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How do you prove that you have the consent of the outgoing licensee when you transfer a Premises Licence?

I’ve had an interesting set of circumstances this week where two parties attempted to fight out their dispute over some premises using the licensing process.

Those of you who have been involved in licensing long enough will remember that there was case law under the previous Licensing Act where the Courts held that the licensing process should not be used to fight out property or employment issues.

In the case I was involved with this week I was advising the Licensing Authority in a sticky set of circumstances.

Sections 42-46 of the Licensing Act 2003 deal with transfers of Premises Licences.

Section 42(4) states that an application must also be accompanied by the Premises Licence or, if that is not practicable, a statement of the reasons for the failure to provide it.

Section 43 gives the applicant the ability to apply for the transfer to have interim effect. This has to be requested on the application form and if the Section is complied with, this means that the Premises Licence has effect during the application period as if the applicant were the holder of the Licence – Section 43(1)(b).

In an application such as this, i.e. where the applicant wants the transfer to have immediate effect, the application can only be made where the outgoing licence holder has consented to the application being made – Section 43(3).

The provisions of this part of the Act are therefore clear. However, there are circumstances where the applicant for the transfer of a Premises Licence is unable to get the consent of the outgoing licensee. In those circumstances, Section 43(5) provides that:

“The relevant Licensing Authority must exempt the applicant from the requirement to obtain the holder’s consent if the applicant shows to the authority’s satisfaction

(a) that he has taken all reasonable steps to obtain that consent, and

(b) that if the application were one to which Section (1) applied, he would be in a position to use the premises during the application period for the licensable activity or activities authorised by the Premises Licence.”

The issue we had in our case was whether the applicant, asking for the application to be dealt with immediately, could satisfy the Licensing Authority that he had taken “all reasonable steps to obtain consent”.

The threshold for “all reasonable steps” is a question of fact and varies from authority to authority.

I have always taken the view that this is quite a high threshold to achieve in order to demonstrate that all reasonable steps have been taken.

Certainly, when we act for someone who is making a transfer application in these circumstances, we will detail in very clear terms in a supporting letter the precise steps that we have taken to gain the outgoing licensee’s consent. This is often difficult if the outgoing licensee has gone into some form of insolvent position, been in dispute with the landholder or has simply absented himself from the premises without paying any rent which is due.

This happens quite frequently, so we go to significant lengths on behalf of the applicant to try and effect a consent to transfer, detail in a supporting letter the steps that we have taken and confirm that in the circumstances we have done everything that one might reasonably be expected to do in those circumstances to gain the consent.

If a Licensing Authority forms the view that insufficient steps have been taken and that therefore they are not going to grant the transfer with immediate effect, then under Section 43(6) the Licensing Authority needs to give reasons why they are of the view.

This is a good example of processes in the Licensing Act which are completely open to interpretation but it is important to have a consistent approach when you are dealing with these applications from the perspective of the Licensing Authority. If you are acting for the applicant who is asking for immediate effect of the transfer, then there needs to be a significant level of effort made to secure the consent to transfer, exhibited as part of the application.

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Woods Whur Gambling Seminar and Networking Event

We were all delighted with our first gambling seminar and networking event, held at the iconic Hippodrome Casino Theatre on Monday 6 June 2016. Eighty delegates from a broad spectrum of gambling operators and regulators attended. We should like to thank Rob Burkitt from the Gambling Commission, Kerry Simpkin from Westminster City Council and Sheila Roberts from London Borough of Newham Council for preparing and delivering such interesting presentations.

Please see the link below to the biographies of the speakers, the agenda for the day and each of the presentations.

Agenda

Biographies

Presentation

There were some very interesting discussion points raised as a result of the subject matters covered.

Andy Woods highlighted the change in focus from the early years following the introduction of the Gambling Act 2005 to the present day, and this was confirmed by Rob Burkitt in his presentation. There is clearly a move towards placing the onus on the gambling industry to modernise and to improve self-regulation, compliance and best practice.

Andy also emphasised that there is a greater focus on regulatory control and that the Gambling Commission are using more of their enforcement powers than they had previously.

