PART 1 continued CHAPTER 4 continued
(2) OSCR may authorise any Scottish public authority with mixed functions or no reserved functions to exercise any of the functions referred to in subsection (1) in so far as they are exercisable in relation to—
(a) such charities or bodies, or types of charity or body, as OSCR may specify in the authorisation, and
(b) persons acting for or on behalf of those charities or bodies.
(3) Such an authorisation may be made only if the authorised person has other regulatory functions conferred on it by an enactment in relation to the charities or types of charity in respect of which the authorisation is made.
(4) OSCR must send a copy of such an authorisation to each charity to which it relates.
(5) OSCR must, before making such an authorisation, consult such persons (including the person it proposes to authorise) as it thinks fit.
(6) OSCR may, at any time, withdraw an authorisation under subsection (2) (and subsections (4) and (5) apply in relation to such a withdrawal as they apply in relation to an authorisation).
(7) Subsection (1) does not prevent OSCR from authorising, under subsection (2), the Scottish Ministers to exercise functions in relation to a person other than a registered social landlord.
(8) It is not competent for OSCR to exercise any of its functions which are, by virtue of subsection (1) or (2), delegated to another public body or office-holder (unless it considers it necessary or expedient to do so in relation to its functions under section 30).
(9) Sections 24 to 26 apply in relation to a public body or office-holder to whom OSCR’s functions are delegated by virtue of subsection (1) or (2) as they apply to OSCR, but subject to the following modifications—
(a) references in those sections to OSCR and to OSCR’s functions are to be read as references to the public body or office-holder and to the functions delegated to it, and
(b) the reference in section 25(1)(d) to section 46 is to be read as a reference to subsection (10).
(10) Where any of OSCR’s functions are delegated to another public body or office-holder by virtue of subsection (1) or (2), a person to whom section 46 applies—
(a) must report to the body or office-holder on any matter which the person would, but for that delegation, be required by section 46(2) to report on to OSCR,
(b) may report to the body or office-holder on any matter which the person would, but for that delegation, be authorised by subsection 46(3) to report on to OSCR.
(11) A duty or power which arises under subsection (10) is not affected if the person in relation to whom it arises subsequently stops acting in the capacity mentioned in section 46(1).
(12) In this section “registered social landlord” means a body registered in the register maintained under section 57(1) of the Housing (Scotland) Act 2001 (asp 10).
(1) OSCR may, on the application of a charity, approve a reorganisation scheme proposed by the charity if it considers—
(a) that any of the reorganisation conditions is satisfied in relation to the charity, and
(b) that the proposed reorganisation scheme will—
(i) where the condition satisfied is that set out in paragraph (a) or (b) of section 42(2), enable the resources of the charity to be applied to better effect for charitable purposes consistently with the spirit of its constitution, having regard to changes in social and economic conditions since it was constituted, or
(ii) where the condition satisfied is that set out in paragraph (c) of that section, enable the charity to be administered more effectively.
(2) The Scottish Ministers may by regulations make such provision as they think fit in relation to the procedure for applying for and determining applications under this section.
(3) Such regulations may in particular make provision about—
(a) the form and manner in which applications must be made,
(b) the period within which OSCR must make a decision on an application,
(c) publication of proposed reorganisation schemes,
and may make different provision in relation to different types of charity.
(1) Where OSCR considers—
(a) that any of the reorganisation conditions is satisfied in relation to a charity, and
(b) that a reorganisation scheme proposed by it or by the charity trustees of the charity will—
(i) where the condition satisfied is that set out in paragraph (a) or (b) of section 42(2), enable the resources of the charity to be applied to better effect for charitable purposes consistently with the spirit of its constitution, having regard to changes in social and economic conditions since it was constituted, or
(ii) where the condition satisfied is that set out in paragraph (c) of that section, enable the charity to be administered more effectively,
OSCR may, of its own accord or on the application of the charity trustees of the charity, apply to the Court of Session for approval of the scheme.
(2) The Court of Session may, on an application under subsection (1), approve the proposed reorganisation scheme if it considers that the matters set out in paragraphs (a) and (b) of that subsection are satisfied in relation to the charity to which the application relates.
(3) The charity trustees of a charity may enter appearance as a party in proceedings on an application under subsection (1) in relation to the charity.
(4) OSCR must, not less than 28 days before making an application under subsection (1), notify the charity in question of its intention to do so.
A charity may, despite any provision of its constitution having contrary effect, proceed with any variation, transfer or amalgamation for which an approved reorganisation scheme makes provision.
