“There are rules which disqualify certain people from being a trustee or senior manager of a charity. Being disqualified means that a person can’t take on, or stay in, a charity trustee position or senior manager position – even on an interim basis, unless the Charity Commission has removed (or ‘waived’) the disqualification.” (gov.uk)
“Automatic disqualification” (as it’s officially known) was extended to cover significantly more crimes through the passage of the Charities (Protection and Social Investment) Bill 2015. The background to the Bill was the very public failings of The Cup Trust and The Kids Company. The failing at both of these charities was driven by the senior management and trustees of the organisations, none of whom had criminal records. In fact, no-one with a conviction had anything to do with these failings, yet they were the ones impacted by the resulting legislation.
Most people we speak to want those with convictions to reintegrate into society and to find a way to legally contribute to their communities as much as they are personally able to. Ironically, most people we know with convictions want to do the same.
Whilst it is entirely understandable that failings need actions, these actions can prohibit someone with a conviction from rehabilitating. Barring an individual with a criminal record from becoming a trustee will not eliminate the risk that someone without a conviction may still cause a failing.
To help future applicants produce successful trustee waiver applications, we aim to provide as much information as possible on how we approached the process.
Charity CEO: “Give yourself a good six months for this process (two to comfortably draft the documents, and four to receive the final decision). Ensure you address every point and subpoint, even if it feels repetitive. Prepare yourselves emotionally for the way in which you’ll need to write about a human being, and someone you respect enough to want on your Board (or Senior Management Team).
“And when you successfully complete the process, contact Unlock, and help them to demand change to this process. There is a much better way to ensure charities operate effectively, efficiently and in the best interests of the public without going through a humiliating process like this.”
Waiver trustee applicant: “The reason I wanted to write this blog was to help applicants and charities to understand the process a little better. The charity has done an amazing job laying out the roadmap of what needs to be done and by whom. I am honoured and excited to be joining their board and look forward to contributing as much as I can.
“Follow this template carefully – it works. I also wanted to encourage all stakeholders to stick with it, the process is long and there are extended periods of radio silence. Charities and applicants alike remember why you are doing this – to be a resource for and to develop structures that really help people in need. Let’s get more Charity Commission waivers granted.”
Tips for approaching the application
Until this process is drastically changed, to save other charities some time, here is an honest take on what, how and why we drafted our application in a certain way in the hope that it can help you too.
The three sections you’ll need to prepare are:
- The covering letter
- A letter from the board (with e-signatures) – we recommend including an Appendix (see below)
- A letter from the waiver applicant (and application)
1. Covering letter
This was the easiest part: we’ve included an outline of what we submitted, which you can use to draft yours.
2. Letter from the board
The first obstacle was to understand what the Charity Commission guidance for the trustee letter meant. We struggled to find helpful, practical information – it took days of combing through various articles. We leaned heavily on the charity Unlock to support us.
We summarised the information to be covered in the trustee letter in the list available here. We then drafted a letter with the same subject headings, and addressed each bullet point individually and in depth.
We then took a further step: of thinking through each of the concerns that people at the Charity Commission might have (whether rational or irrational) including stereotypes about people with convictions. We responded to each one proactively e.g. the waiver applicant would not be the treasurer, they would not have access to the bank account, they would not be an account signatory… Yes, it felt demeaning; but also it felt necessary to include to get the waiver approved.
We also included an appendix that had the role specification for the trustee (skills, expected commitments), information on our charity, and details of the open recruitment process that we underwent to select them.
The whole way through, we worked collaboratively with the waiver applicant, keeping them updated at every stage. We wrote multiple drafts and sent them back and forth, ensuring we were aligned throughout. The final version ended up being 10 pages with some repetition throughout – but we covered everything.
3. Letter from the waiver applicant (and application)
We downloaded the application questions and pasted them into word, a more accessible format – especially as we learned it was possible to email in the form, rather than submit it through the online portal. Some questions were confusing too – we didn’t understand what they meant and kept circling back to Unlock for help. Again, the waiver applicant and I passed the documents back and forth until we felt it was ready to submit.
I want to add that the applicant’s letter requirements (which were required to be focused on their crime and remorse) made me question whether the net harm caused to the applicant, in the discomfort, degradation and patronisation that we were requesting them to go through, was really worth the net benefit to the charity and the public as a result of having them as a Trustee. We envision a society where criminal records don’t come into the employment process, and if they must, they are considered against pre-conviction and post-release records rather than simply the crime itself. Every person must be given a chance to move on.
Covering letter skeleton
To Whom It May Concern:
CHARITY, a registered charity (no. XX) supports the application for a Trustee waiver by APPLICANT NAME.
On behalf of the Board of Trustees of CHARITY, we unanimously confirm that APPLICANT:
- Is our agreed and preferred appointment to the Board of Trustees to fill the skillset of XXXX, supporting our strategic growth plans
- Has been selected through a comprehensive, rigorous and open recruitment process, including DETAILS OF INTERVIEW/APPLICATION PROCESS
- Is uniquely placed to support the charity, DETAIL SKILLS/FIT
- Is not regarded as a risk to the charity’s governance or assets
- Will not be in the role of Treasurer or be a signatory to the charity’s accounts
- Would most effectively support the charity’s governance and strategic growth plans as a Board Trustee.
This reference is signed by the complete Board of CHARITY
The following sections need to be included in the letter from the Board of Trustees (based on information from Unlock):
- Details of the recruitment process that led to the applicant’s appointment or proposed appointment. Here you should emphasise your recruitment process (open is best practice) and this applicant was the best appointment as a result of that.
- Support for the waiver by the Board of Trustees. Whether a majority of the trustees support the waiver application
- Details of the duties and responsibilities of the trustee position that the applicant holds or wants to take up. Explain any relevance (or otherwise) of the reason the applicant is disqualified to the roles and responsibilities of the position. For example, if an unspent conviction is unrelated to the position, explain this.
- The applicant’s unique contributions. Why the trustees consider that the applicant is the best appointment, for example, what special skills does this individual have which are not otherwise available from other applicants? Here you should mention the relevance of your charity objects/purpose, and highlight the user perspective your applicant can provide in this role.
- Why the applicant cannot act in an advisory capacity rather than act as a trustee. You should emphasise that you were specifically seeking trustees. You should express your belief that the role you have is one that the charity should have the ability to appoint an individual to.
- The view of the board of trustees. The trustees’ views on the position and reputation of the charity if the applicant’s appointment is made or maintained. You should also emphasise here the repercussions on the charity’s reputation if the waiver is refused.
- Risk management. Whether the trustees have assessed, and can manage any risk to the charity and its assets in making or maintaining the appointment. For example, if the disqualification reason is financial mismanagement, if you have decided the applicant will not be in a treasurer position.
This is an edited version of a blog posted on Unlock's website. The orginal blog can be found here.