Andrew Woods presents at the Woods Whur Gambling Seminar and Networking Event
Andrew Woods presents at the Woods Whur Gambling Seminar and Networking Event

One of the key issues raised was the closer control and monitoring of personal licence holders. Andy stressed that, after the introduction of the Gambling Act, enforcement and control had focussed on operating licence reviews. However, the industry needs to be aware that there will be more interaction with personal licence holders moving forward.

Rob Burkitt from the Gambling Commission touched on this too, and highlighted the Gambling Commission’s position on Personal Management Licences (PMLs).

Rob Burkitt from the Gambling Commission
Rob Burkitt from the Gambling Commission

He pinpointed the following:-

Para 4.3 of the Gambling Commission’s Statement of Principles (please click on the link http://www.gamblingcommission.gov.uk/pdf/statement-of-principles-for-licensing-and-regulation.pdf)

The Commission expects those occupying senior positions, whether or not they hold Personal Management Licences, to uphold the licensing objectives and to ensure the compliance of operators with the LCCP.

In particular, the Commission expects operators to:

  • organise and control their affairs responsibly and effectively
  • have adequate systems and controls to keep gambling fair and safe
  • conduct their businesses with integrity
  • act with due care, skill and diligence
  • maintain adequate financial resources
  • have due regard to the interested customers and treat them fairly
  • have due regard to the information needs of customers and communicate with them in a way that is clear, not misleading, and allows them to make an informed judgement about whether to gamble
  • manage conflicts of interest fairly
  • disclose to the commission anything which the commission would reasonably expect to know
  • work with the commission in an open and co-operative way

Anna Mathias’s Update on Current Developments and her Lotteries Update were particularly well received by delegates, as we learnt from the feedback received, and there were interesting discussion points raised in relation to the increase in the control and regulation of money laundering and the processing of cash transactions.

Sheila Roberts from London Borough of Newham
Sheila Roberts from London Borough of Newham

Kerry Simpkin’s presentation was thought-provoking and centred around the work that Westminster Council have been doing surrounding the potential areas of impact on vulnerable people by the activities of gambling premises. The fact that local authorities are potentially going to have greater control of the issue of premises licences was emphasised also in Sheila Roberts’s presentation about the challenges posed to a regulator in such a diverse Borough as Newham.

Kerry Simpkin from Westminster City Council
Kerry Simpkin from Westminster City Council

Clearly, local authorities’ statements of licensing principles and special consideration areas are going to be key when the powers are full understood by councils. Paddy Whur commented on the political dynamic at hearings before licensing sub-committees under the Gambling Act. He stressed that it will be very interesting to see how close these special consideration areas come to cumulative impact policies in licensing policies created under the Licensing Act 2003.

Anna also raised the issue of dementia training which is, again, something which is going to become far more topical in the coming years. Andy Woods pointed out to the operators in the room that the enhanced requirements placed on them will mean that the training of staff is going to be critically important in the future.

Anna Mathias presenting at the Woods Whur Gambling Seminar and Networking Event
Anna Mathias presenting at the Woods Whur Gambling Seminar and Networking Event

We were delighted with the interaction with the audience and the feedback we have received since the event. If there are any specific questions that those who attended, or who have received the slides, wish to be answered, then please do not hesitate to contact us.

Some of the feedback received:

“I thought that the seminar itself was very good and clearly well put together and delivered.” Operator

“I wanted to commend you all on a fantastic and worthwhile event.” Gamcare

“Fantastic event. Great content and ran to timings. Just the right amount of information.” Consultant

“Really useful to be able to attend such a wide ranging seminar. Looking forward to next year.” Local Authority

Paddy Whur presents Woods Whur Gambling Seminar and Networking Event
Paddy Whur presents at the Woods Whur Gambling Seminar and Networking Event

Paddy@woodswhur.co.uk

Andrew@woodswhur.co.uk

Anna@woodswhur.co.uk

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Woods Whur and Innpacked strategic relationship

We are delighted that our relationship with Innpacked is going from strength to strength. Our clients are benefiting from our hook up with them and many are already taking advantage of the direct link into their training packages. We have also had some real success with bespoke packages being tailored to our clients needs.

