How do you know when a safeguarding matter is a “serious incident” for the purposes of the Charity Commission?

Safeguarding of those involved in the charities sector, and particularly beneficiaries of charities, has become of increasing importance to the Charity Commission in recent years.  Some headlines involving major charities such as Oxfam and Save the Children Fund have brought this topic to the top of the Charity Commission’s agenda. In addition, the challenges of COVID-19 may see some charities filing serious incident reports for the first time.

In January 2020, the government launched a new safeguarding portal aimed at helping charities to handle the reporting of safeguarding allegations about someone within their charity:

Included within the portal is a reminder for the charity to consider whether or not to report the safeguarding issue as a serious incident to the Charity Commission.  For health and social care charities it is particularly difficult to know whether or not to report all safeguarding concerns as a serious incident as, due to the nature of the organisation, it is likely to have more safeguarding concerns than other charities.  Therefore, what may appear to one charity to be a serious incident may not be to another.

In addition, health and social care charities are likely to have already reported safeguarding issues where relevant to other regulatory bodies such as the local authority and/or the CQC.  So, what triggers the need to report to the Charity Commission as well?

The guidance

The Charity Commission published new guidance and introduced a new online form regarding serious incidents in June 2019.

The Charity Commission require that a charity reports all “serious incidents”.  A serious incident is defined in the guidance as being an adverse event, whether actual or alleged, which results in or risks significant:

  • harm to the charity’s beneficiaries, staff, volunteers or others who come into contact with the charity through its work
  • loss of the charity’s money or assets
  • damage to the charity’s property
  • harm to the charity’s work or reputation.

There is a further explanatory note that for purposes of the guidance, “significant” means significant in the context of the charity, taking account of its staff, operations, finances and/or reputation.

Has the guidance changed due to COVID-19?

Initially, the Charity Commission announced that charities should file reports if the charity were seriously impacted by the current pandemic. However, this guidance was withdrawn after criticism that this would place unnecessary strain on already stretched charity resources.

The Charity Commission subsequently published a statement explaining that they appreciated the strain that the sector was under.  Whilst charities are still under an obligation to report, the Charity Commission acknowledged that there were issues arising as a result of the pandemic that weren’t anticipated when the serious incident reporting guidance was originally published.  Whilst the original guidance still applies, the Charity Commission has produced a summary table of additional examples in relation to COVID-19.

The examples include if there is an outbreak of COVID-19 cases amongst staff, volunteers, trustees and/or beneficiaries that would mean that the charity is unable to deliver the services.  By contrast, if a single member of staff were to contract the virus this would not be reportable.  There also defined parameters in relation to the loss of charity income as the Charity Commission is most concerned of being aware of charities that may have to close in the next 12 months or stop delivering vital services due to that loss of income.

The supplementary examples table is set out here:

How should a health and social care charity apply the guidance?

It is clear from the guidance that the Charity Commission expect each charity to take a view on what they report to the Charity Commission in the context of the circumstances of that particular charity.

Our understanding from the Charity Commission is that they are trying to move from a culture of under reporting of serious incidents and making it simpler for charities to report by use of the online form.

In accordance with the current guidance, it would be reasonable for a health and social care charity dealing with safeguarding concerns on day to day basis to consider reporting in bulk any safeguarding concerns that arise.  To obtain the bulk reporting form, charities are required to get in contact with the Charity Commission by completing the standard enquiry form.

If a concern were to arise that was outside of the health and social care charity’s normal bulk reporting, for example if there was a fire or theft at one of the properties, or a particularly serious incident then this would need to be reported  using the single reporting form.

Whose responsibility is it to make the serious incident report?

Technically, it is the trustees’ responsibility to make the report, though they may delegate this task to the CEO or other senior staff member as appropriate.  This does mean that if the CEO or equivalent does not want to make the report the trustees could still proceed in making report.  If the CEO or equivalent considers that the charity should make a report but the trustees refuse to submit it or to allow the CEO to submit on their behalf, then the CEO should consider whether to whistle blow the trustees to the Charity Commission.

Ultimately, the responsibility sits with the trustees of the charity so it would be wise for charities to consider how the information regarding safeguarding concerns is shared with the board.  Again, this will depend on the type of charity and the regularity of these types of concerns arising.  It may become part of a health and social care charity’s reports to the board or committee.

So what happens once the information has been provided to the Charity Commission?

The Charity Commission will review the information received, and in some cases will simply note what has happened and what the charity has done to remedy the incident.  However, if there are gaps in the report then they may ask further questions so that the Charity Commission can sufficiently meet its statutory obligations.  In only the very serious cases, where the Charity Commission considers there has been mismanagement, would the serious incident report lead to an investigation and/or inquiry being opened.

If the serious incident relates to an issue arising from the pandemic, the Charity Commission may prioritise this depending on the urgency.

Of course, charities with an income over £25,000 should remember that as part of their annual return they must sign a declaration to confirm there were no serious incidents during the previous financial year that should have been reported to the Charity Commission but were not.  It is of course an offence under section 60 of the Charities Act 2011 to provide misleading or false information to the Charity Commission.  Charities therefore need to ensure that they have processes in place to capture those incidents and report as appropriate.

As mentioned above, our understanding is that the Charity Commission are trying to encourage charities to be more transparent about serious incidents.  Whilst this can be an onerous task, particularly for health and social care charities, there are ways in which this can be managed to reflect the specific nature of the charity.