UNINCORPORATED ASSOCIATIONS: CONVERSION TO A SCIO

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1 UNINCORPORATED ASSOCIATIONS: CONVERSION TO A SCIO CONFIDENCE THROUGH CLARITY A Brief Guide K:\COPYDOCS\CI675\X293\ DOC

2 1 Important Notice You should be aware that there are significant legal and regulatory issues involved in converting to become a SCIO. It is not simply a case of signing new documents and carrying on as before. Consideration should be given to a number of areas, including: governance of your existing organisation it may not be able to be wound up by the members; registration of the new organisation with OSCR, and the Care Inspectorate neither can be guaranteed; if your organisation employees people, consideration must be given to complying with TUPE Regulations and any potential pensions implications; property must be validly transferred from the old to the new organisation. Each of the foregoing is a specialised area of law, which will require careful consideration. This guide which has been produced by Morton Fraser is intended as a brief guide to the process to convert. While it does cover the issues outlined above, it is not intended to be a thorough examination of the law in relation to unincorporated associations or Scottish Charitable Incorporation Organisations ( SCIOs ). The guide merely highlights some of the issues that require to be taken into account if an unincorporated associated is considering converting to become a SCIO. The guide is drafted in generic terms, and organisations are reminded that they should seek independent legal advice in relation to these, and any other, issues raised by a proposed conversion to become a SCIO, and in particular in relation to the specific facts and circumstances of their own situation. This guide is shared by the City of Edinburgh Council on the above basis, and the City of Edinburgh Council accepts no responsibility or liability in relation to its content. This guide and the template documents are provided without warranty, either expressed or implied. Under no circumstances shall Morton Fraser LLP be liable for any loss, damage, liability or expense incurred which is claimed to result from the use of, or reliance upon, information in this guide or the template documents, the use of which is at the sole risk of the user.

3 1 Background The City of Edinburgh Council ("CEC")] is keen to help playgroups and nurseries which it supports to consider whether converting from a charitable unincorporated association to a Scottish Charitable Incorporation Organisation (SCIO) might be right for them. The process can be time consuming and costly, particularly for small organisations who depend on volunteer boards. In order to help with this process and to try to keep costs down, CEC has asked us, Morton Fraser's Third Sector Team, to prepare a set of template documents which can be used by its member organisations when considering changing legal form. These documents are intended to be used by organisations which are both (i) unincorporated associations; and (ii) charities registered in Scotland with the Office of the Scottish Charity Regulator (OSCR). We should stress that these template documents are exactly that - templates only. Each organisation's circumstances will be unique, and those circumstances need to be considered in the context of any proposed conversion. The templates are not designed to cater for every possibility and are simply intended as a useful starting point. Changing the legal form of your charity will have legal implications, and so we would advise any organisation which is considering changing its legal form to seek legal advice specific to it before proposing or implementing any change. Morton Fraser would be happy to provide more detailed advice to your organisation should you wish to engage us. We can be involved as much or as little as you like. We appreciate the financial challenges playgroups and nurseries face and, wherever possible, would provide a fixed fee quote for our services. 2 Unincorporated Associations and SCIOs A charity which is an unincorporated association does not technically exist as a separate legal entity. This means that an unincorporated association cannot strictly enter into contracts, own property, and sue or be sued. There is also the risk that the trustees or members of the management committees (and sometimes even the members themselves) can become personally liable for the debts and liabilities incurred by an unincorporated association. The Scottish Government introduced the SCIO legal form in April 2011 to address these difficulties. There are 3 key advantages to being a SCIO as opposed to an unincorporated association:- SCIOs benefit from having separate legal personality which means a SCIO can undertake transactions directly and can enter into contracts, leases, employ staff and own property in its own name; the liability of the trustees of a SCIO is in most cases limited; and unlike charitable companies which are regulated by the Registrar of Companies and OSCR, SCIOs are regulated only by OSCR and must comply with Scottish charity law. Converting to a SCIO as a legal form can provide greater clarity:- (and indeed protection) for those running (and becoming members of) the organisation in relation to responsibility for the debts and liabilities of the charity; in terms of succession, for example, using a SCIO means title to heritable property can run in the name of the SCIO as opposed to the names of individual trustees which will change over time. K:\COPYDOCS\CI675\X293\ DOC