Innpacked is one of the most successful training companies in the UK hospitality industry. Their client base ranges from large multinationals to individual clients who are just beginning their career. The reason for our hook up with them is their ability to provide training that suits our client’s individual needs. They deliver mandatory courses that vary from the Level 2 Award for Personal Licence Holders, which is required to gain a personal alcohol licence, to the Level 4  Award in Food Safety in Catering. They also design bespoke courses which are written and delivered to our client’s exact requirements, such as employee and management induction courses. Their  main goal is to not only deliver quality training, but training that is relevant and adds value to your business or career.

Please either click on the following link to see their APLH courses:

http://www.innpacked.com/course/aplh/

or for the whole suit of courses on:

http://www.innpacked.com/courses/

or email us direct on:

woodswhur@innpacked.com

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Whose Premise Licence is it? Make Sure the Actions of your Door Staff do not put your Licence in Jeopardy

I have attended a Police meeting this week with a long standing trouble free operator.

The Police were uncomfortable with some instances which have come to light of the way in which people had been ejected from or refused entry to the licensed premises. The techniques for removal/ejection were called into question and we were shown some video footage from the Council’s CCTV system.

The Police thought that there was a need for some refresher training for the door staff and also a reintegration of management and door staff to work together. It reminded me of instances that I have dealt with previously where staff working behind the bar had been comfortable to sell alcohol to people without I.D checking believing this had already taken place at the door by the door supervisors.

The management controls in the premises will determine whether there will subsequently be a review of the Premises Licence. The Premises Licence attaches to the premises and is in the owner/operator’s control. If door supervisors are seen to be behaving in a way which compromises any of the four licensing objectives there could be a review of the Premises Licence. Clearly if the Premises Licence is put into potential jeopardy as a result of this action then there could be serious ramifications for the owner/operator.

It is therefore very important that the owner/operator does not allow a door team to be the tail that wags the dog. Good quality door companies will provide a senior door man who understands potential issues that could be created at the premises as well as the continuity of door staff. One of the issues that arose in our Police interview was that the premises was located on the corner of two roads and some of the ejections could lead to people being thrown on to the carriageway of the road and therefore causing potential issues to their safety.

These live issues should be risk assessed for every venue and door teams should be constantly looking at what management controls are needed. Drug use in toilets is another significant risk to licensed premises and door supervisors (and/or toilet supervisors) have to be vigilant that a significant number of people carrying drugs with them are looking for a “soft” place to be able to take them. I was once involved in a pub premises licence review which had difficulties with their toilets. When the Premises Licence was reviewed the issue surrounded the gentlemen’s toilets and in particularly one cubicle. The DPS told us they had tried to put sloping surface blocks on the window ledge which had been removed and admitted they had given up at that point and not looked for any other ways to deal with the issues…not a good response.

One enlightened operator who we acted for asked all of their senior management to do the SIA door training course and all of their door supervisors to do the NCPLH course. We then had a training day where the management and the door supervisors integrated with role play in live scenarios so that both understood the issues that the other had to deal with at the premises.

This has brought back into sharp focus my view that I have always had that training is imperative and that any external agencies employed at licensed premises – for example door supervisors – do not put the long term life of the business in jeopardy by bringing the Premises Licence in for review.

 

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Paddy Whur’s Summer Update

Well its been a significantly busy start to 2016 and it does look as if Leeds has been a particularly vibrant market. Recent statistics have put Leeds in the same league table as Cardiff and Liverpool as leading for regional openings of new licensed premises. Whilst places like Manchester, Birmingham, Leeds and Cardiff have always been well stocked with pubs and bars, their range of restaurants has per capita been well below that of London. However, this is not the case now as these regional heavy weights are starting to offer a wide range of premises for customers to choose from. We have been fortunate to receive a significant number of these instructions and continue to assist operators when they are looking at new sites within the city.

We are delighted to be instructed in relation to the new Dakota Hotel on Greek Street in Leeds which will be a significant addition to the hotel sector. Clearly there is still a need for new reasonably priced beds in Leeds to cope with the increasing demands as a leisure destination city.

