When different groups within a charity disagree they may ask us to take one side or the other and impose a solution. However, a charity's trustees have the responsibility for running their charity and we will only intervene in these types of internal disputes in exceptional circumstances.
This section explains where we can and cannot intervene. It also provides advice for trustees on how to resolve these types of conflicts, including details of organisations that are able to offer additional information and support.
Dispute: A dispute is a serious disagreement within a charity, which left unresolved, can lead to a breakdown in the effective governance and day to day management of a charity. Disputes most often occur in membership charities, but can also arise within the trustee body and between trustees of different charities.
Charity trustees: These are the people who are legally responsible for the control and management of the administration of the charity. In the charity’s governing document they may be called trustees, managing trustees, committee members, governors or directors or they may be referred to by some other title.
What should a charity do if it gets into a dispute?
We expect charity trustees to work in the best interests of their charity and to apply funds and administer property in accordance with its charitable purposes. Trustees are ultimately responsible for the governance of their charity, providing overall direction and supervision and are held accountable for the charity's assets.
At times, trustees may disagree or there might be disagreement between or within the membership and the trustees. While it may be positive to have a wide range of opinions to inform decisions, where this leads to a dispute which has a negative effect on the functioning of a charity then it is a problem. We expect the trustees and the members of a charity, where these exist, to work in the best interests of the charity and to seek to resolve issues where they have the potential to damage the charity.
The fact that a dispute exists does not necessarily mean that the Commission will become involved. We expect those involved to have exhausted all other means of resolving the dispute before approaching the Commission.
Some charities have procedures for resolving disagreements. These procedures may be stated in the charity's governing document, for example in a disputes clause. If these mechanisms break down, or there is disagreement about the interpretation of any written procedures, one or more of the parties involved should look externally for support. An external person or organisation may help to provide a fresh perspective and facilitate resolving the dispute. Who a charity approaches will depend on the nature of the dispute. If the dispute concerns the internal governance of the charity then the charity could:
- approach its national body, or a regional or national umbrella body, if they exist
- approach the Northern Ireland Council for Voluntary Action
- for doctrinal disputes you could approach a neutral respected person from within your community, for instance the trustees might like to ask a clerk from a local church or a community elder.
Alternatively, a charity might consider a more formal approach to resolving a dispute by employing the services of a professional mediator. Mediation can be a quick and cost effective way to resolve disputes.
If the parties involved in the dispute decide to take their disagreement to the charity tribunal or the court, the tribunal or the court will expect them to have tried mediation before hearing their case. Often the parties need our permission to take court action in relation to a dispute within the charity. In these cases, we will usually expect them to have tried mediation before we provide our consent to allow the matter to go to court. Even if the Commission agrees that the matter is best resolved by the court, it will not follow that the charity must in all cases meet the costs of the application. This may have to be paid by those bringing the case.
When do the Commisison get involved?
It is the responsibility of the trustees to ensure any complaints are addressed and before becoming involved, the Commission will look for evidence that other available methods of resolving the dispute have been attempted and have failed.
Complainants should show good reason, backed with evidence, for concerns that they raise with the Commission. We will expect complainants to raise all of their concerns in writing at the outset and not submit piecemeal complaints.
What can the Commission do to help you towards a solution?
If all parties are willing to co-operate, we may be able to provide a solution or mechanism for getting the charity back to a position of having properly appointed trustees.
If we are presented with substantiated concerns about the validity of trustee appointments, we will deal with these first and only if all other methods of resolving the dispute have failed.
Secondary complaints will generally not be dealt with until a valid trustee body is in place to take the charity forward. At that point, issues relating to the management and administration within the charity are matters for the charity trustees to address and not the Commission.
If we decide that the concerns presented to us justify our involvement, our aim is to secure a positive outcome for the charity. Our focus will be to find a workable solution to the problem and we expect all parties to commit to a way forward once agreed. We also expect all those involved to act in accordance with our decision once made. This may include:
- making arrangements for the determination of who are the members of a charity
- making arrangements for the valid appointment of trustees
- making arrangements for fair and independently observed elections, including encouraging the parties to form an electoral commission and authorising that body to supervise the next elections
- providing advice and guidance to trustees regarding their duties and responsibilities
- providing advice and guidance to trustees about improvements to their governing document so that any future disputes can be resolved more easily.
When will the Commission take regulatory action in a dispute case?
When there is evidence of misconduct or mismanagement which puts the charity's assets, beneficiaries, integrity and reputation at risk; when the charities is being run by individuals who are not entitled to run it and are unwilling to put the situation right; or when the charity can no longer operate.
In cases of serious regulatory concern, our assessment may lead to us opening a formal inquiry under the Charities Act (Northern Ireland) 2008.
Deliberate wrongdoing, criminality and serious abuse will be dealt with rigorously and decisively. Where necessary, we will intervene to protect the charity by using the Commission's legal powers.
When charities, or those connected with them, have committed a criminal offence this is a matter for law enforcement agencies and we will refer suspicions of criminal activities to them as appropriate.
We still expect to be notified if the charity is subject to investigation by another regulator or a criminal investigation as a matter of course. Guidance about reporting serious incidents will be available on our webiste soon.
When are we not the right organisation to come to?
We will not become involved where a concern is about policies pursued or actions taken by the trustees within the law and the provisions of the charity's governing document or when another organisation is best placed to deal with the concern.
Decisions about policies pursued or actions taken by the trustees within the law and the provisions of the charity's governing document are for trustees to take (and justify), and they have very wide freedom to do so.
The Commission does not have discretion to overrule a charity's decision, validly taken within its powers, on the grounds that others take a different view, however strongly held. Deciding policy is a key part of trustees' freedoms and responsibilities, and may include:
- seeking resolution to the dispute including differences of opinion over spiritual or doctrinal matters within religious or other belief-based charities
- deciding how community facilities (such as a school, community centre or playing field) are used
- deciding how to consult users, user groups or supporter groups about decisions and policies of the charity they use or support
- the terms and conditions of occupancy or use of charity land, and (provided that legal and constitutional requirements are met) its disposal.
We cannot become involved where the complaint concerns contractual or other property rights which are matters between the charity and a third party, for example:
- employment issues or claims of unfair dismissal
- disputes between charities and people or organisations which have entered into contracts with the charity, including landlord-and-tenant disputes.
In addition, we cannot become involved where the issue is connected with a planning application or development control.
Focus on positive outcomes
If we facilitate a solution which is then disrupted by continued dispute and lack of cooperation, we may have to bring an end to our involvement, even in some cases where we continue to have regulatory concerns. For example when we have authorised an election committee to call an election, but there is ongoing disagreement about who should be represented on this committee, we may decide to end our involvement.
We have a duty to ensure that our regulatory action is appropriate, proportionate and targeted where it is needed. Our continued involvement in a dispute can only be considered where a clear risk to the charity exists and where there is a good probability of a successful outcome. If our experience tells us that this probability is low, we may disengage. This could mean that the charity ceases to operate and winds-up or that the charity splits. As regulator, we cannot eliminate all failure and in some cases will have to tolerate this as the outcome.
We would of course support the charity in facilitating the transfer or split of its assets if needed.