(1) This section applies for the interpretation of Chapter 5.
(2) The “reorganisation conditions” are—
(a) that some or all of the purposes of the charity—
(i) have been fulfilled as far as possible or adequately provided for by other means,
(ii) can no longer be given effect to (whether or not in accordance with the directions or spirit of its constitution),
(iii) have ceased to be charitable purposes, or
(iv) have ceased in any other way to provide a suitable and effective method of using its property, having regard to the spirit of its constitution,
(b) that the purposes of the charity provide a use for only part of its property, and
(c) that a provision of the charity’s constitution (other than a provision setting out the charity’s purposes) can no longer be given effect to or is otherwise no longer desirable.
(3) A “reorganisation scheme” is a scheme for—
(a) variation of the constitution of the charity (whether or not in relation to its purposes),
(b) transfer of the property of the charity (after satisfaction of any liabilities) to another charity (whether or not involving a change to the purposes of the other charity), or
(c) amalgamation of the charity with another charity.
(4) Nothing in section 40 affects the power of the Court of Session to approve a cy près scheme in relation to a charity.
(5) Sections 39 and 40 do not apply to any charity constituted under a Royal charter or warrant or under any enactment.
(6) But, despite subsection (5), those sections do apply to an endowment if its governing body is a charity.
(7) In subsection (6), “endowment” and “governing body” have the same meaning as in Part 6 (reorganisation of endowments) of the Education (Scotland) Act 1980 (c. 44).
In section 122 (interpretation of Part 6) of the Education (Scotland) Act 1980 (c. 44), after subsection (3) insert—
“(4) This Part, apart from section 104, does not apply in relation to any endowment the governing body of which is a charity within the meaning of section 106 of the Charities and Trustee Investment (Scotland) Act 2005 (asp 10).”
(1) A charity must—
(a) keep proper accounting records,
(b) prepare for each financial year of the charity a statement of account, including a report on its activities in the financial year,
(c) have the statement of account independently examined or audited, and
(d) after such examination or audit, send a copy of the statement of account to OSCR,
in accordance with regulations under subsection (4).
(2) Accounting records kept in pursuance of subsection (1)(a) must be preserved by the charity for 6 years from the end of the financial year in which they are made.
(3) Subsection (2) is without prejudice to any other enactment or rule of law.
(4) The Scottish Ministers may by regulations make provision about the matters referred to in subsection (1) including—
(a) the meaning of “financial year”,
(b) the information to be contained in the accounting records and statement of account,
(c) the manner in which that information is to be presented,
(d) the keeping and preservation of the accounting records,
(e) the methods and principles according to which, and the time by which, the statement of account is to be prepared,
(f) the time by which the copy statement of account is to be sent to OSCR,
(g) examination or audit of the statement of account,
(h) such other matters in relation to the accounts of a charity as the Scottish Ministers think necessary or expedient.
(5) Regulations under subsection (4) may make different provision in relation to different types of charity, including provision exempting charities of a particular type from some or all of the requirements of this section.
(1) This section applies where a charity fails, within such period as is specified in regulations under section 44(4), to send a copy of a statement of account to OSCR in pursuance of subsection (1)(d) of that section.
(2) OSCR may, after notifying the charity of its intention to do so, appoint a suitably qualified person (an “appointed person”) to prepare such a statement of account.
(3) An appointed person is entitled—
(a) on giving reasonable notice, to enter premises occupied by the charity at all reasonable times,
(b) to have access to, and take possession of, any document appearing to the appointed person to relate to the financial affairs of the charity, and
(c) to require any charity trustee, or agent or employee, of the charity to give the person such assistance, information or explanation as the appointed person may reasonably require.
(4) The charity trustees of the charity are personally liable jointly and severally for—
(a) any costs incurred by OSCR in relation to the appointment of the appointed person, and
(b) the expenses of the appointed person in performing that person’s functions under this section.
(5) The appointed person must—
(a) send to OSCR the statement of account prepared in pursuance of subsection (2),
(b) submit to OSCR a report on the affairs and accounting records of the charity, and
(c) send a copy of the statement of account and report to each person appearing to the appointed person to be a charity trustee of the charity.