4 3 The Process 1 The Charities and Trustee Investment (Scotland) Act 2005 (the 2005 Act) is the principal piece of legislation governing Scottish charity law and SCIOs. However, the 2005 Act does not include a specific mechanism to allow an existing charitable unincorporated association to change its legal form to a SCIO. That is to say, to create a new SCIO with the same name and the same charity number as the existing unincorporated association, to transfer the latter s assets, liabilities and undertaking to the new SCIO and to wind up the existing unincorporated association. Instead, the existing unincorporated association must use a combination of other mechanisms set out in the 2005 Act. But, the first thing you must check is whether the constitution of the unincorporated association contains the power for its members to resolve to wind the unincorporated association up. If the constitution does not contain that power then it cannot proceed with the conversion process set out in this guidance. If the constitution does contain this power then, if the members of the unincorporated association resolve to approve the conversion (see section 5 below), in summary and in as far as OSCR is concerned, the process is then to:- apply to OSCR for the incorporation of a new SCIO (Change to SCIO (Stage 1) form); and apply to OSCR for the existing unincorporated association to be removed from the Scottish Charity Register at the same time as the new SCIO is incorporated (Change to SCIO Application - Removal from Register (Stage 2) form) following the transfer of assets, liabilities and undertakings to the new SCIO. The 2005 Act and The Scottish Charitable Incorporated Organisations Regulations 2011 (the SCIO Regulations) set out a number of conditions to become a SCIO. 4 The Trustees Trustees of a Scottish charity must comply with certain duties set out in the 2005 Act including:- operating the charity in a manner consistent with the charity's purposes as set out in the constitution; carrying out their duties in accordance with their constitution; and ensuring that the charity complies with the provisions of the 2005 Act and other relevant legislation. Any decision by the trustees of the unincorporated association to propose the conversion from a charitable unincorporated association to a SCIO must be taken in the charity's best interests. Minimising the trustees' potential personal liability is one factor to be considered but it should never be the only or the determining one. With these duties in mind, the trustees of the unincorporated association must carefully consider whether becoming a SCIO is the right choice for the charity. We strongly recommend trustees consider OSCR's Guide to SCIOs at before deciding whether to pursue the conversion to a SCIO. 5 The Members While it is the role of the trustees to consider strategic governance matters, it is the members of the unincorporated association who must approve any proposed conversion by passing the requisite resolution. The trustees alone cannot decide to change the legal form of the charity.

5 2 It is usually the case that, where a constitution of the unincorporated association gives the members the power to approve a winding up, it is necessary to convene a general meeting of the members at which the resolution proposing the conversion be proposed. This could be included in the business at the charity's annual general meeting, or a separate meeting could be convened specifically for this purpose. Either way, the members will need to be given formal notice of the meeting, setting out the terms of the resolution to change legal form as well as the date, time and place of the meeting. The existing constitution is also likely to set out minimum notice periods for sending out notices of such meetings. So, as we have explained, you must check what the constitution says and you must also plan well ahead if your charity is considering converting. As the process of converting to a SCIO ultimately requires the approval of the members, it is important for the trustees to think about how they will ensure that the members engage with this process. As a starting point, we have included a style note which could be sent to the members, in which the trustees can explain why the changes are being proposed and how the members can have their say. Members of a SCIO 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 the charity's purposes as set out in the constitution. It is therefore important the members of the unincorporated association fully understand the implications of becoming a member of a SCIO. The note also contains information for members on how they can become members of the new SCIO. The note includes a tear-off slip which each member of the unincorporated association should complete and return to the unincorporated association indicating, in the event the resolution to convert to a SCIO is passed their consent to become a member of the SCIO. 6 Structure The 2005 Act and the SCIO Regulations require that a SCIO must have at least two members and it also must always have at least three trustees. In practice, this means that a SCIO can be either 'one-tier' or 'two-tier'. In a one-tier structure the members and the trustees are the same people, and are therefore not accountable to any wider body. The individuals make some decisions wearing their member's 'hat' and others wearing their trustee's 'hat'. In a two-tier structure, the members and the trustees are different people (though there can be some degree of cross over). The members will appoint the trustees, and the trustees are in charge of the management and strategic direction of the SCIO and are accountable to the members. The members have the right to remove trustees. The preferred structure for your new SCIO is likely to be based on the structure of the existing unincorporated association. The style documents provided assume that the SCIO will be two-tier. If the intention is for your SCIO to have a one-tier structure, the documents will require significant amendment. 7 The Care Inspectorate If your unincorporated association is currently registered with the Care Inspectorate you must notify the Care Inspectorate of your intentions to becoming an SCIO. The earlier you engage with the Care Inspectorate, the better. The Care Inspectorate cannot 'transfer' an organisation's existing registration. As the organisation is proposing to change its legal form this means that, under the Public Service Reform (Scotland) Act 2010, an application must be submitted to the Care Inspectorate to

