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The Charities Act 2006 (Changes in Exempt Charities) Order 2010

S.I. 2010/500 · Made 27 February 2010 · Extends to England and Wales

Up to date with all changes known to legislation.gov.uk, revised to 14 March 2012.

Charities, England And Wales

Made 27th February 2010

Coming into force in accordance with article 1

This Order is made in exercise of the powers conferred by sections 11(11) and (13), 74(2) and (7) and 78(6) of the Charities Act 2006f1.

In so far as this Order makes provision to secure that, in so far as they are charities, institutions or institutions of a particular description become or cease to be exempt charities, the Minister for the Cabinet Office is satisfied, in accordance with section 11(12) of that Act, that this Order is desirable in the interests of ensuring appropriate or effective regulation of those charities in connection with compliance by their charity trustees with their legal obligations in exercising control and management of the administration of those institutions.

A draft of this Order has been laid before Parliament in accordance with section 74(5) of that Act and approved by resolution of each House of Parliament.

Accordingly, the Minister for the Cabinet Office makes the following Order:

Annotations to the whole text

Footnotes

f1

2006 c.50. There are amendments to the 2006 Act not relevant to this Order.

Contents

  1. 1Citation and commencement
  2. 2Changes in exempt charities Repealed
  3. 3Consequential amendments, repeals, revocations and transitional provisions
  4. Signature
  5. Schedule 1: CONSEQUENTIAL AMENDMENTS
  6. Part 1: PRIMARY LEGISLATION
  7. 1Welsh Church (Temporalities) Act 1919
  8. 2King’s College London Act 1978
  9. 3Education Reform Act 1988 Repealed
  10. 4Charities Act 1993 Repealed
  11. 5University of Manchester Act 2004
  12. Part 2: OTHER ENACTMENTS
  13. 6Exempt Charities Order 1962
  14. 7Exempt Charities Order 1965
  15. 8Exempt Charities Order 1984
  16. 9Land Registration Rules 2003
  17. 10Charities (Accounts and Reports) Regulations 2008
  18. Schedule 2: TRANSITIONAL AND TRANSITORY PROVISIONS AND SAVINGS
  19. Part 1: ACCOUNTS AND REPORTS
  20. Chapter 1: NEW EXEMPT CHARITIES
  21. 1Application of Part 6 of and Schedule 5A to the 1993 Act to new exempt charities in respect of the current and earlier financial years
  22. 2Accounts to be prepared under section 46 of the 1993 Act by new exempt charities
  23. Chapter 2: FORMERLY EXEMPT CHARITIES
  24. 3Accounts to be prepared and retained by formerly exempt charities in respect of current financial years
  25. 4Charity Commission not to request annual reports from certain formerly exempt charities
  26. 5Requests for accounts made to formerly exempt charities
  27. Part 2: JURISDICTION OF THE CHARITY COMMISSION AND COURT IN RELATION TO NEW EXEMPT AND FORMERLY EXEMPT CHARITIES
  28. Chapter 1: NEW EXEMPT CHARITIES
  29. 6Inquiries under section 8 of the 1993 Act relating to new exempt charities
  30. 7Power to act for the protection of charities
  31. 8Need for an order under section 36 of the 1993 Act in relation to a new exempt charity
  32. 9Need for an order under section 38 of the 1993 Act in relation to a new exempt charity
  33. Chapter 2: FORMERLY EXEMPT CHARITIES
  34. 10Inquiries under section 8 of the 1993 Act relating to formerly exempt charities
  35. 11Costs of a formerly exempt charity in promoting a Bill before Parliament
  36. 12Ongoing charity proceedings relating to a formerly exempt charity
  37. 13Need for an order under section 36 of the 1993 Act in relation to a formerly exempt charity
  38. 14Need for an order under section 38 of the 1993 Act in relation to a formerly exempt charity
  39. 15Persons acting as charity trustee of or trustee for a formerly exempt charity while disqualified
  40. Part 3: GENERAL
  41. 16Effect of changes to exempt charity status
  42. 17Exempt charity status of common deposit and common investment funds
  43. Part 4: INTERPRETATION
  44. 18Interpretation
  45. Explanatory note

1Citation and commencementI1

This Order may be cited as the Charities Act 2006 (Changes in Exempt Charities) Order 2010 and comes into force immediately after section 11(3) of the Charities Act 2006 comes into force.

