The Scottish Charity Regulator (OSCR) published its interim report under section 33 of the Charities and Trustee Investment (Scotland) Act 2005 on 28 May 2019 in relation to the Dr Robert Malcolm Trust.

Part of OSCR’s role as the regulator of Scottish charities is to ensure charities and charity trustees comply with their statutory requirements under the 2005 Act and to ensure that bodies that are not entered onto the Scottish Charity Register do not hold themselves out to be Scottish charities. OSCR has a statutory power under section 28 of the 2005 Act to carry out an inquiry in relation to charities, bodies representing themselves as charities, and individuals. 

OSCR may investigate a query made by an individual or it may instigate an inquiry of its own accord.

If you are unsure whether OSCR can deal with your concern under its statutory powers, guidance is available on its website and in its inquiry policy, which includes a helpful flowchart on page 6. OSCR can only investigate matters which relate to charity law. It cannot deal with disputes between charity trustees, nor can OSCR overrule decisions of the charity trustees which have been validly taken.

During an inquiry, OSCR may direct a charity or individual not to undertake certain activities, eg part with any assets, for a period of up to six months while the inquiry is ongoing. OSCR also has certain powers which enable it to obtain documents and/or information relevant to the inquiry.

Following an inquiry and depending on the outcome, the options available to OSCR include:

  • directing the charity to take steps which are necessary for it to meet the requirements of the charity test;
  • removing the charity from the Scottish Charity Register;
  • suspending a person concerned in the management or control of the charity or body;
  • directing the body to stop referring to itself as a charity or a Scottish charity;
  • restricting the transactions that the charity can enter into without OSCR’s consent;
  • directing a third party (such as a bank) not to part with the assets of the charity without OSCR’s consent; and/or
  • directing an individual to stop acting (or representing that they are acting) on behalf of a charity or to pay to the charity funds it has collected on its behalf.

Interim and full reports are published by OSCR after it has carried out an inquiry if it resulted in any of the above actions. Since 2014, OSCR has published 18 separate ‘section 33 reports’, and all but one of these reports related to registered charities. OSCR had a busy year in 2016 with ten inquiry reports, and it has published two so far this year including its current inquiry into the Dr Robert Malcolm Trust. OSCR can also use its discretion to publish a section 33 report if it did not result in any of the aforementioned actions, but it contains useful guidance and lessons for the sector as a whole.

If you have a concern about a charity which falls within OSCR’s remit as regulator, we would direct you to the OSCR website in the first instance. If you have queries about an OSCR inquiry relating to you or your charity, contact our Charities Team at charities@turcanconnell.com or call us on 0131 228 8111.