In our last newsletter I did comment on the issue of takeaways and the potential need for toilet provision due to the recent High Court ruling. At that stage I didn’t have a copy of the Decision. However, please find the link below to the reported case and can I thank James Rankin of Francis Taylor Buildings for sending me the case. We will of course continue to report on this matter if and when the Court of Appeal looks at the Decision.

http://www.bailii.org/ew/cases/EWHC/Admin/2016/1064.html

The case of Hemmings which deals with the ability of public authority to recover enforcement costs has now been litigated in the European Court of Justice. We may have to wait until the end of the year until we see the Decision of this case. Clearly Licensing Authority’s will be interested to see the final Determination of this Decision.

What is the current state of play with EMRO’s and the Late Night Levy

There has not been a great deal happening in relation to the EMRO and the Late Night Levy. We still do not have an EMRO in place. The only public hearing so far has been in Blackpool and other Licensing Authority’s seem to be reluctant to go through the protracted procedure when Blackpool reported a significant cost for the process with no positive result.

It appears that the Late Night Levy is also now stuttering as Blackpool have also voted against the implementation of the Levy as recently as the 25th May. They are going to review this decision later, probably in six months time but may favour a more structured review of their Statement of Licensing Policy. Tower Hamlets are currently in the process of consulting on the potential of the introduction of late night Levy. The consultation was due to conclude in mid May but we have not yet seen a decision as to how Tower Hamlets are to move forward. However, most other areas that have gone out to consultation have rejected the Levy and we will have to see whether any more Authorities look to introduce a Levy.

In April Nottingham announced their Levy raised £150,000 less than they had expected. Clearly there is a huge amount of bureaucracy to go through to secure a late night Levy and if the financial remuneration is not what was expected we can understand why many authorities are going cold on the concept.

We have seen the first prosecution for selling alcohol at a cost which is below the permitted minimum price. In May a shop keeper in Gateshead was found guilty of four charges relating to the sale of Kommissar Vodka which was found to be unfit for human consumption. The prosecution for the breach of the mandatory condition on minimum price was therefore wrapped up in a more broad prosecution relating to the sale of counterfeit vodka. He was fined £3,200 and ordered to pay costs. We have been involved in cases where alcohol was sold below the minimum price but the Police and Licensing Authority concerned dealt with the matter by way of a formal caution for the criminal offence and a review of the Premises Licence.

What will the rest of the summer bring?

Well we move into the height of summer and have the Queen’s 90th birthday extended licensing hours and also the Euro 2016 Football Championships to look forward to. It is going to be important that Premise Licence holders ensure that plastic bottles and glasses are used in outside areas – when the sun arrives! If there are conditions on Premises Licences they will be monitored and it is important in the circumstances that plastic/polycarbonate glasses are used. In addition should England, Wales and Ireland perform well there could be euphoria in licensed premises and it is important in the circumstances for licensees to remember that selling to someone who is intoxicated is a criminal offence and can lead to criminal prosecution and/or review of a Premises Licence.

I have been involved in a serious Summary licence Review this year in which the Premises Licence holder was being threatened with the revocation of his licence. A great deal of the evidence produced by the Police was of the level of drunkenness/incapacity of people in and leaving the venue. Operators often forget this is a critical part of the management of their premises and if not handled correctly could lead to the threat of prosecution and/or the loss of licence.

Lets hope that all the teams do well – with England winning the tournament – the sun comes out and we can all have a glorious summer.

Its hard to believe that it has been twenty years since we watched France play Spain at Elland Road in Euro 1996 and then saw Gazza score the wonder goal against Scotland. What a fabulous day and the pubs were all closed by midnight!

 

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Manchester on Alcohol and Entertainment Licensing Law

We are delighted that Colin Manchester has committed to a new edition of Manchester on Alcohol and Entertainment Licensing Law, which will be the 4th edition, and will be published by Woods Whur Publishing in 2017.

