Commentary on Provisions Inquiries Section 16 – Notice and obtaining information
96.Under section 29 of the 2005 Act, OSCR may by notice require any person to provide it with, amongst other things, documents and information which it considers necessary for the purposes of inquiries under section 28. The notice must specify a date, which must be at least 14 days after the date on which the notice is given, by which the person is to comply with that requirement. However, section 72 of the 2005 Act also originally required OSCR to give notice to the charity in respect of which the decision was made (being the requirement to provide information under section 29). That presupposed that the haver of the information would be a charity and could also be read as suggesting that the haver was the subject of the inquiry. But that may not necessarily be the case, as the power in section 29(1) is quite wide and the haver of the information could be a third party. Further, the inquiry could be in relation to a body which is not a charity (see section 28(1) of the 2005 Act). In addition, the charity or body may have ceased to exist and so serving notice on that charity or body is no longer possible. Section 73 of the 2005 Act provides that the decision to require information is of no effect unless and until the notice required by section 72 is given and 21 days has lapsed without the charity requesting a review of the decision, or where such a request is made, the date on which OSCR gives its final decision.
97.The interaction of these provisions created some uncertainty as to when the haver of the information was required to comply with the requirement, despite the notice specifying a date of 14 days or more in terms of section 29(2)(b), given that the decision was of no effect by dint of section 73. Further, it was not necessarily clear to whom notices of the decision should be given in terms of section 72. Finally, where the charity or body which was the subject of the inquiry under section 28 no longer existed, it was not possible for OSCR to fulfil the requirement to serve a notice on that charity or body, meaning the decision was of no effect (also by dint of section 73).
98.This section of the Act modifies section 29 of the 2005 Act so that ‘the decision’ to require information is separated from ‘the notice’ given to the haver of the information. Subsection (1) of that section refers to the decision, whereas subsection (2) refers to the notice. Inserted subsection (2A) provides that OSCR must not give notice unless and until “the decision” has effect (in terms of section 73(3)).
99.Further, this section of the Act inserts a new paragraph (ba) into section 72(2) of the 2005 Act to make it clear that, in the case of the decision to make a requirement to provide information under section 29(1), a notice must be given to the charity, body or person with regard to which OSCR is making inquiries under section 28.
100.The effect of these changes is that OSCR must notify the charity, body or other person with regard to which OSCR is making inquiries under section 28 about its decision to require information under section 29(1) in relation to that inquiry. In some cases, the person receiving notice (i.e. the person subject to the inquiry) will be the same person as the haver of the information, but in other cases they will be different persons. The person receiving the notice of the decision also does not need to be a charity. Only after that decision becomes effective, in terms of section 73(3) (following the usual review processes under the 2005 Act), can OSCR serve notice on the haver of the information. The haver of the information will have at least 14 days to comply with the requirement. This will be the actual date of compliance, since the other notice and review provisions will have been satisfied at the point notice under section 29(2) is given. It does not matter if the haver of the information and the charity or body to which the notice of the decision was given is the same person – they will still have at least 14 days or more to comply with the notice under section 29(2).
101.This section of the Act also inserts a new subsection (4) into section 72 of the 2005 Act which makes provision for cases where inquiries relate to a charity or body which no longer exists. In the case of former charities which no longer exist, a notice must be given to each person who was a charity trustee immediately before it ceased to exist. In the case of a body which has ceased to exist, a notice must be given to the person who in OSCR’s opinion appears to have been concerned in the management or control of the body immediately before it ceased to exist. These notices are only required if and to the extent that it is reasonably practicable to give them. This means that inquiries should no longer be frustrated by the requirement to serve notices on charities or bodies which do not exist. Subsection (4)(a) also restates the rule in section 72(2) where inquiries relate to a body which still exists but without charitable status in relation to a period in which the body was a charity. In such cases a notice must simply be given to the body which was the charity as required by subsection (2)(ba) and the rule in subsection (4)(b) does not apply.
102.This section also makes changes to section 72(2)(a) of the 2005 Act to make it clear that, in relation to the decisions referred to in that section, notices must be sent to the charity, body or person in respect of whom the decision was made.