5. Duties and requirements of a SCIO

5.1  Comparison of requirements for SCIOs and non-SCIO charities 

As outlined previously, the SCIO will in general terms be regulated by OSCR in the same manner as any other charity entered in the Register. However, there are some key differences between the duties and responsibilities of a SCIO and those of other Scottish charities.

The table below summarises these key similarities and differences. Where the requirements are the same, we point to existing OSCR guidance publications which apply equally to SCIOs. Where there are differences, we highlight more detailed sections of this guidance which explore these differences in depth.

Please note that this table refers only to charity law; charities which are also subject to other areas of law, such as company law, may have additional duties.

5.2 Membership requirements

The members of a SCIO differ from those of any other Scottish charity in two main ways:

• Membership of a SCIO may not be transferred from one member to another
• Members of SCIOs are also subject to some of the general duties of charity trustees set out at section 66 of the 2005 Act.

Because members of a SCIO have statutory duties under the 2005 Act, both the SCIO and OSCR must be clear about who the members are at all times. The members themselves must also know that they are members in order to fulfil their duties under the 2005 Act; it is therefore not possible for a SCIO to define its membership, for example, as all those dwelling in a particular geographical area or belonging to a section of the community (although these conditions may be used as eligibility criteria).

Instead, a SCIO must maintain an up to date register of its members so that they are clearly identifiable and therefore their decision-making powers can be seen to have been properly exercised (see section 5.3 for more details on the register of members).

5.2.1 Duties of members

As stated above, SCIO members are subject to some of the general duties of charity trustees; specifically, they must: 

• act in the interests of the SCIO, and
• seek, in good faith, to ensure the SCIO acts in a manner which is consistent with its charitable purposes.

If the members fail to comply with this duty, it may be treated as misconduct in the administration of the SCIO.

OSCR recognises that members may not be in the day to day management and control of the administration of the SCIO. In assessing whether SCIO members have met their legal duties, OSCR will look on a case by case basis at whether the members have properly exercised those particular powers given to them both by the SCIO’s constitution and the 2005 Act.

At a practical level, those powers are most likely to apply when members are considering changes to the constitution or taking part in elections of charity trustees. When exercising such powers, the members must act in the interests of the SCIO and seek to ensure that the SCIO continues to operate in line with its charitable purposes. 

5.2.2 Meetings and resolutions

The 2005 Act requires the SCIO to hold a meeting of 
its members within 15 months of being entered in the Register and at least once every 15 months from then on. The SCIO must give both its members and its charity trustees at least 14 days’ notice of such meetings. 

Meetings of SCIO members will provide them with an oversight of the charity’s operations and, depending on the provisions of the constitution, are likely to be an opportunity for members to elect charity trustees, scrutinise accounts and vote on particular matters.  

Members also have a key role in agreeing any amendments to the SCIO’s constitution. The SCIO may only make amendments if a resolution is passed by its members in the following manner:

• By a two-thirds majority of those members voting at a general meeting of the SCIO, or
• Unanimously by the SCIO’s members, otherwise than at a general meeting.

This means that the SCIO’s membership has overall control of the governance structure of the charity, including agreeing the constitutional requirements for the appointment or removal of charity trustees, arrangements for holding meetings and provisions for the wind up of the SCIO.

The purposes of the SCIO may also only be altered by a resolution of the SCIO’s members and subject to OSCR’s prior consent )see our guidance on changing your charity’s purposes for further details). 

Any change to the SCIO’s constitution must also be notified to OSCR. OSCR’s Notification of Changes Made (SCIOs) form should be used to notify OSCR of any change to the constitution and must be submitted, together with the documentation outlined on the form and in the letter of consent (if applicable), within three months of the change taking effect.

5.3 Duty to keep registers of charity trustees and of members

5.3.1 Register of charity trustees

All SCIOs have a duty to keep a register of their charity trustees which must be updated within 28 days of any change being notified to the SCIO. The register must contain specific information about current charity trustees; where a charity trustee is a corporate body rather than a natural person, some additional information is required.

Additionally, the SCIO’s register must also retain some information about former charity trustees for at least six years from the date the person ceased to be a charity trustee.

There is no set format for the register of charity trustees but it must contain the information summarised in the table below:

5.3.2 Duty to provide a copy of the register of charity trustees

Any person may request a copy of the SCIO’s register of charity trustees and, if the request is reasonable, will be entitled to be given a copy by the SCIO within 28 days. This provision aims to encourage transparency and public accountability of SCIOs as bodies in which the public has a legitimate interest.  OSCR’s general expectation is therefore that SCIOs should release this document rather than seek to withhold it.

In considering a request for a copy of the register, a SCIO should reflect on whether the request itself is reasonable, rather than whether the motivation for the request is reasonable. 

Whether or not a request can be said to be reasonable will depend on the specific circumstances of each individual case. In general terms, however, OSCR considers the following to be examples of unreasonable requests:

• A request for the document if it is already publicly available, for example, on the SCIO’s website
• A request for documents that the requester already has, for example, documents which have previously been provided by the SCIO to the requester.

