If a person is disqualified from taking up a restricted position as a trustee or senior manager, they can apply for a waiver. A waiver brings a person’s disqualification to an end, and can be granted for:
- A named charity (or charities)
- A class of charities – This is a group of charities that share a characteristic – for example, charities working towards the “rehabilitation of people with criminal records”
- All charities
If a person is in, or applies to, a restricted position at your charity, they will need to complete a declaration form. Your trustees can then decide if and how to support a waiver application for that person.
When and how to apply for a waiver
A waiver means the disqualified person can take up a role as a trustee or senior manager at the charity or charities covered by the waiver. Some waivers will only cover senior manager positions.
The Charity Commission decides whether to grant a waiver. The disqualified person must usually apply for the waiver, although someone can apply on their behalf. The application cannot come from the charity, although they can support it. If the waiver application is particularly urgent (for example, to provide interim cover for a role) the charity can let the Charity Commission know that they would like a quick decision.
There are more details on applying for a waiver in our guidance for individuals.
How to support a waiver application
The charity can choose whether to support the disqualified applicant’s waiver request. If the person has been selected through open and fair competition and the charity believes they are the right person for the role, we recommend supporting the application. The charity’s support will enhance the applicant’s chances of being granted a waiver – although it won’t guarantee it. If the charity chooses not to support, both parties may want to consider whether they are the right fit.
The Charity Commission has set out what they need to know from trustees. These are listed below with suggestions on how best to respond.
|Charity commission guidance||Our advice|
|Whether a majority of the trustees supports the application||You may decide to appoint a lead trustee that receives declarations from trustees and certain senior manager positions, who can then convene a sub-committee that considers supporting the application before getting approval from the rest of the board as to their proposal.|
|Details of the recruitment process that led to the applicant’s appointment or proposed appointment – if none, then reasons should be given||If an open recruitment process was carried out, emphasise this and that the applicant was the best appointment as a result of that.|
|Details of the duties and responsibilities of the trustee or senior manager position that the applicant holds or wants to take up||Explain any relevance (or otherwise) of the reason the applicant is disqualified to the roles and responsibilities of the position. For example, if the unspent conviction is unrelated to the position, explain this.|
|Why the trustees consider that the applicant is the best appointment-for example what special skills does the applicant have which are not otherwise available||If the charity’s purpose includes the rehabilitation of people with criminal records, make this clear. If the applicant brings a user perspective that the charity needs in that role, highlight that.|
|Why the applicant cannot act in an advisory capacity rather than act as a trustee or senior manager||If you are specifically seeking a trustee or senior manager and the applicant was recruited for this post, that should be emphasised. You can be bold in your belief that the role you have in mind is one that you as a charity should have the ability to appoint an individual to. If you do not have advisory roles, you can say that the qualities, skills or experience of the applicant will be lost and it would mean the charity will be less effective.|
|Whether the trustees have assessed, and can manage any risk to the charity and its assets in making or maintaining the appointment. For example, where the disqualification reason is financial difficulty or mismanagement the trustees may wish to support a waiver application, subject to them deciding that the applicant will not be in a Treasurer /Chair/Finance Director position at the charity, and that he or she will not have access to the charity’s bank accounts||If you allocate a lead trustee and a sub-committee, on receiving a declaration that informs you that an individual is disqualified because of a criminal record, you should carry out a full assessment of their criminal record. We have guidance for employers on assessing criminal records.|
|The trustees’ views on the position and reputation of the charity if the applicant’s appointment is made or maintained||You might outline the position and reputation of the charity if the applicant’s waiver is refused.|
Getting a decision
The Charity Commission informs the individual of the outcome. The charity should ask the individual to notify them once they have received a decision from the Charity Commission, and if relevant provide a copy of any waiver that is granted. If an individual is refused a waiver, they can appeal the decision. There are more details on appealing in our guidance for individuals.
A disqualified person cannot take up a restricted role unless or until they are granted a waiver. If a waiver is refused and an appeal is unsuccessful, charities can consider offering the person a non-restricted role. This will often mean that the role will need filled by another suitable applicant, or readvertised.
Unlock has 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. These are detailed in our guidance for individuals. Since the rules were changed in 2018, only a small number of applications have been made and less than half of applicants have been granted waivers.