(6) A person who, without reasonable excuse, refuses or fails to comply with a requirement of an appointed person under subsection (3) is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(1) This section applies to—
(a) any person appointed to carry out an independent examination or audit of a charity’s statement of account (including, in the case of a charity which is a company, any person appointed as auditor under Chapter 5 of Part 11 of the Companies Act 1985 (c. 6)), and
(b) any person appointed for the purposes of section 249A(2) of that Act to prepare a report on the accounts of a charity which is a company,
who is acting in the appointed capacity.
(2) A person to whom this section applies who becomes aware of any matter—
(a) which relates to the activities or affairs of—
(i) the charity, or
(ii) any institution or body corporate connected to that charity, and
(b) which the person has reasonable cause to believe is likely to be of material significance for the purposes of the exercise by OSCR of its functions under section 28, 30 or 31,
must immediately report on the matter to OSCR.
(3) A person to whom this section applies who becomes aware of any matter—
(a) which does not appear to the person to be one which the person is required to report under subsection (2), but
(b) which the person has reasonable cause to believe is likely to be relevant for the purposes of the exercise by OSCR of any of its functions,
may report on the matter to OSCR.
(4) A duty or power which arises under subsection (2) or (3) is not affected if the person in relation to whom it arises subsequently stops acting in the capacity mentioned in subsection (1).
(5) An institution or body corporate is connected to a charity if—
(a) it is an institution which is controlled (whether directly or through one or more nominees) by, or, as the case may be
(b) it is a body corporate in which a substantial interest is held by,
the charity or any one or more of the charity trustees acting in that capacity.
(6) Section 105 sets out when a person is to be treated as controlling an institution or as having a substantial interest in a body corporate.
(1) Subsection (3) applies where—
(a) a relevant financial institution (whether or not in response to a request from OSCR) informs OSCR that every account held by the institution in the name of or on behalf of a body appearing to the institution to be a relevant body is dormant,
(b) OSCR is satisfied that the body is a relevant body, and
(c) OSCR is unable, after making reasonable inquiries, to locate any person concerned in the management or control of the body.
(2) A relevant body is one which is, has at any time been or, in the case of a body which has ceased to exist, was prior to such cessation—
(a) a charity, or
(b) entitled by virtue of section 1(7) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40) to describe itself as a “Scottish charity”.
(3) OSCR must transfer the amount standing to the credit of the relevant body in the dormant accounts (less any amount which it is authorised by regulations under section 48(1) to retain) to—
(a) such charity as OSCR may determine, having regard to the purposes of the relevant body and the purposes of the charity, or
(b) where OSCR is unable to ascertain the purposes of the relevant body, to such charity as OSCR considers appropriate.
(4) For the purposes of subsection (3), OSCR may effect any transaction in relation to the dormant accounts (including a transaction closing any such account).
(5) Where under subsection (3) OSCR transfers an amount to 2 or more charities, it may divide the amount among those charities as it thinks fit.
(6) A charity to which an amount is transferred under this section may apply the amount for its purposes as it thinks fit.
(7) The receipt by—
(a) OSCR of an amount withdrawn or transferred from an account by virtue of this section is a complete discharge of the relevant financial institution, or
(b) a charity of an amount received from OSCR by virtue of this section is a complete discharge of OSCR,
in respect of the amount.
(8) OSCR’s power under subsection (3) ceases—
(a) if the relevant financial institution by which the accounts are held informs OSCR that the accounts (or any of them) are no longer dormant, or
(b) if OSCR becomes aware of the identity of a person concerned in the management or control of the relevant body and informs the relevant financial institution of that fact.
(1) The Scottish Ministers may, by regulations, make provision as to—
(a) the procedure to be followed by OSCR under section 47,
(b) the extent to which OSCR, in transferring an amount under subsection (3) of that section, may retain a sum in respect of its expenses in exercising its functions under that section.
(2) An account is dormant for the purposes of section 47 if no transaction other than—
(a) a payment into the account, or
(b) a transaction effected by the relevant financial institution holding the account,
has been effected in relation to the account within the period of 5 years immediately preceding the dormancy date.
(3) An account is no longer dormant for the purposes of that section if a transaction other than—
(a) a payment into the account,
(b) a transaction effected by the relevant financial institution holding the account, or
(c) a transaction effected by OSCR in pursuance of subsection (3) of that section,
is effected after the dormancy date.
(4) The dormancy date is the date on which the institution informs OSCR as mentioned in section 47(1)(a).
(1) A charity may be constituted as a Scottish charitable incorporated organisation (a “SCIO”).
(2) A SCIO is a body corporate having—
(a) a constitution,
(b) a principal office in Scotland,
(c) 2 or more members.