Colin told us, “There continue to be changes to the primary and ancillary legislation, as well as development in the law through High Court and Court of Appeal decisions, all of which means that licensing law continues to be a fertile area for litigation. I am pleased that 2017 will see me release the 4th edition of my text. It is also great news that Woods Whur Publishing are reducing the cost of the current 3rd Edition to £40 per copy as a mid-publication discount.”

To place an order please email info@woodswhur.co.uk

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High Court Rules some takeaway outlets will need to provide toilets

I have recently had the opportunity to discuss the action Hull City Council has taken to the High Court about the provision of toilets in take away outlets with their head of legal. This High Court decision may have significant implications for takeaway food stores that also provide an element of seating for customers.

The case involved Gregg’s the bakers and sandwich shops. Hull City Council successfully argued that the provision of seating for customers within the premises necessitated the provision of toilet accommodation for those customers. This is potentially hugely impactful for a significant number of similar operations.

The case was brought under Section 20 of the Local Government (Miscellaneous Provisions) Act 1976 which provides for the requirement of sanitary facilities in certain circumstances. This section allows local authorities to require the provision of toilets at places of entertainment or other ‘relevant places’, and to maintain them. The ‘relevant places’ definition include places where food or drink is sold to members of the public for consumption at that place.

There is guidance which suggests that ‘food premises’ which are predominantly takeaway operations (where customers are not encouraged to stay and consume food for a significant length of time, and provide less than 10 seats for occasional use by customers) would not generally be regarded as a ‘relevant place’ within the meaning of the Act and therefore would not normally be expected to provide toilet accommodation for customers.

Hull City Council said that approach could not be right, as such an interpretation gave the two local Greggs’ bakeries an “unlawful and unfair” commercial advantage. Greggs have changed their style of operation significantly, and in many areas now compete with other late night operators and have premises licences to allow them to sell hot food between 23:00 and 05:00.

In a hearing at the High Court in Leeds the judge decided that Hull council’s claim was well-founded. He went on to say: “It is obvious that if a person sits down in a Greggs outlet at the seats provided and proceeds to eat a pasty and a fizzy drink just purchased at the counter for that purpose, that is a normal use of the premises. The fact that most customers take away their purchases and those who stay do not normally stay long, does not change that.”

We have not yet been able to see the full judgement of this potentially impactful decision and have been told that Greggs will seek leave for the High Court decision to be reviewed by the Court of Appeal. We will keep you updated as to any further developments.

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Councils should be wary of the unintended consequences of cumulative impact policies

I am delighted to say that I successfully persuaded Birmingham Licensing Sub-Committee to grant a new licence for a thousand plus capacity, three room Bierkeller Complex on Broad Street in Birmingham. The premises sit in the heart of the city council’s Cumulative Impact Policy and the application received representations from the police due to it’s location.

This case reminded me again of how Cumulative Impact Policies, if not dealt with carefully, can have a negative consequence to the quality and development of the entertainment sector in town centres.

I have recently been conducting training with a licensing authority where I have advised them to consider removing their Cumulative Impact Policy as it is stifling the introduction of new operators in to the town centre who are popping up in closely competitive city centres. The consequence is that the existing operators are not threatened by competition, resting on their laurels and not investing in their units. Everyone suffers as a consequence.

If an operator is of real quality and has a track record of promoting the licensing objectives in other Cumulative Impact Policy areas then, in my view, licensing authorities should seriously consider the relative merits of granting or refusing the premises licence application. If the scales tip heavily in favour of investment, new jobs, contribution to business rates, bringing back to life of a unit which is only ever going to be an entertainment complex and potentially make other operators improve the quality of their offer – then they should seriously consider granting the licence.

The circumstances in Birmingham were as follows:-

  • The application premises sat in the heart of a Cumulative Impact Policy area.
  • They had previously traded as a Brannigans – with the premises failing when the company went in to administration in 2003.
  • They had been empty with a dead frontage ever since.
  • The premises had stayed vacant since that date but had planning permission stating that they were to be used as licensed premises with music and dining to be offered at all times.
  • The Birmingham City Council “Big City Plan” strategy document highlighted that this area was in need of regeneration as one of the entertainment areas for Birmingham.
  • The Cumulative Impact Policy had been brought in to Birmingham’s Statement of Licensing Policy after the previous occupier had left the premises.
  • The operator runs similar premises in Leeds, Manchester, Liverpool and Cardiff and had recently been granted a licence in the Cumulative Impact Policy area for Nottingham.
  • The police maintained their objection to the application albeit highlighting that their background checks had suggested that the operator was promoting the licensing objectives elsewhere and had submitted, through ourselves, a very robust operating schedule.

