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3. Setting up a new SCIO

Published: 13/03/2025
Updated: 13/03/2025

3.1  Applying to become a SCIO

Once you have considered the available options for the proposed charity and determined that the SCIO is suitable for its needs, an Application for the Incorporation of a SCIO and a proposed SCIO constitution may be submitted to OSCR on or after 1 April 2011. This application form will be available on the Scottish Charitable Incorporated Organisations page of OSCR’s website.

What must a SCIO’s constitution contain?

The legislation does not set out a standard format for a SCIO’s constitution but it does require each SCIO constitution to contain certain basic information and rules which set out the minimum requirements of how the SCIO will be governed. The members of a SCIO may add further requirements to its constitution if they consider they would be useful to the SCIO’s circumstances.  

A SCIO’s constitution must contain:

  • Its name and the charitable purposes for which the SCIO is established
  • Membership rules
    • Who is eligible to be a member?
    • How does a person become a member?
  • Charity trustee rules
    • Who is eligible to be a charity trustee?
    • How are charity trustees appointed? A SCIO must have at least 3 charity trustees.
  • Details of the procedure that members and charity trustees must follow to withdraw from membership or their positions as charity trustees, and how they may be removed from the SCIO
  • Any restrictions on the powers of the SCIO. A SCIO has powers under the 2005 Act to do anything to further its charitable purposes unless the constitution restricts those powers.
  • The organisational structure of the SCIO
    • For example, are the charity trustees and the members identical (a single-tier structure), or does it have a separate body of members (a two-tier structure)?
  • Procedures for meetings
    • How will meetings be convened and recorded? This should cover both members’ meetings and charity trustees’ meetings.
    • What is the quorum for any meetings of the SCIO? Again, this covers both members’ meetings and charity trustee meetings.
    • What voting rights do members and charity trustees have
    • How will resolutions be passed?
  • Any restrictions on the remuneration of charity trustees which are additional to the restrictions in section 67 of the 2005 Act, for example, a ban on remuneration being paid to charity trustees. Please see OSCR’s guidance publication, ‘Guidance for Charity Trustees’ for further details on the remuneration of charity trustees
  • Procedures for dealing with any conflict of interest
  • Details of how the SCIO will use any surplus assets it has at the time of its dissolution. These assets must be used for charitable purposes which are the same as or which resemble closely the SCIO’s own purposes.

The application to incorporate a SCIO must be made by two or more natural persons who will become the first members of the SCIO if the application is successful. The SCIO must always have at least two members, who may also be charity trustees but do not need to be (see section 5.2.1 for details of the duties of the SCIO’s members).


Corporate bodies, such as companies or other SCIOs, cannot apply for the creation of a SCIO, although they may later be appointed as charity trustees or become members.

Once constituted, the SCIO is required to have at least three charity trustees who have the general control and management of the administration of the SCIO. OSCR expects the applicants to be able to name the three or more proposed charity trustees at the point of application; the charity trustees may be natural persons and/or corporate bodies.

As well as the additional duties set out in section 5.1, the charity trustees of a SCIO share the same general duties of any other charity trustee as set out at section 66 of  the 2005 Act. Please see OSCR’s guidance publication, Guidance for Charity Trustees, for further details on the duties of charity trustees.

The application for the incorporation of the SCIO must contain:

  • The name of the proposed SCIO as set out in its proposed constitution, and any other name by which it wishes to be known
  • The principal office of the proposed SCIO, which must be in Scotland, and the name of its principal contact person
  • The name of the two of more individuals who are making the application and who will therefore become the SCIO’s first members
  • A statement outlining the SCIO’s proposed activities
  • Details of any conditions the proposed SCIO will place on accessing the benefits it will provide.

If any of these elements are missing, OSCR will be unable to assess the application and will return it to the applicants for completion.

In addition to the application, each of the three or more proposed charity trustees must sign a ‘Charity Trustee Declaration Form’ to confirm they are aware of their duties and that they are not disqualified from acting as a charity trustee for any of the reasons set out in section 69 of the 2005 Act. The Declaration Forms can be found at the end of the Application for the Incorporation of a SCIO form.

Please see OSCR’s guidance publication, ‘Guidance for Charity Trustees’ for further details on disqualification from acting as a charity trustee.

3.2 How does OSCR make its decision?

Applications for the incorporation of new SCIOs will be assessed in a very similar way to applications from any other type of body wishing to register as a charity in Scotland. This means that the proposed SCIO must pass the charity test as set out in sections 7 to 8 of the 2005 Act. Please see our Meeting the Charity Test guidance for a detailed explanation of the charity test.

Even when a proposed SCIO meets the charity test, OSCR must refuse the application if:

  • The SCIO’s proposed or working name (if any) is objectionable in a way set out in section 10 of the 2005 Act. Please see our guidance on changing your charity’s name for further details of objectionable names.
  • The proposed constitution does not contain the required elements as set out in section 3.1 above.

If the charity test and requirements set out above are met, OSCR must not refuse the application for any other reason.

3.3 What happens when a SCIO application is successful?

If OSCR decides the proposed SCIO will pass the charity test, that its constitution contains the required elements and that its name is not objectionable, OSCR will enter the SCIO in the Scottish Charity Register.

Upon entry in the Register, the SCIO becomes a corporate body. Its name and constitution will be those which were specified during the application process and its first members will be the two or more individuals who made the application to OSCR.

The SCIO must at this point take steps in line with the process set out in its constitution to formally appoint to their positions those three or more persons who were named during the application process as the proposed charity trustees. The charity trustees may either be natural persons and/or other corporate bodies.

The SCIO’s entry in the Register will state that its legal form is a SCIO and will note the date on which it was entered in the Register. OSCR is required by the 2005 Act to send a copy of the Register entry to the SCIO’s principal office.

In some limited circumstances, the entry of the SCIO in the Register may also result in property transferring automatically to the SCIO from its first members.  

Such a transfer may only occur when the members hold the property temporarily on trust with the specific intention that it is used for the charitable purposes of the prospective SCIO. For example, property bequeathed in a will for the purpose of establishing a charity to benefit stray animals is held temporarily on trust by the executor of the estate. If that executor then made an application to constitute a SCIO to fulfil this purpose, this property would automatically transfer from the executor to the SCIO at the point it is entered in the Register.  

While the transfer of all property in these circumstances occurs automatically, SCIOs which receive heritable property in this way may wish to take steps to remove any doubt as to their ownership of the property. This may be achieved by registering a Notice of Title with Registers of Scotland which is the Scottish Government agency responsible for records relating to property and other legal documents. 

The provisions to transfer property do not apply to property which is held by individuals on trust for the purposes 
of another charity or body, even if those purposes are identical to those of the prospective SCIO and even if the SCIO is intended to replace the existing charity or body.

Please see section 4 for further explanation of the process an existing charity must follow to change legal form to a SCIO.

3.4 Refusal of applications; the right to review

If an application for the incorporation of a SCIO is refused, the applicants have the right under section 74 of the 2005 Act to seek a review of OSCR’s decision within 21 days of the decision being made. 

The review will be undertaken by a member of staff who was not involved in the original decision and will result in one of four outcomes:

  • The decision is confirmed; the decision remains the same
  • The decision is varied; the decision is changed in some substantive way, such as a change to the grounds for the decision or the timescales attached
  • The decision is reversed; the decision is changed to the opposite decision
  • The decision is revoked; the decision is withdrawn. This means that the decision has been officially cancelled with the effect that it is deemed that OSCR has not made a decision.

If the applicants are dissatisfied with the outcome of the review, they can appeal to the Scottish Charity Appeals Panel and ultimately to the Court of Session.

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