At the beginning of August 2021, the Charity Commission updated its coronavirus guidance for trustees. This includes advice for trustees on holding general meetings remotely or postponing or cancelling meetings to reflect the lifting of restrictions in England and Wales.
This advice seems to signal what seems to be the beginning of the end to the munificent approach the Charity Commission has taken to charities needing to postpone or cancel general meetings, or hold them remotely, during the pandemic.
As restrictions ease, it will be possible for charities to gradually move back to face-to-face meetings and hold any outstanding Annual General Meetings or other meetings. However, coronavirus continues to have an impact on charity events and trustees may still need to consider how and if they can hold meetings.
The next steps for charities will depend on whether or not they would like to retain the flexibility from which they have benefited in this respect during the last 12 months, and, if so, whether they are able to amend their governing documents.
Most charities will have the necessary power to make amendments set out in their governing document, or be able to use statutory power. Any trustee who is unsure about how an amendment might be made can contact Ziaur Rahman from our Corporate team to find out more information on making changes to a charity’s governing document. Trustees of registered charities should remember that any changes to a governing document will have to be notified to the Charity Commission online.
Amending governing documents
The updated guidance encourages charities without provisions in their governing documents to allow for:
- Online, telephonic or hybrid meetings, or
- The postponement or cancelling of meetings.
But those who wish to retain these options in relation to their meetings after the pandemic and have the power necessary to amend their governing documents, to use that power to amend their governing documents to contain the necessary provisions for future use.
Such charities are also reminded to approve any previous decisions made as soon as possible.
Unable to amend governing documents
If a charity cannot make changes to its rules on meetings, the Charity Commission, in its updated guidance, advises trustees who plan to do something which is not permitted by the governing document of the charity to contact the Charity Commission about those plans as soon as they reasonably can, as the Charity Commission may be able either to give advice or to authorise the trustees’ actions.
The Charity Commission also confirms that it intends to continue to take an “understanding” and “proportionate” approach to the decisions of trustees of such charities either to hold meetings remotely or on a hybrid basis, or even to postpone or cancel a required meeting, where there are no provisions in the charity’s governing document to allow for this – but only “in the short term as Government restrictions are lifted” and provided:
- The circumstances at the time are such that the trustees could not reasonably have previously made the necessary changes to the governing document to allow for this;
- The trustees can demonstrate that they had considered all the relevant factors in coming to their decision, including possible alternatives; and
- All other provisions relating to meeting governance are followed by the trustees.
In such cases, the trustees of the charity should ensure they can demonstrate that their decision is in the best interests of the charity taking into account all the circumstances.
It would also be prudent for the trustees to ensure they record both the decision and the reasons for the decision appropriately, in case they find themselves required to justify the decision later on.