Commentary on Provisions The schedule Paragraph 8 – Consent to and notification of changes
159.Section 16 of the 2005 Act sets out various actions which may be taken by charities only with OSCR’s consent. This includes, for example, a charity amending its charitable purposes under its constitution or winding itself up (in each case, where its constitution permits this and a reorganisation scheme is not required).
160.Section 16(3) provides that the requirement to obtain OSCR’s consent does not apply where an action is taken in pursuance of a reorganisation scheme which OSCR has already approved or where OSCR’s consent is already required under another enactment. This avoids a charity being required to obtain OSCR’s consent twice.
161.However, section 16(4) sets out that notice must be given before the action is taken. Although the notice is essentially the application for consent, no exception to this notice requirement was originally made for charities which do not actually need to seek consent on the basis that they are already suitably covered by another consent rule.
162.Sub-paragraph (2) of this paragraph of the Act’s schedule therefore adjusts section 16(4) to state that notice does not need to be given if OSCR’s consent is not required under subsection (1) (that is, because OSCR’s consent is secured under another rule).
163.Meanwhile, in addition to the requirement to obtain consent under section 16, section 17 of the 2005 Act sets out various changes which must be notified to OSCR. This includes, for example, a change in the charity’s principal office or in any of its other details in the Register, a change of any nature to its constitution, or the charity winding itself up.
164.Originally, the interaction between sections 16 and 17 was not clear. Where a charity has obtained consent to take an action under section 16 and then subsequently takes it, sections 17(1)(c) and (d) provided that OSCR was to be given notice of that happening. However, section 17(2) stated that section 17(1) did not apply in relation to any action which required OSCR’s consent. This seemed to negate the inclusion of section 17(1)(d) in particular.
165.Sub-paragraph (3) of this paragraph of the Act’s schedule resolves this clash by inserting a new section 17(2) which no longer purports to disapply section 17(1) but instead clarifies that, in the case of paragraphs (c) and (d), the notification rule remains subject to section 16. As such, a charity which, for example, wishes to wind itself up will need to obtain consent to do so under section 16 and then, once it has acted on the consent, notify OSCR under section 17 that it proceeded with that course of action.
166.Sub-paragraph (4) adjusts the heading of section 17 of the 2005 Act so that this becomes “Notification of changes” to make the position clearer, which is that changes made in implement of consent granted under section 16 still have to be notified to OSCR under section 17 when made.