An application to the Charity Commission for a waiver to become a trustee will only be considered if the Charity Commission believe that, if granted, the waiver would be consistent with the charity’s governing documents.
It is quite common for charities to have provisions that prevent disqualified people serving as trustees. We sought the advice of the Charity Commission on recruiting disqualified applicants who hold a waiver. Their advice is reflected in the table below and applies to all charities, regardless of the type of governing document they have.
|Type||Governing document provision||Example provision||Position regarding waiver|
|Type 1||Governing document refers to disqualification under s.178 of the Charities Act or just the Charities Act (or previous legislative versions, e.g. s.72 of the Charities Act 1993)||An individual is disqualified from acting as a charity trustee by virtue of section 178 of the Charities Act 2011 and such other statute as shall be in force from time to time||The Charity Commission can consider a waiver under s.181 of the Charities Act 2011.|
|Type 2||Governing document makes no reference to disqualification||The Charity Commission can consider a waiver under s.181 of the Charities Act 2011.|
|Type 3||Governing document sets out disqualification reasons without reference to s.178 of the Charities Act||“Persons who have an unspent conviction involving dishonesty or deception or who are otherwise disqualified by law from serving as charity trustees”||S.181 of the Charities Act 2011 does not apply, even if some or all of the disqualification reasons repeat those listed in s.178. The Commission cannot consider a waiver unless the governing document specifically allows for it. See below.|
|Type 4||Governing document contains a combined provision which makes some reference to s.178 but also lists reasons||In the absence of any relevant cases being decided by the Tribunal or courts, the Charity Commission’s view is that there is no single answer that can be applied generally to cases in this category – it will always depend on the precise wording of a charity’s governing document. See below.|
If your governing documents include a Type 1 or 2 provision, you can recruit disqualified applicants provided they hold a waiver. If a Type 3 or 4 provision is included, the documents will need to be amended to allow waiver holders to take up restricted positions. If you elect not to make amendments, you will need to make disqualified applicants aware that they cannot be considered even if they have, or intend to apply for, a waiver.
To appoint a trustee that would be disqualified but has a waiver in place, the governing document will need to be amended. This would be an administrative change which nearly all charities have the power to make and would not require the consent of the Charity Commission. See suggested wording below.
To appoint a trustee that would be disqualified but has a waiver in place, the governing document may need to be amended. Where there is room for interpretation and therefore doubt which would affect the validity of an appointment, trustees may prefer to make a change which makes the position clear. This would be an administrative change which nearly all charities have the power to make and would not require the consent of the Charity Commission.
If a charity) has types 3 or 4 in its governing documents, and wants to amend the provisions to enable the charity to appoint an individual as a trustee if they have a waiver in place, the suggested wording for the governing document is:
None of the following may serve as trustees:
- persons who are disqualified by law from serving as company directors unless there is an appropriate exception in place; or
- persons who are disqualified by law from serving as charity trustees unless a valid waiver has been granted by the Charity Commission.
The first point above would only be required if the charity is a charitable company as opposed to, for example, a charitable incorporated organisation (CIO), trust, or an unincorporated association.