Oxfam - Lessons for Charity Trustees

This article was written by Robert Horsey and Kerry Morgan-Gould from our Disputed Wills and Trusts Team. 

The current media headlines reporting the sex scandal that has engulfed the UK charity Oxfam are causing concern across the entire Charity Sector. The impact has already gone far beyond the employment positions of the individuals immediately involved. It has led to the resignation of the Deputy Chief Executive of the charity, caused questions to be asked of charity regulation generally, and has damaged the public's trust in the sector.

One of the areas of concern aired in the press has been the extent to which charity trustees should be held accountable for ensuring their organisations are run properly. That is a very real question and one that will be of concern to all charity trustees whatever size of charity.

Charity trustees will rarely be directly involved in individual recruitment decisions for staff and volunteers. What they will be involved in though is in the setting of the policies and procedures (and the budgets) under which such decisions are made.

The six main duties of the charity trustee are to:

• Ensure the charity is carrying out it purposes for the public benefit
• Comply with the charity's constitution and charity law
• Act in the charity's best interest
• Ensure the charity is accountable
• Manage the charity's resources responsibly
• Act with reasonable care and skill.

The Charity Commission is the regulator for in excess of 160,000 registered charities in England and Wales. The Commission is responsible for ensuring that charities meet their legal requirements, and takes enforcement action where there is malpractice or misconduct. It produces extensive and detailed guidance to help charities run as effectively as possible, and has a policy of publishing as much information as it can where that information could have a broad public interest.

The Commission published guidance includes "CC3 The essential trustee: what you need to know" and "CC3a Charity trustee: what’s involved" which give a useful overview of a trustee's role and key duties.

As one of the country's largest charities, Oxfam can be expected to have a range of policies and procedures in place to address safeguarding and risk management, although plainly they should (and no doubt will) be revisited and tightened. The most material failings that have permitted the events that have caused the outcry are likely to lie in implementation of those policies and procedures. That is the human element where judgment calls are made. In the extent to which the recruitment process is rigorously applied (including criminal records checks and taking references), and in the decision-making regarding escalation, passing of information to the Charity Commission, and indeed in the handling of the media and the public from a PR perspective.

Charities should have safeguarding policies to ensure that their beneficiaries, and others who come into contact with their charity are safe from harm. That should include requirements for the trustees, staff and volunteers to learn about protection issues in accordance with the relevant statutory guidance. The policies should be agreed by trustees, regularly updated, reflect statutory guidance, and national and local practice, and must be supported by an implementation plan. Policies should be publicly available to provide reassurance internally and externally.

A failure by trustees to manage safeguarding risks adequately is potentially a serious regulatory concern for the Commission, which may amount to misconduct and/or mismanagement and a breach of trustees duties. Current Charity Commission guidance recommends that trustees make public their clear commitment to safeguarding by publishing the charity's safeguarding policy and stating that failure to follow will be dealt with as a very serious matter.

Trustees must react responsibly to reports of safeguarding risks and incidents of abuse, and take steps to make sure they, and the people working in the charity, know how to deal with the situation. This includes having systems in place to manage initial reports, identify and manage the risks - including liaison with the authorities (including the Charity Commission), and recording all reports securely and in accordance with the relevant legislation. The guidance specifically states that trustees should make a serious incident report to the commission if beneficiaries have been abused or mistreated whilst under the care of the charity, if there has been an incident where someone has been abused or mistreated connected with the activities of the charity, or if there has been a breach of procedures or policies at the charity which puts beneficiaries at risk.  

In terms of recruiting staff, charities have a responsibility to make sure that employees and volunteers are suitable to work with children and adults at risk. They should obtain appropriate checks with the Disclosure and Barring Service and ensure that they are legally able to act in these positions.

Charity trustees must also ensure that charity assets are used only to support or carry out the charities purposes. This would include avoiding exposing the charities assets, beneficiaries or the organization's reputation to undue risk.

Trustees should therefore consider and decide how best to set the standards to ensure good practice. The key immediate lessons for charity trustees from these events are:

1. To ensure the charity has robust policies and procedures in place to ensure as a minimum compliance with recognised good practice; and
2. To ensure that staff and volunteers are trained in and aware of those procedures - and to make the resources available to implement them.

The Commission's guidance should help charities trustees run their charity effectively, avoid difficulties and comply with their legal duties. The commission would expect the charity trustees to be able to explain and justify their approach, particularly if they decide not to follow its guidance. The devil, as ever, is in the detail. 

The public relations impact of recent events on the charity itself and the sector cannot be understated. Although the earth tremors in Haiti in 2011 subsided long ago the aftershocks will continue to be felt in the charity sector for some time to come.

Kerry Morgan-Gould and Robert Horsey are members of the Ashfords Charity Team. The team provides training and advice lines to help trustees with their obligations, and arranges seminars and networking events to share best practice.  The team can be contacted on 0800 0931 336 or by email on r.horsey@ashfords.co.uk.