solicitation is not made in person, for example if it is made by telephone, written information, if requested, must be sent as soon as reasonably possible either by email or by post.
Commercial Participators – required statements
The provisions in the Scottish Regulations governing the notifiable amount that a commercial participator must include in their statement are somewhat unclear. Some provisions appear to indicate that the notifiable amount is the amount that will be given to the charity in relation to the sale of the goods or services (as is the case in England and Wales and as is provided for in the Scottish Act) but other provisions in the Scottish Regulations require the statement to include details of ‘the method by which the commercial participator’s remuneration is to be determined’. It is hoped that the meaning of these requirements will be clarified in the guidance to be published by OSCR.
No Lower Threshold
Under the English Regulations, a person who does not receive more than £5 per day, £500 per year or £500 in relation to a single fundraising venture is not regarded as a professional fundraiser so is not required to make a statement. The Scottish Regulations do not contain such a threshold (although the Scottish Act allows such a threshold to be established, so it is possible that future Scottish Regulations will introduce such a threshold).
OSCR has indicated that it will publish guidance on the Scottish Regulations before they come into force on 1 July and we will circulate a further update when this guidance is available.