2Changes in exempt charitiesF1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3Consequential amendments, repeals, revocations and transitional provisionsI1

(1)

Schedule 1 (which contains consequential amendments, repeals and revocations) has effect.

(2)

Schedule 2 (which contains transitional and transitory provisions and savings) has effect.

Signature

Angela E. Smith

Minister of State

Cabinet Office

27th February 2010

1Welsh Church (Temporalities) Act 1919I1

Section 7(1) of the Welsh Church (Temporalities) Act 1919 (provisions as to charities)f1 is repealed.

2King’s College London Act 1978I1

Section 18 of the King’s College London Act 1978 (King’s College to be an exempt charity)f1 is repealed.

3Education Reform Act 1988F1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4Charities Act 1993F1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5University of Manchester Act 2004I1

Section 11 of the University of Manchester Act 2004 (University to be an exempt charity)f1 is repealed.

6Exempt Charities Order 1962I1

In the Schedule to the Exempt Charities Order 1962f1, omit—

(a)

“University of Wales”;

(b)

“University College of Wales, Aberystwyth”;

(c)

“University College of North Wales”;

(d)

“University College of South Wales and Monmouthshire”;

(e)

“University College of Swansea”;

(f)

the heading “Institutions connected with the University of Wales”;

(g)

“Welsh National School of Medicine”.

7Exempt Charities Order 1965I1

In the Schedule to the Exempt Charities Order 1965f1 omit “St David’s College, Lampeter”.

8Exempt Charities Order 1984I1

The Exempt Charities Order 1984f1 is revoked.

9Land Registration Rules 2003I1

(1)

Rule 180 of the Land Registration Rules 2003 (statements to be contained in dispositions by a charity)f1 is amended as follows.

(2)

In paragraph (1)(b) and (c) for “paragraph (a), (b) or (c)” substitute “paragraph (a), (aa), (b) or (c)”.

10Charities (Accounts and Reports) Regulations 2008I1

(1)

Regulation 2 of the Charities (Accounts and Reports) Regulations 2008f1 is amended as follows.

(2)

In paragraph (1) in the definition of “special case charity”—

(a)

omit “and” at the end of sub-paragraph (b)(iii); and

(b)

after sub-paragraph (b) insert—

“(c)

a charity which is a college or hall in the University of Cambridge;

(d)

a charity which was an exempt charity by virtue of an Order in Council made under paragraph (c) of Schedule 2 to the 1993 Act but ceased to be so when that Order was amended or revoked by the Charities Act 2006 (Changes in Exempt Charities) Order 2009;

(e)

a charity which is a Welsh higher education corporation;”.

(3)

After paragraph (1) insert—

“(1A)

For the purposes of these Regulations, a higher education corporation is a “Welsh higher education corporation” if the activities of the institution conducted by that corporation are carried on, or principally carried on, in Wales.”.

1Application of Part 6 of and Schedule 5A to the 1993 Act to new exempt charities in respect of the current and earlier financial yearsI1

Part 6 of and Schedule 5A to the 1993 Act (Charity Accounts, Reports and Returns)f1 continue to apply to a new exempt charity in relation to any financial year of the charity which began before the appointed day as if the charity had not become an exempt charity.

2Accounts to be prepared under section 46 of the 1993 Act by new exempt charitiesI1

Where a new exempt charity is not required by or under the authority of any Act other than the 1993 Act to prepare periodical statements of account, the first statement of account which the charity produces under section 46(1) of the 1993 Act must relate to a period of not more than 15 months beginning on the day immediately following the last day of the current financial year.

3Accounts to be prepared and retained by formerly exempt charities in respect of current financial yearsI1

Subsections (1) and (2) of section 46 of the 1993 Act continue to apply to a formerly exempt charity in relation to—

(a)

the current financial year of that charity; and

(b)

the books of accounts and statements of account prepared in respect of any financial year of the charity which began before the appointed day.

4Charity Commission not to request annual reports from certain formerly exempt charitiesI1

The Charity Commission may not require, under section 46(5) of the 1993 Act, the charity trustees of a formerly exempt charity to prepare an annual report in respect of the current financial year of the charity.