I was delighted that having heard all of the evidence, considered the submitted documents and having debated the application for a considerable time the Licensing Sub-Committee came back to express the view that we had rebutted the presumption of refusal within the Cumulative Impact Policy area and that the licence should be allowed.

The relevant section of Birmingham’s Statement of Licensing Policy highlights at paragraph 14.9 “For any application in these areas the council will expect the applicant to demonstrate the steps it will take to promote the licence objectives. Where relevant representations are made the council will consider the application on it’s individual merits and decided whether to apply the special policy. Where it is of the view that the application is unlikely to add to the cumulative impact on the licensing objectives the application will be granted”.

Many statements of licensing policy, which promote a Cumulative Impact Policy, have similar text within them as to the process that the licensing authority will go through in considering applications within a Cumulative Impact Policy area. The text tends to follow closely the text in the Section 182 Guidance to Licensing Authority documents issued by the Home Office. As I always remind licensing authorities when I am making an application in the Cumulative Impact Policy area these policies are not part of the primary legislation (they are not contained in the Licensing Act 2003) but are capable of being created within the localised Statement of Licensing Policy.

We have been particularly successful in recent times in persuading licensing authorities to grant new applications in Cumulative Impact Policy areas around the country including major new developments in Cardiff, Nottingham, Birmingham and other places.

It is still my real concern that new applications, and applications to vary premises licences need to be carefully assessed by licensing authorities and they must not forget that the Licensing Act 2003 is meant to provide a “light touch” licensing process . In addition, there are significant powers available on review for any premises that subsequently fall back on the promises that they offer licensing authorities as to how they will promote the licensing objectives.

What authorities must be very weary of is the potential for operators to look at other areas / cities to apply in and take their investment elsewhere. I represented an operator sometime ago in Leeds who made, what I thought, was a compelling application. This still received representations – purely because it was in the Cumulative Impact Policy area. The application was granted and the premises operator has not fallen foul of any regulatory concerns since opening. In addition, they have now been granted two other licences in Leeds and Yorkshire. What is concerning is that when we made the first application they said to me that if they had known that the hoops were going to be so significant to jump through they would have gone to Manchester rather than Leeds!

That in itself encapsulates for me the fact that Cumulative Impact Policies, if not used judiciously, can stifle development and improvement by keeping out operators which every city should be proud to accommodate.

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New Fundraising Regulator About To Start Work

The new Fundraising Regulator will commence its work in regulating charity campaigns this month.

The precise date is yet to be confirmed, but when it is, the Regulator will take over complaints about charities’ fundraising tactics from the Fundraising Standards Board (FRSB). It will also take control of the Code of Fundraising Practice, currently administered by the Institute of Fundraising (IoF), and the Fundraising Rule Books, which at the moment are the responsibility of the Public Fundraising Regulatory Association (PFRA); those two bodies are also due to merge this summer.

Unsurprisingly, charities are keeping an eye on these changes, and there is some concern about what their implications might be, for, amongst other aspects of donations, charitable, or society, lottery campaigns. But what has brought them about?

You will no doubt be aware of the media firestorm in recent years – particularly the last year – surrounding the methods charities use to elicit donations. Some of you will remember the case of Olive Cooke, the elderly poppy seller who tragically died in May last year, amidst allegations that she had been “hounded” by charities asking for donations. Whilst her family did not believe that charities were directly responsible for her death, they told the subsequent FRSB investigation, which reported in January this year:

We are very grateful that there has been an investigation into charity fundraising practice and are pleased that there have been changes to the Code of Practice as to how charities fundraise, as well as changes to the law to prevent elderly and vulnerable people feeling pressurised to give when they can’t. We want Olive to be remembered for her incredibly kind, generous and charitable nature. Far from being a victim, she was a strong believer in the importance of charities in UK society and local communities. At the same time, she was concerned about the amount of letters and contact that she was receiving from charities and we are sure she would have been very upset to know that her details were being shared or sold by some charities who she had agreed to support.

