Returning to public fundraising: Key legal issues

From step two in the government’s roadmap out of lockdown, which began on 12 April, charities are finally able to re-start public fundraising activity including street and door to door fundraising and events. This is a very welcome development, but charities will need to ensure that they are complying with relevant laws and government guidance when undertaking these activities whilst COVID restrictions remain in place.

There is various government guidance on the current rules and how to ensure that activities are COVID-secure on the GOV.UK website. However, there is unfortunately no one handy piece of government guidance for exactly how the restrictions and the lifting of them apply to charities and their fundraising activities. Charities instead have to apply the more generic guidance to their specific activities, which can be tricky to do, and which is why the Fundraising Regulator and the Chartered Institute’s recent guidance on resuming face to face fundraising and events is so helpful.

What complicates things even further is that each nation within the UK – Scotland, Wales, Northern Ireland and England, are all subject to different rules and timescales for the lifting of restrictions. If your charity is undertaking face to face fundraising in each jurisdiction then it will be necessary to check the guidance for each country.

Government policy and guidance is also subject to change at short notice. The relaxation of restrictions at each stage of the roadmap is not guaranteed, and is dependent on the situation at the relevant time, with only one week’s notice provided on whether the next step will proceed as planned. Charities will therefore need to remain flexible in relation to their fundraising activity and be ready to change or adapt their plans at short notice.

From 12 April the government has confirmed that street and door to door recruitment can resume in England. Some outdoor events organised by charities can also take place, for example, outdoor community fairs and fetes, which may be relevant for some smaller-scale and community fundraising activity. This is however subject to compliance with certain COVID-secure steps, including taking reasonable steps to limit the risk of transmission, completing a risk-assessment, and ensuring those that attend do not mix beyond the permitted social contact limits, which is currently six people or two households of any size. There is no cap on the number of people that can attend these events, but there should be fewer than 4,000 per day.

From Step 3, (which should be from 17 May, subject to government review), both outdoor and indoor gatherings or events organised by a charity can take place. This would include charity auctions and gala dinners, as well as outdoor sporting and challenge events. Attendees will not however be allowed to mix beyond what is permitted by the social contact limits (which will be the rule of six indoors and 30 people outdoors), and the rules on wearing facemasks in indoor settings must also be complied with. All events held during Step 3 will also have capacity limits of 1,000 people or 50% of the venue’s capacity (whichever is the lower) indoors, and 4,000 or 50% of a site’s capacity outdoors.

The police and local authorities have the power to fine businesses (including charities) up to £10,000 for breaches of these restrictions.

It is important that organisations comply with their internal governance and decision-making procedures when resuming public fundraising activity, for example, ensuring that relevant internal stakeholders are informed and consulted and that the board of trustees is fully briefed on, and in support of the proposals, as it will be the trustees that have ultimate responsibility if anything goes wrong.

Charities also have legal duties to their staff and members of the public to appropriately safeguard them and to comply with relevant health and safety requirements. A key way of meeting these duties and identifying and mitigating any risks will be ensuring that your organisation completes a risk assessment for the different types of public fundraising that will take place. The government’s guidance states that you must share the results of your risk assessment with your workforce, and if possible, publish the results on your website, and expects all businesses with over 50 workers to do so.

In terms of the resumption of door to door and street fundraising, charities should:

• carry out a risk-assessment for each type of fundraising;
• ensure that their fundraisers and fundraising agencies remain compliant with the Code of Fundraising Practice;
• follow the specific guidance that has been issued by the Fundraising Regulator and Chartered Institute on how to conduct the activity safely and appropriately;
• review and if necessary update their vulnerable persons policies to ensure that they adequately cover COVID-19 related issues;
• check that contracts with third party fundraisers require them to put COVID-19 safety measures in place and adequately deal with what will happen if fundraising needs to stop or be suspended at short notice, if for example, local restrictions are introduced due to a spike in infections.

For fundraising events you should:

• carry out a risk-assessment for each type of event;
• undertake appropriate due diligence on any event organisers before contracting with them to ensure that they are suitable to work with and will ensure that all health & safety and COVID 19 requirements are complied with;
• carefully review any contracts and sponsorship agreements with event suppliers and sponsors to ensure that there is an ability to postpone or cancel events if government guidelines change; and
• check that there is adequate insurance in place for the event.

Step 4, from 21 June, should see the lifting of all legal limits on social contact, subject to review nearer to the time. It is unclear at this stage whether any additional COVID- secure measures will still be required, although that seems likely.