Commentary on Provisions The schedule Paragraph 5 – Change of name: delaying decision or granting or refusing consent
136.Section 11 of the 2005 Act requires charities to obtain consent from OSCR to any proposed change of name. This applies both where the charity wishes to change its name of its own accord and where it has been directed under section 12 of the 2005 Act to change its name because it is too similar to another charity’s name or because its name has become objectionable for other reasons.
137.Originally, OSCR’s only options on receiving an application for a change of name were to consent or refuse. Unless OSCR refused the application within 28 days, it was deemed to have consented. However, OSCR could refuse an application only where it considered that the proposed new name was objectionable under section 10 of the 2005 Act. That is, OSCR could refuse only where it considered that a name—
	is the same as or too similar to another charity’s name(1),
	is likely to mislead the public as to what the charity does,
	incorrectly gives the impression that the charity is connected to a government body or any person, or
	is offensive.
138.It is not always possible for OSCR to make an informed decision as to whether a proposed charity name is objectionable within 28 days, as often further information about the charity’s activities or connections is required. This paragraph of the Act’s schedule therefore gives OSCR a new option, mirroring the options OSCR has where consent is sought for certain changes under section 16 of the 2005 Act.
139.As a result of the changes made to section 11 of the 2005 Act by sub-paragraphs (2)(a) and (b) of this paragraph, OSCR will be able to issue a direction which prevents the charity from changing its name to the proposed new name for a specified period of up to 6 months (during which time, OSCR will hope to be able to satisfy itself as to whether the name is objectionable or not). The direction will be capable of being revoked or varied, but may not be varied so as to extend beyond the 6 month limit. OSCR will remain under a duty to give a substantive answer to the application. As with section 16, consent may be given unconditionally or subject to conditions. Typical conditions might be a requirement to make the change in accordance with the charity’s constitution or a requirement for a charitable company to comply with any company law obligations relating to the name change.
140.A decision to refuse permission to change name was already challengeable under section 71 of the 2005 Act. This will remain the case under section 11 as amended. Where consent is refused under section 11(3)(a) or (3B)(b) (i.e. whether it is refused immediately or whether it is refused after a temporary preventative direction), that refusal will be reviewable at the charity’s instance. However, since it is not a final decision on the matter, the issuing of a temporary direction preventing a change of name from proceeding for up to 6 months will not be reviewable.
141.Sub-paragraph (2)(c) of this section also makes a related change to when OSCR is entitled to refuse an application. As noted above, where the appropriateness of a proposed new name requires more in-depth consideration, OSCR will hope to be able to satisfy itself on that during the period which will apply under the new direction mechanism that is introduced. However, OSCR will not always be able to satisfy itself on this point without input from the charity. For example, the question of whether an incorrect impression is given about the charity’s connections to someone will depend on information that may not be in the public domain. If a charity does not cooperate and provide OSCR with the necessary evidence, OSCR will still require to come to a conclusion at the end of the period of the direction. Originally, OSCR only had the ability to refuse consent if satisfied that the proposed name was objectionable. The ability to refuse consent is therefore extended to cover cases where, despite making reasonable inquiries, OSCR is unable to satisfy itself that the proposed new name is not objectionable.
142.Finally, sub-paragraph (2)(d) recognises that in reality a charity may apply to use a particular name but then decide to opt for something else (either because the charity trustees change their minds themselves, or because OSCR indicates that consent is likely to be refused but that a slight variant on the proposed name would be acceptable). A new subsection is therefore inserted into section 11 of the 2005 Act which allows OSCR, at the request of a charity, to grant consent to a different proposed name.