Neither the 2005 Act nor the General Regulations entitle SCIOs to charge a fee to cover the cost of supplying this register, nor do they stipulate whether the register must be submitted in electronic or hard copy form. As a matter of good practice, the SCIO should take into account any particular preference the requester has expressed about how the register is to be supplied.

If the person making the request is not a charity trustee, the SCIO is permitted to omit the address of any of its charity trustees. The SCIO may also omit the name of any of its charity trustees only if it is satisfied that disclosing that information is likely to jeopardise the safety or security of any person or premises.

SCIOs should note, however, that they are required to publish in the trustees’ annual report to their annual accounts the names of charity trustees who have served during the financial year (unless OSCR has granted an exemption), and that they have a duty under section 23 of the 2005 Act to provide a copy of those accounts to any person making a reasonable request for them.  

5.3.3 Register of members

Where the members of a SCIO are not identical to its charity trustees (that is, where it has a two-tier structure), it also has a duty to keep a register of its members, which is to be updated within 28 days of any change being notified to the SCIO.

As with the register of charity trustees, the register of members must contain additional information for any member which is a corporate body. The register of members must also retain some information about former members for at least six years from the date the person ceased to be a member of the SCIO.

There is no set format for the register of members but it must contain the information summarised in the table below:

5.3.4 Duty to provide a copy of the register of members

Only a member or charity trustee of a SCIO may request a copy of that SCIO’s register of members. If the request is reasonable (see section 5.3.2), the member or charity trustee will be entitled to be given a copy of the register by the SCIO within 28 days; again, the SCIO is not entitled to charge a fee for supplying the document.

If the person making the request is a member but not a charity trustee, the SCIO is permitted to omit the address of any of its members from the copy of the register it supplies.

Before supplying any information on its members, the SCIO may wish to consider any statutory requirements which apply regarding the handling of personal data, balanced with the good practice approach of operating an open, transparent organisation in which members can easily communicate with one another about key issues. Guidance in relation to data protection is available from the Information Commissioner’s Office.

5.4 References to SCIO Status

Section 52 of the 2005 Act sets out how SCIOs must refer to their name and their status as a SCIO on a number of specified documents which are issued or signed by the SCIO or on its behalf. This includes: 

• Any of the specified documents which are hosted on a webpage of a website operated by or on behalf of the SCIO
• Any of the specified documents which are issued or signed by a third party on the SCIO’s behalf, for example, by a solicitor who is acting on the SCIO’s behalf or an accountant who is requesting payment from another body on behalf of the SCIO.

SCIOs and their agents are required by the 2005 Act and the General Regulations to state on the specified documents the SCIO’s name and, if the name does not include the terms ‘Scottish Charitable Incorporated Organisation’ or ‘SCIO’ (with or without a full stop after each letter), the fact that it is a SCIO.

As SCIOs are a new legal form, it is likely that they will be relatively unknown amongst the general public in the short to medium term. OSCR therefore also recommends that all SCIOs state their legal form as ‘Scottish Charitable Incorporated Organisation’ rather than using the acronym, ‘SCIO’.

In section 5.1 above that the requirements regarding references to charitable status set out at section 15 of the 2005 Act do not apply to SCIOs as they apply to any other charity on the Register.

The specified documents must also state the SCIO’s Scottish Charity Number. This will enable the SCIO to be easily recognised by members of the public, funders and contractors as a regulated Scottish charity in which they can have confidence.

These documents are very similar to those which non-SCIO charities must ensure comply with section 15 of the 2005 Act. OSCR’s guidance publication, ‘References to Charitable Status’ explains in further detail which types of documents may have to comply with requirements and highlights additional documents which should comply as a matter of good practice. Although the publication was not written with the regulation of SCIOs in mind, it provides equally useful general guidance for SCIOs as for other charities in the Register.  

SCIOs are required to comply with their duty to state their name and working name (if any) and status as a SCIO, and the Scottish Charity Number allocated to it at the time of registration (SC0[zero]XXXXX), on the specified documents from the date on which they are entered in the Register and so become constituted as a SCIO. Unlike the situation with other non-SCIO charities, there is no period of grace for SCIOs to comply with this requirement. The charity trustees of new SCIOs must therefore be mindful of this duty and take appropriate steps to ensure the SCIO is able to comply with its duties in relation to name and status as soon as possible after being entered in the Register.  

It is a criminal offence for a SCIO’s charity trustees or a person acting on the SCIO’s behalf to issue or sign any of the specified documents which do not include the required information or to authorise such actions. Any person found guilty of such an offence is liable on summary conviction to a fine not exceeding level 3 on the standard scale, currently £1,000.

In order to protect the SCIO brand, OSCR has power to direct any body (or any person representing it) which is not a SCIO to stop representing itself as a SCIO. If that body or person fails to comply with the direction, OSCR may apply to the Court of Session to interdict the body or person from representing the body as a SCIO.