5Requests for accounts made to formerly exempt charitiesI1

(1)

Where a qualifying request is made, the accounts to be treated as the most recent accounts of the formerly exempt charity are the accounts specified in sub-paragraph (2).

(2)

The specified accounts are—

(a)

the accounts of the charity most recently audited in pursuance of any statutory or other requirement; or

(b)

if its accounts were not required to be so audited, the accounts most recently prepared in respect of that charity.

(3)

In this paragraph, “qualifying request” means a request made under section 47(2) of the 1993 Act for the most recent accounts of a formerly exempt charity at any time before—

(a)

in the case of a formerly exempt charity which is a company, the charity trustees of that charity have prepared an annual report under section 45 of that Act in respect of the financial year of the charity beginning immediately after the current financial year; or

(b)

in any other case, the charity trustees of that charity have prepared—

(i)

a statement of accounts under section 42(1) of that Act; or

(ii)

an account and statement under section 42(3) of that Act,

in respect of the financial year of the charity beginning immediately after the current financial year.

6Inquiries under section 8 of the 1993 Act relating to new exempt charitiesI1

(1)

The Charity Commission may for the purpose of any relevant inquiry continue to treat a new exempt charity as if it had not become an exempt charity.

(2)

The Charity Commission must notify the principal regulator of the relevant exempt charity of any decision to continue any inquiry with regard to that charity.

(3)

In this paragraph “relevant inquiry” means, in relation to a new exempt charity, an inquiry which was instituted under section 8 of the 1993 Act—

(a)

before the appointed day; and

(b)

with regard to that charity or a class of charities into which it falls.

7Power to act for the protection of charitiesI1

(1)

The Charity Commission may take any action, on or after the appointed day, in relation to—

(a)

a new exempt charity which is or was the subject of a relevant inquiry; or

(b)

the charity trustees of such a charity,

that it could take under the 1993 Act in relation to a charity which is not an exempt charity or (as the case may be) the charity trustees of a charity that is not an exempt charity.

(2)

The Charity Commission must notify the principal regulator of the relevant new exempt charity of any action taken in reliance on sub-paragraph (1) above.

(3)

In this paragraph “relevant inquiry” has the meaning given by paragraph 6.

8Need for an order under section 36 of the 1993 Act in relation to a new exempt charityI1

(1)

Section 36 of the 1993 Act continues to apply to a relevant disposition of land held by or in trust for a new exempt charity as it applies to a disposition of land held by or in trust for a charity which is not an exempt charity.

(2)

A disposition of land held by or in trust for a new exempt charity is a “relevant disposition” if—

(a)

the charity trustees proposed that the land in question be disposed of (whether by conveyance, transfer, lease or otherwise) before the appointed day; but

(b)

the relevant disposition had not been effected before that day.

9Need for an order under section 38 of the 1993 Act in relation to a new exempt charityI1

(1)

Section 38 of the 1993 Act continues to apply to a relevant mortgage of land held by or in trust for a new exempt charity as it applies to a mortgage of land held by or in trust for a charity which is not an exempt charity.

(2)

A mortgage of land held by or in trust for a new exempt charity is a “relevant mortgage” if the charity trustees—

(a)

proposed that the mortgage be executed before the appointed day; but

(b)

had not executed it before that day.

(3)

For the purposes of sub-paragraph (2) it does not matter whether the mortgage—

(a)

will only have effect to secure the repayment of sums paid by way of the proposed loan or grant or discharge of the proposed obligation; or

(b)

will also have effect to secure the repayment of sums paid by way of loan or grant, or the discharge of other obligations undertaken, after the date of its execution.

(4)

In this paragraph “mortgage” has the meaning given by section 38 of the 1993 Act.

10Inquiries under section 8 of the 1993 Act relating to formerly exempt charitiesI1

(1)

Subject to sub-paragraph (2), the Charity Commission must not instigate any inquiry under section 8 of the 1993 Act on or after the appointed day—

(a)

in relation to one or more formerly exempt charities and in respect of any period beginning before that day; or

(b)

which covers any period beginning before the appointed day and would extend to one or more formerly exempt charities.