6 3 register the SCIO as the new provider of the care service. You will also need to cancel the existing registration, but this needs to be coordinated with the granting of the new registration. Please be aware that a new registration will mean:- the regulatory history of the unincorporated association will be lost; the requirements of registration may have changed since the unincorporated association was registered. This may mean that you will need adapt or make some alterations to your building or update policies and procedures in line with best practice; and the Care Inspectorate works independently from OSCR, although the two organisations will seek to work co-operatively with each other. Each registration is assessed on an individual basis, there can be no guarantee that the Care Inspectorate will grant the SCIO registration. This can mean that there may be a delay in the SCIO being registered with the Care Inspectorate. For these reasons, sometimes the decision is taken not to convert to a SCIO. If you are considering changing your legal form you should contact the Care Inspectorate at an early stage. There is information on the Care Inspectorate's website about registering a care service. They can offer advice to you about how to apply to register the SCIO as a new legal form and what that means for the care service. They will support you to ensure that registration and cancellation of the care service and the change of legal form to a SCIO are done in parallel. This will support continuity of care and should allow you to operate within your legal responsibilities as a provider of a care service. For further information contact the Care Inspectorate at:- Website: Look under the 'professionals' tab and click on 'Register a care service'. Telephone: Contact Centre: enquiries@careinspectorate.com National Registration Team regenquiries@careinspectorate.com 8 Other issues to consider Before taking steps to convert your unincorporated association it is important for you to consider if changing the legal form could have any unintended consequences and you must make sure that these are properly dealt with (taking legal advice as necessary). As we have explained, each organisation's circumstances will be unique and so we are not able to provide a comprehensive list of issues which should be considered. However, in our experience, the issues which crop up most frequently when we are dealing with conversions are as follows (this list is not exhaustive):- 8.1 employees - where an unincorporated association with employees converts to a SCIO, it is likely that the Transfer of Undertakings (Protection of Employment) Regulations 2006 (the TUPE Regulations) will apply which means that:- there is an obligation to inform and consult with representatives of the affected employees.

7 those who are treated as employees of the unincorporated association will automatically transfer to the new SCIO and are generally protected against automatic dismissal in connection with the TUPE transfer; and the SCIO will inherit the existing contracts of employment and it can be difficult (if not impossible) to change their terms pensions - the position regarding employee pensions needs to be carefully considered. If the unincorporated association is a member of a multi-employer defined benefits pension scheme then care needs to be taken to consider if the conversion will result in the crystallisation of the 'employer debt' and to ascertain what steps will be required to be taken to deal with this. 8.3 contracts - you should consider all of the different kinds of contracts the unincorporated association has entered into and consider whether the conversion could trigger default of those contracts which could result in (i) the termination of the contract; and/or (ii) the imposition of a financial penalty; and/or (iii) the loss of that product/grant/supplier/service/service user. If grants have been given to the unincorporated association, you should check that conversion will not result in having to pay these grants back. 8.4 heritable property - it is likely that your unincorporated association uses a building from which it delivers its services. Whether the unincorporated association is tenant or owner of the building this will need to be factored into the conversion process. A change in legal form can often be a breach of the terms of a lease. You should review the terms of your lease at the outset and approach the landlord early if its consent to the change is required. If the unincorporated association owns the building then you should consider what legal steps will be required to transfer title to the new SCIO. If it leases a building then the terms of the lease will need to be checked to see if it is capable of being transferred to the new SCIO - - additional work and documents will be required to transfer ownership of the property to the new SCIO (a 'disposition' of the property will be required and this will need to be registered with the Registers of Scotland). 8.5 other regulators - we have explained Care Inspectorate's position above. If your organisation is regulated by other regulators, do not overlook the position those other regulators may take. Consider all the regulators which may regulate what the unincorporated association does and consider what steps should be taken to transfer or renew such registrations. 8.6 banking - speak to your bank well in advance of the conversion. We expect that users of your services will pay by direct debits or standing orders and it is likely that the bank will expect that new accounts are set up by the SCIO. Opening new accounts and making sure payments in and payments out are switched to the new accounts can be an administrative nightmare, and some banks can be slow in meeting the demands of their customers who are changing their legal form (indeed, this is something which OSCR has been working with the banks on recently). Be very clear about the bank's requirements and its timescales and factor this into your planning. 8.7 tax and accounting - This guidance note does not cover the tax and accounting implications of conversion. Speak to the organisation's accountant about the proposed conversion and seek their advice on the tax and accounting implications of converting. 9 The Documents The template documents contained in this pack form the very basics required for an unincorporated association to convert to a SCIO. They do not represent a comprehensive set

