In the aftermath of the Oxfam scandal, safeguarding has moved up the list of third sector hot topics and is prominently on the agenda for Board Meetings.
In an immediate response to the Oxfam case, the Scottish Charity Regulator (“OSCR”) issued a statement reminding Scottish charity trustees of their duties and responsibilities in relation to safeguarding and highlighting the Notifiable Events Regime. Now, a few months later, OSCR has published its interim safeguarding guidance.
“Safeguarding: the action that an organisation takes to promote the welfare of children and vulnerable adults to protect them from harm.”
The OSCR Guidance introduces the topic of safeguarding and contains key action points for charity trustees to consider. The guidance is an overview of the matter as it relates to Scottish charities working with vulnerable beneficiaries including children generally; it does not specifically refer to overseas aid charities or those exclusively working with children. Helpfully, it does contain a list of other resources that provide more detailed advice and assistance.
The key message from the guidance is that charity trustees must ensure that they have appropriate safeguarding policies and procedures in place that are consistently followed and reviewed regularly in order to mitigate the risk of harm to children and vulnerable beneficiaries. OSCR also emphasises that it is important that charities cultivate and nurture a safeguarding culture within their organisations and this includes being transparent and accountable, as well as ensuring volunteers, staff and trustees are sufficiently well trained.
The guidance serves as a stark reminder to charity trustees of their legal duties; it firmly places the collective responsibility for safeguarding at their feet and describes it as “a key governance priority”. If charity trustees fail to manage the associated risks in relation to safeguarding adequately (which does not mean they must prevent any safeguarding issue from occurring at all), this may be a breach of the trustees’ duties and misconduct in the administration of the charity.
To assist charity trustees with their safeguarding responsibilities, the guidance provides 10 practical steps to help identify and manage risks appropriately, as well as commentary on drafting a safeguarding policy. It also contains detailed sections on whistleblowing, recruitment, PVG checks/disclosures and working with partners overseas.
Notifying the Regulator
OSCR’s safeguarding guidance should be implemented alongside its Notifiable Events Regime. Although not a legal obligation, charity trustees are encouraged to report ‘notifiable events’ to OSCR in a timely manner. Notifiable events are events which have had or are likely to have a significant impact on the charity and/or its assets. In relation to safeguarding, any significant event which involves a child or vulnerable beneficiary should be reported. What is significant often will differ between charities as it is very much a subjective matter; however any incident that is reported to police or Crown Office and Procurator Fiscal Service would qualify.
Self-regulating and self-reporting by charity trustees is viewed by OSCR as a sign of good governance; you can show through a voluntary disclosure that you are aware of the issues and are taking appropriate steps to deal with them. A failure to report a serious matter, which later turns into the subject of the OSCR inquiry, would likely go against the charity. Further information on the Notifiable Events Regime can be found here.
Meanwhile, South of the Border…
The Charity Commission for England & Wales (“CCEW”) has published a number of documents to assist charity trustees in effectively implementing safeguarding policies and procedures over the last year which can be found here and here. While these documents apply to English and Welsh charities, they can be utilised by Scottish charities as examples of principles and best practice, while bearing in mind the underlying legal foundation differs.
Similar to OSCR’s Notifiable Events Regime, CCEW has a ‘Serious Incident Reporting’ scheme. CCEW is also clear that the act of reporting will not be viewed negatively by the Regulator; it also considers timely reporting as good governance and evidence of the charity trustees responding appropriately to the incident.
The Sector as a Whole
Both Charity Regulators use their reporting schemes as an effective method to gauge issues affecting the sector and monitor the volume and scale of incidents which ultimately benefit the sector as a whole. The Regulators will use this information to produce or update guidance on common issues, or update or amend their processes or procedures as necessary.
If you haven’t done so already, add safeguarding to your next Board Meeting agenda and take appropriate steps to protect children and vulnerable beneficiaries, as well as your charity’s reputation.
If you have any questions in relation to safeguarding or the OSCR Notifiable Events Regime, please contact our Charities Legal Team at firstname.lastname@example.org.