(2)

The Charity Commission may, if it considers it appropriate to do so, instigate an inquiry under section 8 of the 1993 Act on or after the appointed day into a formerly exempt charity in respect of a matter—

(a)

arising before the appointed day but during the current financial year of the charity; and

(b)

of which it becomes aware on or after the appointed day.

11Costs of a formerly exempt charity in promoting a Bill before ParliamentI1

Where immediately before the appointed day a formerly exempt charity was preparing or promoting a Bill in Parliament, section 17(7) of the 1993 Act continues to apply in respect of any expenditure incurred on or after that day in the preparation or promotion of that Bill as if the relevant charity remained an exempt charity.

12Ongoing charity proceedings relating to a formerly exempt charityI1

(1)

Any charity proceedings —

(a)

relating to a formerly exempt charity; and

(b)

taken before the appointed day,

continue on or after that day as if they had been authorised by the Charity Commission.

(2)

In this paragraph “charity proceedings” has the meaning given by section 33(8) of the 1993 Act.

13Need for an order under section 36 of the 1993 Act in relation to a formerly exempt charityI1

(1)

Nothing in section 36 of the 1993 Act applies to a disposition of land held by or in trust for a formerly exempt charity to which sub-paragraph (2) applies.

(2)

This sub-paragraph applies to a disposition of land held by or in trust for a formerly exempt charity if—

(a)

the charity trustees proposed that the relevant land be disposed of (whether by conveyance, transfer, lease or otherwise) before the appointed day; but

(b)

the relevant disposition had not been effected before that day.

14Need for an order under section 38 of the 1993 Act in relation to a formerly exempt charityI1

(1)

Nothing in section 38 of the 1993 Act applies to a mortgage of land held by or in trust for a formerly exempt charity to which sub-paragraph (2) applies.

(2)

This sub-paragraph applies to a mortgage of land held by or in trust for a formerly exempt charity if the charity trustees—

(a)

proposed that the mortgage be executed before the appointed day; but

(b)

had not executed it before that day.

(3)

For the purposes of sub-paragraph (2) it does not matter whether the mortgage—

(a)

will only have effect to secure the repayment of sums paid by way of the proposed loan or grant or discharge of a proposed obligation; or

(b)

will also have effect to secure the repayment of sums paid by way of loan or grant, or the discharge of other obligations undertaken, after the date of its execution.

(4)

In this paragraph “mortgage” has the meaning given by section 38 of the 1993 Act.

15Persons acting as charity trustee of or trustee for a formerly exempt charity while disqualifiedI1

(1)

The Commission may not make any order under section 73(4) of the 1993 Act which would require a person (“P”) to—

(a)

repay to a formerly exempt charity the whole or part of any relevant sums received by P by way of remuneration or expenses; or

(b)

pay to that charity the whole or part of the monetary value of any relevant benefit in kind received by P.

(2)

For the purposes of this paragraph—

(a)

a sum by way of remuneration or expenses or a benefit in kind received by P is a relevant sum or benefit in kind if it is received by P in connection with P’s acting as charity trustee of or trustee for the formerly exempt charity at any time—

(i)

before the appointed day; and

(ii)

when P was disqualified by section 72 of the 1993 Act for acting as such a trustee;

(b)

it does not matter whether—

(i)

the sums received by P by way of remuneration or expenses are; or

(ii)

the benefit in kind received by P is,

received by P before, on or after the appointed day.

16Effect of changes to exempt charity statusI1

(1)

The commencement of this Order—

(a)

does not affect—

(i)

any proceedings brought in any court or to the Tribunal in respect of any decision, order or direction made or any other matter arising before the appointed day;

(ii)

any order made or judgment given in any proceedings mentioned in sub-paragraph (i) whether that order is made or judgment given before, on or after the appointed day;

(b)

does not affect the validity of anything done before the appointed day on the basis that—

(i)

a formerly exempt charity was an exempt charity; or

(ii)

a new exempt charity was not an exempt charity;

(c)

does not require—

(i)

any formerly exempt charity to be treated as not having been an exempt charity;

(ii)

any new exempt charity to be treated as having been an exempt charity,

at any time before the appointed day.