Olive’s death led to the Government commissioning the review by Sir Stuart Etherington, Chief Executive of the National Council for Voluntary Organisations, into the self-regulation of charity fundraising. That review took evidence from stakeholders in order to identify what changes were required to rebuild public trust in fundraising by charities. It was closely followed by the FRSB’s investigation, which looked specifically at Olive’s case, and by a report of the House of Commons Public Administration and Constitutional Affairs Committee, which was also published this January.

The Etherington Report and other investigations all identified shortcomings in fundraising practices, lessons to be learned and the need for more effective regulation. In Olive Cooke’s case, it emerged that she had received 466 charity mailings in the year leading up to her death, that some 99 charities had her details, and that approximately a quarter of those had passed them on to others, the overwhelming majority either without her consent or with only “assumed consent”. The default position of most charities was that the onus was on the donor to initiate an opt-out of data sharing, without clear guidance on how to do it. In addition, charities were failing to provide adequate opportunities for donors to opt out of future mailings.

The Government accepted Etherington’s recommendations in full. These included:

The abolition of the FRSB and the establishment of the new Fundraising Regulator which will no longer have a membership structure, but instead a universal remit to adjudicate all fundraising complaints and stronger sanctions for non-compliance;

  • The speedy merger of the IoF and the PFRA;
  • More focus on best practice and compliance by the merged IoF-PFRA body;
  • The move of the Code of Fundraising Practice into the new Fundraising Regulator;
  • A new Code of Practice, clearly aligned with the Charity Commission’s guidelines on charities and fundraising;
  • A move by fundraising organisations towards adopting a system of “opt-in” only, in their communications with donors;
  • The creation of a registration “badge” which organisations can display as a sign of their commitment to regulation and high standards; and
  • The creation of a “Fundraising Preference Service” (FPS) which will enable members of the public to prevent the receipt of unsolicited contact by charities and other fundraising organisations.

The changes this month, then, will bring these recommendations to fruition. The new Fundraising Regulator will assume responsibility for handling all complaints from members of the public and it will also start work, in collaboration with the newly-merged IoF-PFRA body, on drafting the new Code of Practice, although that process represents a significant piece of work and is expected to take some time. It will also develop the FPS and be responsible for operating it.

The FPS will complement the existing Telephone Preference Service (TPS), which is statutory, and the Mail Preference Service, which is not. It will enable those who are identified as vulnerable, and their families, as well as those who are aggrieved by being approached by charities, to opt out of being contacted. In future, charities will need to check the FPS as well as the TPS before contacting a potential donor.

The idea is to move towards a position where positive consent to being solicited will be required – this approach will be brought into force in any event in 2018 by the European Data Protection Regulation. Even if Britain were to leave the EU, positive opt-in is a concept favoured by the current Government, so it is likely to remain the ultimate objective in any event. In the interim, though, quite how negative opt-out will evolve into positive opt-in is something which the new Regulator will have to work out.

The new Regulator’s stated aims are to:

  • Be more accessible, providing a single point of contact for members of the public to register any concerns they may have about fundraising activities;
  • Put the public in control by making it easier for them to manage fundraising communications with charities;
  • Be more independent, ensuring that a wide range of views are reflected in the new Code of Practice and Rule Books;
  • Be collaborative, by working with the IoF and other sector stakeholders to share issues and trends in fundraising practice and identify areas where sector support on regulatory issues is needed; and
  • Strengthen regulatory partnerships, by working with the Charity Commission and other UK regulators such as the Gambling Commission, to share information and refer cases where wider governance issues arise.