(3) Its membership may, but need not, consist of or include some or all of its charity trustees.
(4) The members are not liable to contribute to the assets of the SCIO if it is wound up.
(1) A SCIO’s constitution must state its name and its purposes.
(2) A SCIO’s constitution must make provision—
(a) about who is eligible for membership, and how a person becomes a member, and
(b) for the appointment of 3 or more persons (“charity trustees”) who are to be charged with the general control of the SCIO’s administration, and about any conditions of eligibility for becoming a charity trustee.
(3) A SCIO’s constitution must also provide for such other matters, and comply with such requirements, as are specified in regulations made by the Scottish Ministers.
(4) A SCIO must use and apply its property in furtherance of its purposes and in accordance with its constitution.
(5) Subject to anything in its constitution, a SCIO has power to do anything which is calculated to further its purposes or is conducive or incidental to doing so.
(6) For the purposes of managing the affairs of a SCIO, its charity trustees may exercise all the SCIO’s powers.
Subsections (1)(a), (3) and (4) of section 66 apply to the members of a SCIO who are not charity trustees as they apply to its charity trustees.
(1) The name of a SCIO must appear in legible characters on—
(a) such documents issued by or on behalf of the SCIO,
(b) such documents signed by or on behalf of the SCIO,
as may be specified in regulations made by the Scottish Ministers.
(2) Subsection (3) applies where the name of a SCIO does not include—
(a) “Scottish charitable incorporated organisation”, or
(b) “SCIO” (with or without a full stop after each letter),
whether or not capital letters are used.
(3) Where this subsection applies, the fact that a SCIO is a SCIO must be stated in legible characters in all the documents referred to in subsection (1).
(4) Section 15 does not apply in relation to a SCIO.
(1) A charity trustee of a SCIO or a person on the SCIO’s behalf who—
(a) issues, or authorises the issue of, any document referred to in subsection (1)(a) of section 52, or
(b) signs, or authorises the signature on behalf of the SCIO of, any document referred to in subsection (1)(b) of that section,
which does not comply with subsections (1) and (3) of that section is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(2) OSCR may direct—
(a) any body which is not a SCIO and which is representing itself as being a SCIO,
(b) any person who is representing that any such body is a SCIO,
to stop doing so by such date as OSCR may direct.
(3) The Court of Session may, on an application by OSCR, interdict—
(a) any body which is not a SCIO from representing itself as a SCIO,
(b) a person who is representing that such a body is a SCIO from doing so.
(4) OSCR may not apply for such an interdict against a body or person unless the body or person has failed to comply with a direction under subsection (2).
(1) Any 2 or more individuals may apply to OSCR for a SCIO to be constituted and for its entry in the Register.
(2) The application must—
(a) state the name of the SCIO,
(b) state the proposed principal office of the SCIO,
(c) be accompanied by a copy of the SCIO’s proposed constitution,
(d) contain such other information, and be accompanied by such other documents, as may be—
(i) required by regulations under section 6(1), or
(ii) otherwise required by OSCR.
(3) OSCR may grant the application only if it considers that the SCIO, if constituted, would meet the charity test.
(4) OSCR must refuse the application if—
(a) it considers that the SCIO’s proposed name falls within section 10,
(b) the SCIO’s proposed constitution does not comply with one or more of the requirements of section 50 and any regulations made under that section, or
(c) the application must, by virtue of regulations under section 6(1), be refused,
but must not otherwise refuse an application if it considers that the SCIO, if constituted, would meet the charity test.
(5) Sections 4 and 5 do not apply in relation to an application under subsection (1).
(1) If OSCR grants an application under section 54(1) it must enter the SCIO to which the application relates in the Register.
(2) On the entry in the Register being made in accordance with subsection (5), subsections (3) and (4) apply.
(3) The SCIO becomes by virtue of this subsection a body corporate—
(a) whose constitution is that proposed in the application,
(b) whose name is that specified in the constitution, and
(c) whose first members are the individuals who made the application.
(4) All property for the time being vested in those individuals (or any of them) on trust for the charitable purposes of the SCIO (when constituted) vests by virtue of this subsection in the SCIO.
(5) The entry for the SCIO in the Register must (in addition to the matters required by section 3(3)) include—
(a) the date when the entry was made, and
(b) a note stating that the charity is constituted as a SCIO.
(6) OSCR must send a copy of the entry in the Register to the SCIO at its principal office.
(7) If a SCIO ceases to be a charity, it ceases to be a SCIO.