(2)

In this paragraph “Tribunal” has the meaning given by section 97(1) of the 1993 Actf1.

17Exempt charity status of common deposit and common investment fundsI1

The 1993 Act has effect as if the reference in section 24(8) of that Act to “a scheme which admits only exempt charities” were a reference to a scheme which admits—

(a)

only exempt charities;

(b)

only exempt charities and formerly exempt charities; or

(c)

only formerly exempt charities.

18InterpretationI1

In this Schedule—

(a)

“appointed day” means the day appointed for the commencement of section 11(3) of the Charities Act 2006;

(b)

“current financial year” means, in relation to a charity, a financial year which—

(i)

began before the appointed day; but

(ii)

ends on or after that day;

(c)

“financial year” has the meaning given by section 97(1) of the 1993 Act;

(d)

“formerly exempt charity” means a charity which—

(i)

ceased to be an exempt charity, on the appointed day, or

(ii)

is one of a particular description of charities which ceased to be exempt charities on that day,

by virtue of a provision of this Order;

(e)

“new exempt charity” means a charity which becomes an exempt charity, on or after the appointed day, by virtue of article 2(7) of this Order;

(f)

“principal regulator” has, in relation to an exempt charity, the meaning given by section 13 of the Charities Act 2006.

Explanatory note

(This note is not part of the Order)

The Minister for the Cabinet Office (“the Minister”) has the power, under section 11 of the Charities Act 2006, to amend Schedule 2 to the Charities Act 1993 to confer exempt charity status on a particular charity or class of charities or remove that status from a particular charity or class of charities. The Minister may also amend that Schedule so as to remove institutions which have ceased to exist.

This Order confers exempt charity status on certain charities connected with the British Library Board (article 2(7)).

It also removes exempt charity status from, in so far as they are charities, the following institutions or descriptions of institution;

(a)

the colleges and halls in the universities of Cambridge and Durham;

(b)

the colleges in the university of Oxford;

(c)

higher education corporations in Wales;

(d)

universities and university colleges in Wales and institutions connected with them which were designated as exempt charities before the appointed day;

(e)

successor companies to higher education corporations which conduct institutions in Wales;

(f)

charitable institutions connected to institutions mentioned in paragraphs (a) to (e) above which were, immediately prior to the appointed day, exempt charities; and

(g)

the Board of Governors of the Museum of London

(article 2(1) to (6)).

This Order also further amends Schedule 2 to the Charities Act 1993 so as to remove the references to the colleges and halls in the university of Newcastle and the halls in the university of Oxford as these institutions have ceased to exist.

The Order also further amends Schedule 2 to the Charities Act 1993 to refer specifically to King’s College London and the University of Manchester (article 2(2)). These amendments have been made to ensure that the students’ unions of these institutions cease to be exempt charities. The College and the University are themselves, in so far as they are charities, currently exempt charities and this status is not affected by the additional amendment to Schedule 2 or the repeal of section 18 of the King’s College London Act 1978 or section 11 of the University of Manchester Act 2004.

In accordance with the duty in section 3A of the Charities Act 1993 the Minister has made regulations which except, subject to the financial threshold in subsection (2)(c) of that section, the institutions ceasing to be exempt charities in consequence of a provision of this Order, from the requirement to be registered in the register of charities maintained by the Charity Commission for England and Wales (The Charities (Exception from Registration) Regulations 2010 (S.I. 2010/502).

This Order also makes related consequential amendments and transitional provisions and savings (article 3 and Schedules 1 and 2).

A full regulatory impact assessment of the effect of changes proposed in relation to exempt charities was produced alongside the Bill which became the Charities Act 2006. This regulatory impact assessment took into account the effect of most of the changes being made by article 2 of this Order.

A copy of this regulatory impact assessment is available from the Office of the Third Sector’s website:

http://www.cabinetoffice.gov.uk/third_sector/law_and_regulation/charities_act_2006/background.aspx

or from Khaled Moyeed at the Office of the Third Sector, Room 2.7 Admiralty Arch South Side, The Mall, London, SW1A 2WH (020 7276 6028 or [email protected]). It is also annexed to the Explanatory Memorandum which is available alongside the Order on the OPSI website (http://www.opsi.gov.uk).