9 August 2023
55.Originally, section 70A of the 2005 Act allowed charity trustees to apply to OSCR for the appointment of an “acting charity trustee” as an interim measure where there was an insufficient number of charity trustees for the charity to be able to make an appointment itself and its constitution provided no mechanism for making an appointment in those circumstances. An application could be made by the majority of the current charity trustees or, if there were only two, either of them. However, if there were no charity trustees, or if the only charity trustees who were appointed were unable or unwilling to act, OSCR had no power to assist under this section.
56.This section of the Act changes that. It introduces a new power allowing OSCR to appoint what are now badged as “interim” charity trustees as a short-term measure. This applies where OSCR is satisfied that a charity has no charity trustees, or the existing charity trustees cannot be found/are not acting and are not expected to resume acting, or where the number of existing charity trustees who fall into that category means that it is not possible for the charity to make a request itself. The new aspect of the power applies only where the charity would not be able to make a request itself under the original mechanism. For example, that might be because in a charity with two trustees, one has moved away to an unknown address and the other has lost capacity (i.e. the existing charity trustees could fall into paragraph (b) of new section 70A(2) for different reasons) so there is no trustee who would be able to make the application. It would also apply in, for example, a charity with three trustees where two of them were not acting, meaning that the sole remaining trustee was not able on their own to make an application to OSCR.
57.As with the original appointment provision, any appointment of an interim charity trustee under this new power is a temporary measure only and is made subject to various restrictions. Specifically—
OSCR can appoint only as many interim charity trustees as is necessary for the charity to be able to appoint charity trustees itself under its constitution. Under the changes made by the Act, charity trustees who cannot be found or are not acting would not count for the purpose of determining whether the charity is able to appoint charity trustees itself.
An interim charity trustee can be appointed initially only for a maximum period of 12 months.
This appointment can be extended once by a period of up to 3 months but only if, at the end of the appointment period—
the charity would not, without the interim charity trustee, be able to appoint a charity trustee itself (again, this is extended by the Act to provide that charity trustees who cannot be found or are not acting would not count for the purpose of determining whether this test is met), and
OSCR, the majority of the charity trustees (or, if two, either of them) and the interim charity trustee all agree – but any trustees who cannot be found or are not continuing to act are not factored into any calculations of numbers/majorities for this purpose.
While an interim charity trustee is permitted to be appointed as a normal, non-temporary charity trustee, the interim charity trustee cannot vote on their own appointment.
58.There are also some other rules in section 70A of the 2005 Act already which are not restrictions but which will apply equally to interim charity trustees appointed under this new power. Firstly, an interim charity trustee is given the same functions (for the duration of their appointment) as a charity trustee appointed under the charity’s constitution. Secondly, where an interim charity trustee is later appointed as a non-temporary charity trustee, their appointment as an interim charity trustee comes to an end on the date of their subsequent appointment.
59.The previous rule about appointment on the application of a charity, which was originally spread across the first two subsections of section 70A, is consolidated by the Act into a new subsection (1) (supplemented by a new definition in subsection (9)). However, no changes are made to the substance.
60.The term “acting charity trustee” is also replaced by the term “interim charity trustee” to avoid any confusion given the various references to whether a charity trustee is “acting” or not (which is intended to refer to whether a charity trustee is continuing to fulfil their role as such).