The Office of the Scottish Charity Regulator (OSCR) is spring-cleaning its filing cabinets and eight years of dust has been blown off its 'Meeting the Charity Test' guidance.
OSCR prepared the original guidance document shortly after its inception at a time where it could only draw its inspiration from the statutory foundation of charity law in Scotland – the Charities and Trustee Investment (Scotland) Act 2005. As innovative as it was at the time, the Act only provided the basic rules and structure for the guidance, explaining what the charity test was and listing the 16 charitable purposes (if you include"analogous purposes"). What the legislation lacked, given the nature of legislation, was in-depth, practical guidance. How was the test going to operate in practice? What would OSCR's view be in particular cases?
Fast forward to 2015. OSCR has been regulating Scotland's charity sector for the best part of the last decade and has seen approximately 10,000 applications for charitable status cross its desk. As a result, OSCR has amassed a wealth of experience in applying the charity test.
In March of this year, OSCR announced a full revision of the 'Meeting the Charity Test' guidance. Updated and revised draft guidance has now been put to the sector for comment and the consultation on the draft guidance closes on 26th May 2015.
The proposed new guidance has a more relaxed tone and it contains a number of case study examples to illustrate common issues and queries experienced by the Registration Team at OSCR. The guidance also adopts an improved electronic format, providing links between parts of the guidance, as well as to external documents. The main elements of the charity test and public benefit test have been expanded to allow for a fuller understanding of their meaning and application. Altogether, the new guidance is undoubtedly more user-friendly and the way in which the charitable purposes are applied by OSCR has been fleshed out. The guidance is useful both to new applicants and existing charities checking that they still meet the test (an ongoing, continuing obligation) or if they are seeking to alter their charitable purposes.
Has OSCR gone too far in the draft guidance by playing down legal references? They seem, to some readers, to be"missing in action" in the current draft. While it is important that the guidance is understandable, the legal principles underlying the charity test are important and should be highlighted and expanded upon rather than removed. The addition of case studies is arguably the best feature of the new guidance, but some of the charitable purposes don't have a case study reflecting what will amount to a successful or rejected application and some have no case study at all.
While a revision to what is probably OSCR's most downloaded and read document is very much welcomed, what may require to be spring-cleaned in the not too distant future is the 2005 Act itself. That, however, will require legislative time at the Scottish Parliament – time which is already fairly precious in the final year before the Scottish general election. A review of the Scottish charity legislation could therefore be some way off. In the meantime, OSCR's commitment to keep its guidance useable, clear and refreshed is a great help to the charity sector.
The final version of the new 'Meeting the Charity Test' guidance will be published later in the summer.