Charities and Trustee Investment (Scotland) Act 2005

Chapter 10SDecisions: notices, reviews and appeals

Modifications etc. (not altering text)

PreliminaryS

71DecisionsS

This Chapter applies to any decision by OSCR (or by a person to whom OSCR's functions are delegated by virtue of section 38) to—

(a)refuse an application for entry in the Register, including entry as a SCIO under section 55, 58 or 60,

(b)refuse to disapply section 3(3)(b) in relation to a charity,

[F1(c)refuse to consent to a charity changing name under section 11,]

(d)give a direction under section 12(2) [F2, (2A)] or (3),

(e)refuse to give a direction under section 12(2) [F3or (2A)],

(f)refuse to consent to a charity taking any action set out in section 16(2),

(g)give a direction under section 28(3),

(h)make a requirement under section 29(1),

(i)remove a charity from the Register under section 30(1) or (3),

[F4(ia)give a direction under section 30(1)(a),]

[F5(ib)give a direction under section 30A(2),

(ic)remove a charity from the Register under section 30A(4),]

[F6(id)give a direction under section 30B(2),]

(j)suspend a person under section 31(4),

(k)give a direction under section 31(5) or (8),

(l)give a direction under section 31(6), (7) or (9),

(m)refuse an application made for the purposes of section 39(1),

[F7(ma)refuse an application made for the purposes of section 43A,]

[F8(mb)remove a charity from the Register under section 45A(3),]

(n)give a direction under section 53(2),

(o)give a direction under section 67(7),

(p)refuse to grant a waiver under section 69(4),

[F9(pa)refuse to grant a waiver under section 69B(3),]

[F10(pb)appoint an interim charity trustee under section 70A(1) or (2)(c),]

(q)refuse to designate a charity as a designated religious charity or designated national collector, or

(r)withdraw the designation of a charity as a designated religious charity or designated national collector.

Textual Amendments

F7S. 71(ma) inserted (1.10.2010 for specified purposes, 1.11.2012 in so far as not already in force) by Public Services Reform (Scotland) Act 2010 (asp 8), ss. 125(2), 134(7); S.S.I. 2010/321, art. 3, Sch.; S.S.I. 2012/218, art. 2

Commencement Information

I1S. 71 in force at 1.4.2006 by S.S.I. 2006/189, art. 2(1), Sch. Pt. 1

Notice and effect of decisionsS

72Notice of decisionsS

(1)Any person who makes a decision to which this Chapter applies must, as soon as reasonably practicable after doing so, give notice of it to the person specified in subsection (2) and, where the decision is made by a person to whom OSCR's functions have been delegated by virtue of section 38, OSCR.

(2)That person is—

(a)in the case of a decision referred to in paragraph (a), (g), [F11(id),] (j), (k), [F12(l),] (n) or (p) of section 71, the [F13charity, body or] person in respect of whom the decision was made,

(b)in the case of a decision referred to in paragraph (e) of that section, the charity which requested OSCR to conduct a review under section 12, and

[F14(ba)in the case of a decision referred to in paragraph (h) of section 71, the charity, body or person with regard to which OSCR is making inquiries under section 28,]

[F15(bb)in the case of a decision referred to in paragraph (pb) of section 71, the charity trustees of the charity in respect of which the decision was made,]

(c)in the case of any other decision referred to in [F16section 71], the charity in respect of which the decision was made.

(3)A notice given under this section must—

(a)set out the decision,

(b)give the reasons for the decision, and

(c)where the notice is given to a person specified in subsection (2), advise the recipient of—

(i)the right to request OSCR to review the decision, and

(ii)the period within which such a request must be made.

[F17(4)For the purposes of subsection (2)(ba)—

(a)if OSCR is making inquiries into a body in relation to a period in which the body was a charity, the notice is to be given to the body as required by subsection (2)(ba), but

(b)if the charity or (as the case may be) body to which notice is to be given has ceased to exist, the notice must be given, to the extent that it is reasonably practicable to do so—

(i)in the case of a charity, to each person who was a charity trustee of the charity immediately before it ceased to exist,

(ii)in the case of a body, to each person who appears to the person giving the notice to have been concerned in the management or control of the body immediately before it ceased to exist.]

Textual Amendments

Commencement Information

I2S. 72 in force at 1.4.2006 by S.S.I. 2006/189, art. 2(1), Sch. Pt. 1

73Effect of decisionsS

(1)Unless subsection (2) or (3) provides otherwise, a decision to which this Chapter applies (and any direction, requirement, suspension or other act in pursuance of such a decision) has effect from the day on which the notice required by section 72 is given.