The Regulator will be able to name and shame organisations that transgress, prevent them from carrying out certain types of fundraising for a period, and apply other sanctions, such as ordering compulsory training. It is expected to cost between £2 and £2.5 million a year to run, and these costs will be covered by charities themselves, via a levy that will depend on their fundraising spend – those that spend over £100,000 a year on fundraising will pay the highest rate.

Some charities have voluntarily changed their means of soliciting donations in recent times, in response to the various investigations and media criticism. Oxfam have stopped doorstep recruitment altogether, the RNLI and Cancer Research UK now only use a positive opt-in across all channels, and the Red Cross and Age Concern have signed up to renewing supporters’ consent every two years. This notwithstanding, there is widespread concern in the sector about the impact the changes will have, with some taking the view that they represent “a sledgehammer to crack a nut” by, effectively, punishing everybody to tackle the methods of a few.

Of course, lotteries represent an important fundraising stream for charities, and more and more are entering into the lottery market. The new Regulator’s Head of Policy, Gerard Oppenheim, was invited to speak at the recent Lotteries Council Annual Conference, and he fielded a series of anxious questions from the floor. He made it clear that, where lottery tickets are “primarily sold to raise money”, they will be treated as a donation, and thus will be subject to the scrutiny of the Regulator surrounding the way in which they are sold. It is difficult to see why lottery tickets would be sold for any other reason, and thus society lotteries will be subject to the new regime across the board, should a member of the public choose to complain about the way in which they are promoted.

Mr Oppenheim did recognise that society lotteries are already highly regulated, whether by the Gambling Commission or local authorities, and pledged to avoid “double regulation”. However, the new system will inevitably lead to an additional layer of control and further compliance issues for charities to worry about. Once the IoF and PFRA are merged, the intention is to produce fresh training and support in order to assist charities in coping with the new requirements. Quite how effective this is, and how it is disseminated, remains to be seen.

As matters stand, the Fundraising Regulator will have no jurisdiction in Scotland, and will only operate in relation to England, Wales and Northern Ireland. A decision in Scotland is expected in the summer, and Mr Oppenheim made it clear that the Regulator’s preference is for a UK-wide scheme to apply. This would certainly make sense in the interests of consistency and would assist those larger charities that operate nationwide, meaning that their obligations on both sides of the border would be the same.

Some say that the new rules will cost charities £20 billion in donations, and predict that some 30 million people will sign up to the FPS. Mr Oppenheim dismissed these estimates as “wild” and expressed the view that the FPS system would “fall over”, were this to be the case – it would simply not be able to cope. He also made the point that the FPS will enable members of the public to choose not to be contacted by certain charities, whilst remaining accessible to others.

The fact remains that the new scheme will undoubtedly have an impact on charities – representing, at the very least, an additional cost – and society lotteries look likely to be affected. As some delegates at Conference pointed out, they are already subject to a high degree of regulation, are competing with commercial entities, and are not eligible for Gift Aid. The precise effect of the changes remains to be seen and the devil will be in the detail of the new Code of Practice, complaints that are made to the Fundraising Regulator, its adjudications, and sanctions applied.

Worse may yet be to come – the Government has, in the Charities (Protection and Social Investment) Act 2016 which received Royal Assent in March, reserved various powers to the Minister, Rob Wilson, to impose levies and new regulation on charities if they don’t toe the line. The new Fundraising Regulator represents, Government says, the last chance for the self-regulation of the charity sector.

We will continue to monitor the situation and will update you when the new system comes into effect.

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Woods Whur Gambling Seminar and Networking Event

Speakers now confirmed for Woods Whur Gambling Seminar and Networking Event

Andy and I are delighted with the take up for our Gambling Seminar and Networking Event which will take place on Monday 6 June 2016 from 10:00 – 13:00. Sheila Roberts, the Chief Licensing Officer in Newham and Kerry Simpkin from Westminster Council have accepted an invitation to speak at the seminar along with Rob Burkitt from the Gambling Commission. We are delighted that we will have an all round perspective on the important topics to be discussed which will lead to this being an informative and interactive day.

If you have an interest in attending this event then please email Tanya@woodswhur.co.uk who will confirm your attendance. Alternatively if you would like to find out more about this event you can view our leaflet by clicking this link.