High expectations

In 2018, the Charity Commission expressed concern about the number of serious incident reports that it was receiving from charities.

Its concern was not that there were too many reports but rather that there were too few: despite an upward trend in the number of reports being received annually, the Commission’s analysis found that only 1.5% of registered charities had submitted any kind of serious incident report since 2014, and that only 0.9% had reported a safeguarding incident during the same period.

Rather than taking this to be an indicator that much was well within the sector, the Commission decided that it was evidence of systemic under-reporting of serious incidents by charity trustees.

As a matter of law, charity trustees are required to report serious incidents that have occurred during the year as part of their annual return to the Charity Commission, although the Commission’s guidance makes clear that it expects to be notified of serious incidents straight away.

There are six categories of reportable incident mentioned in the guidance, including suspicions, allegations and incidents of abuse or mistreatment of vulnerable beneficiaries.

The Commission’s analysis of the serious incident reports that it had received revealed that almost a third (29%) were made by overseas aid and famine relief charities.

Charities working with disabled people, faith-based charities, and education charities each accounted for around 12% of reports received, and around 11% of reports were made by charities working with younger people.

The majority of reports related to incidents of harm, or concerns about potential harm, to individuals, including but not limited to sexual abuse or harassment.

In cases where harm to an individual was alleged to have been caused, 47.5% were known to have related to children and 32% to adults (in the remaining cases, the age of the individuals concerned could not be established from the report).

Safeguarding is hardly a new issue for the charity sector but, since February 2018, when the revelations about Oxfam were made public, the number of serious incidents being reported to the Commission has risen significantly.

In particular, the number of reports relating to safeguarding failures and near misses is growing, as is the Commission’s focus on safeguarding matters generally. In June, it began a six-month pilot of a new whistleblowing line, which is operated by whistleblowing charity Protect, and funded by the Department for Digital, Culture, Media and Sport.

According to the Commission’s latest annual report, during the year to 31 March 2019 it received 2,504 reports of safeguarding incidents (up from 1,580 the previous year).

This amounts to almost two thirds (64%) of the 3,895 serious incident reports received over-all. The Commission’s safeguarding caseload has risen as a consequence, and it has now established a taskforce to handle the recent increases.

What the commission expects

Quite rightly, the Commission expects charities to foster safe and trusted environments. It expects them to give safeguarding top priority, and it is at pains to ensure that trustees meet their legal duties – as well as public expectations – around safeguarding.

In practice, unless a charity is a children’s charity with workers who are normally engaged in regulated activity (broadly speaking, activity that comprises unsupervised activity, such as teaching or training) or it has workers who normally provide certain activities for adults who are vulnerable or at risk, the legal duties that its trustees have are fairly non-specific.

Trustees have a duty to act in the best interests of their charity and to act responsibly and with reasonable care and skill. They must avoid exposing the charity’s assets, beneficiaries and reputation to undue risk, and take clear and reasonable steps to protect beneficiaries from harm.

Trustees should also be clear on how incidents and allegations will be handled should they arise. It is a key governance priority for trustees to proactively safeguard and promote the welfare of their beneficiaries.

Where a charity deals directly with children or with adults at risk, it will have additional duties in relation to the appointment of trustees, and the engagement of employees and volunteers to ensure that they are suitable to work with the beneficiary class and that appropriate checks are undertaken with the

Disclosure and Barring Service. Where a safeguarding incident does arise then the charity’s trustees must make a serious incident report to the Commission as soon as possible – even where the matter has already been referred to another authority, such as the police or the Department for Education.

The Commission’s safeguarding guidance makes clear that it expects all charities have appropriate policies and procedures in place.

What constitutes “appropriate policies and procedures” will vary according to what the charity does, where it works and its exposure to risk, but even the simplest policy should make clear how the charity will protect people from harm and make sure that they can raise safeguarding concerns, and it should set out how allegations or incidents will be handled and, where relevant, reported to the authorities.

However, detailed a charity’s policy, it is important to ensure (and to be able to demonstrate) that it is actually put into practice and reviewed periodically. Even the best policy will be of no use to the charity if it is not followed, or if failures to follow it are not dealt with appropriately.

If a charity has staff or volunteers, it should also have a clear code of conduct which sets out the charity’s culture and how people in the charity are expected to behave.

The trustees of a charity with the scale and complexity of Oxfam or Save the Children cannot possibly be involved in all aspects of the day-to-day running of their charity.

However, as trustees, they are ultimately responsible for protecting the interests and welfare of their beneficiaries and for safeguarding the reputation of their charity. When things go wrong, it is the trustees who will be held to account rather than senior staff.

The trustees have a vital role, through their leadership, in setting the culture, ethos and integrity of the organisation and, by having appropriate policies and practices in place, they must ensure that those values are embodied by the organisation and respected by employees and volunteers.

Enhanced DBS checks

There is, however, a flaw in the system that hampers the ability of trustees to check the backgrounds of prospective employees and volunteers.

This is particularly true for overseas aid charities – the part of the sector most affected by serious incidents. The problem is that, unless a charity is entitled by law to carry out ‘enhanced’ DBS checks, it will be limited to basic checks, which reveal only unspent convictions.

Enhanced checks, which reveal an individual’s full criminal record, may only be made where he or she will be undertaking work that falls within the definition of “regulated activity”.

Surprisingly, despite the likelihood of overseas aid workers coming into contact with people who, by any definition, could be considered “vulnerable”, many of them will not be carrying out activities that amount to “regulated activity” under the law – particularly if they are volunteers.

Calls have been made to widen the scope of “regulated activity” in relation to DBS checks so that all those involved in key humanitarian and development roles would be eligible for enhanced checks but, to date, the Home Office (the department with responsibility for managing the DBS) has resisted the move, despite pressure from DFID.

Given the lack of parliamentary time available at present, the position is unlikely to change in the short term.

Andrew Mackie is a senior associate at Wilsons Solicitors wilsonsllp.com