8 5 of documents and their contents will need to be amended to suit the circumstances in each case. Additional documents may also be required depending on the circumstances. Using these documents to convert to a SCIO will have legal implications, and so we would advise any organisation which is considering changing its legal form to seek legal advice specific to it before proposing or implementing any change. Timetable Document Explanation This document is intended to assist the unincorporated association plan the process to convert to a SCIO and shows the key steps along the way. It is important that the trustees plan well ahead and that they are aware of the various deadlines. If the organisation imposes an annual membership subscription fee, then you will need to consider how this annual payment will tie in more generally with the timing of the conversion. SCIO Constitution (Style 1) The constitution is a contract between the members, the trustees and the SCIO. The style has been prepared by Early Years Scotland (formerly the Scottish Pre-School Play Association ("EYS") and it is reproduced in this Guidance with EYS's kind permission. The style is a reasonably fairly balanced template document but some of the provisions may not be appropriate in all circumstances. The 2005 Act and the SCIO Regulations contain some minimum requirements which a SCIO constitution must contain - the template covers those minimum requirements. The template should also be considered in light of the existing constitution. We would always recommend you seek legal advice before proposing or making any changes to the constitution and we would be pleased to assist you with this. OSCR Change to SCIO Application (Stage 1) Form (Style 2) This form must be sent to OSCR along with:- (i) a copy of the unincorporated association's existing constitution; (ii) a copy of the proposed SCIO constitution (Style 1); (iii) OSCR trustee declaration forms (Style 5); (iv) minutes of the meeting of the members at which the conversion was approved; (v) a statement of the assets and liabilities of the unincorporated association; and (vi) supporting information regarding the organisation's activities. The form will require answers to be populated by you and will

9 require the extraction of certain information from the existing constitution. 6 Notice of AGM (Style 3) Note for Members (Style 4) Trustee Declaration Form (Style 5) Letter to OSCR (Style 6) OSCR Change to SCIO Application Removal from Register (Stage 2) Form (Style 7) Letter to OSCR (Style 8) Transfer Agreement (Style 9) Letter to OSCR (Style 10) Proxy form (Style 11) Each unincorporated association is likely to have an existing constitution which will set out how and when to serve notice of an annual general meeting (AGM) or other general meeting of its members. This document is therefore only a template, which should be adapted as necessary. See also the Proxy Form at Style 11. It is important to explain to members why the changes are being proposed, so that they are clear about this and to seek their consent to become members of the SCIO and to the transfer of personal data to the new SCIO. This note sets out a suggested explanation but it should be tailored to suit the circumstances. We would suggest this is sent to members together with the Notice. Even if members are not able to attend the meeting to vote on the resolution to convert, they should be asked to complete and return the tear off slip. This form should be completed and signed by each person who will become a trustee of the SCIO. T he signed forms should be sent to OSCR with the Stage 1 Form (Style 2). This letter should be sent to OSCR enclosing the documents listed therein (including Styles 1, 2 and 5 as adapted). It is the request for OSCR's consent to the change in legal form. This form should be used to ask OSCR to remove the existing unincorporated association from the Scottish Charity Register at the same time as the new SCIO is incorporated. This letter should be sent to OSCR enclosing the completed stage 2 application form (Style 7). This document transfers the assets and liabilities of the unincorporated association to the SCIO. Signing it will have legal consequences so it should not be entered into on behalf of the unincorporated association without legal advice having been sought on it. This letter should be sent to OSCR enclosing the signed transfer agreement (Style 9). OSCR may ask for further documentation/information to prove that the transfer of assets and liabilities has completed, such as bank statements and final accounts of the unincorporated association. If so these should also be enclosed, and the letter should be amended accordingly. This is a style of proxy form which should be completed and enclosed with the notice of the [annual] general meeting if the existing constitution permits members to appoint proxies to attend meetings in their place. Please note that each of the documents:- 9.1 must be given detailed consideration by the trustees; and

10 7 9.2 are styles only, and therefore will require amendment to reflect each charity's specific circumstances, existing constitution, practices and issues. 10 Next Steps We suggest that you take some time to consider the pros and cons of converting to a SCIO and to consider the template documents. If the trustees are minded to propose a conversion then the broad process set out in the timetable below should be followed. For further information or support you should contact Lisi Black in the first instance at Lisi.Black@edinburgh.gov.uk or by calling If you decide you would like some professional assistance, then Morton Fraser would be delighted to assist you so please get in touch either by to lauren.scott@mortonfraser.com or by calling Lauren on June 2016 This guide and the template documents are provided without warranty, either expressed or implied. Under no circumstances shall Morton Fraser LLP be liable for any loss, damage, liability or expense incurred which is claimed to result from the use of, or reliance upon, information in this guide or the template documents, the use of which is at the sole risk of the user.