The fit and proper persons test for charity managers

HMRC has updated its model declaration and help sheet on the fit and proper persons test for individuals who manage charities, etc entitled to UK charity tax reliefs. which is concerned with ensuring that charities are not managed or controlled by individuals who present a risk to the charity’s tax position. The guidance now includes a detailed description of the circumstances in which a charity manager who has used or been involved in the design or promotion of tax avoidance schemes may be deemed not to be fit and proper person.

The Care Home my Dad is staying in has posted his photo on Facebook, is this OK?

When promoting services it is easy to forget that there are rules about how you use photographs of individuals.

A photograph of someone is personal data and should only be used with consent.

The terms of business of the Care home may attempt to cover this. However, it does depend on who signs the agreement:

  • If it is not the data subject then their consent will not have been given.
  • If the data subject signs, but does not have capacity then again consent will not have been given.

The Data Protection Act gives a right to the data subject to object to processing that is likely to cause or is causing damage or distress. In addition Facebook’s terms say that nothing should be done to infringe someone’s rights, (Facebook terms of service clause 5.1).

In practice it is worth remembering that:

  • any consent can be withdrawn in writing;
  • a complaint could be registered with the Information Commissioners Office, ICO who can impose monetary penalties of up to £500,000; and
  • a complaint could be made to Facebook, which if upheld could compromise that marketing channel.

In addition the Care Quality Commission (CQC), who inspect all care homes, look to see that the fundamental standards are maintained.

To this end clients must be treated with dignity and respect at all times while they are receiving care and treatment. This includes making sure that they have privacy when they need and want it.

They must also be able to complain about their care and treatment. The care provider must have a system in place so they can handle and respond to complaints. They must investigate them thoroughly and take action if problems are identified.

Failure to meet the fundamental standard may result in various sanctions and can affect the care homes rating which has to be displayed in the places where they provide care and on their website, if they have one.

Can I apply a CE mark to toys that I am selling?

All new toys that are supplied in the course of a business must be marked with a CE mark (other details also need to be given).

The CE marking on a product is a declaration by the manufacturer of conformity with the law (i.e. amongst other things the CE mark declares that the toy is safe.)

If you are manufacturing the toys and selling them, then you must apply a CE mark. Clearly you must make sure that the product complies with the legal requirements that apply and be able to demonstrate this compliance.

If you are buying toys from a supplier within the EU then you should make sure that they are already CE marked.

If your supplier is outside the EU then you will need to ensure that they comply with the law and then apply the CE mark and your contact details as the importer (into the EU).

 

What can we do to make sure that our affiliates, subcontractors, etc operate in a way that maintains and enhances our brand reputation?

It is crucial to carry out appropriate due diligence. Ask questions that will uncover things that may pose a risk to your reputation. For example, how do they handle client complaints?

You could oblige them to comply with a code of conduct. In this way you can ensure that your standards are upheld and you could include a clause on dispute resolution.

You could include specific clauses in a set of terms and conditions. However you must beware of ‘liquidated damages provisions’, where a penalty is payable for example for late completion. These should only be used as a genuine pre-estimate of losses which will be suffered by a breach of the contract and not used as a penalty clause, otherwise the provisions may be held to be unenforceable.

As a professional consultant can I be sued if I give free advice?

Technically you could as a recent legal ruling (Burgess and another v Lejonvarn [2016] EWHC 40 (TCC)) has found that a professional consultant owes a duty of care in Tort for professional services performed gratuitously.
The consultant in question had given various free services relating to a friends’ landscape gardening project. It was a significant project approached in a professional way, with services provided over a relatively long period and involving considerable commitment on both sides. The project did not go smoothly, the relationship broke down and the former friends claimed for the cost of remedial works.
This highlights a risk common to any professional who offers informal advice, however, it is important to remember that this was not a piece of brief ad hoc advice given in an informal way.

From the last Crab Insight I understand that from 6 April 2016 there is a requirement for companies to keep a register of people who have significant control over the company?

  1. Does that mean registered companies and therefore exclude Sole Traders, even those with employees?

  2. There’s also a reference to trusts, I would expect any trustees to be people with significant control – is that correct?

  3. Would senior managers within trusts also be deemed as having significant control?

This question refers to the Small Business, Enterprise and Employment Act 2015 and the amendments it makes to the Companies Act 2006.

In answer to part 1 a company means a company formed and registered under the Companies Act so would exclude sole traders.

In answer to part 2 in terms of trustees within a trust, it very much depends on their role and the extent of their control as defined under the Act. The Department for Business, Innovation & Skills has published draft statutory guidance on determining whether a person is a person with significant control. Essentially if a person has significant control of the activities of a trust, they have the power to direct its policies and activities and that influence enables them to ensure that the trust adopts those policies or activities that they desire.

In answer to part 3 from the draft guidance and regulations it would seem that senior managers would only be caught if they were deemed to be trustees.