Reporting Serious Incidents has been a ‘requirement’ since 2007.
There is no separate statutory duty imposed on charity Trustees to report serious incidents. However, the annual return requires Trustees to sign a declaration to confirm that no incident has occurred during the course of the year which the Trustees should have reported. If Trustees are unable to make this declaration then they default on the statutory requirement to complete the annual return.
The Commission has consulted on revised guidance and the draft guidance makes it clear that “The Commission requires charities to report serious incidents”, and that the responsibility for reporting serious incidents rests with the Trustees.
The statistics would suggest that many charity Trustees are still unfamiliar with the ‘duty to report’. The number of reports has increased from 255 in 2008-2009 to 2,217 in 2015-16, with over 160,000 charities on the register*. This number seems very low and it seems likely that serious incidents are still being under-reported.
Charities are often uncertain as to whether they ‘have to’ report an incident and what the consequences are if they choose not to do so. It is important for Trustees to bear in mind that it is an offence under section 60 of the Charities Act 2011 to provide false or misleading information to the Commission. False or misleading information would include confirming in the annual return that there have been no reportable incidents if there have been.
In addition, if the Commission has cause to open a review or investigation into a charity, the fact that the charity has not made a serious incident report where it should have done, may be regarded as evidence of mismanagement by the Commission, which may decide to take regulatory action.
Charities also remain worried that reporting themselves to the Regulator will open themselves up to unwanted scrutiny. In our experience, however, reporting the incident carefully and addressing each of the questions that the Commission outlines in its guidance tends to result in the Commission not requiring any further action to be taken.
Any incident is regarded as serious if it results in, or risks, significant loss of your charity’s money or assets, damage to property, or harm to the charity’s work, beneficiaries or reputation.
The new guidance sets out in Annex 1 specific examples of incidents that are reportable. The main categories of reportable incident are:
Trustees are obliged to report an actual or suspected incident as soon as possible after it happens or immediately they become aware of it. However, there is a balance between reporting promptly, and ensuring that you have sufficient information to be able to make a sensible report. The new guidance also contains an option for Trustees to be able to make reports on a periodic basis covering multiple incidents.
The Commission asks Trustees to provide details of the following:
It can be helpful to add the reporting of serious incidents to a charity’s Risk Register to ensure that the Trustees keep this in mind. Charities should also consider adding the reporting of serious incidents to any disaster recovery or crisis management plan to ensure it is not forgotten.