(2)A decision referred to in section 71(d), (i), [F18(ia),] [F19(ib), (ic),] [F20(id),] [F21(mb),] (o) [F22, (pb)] or (r) (and any direction, requirement, suspension or other act in pursuance of such a decision) is of no effect unless and until the notice required by section 72 is given and—

(a)the period within which OSCR must, on request, review the decision expires without a request being made, or

(b)where OSCR, on a request made within that period, confirms the decision (with or without variations)—

(i)the period within which that decision by OSCR may be appealed under section 76 to the [F23First-tier Tribunal] expires without an appeal being made, or

(ii)where such an appeal is made, it is abandoned or finally determined (by the [F24First-tier Tribunal] or, as the case may be, the [F25Upper Tribunal] ).

(3)A decision referred to in section 71(h) (and any corresponding requirement) is of no effect unless and until [F26any notice] required by section 72 is given and—

(a)the period within which OSCR must, on request, review the decision expires without a request being made, or

(b)where such a request is made, the date on which OSCR confirms the decision (with or without variations).

Textual Amendments

Commencement Information

I3S. 73 in force at 1.4.2006 by S.S.I. 2006/189, art. 2(1), Sch. Pt. 1

ReviewsS

74Review of decisionsS

(1)OSCR must, within 21 days of being requested to do so by a person given notice under section 72 of a decision to which this Chapter applies—

(a)review the decision,

(b)confirm, vary, reverse or revoke it, and

(c)give notice of its decision under paragraph (b) to the person who requested the review.

[F27(1A)Where there is more than one charity trustee to whom notice of a decision referred to in section 71(pb) is given under section 72, a request under subsection (1) may be made by any of them.]

(2)A notice under paragraph (c) of subsection (1) must set out OSCR's reasons for its decision under paragraph (b) of that section.

(3)The duty in subsection (1) applies only if the request is made within 21 days of the notice under section 72 being given to the person making the request.

(4)OSCR must publish any further procedures in accordance with which reviews are to be conducted.

Textual Amendments

Commencement Information

I4S. 74 in force at 1.4.2006 by S.S.I. 2006/189, art. 2(1), Sch. Pt. 1

AppealsS

F2875Scottish Charity Appeals PanelS

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

76[F29Appeals to the First-tier Tribunal]S

(1)Where OSCR—

(a)confirms a decision under section 74(1), or

(b)reconfirms a decision under section 77(1),

the decision (or, where OSCR varies the decision on confirming or reconfirming it, the decision as varied) may be appealed to the [F30First-tier Tribunal] .

(2)A decision referred to in paragraph (g) or (h) of section 71 (whether or not confirmed with variations) may not, despite subsection (1)(a), be appealed to the [F31First-tier Tribunal] .

(3)It is for the person whose request or, as the case may be, earlier appeal under this section caused OSCR to confirm or reconfirm the decision to make an appeal under subsection (1).

(4)Such an appeal must be made within 28 days of the person entitled to appeal it being given notice of the confirmation or reconfirmation.

(5)The [F32First-tier Tribunal] may—

(a)confirm a decision appealed to it,

(b)quash such a decision and direct OSCR to take such other action, if any, as the [F33First-tier Tribunal] thinks fit by such time as may be specified in the direction, or

(c)remit such a decision back to OSCR, together with the [F34First-tier Tribunal’s] reasons for doing so, for reconsideration.

Textual Amendments

Commencement Information

I5S. 76 in force at 1.4.2006 by S.S.I. 2006/189, art. 2(1), Sch. Pt. 1

77Reconsideration of decision remitted to OSCRS

(1)OSCR must, within 14 days of a decision being remitted to it under section 76(5)(c)—

(a)reconsider the decision,

(b)confirm, vary, reverse or revoke it, and

(c)give notice of its decision under paragraph (b) to the person who appealed its earlier decision to the [F35First-tier Tribunal] .

(2)That notice must set out OSCR's reasons for its decision under subsection (1)(b).

Textual Amendments

Commencement Information

I6S. 77 in force at 1.4.2006 by S.S.I. 2006/189, art. 2(1), Sch. Pt. 1

78Appeals to Court of SessionS

F36(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)Any decision of OSCR (or by a person to whom OSCR's functions are delegated by virtue of section 38) to suspend a person by notice under section 31(4) may be appealed by the person suspended to the Court of Session.

(3)The Court of Session may—

(a)confirm the decision appealed to it, or

(b)quash the decision and direct OSCR (or the person to whom OSCR's functions are delegated by virtue of section 38, as the case may be) to take such action, if any, as the Court thinks fit by such time as may be specified in the direction.

Textual Amendments

Commencement Information

I7S. 78 in force at 1.4.2006 by S.S.I. 2006/189, art. 2(1), Sch. Pt. 1