Appointing a trustee with a criminal record: reflections of a successful applicant and charity

by / Monday, 13 May 2019 / Published in Latest, News & Media, Trustee

This blog is the lived experience of a charity working within the criminal justice system that was recently successful in getting a waiver from the Charity Commission for a Trustee applicant that was “disqualified” because of their criminal record.

The blog has been written by the charity itself (including input from the charity’s chief executive and the individual that needed to get a waiver to become a trustee), but the details have been anonymised where necessary to protect the identity of the individual and charity concerned.

Context

“There are rules which disqualify certain people from being a trustee or senior manager of a charity. Being disqualified means that a person can’t take on, or stay in, a charity trustee position or senior manager position – even on an interim basis, unless the Charity Commission has removed (or ‘waived’) the disqualification.” (gov.uk)

“Automatic disqualification” (as it’s officially known) was extended to cover significantly more crimes through the passage of the Charities (Protection and Social Investment) Bill 2015. The background to the Bill was the very public failings of The Cup Trust and The Kids Company. The failing at both of these charities was driven by the senior management and Trustees of the organisations, none of whom had criminal records. In fact, no-one with a conviction had anything to do with these failings, yet they were the ones impacted by the resulting legislation.

Most people we speak to want those with convictions to reintegrate into society and to find a way to legally contribute to their communities as much as they are personally able to. Ironically, most people we know with convictions want to do the same.

Whilst it is entirely understandable that failings need actions, these actions can prohibit someone with a conviction from rehabilitating. Barring an individual with a criminal record from becoming a Trustee will not eliminate the risk that someone without a conviction may still cause a failing.

To help future applicants produce successful Trustee waiver applications, we aim in this blog to provide as much information as possible on how we approached the process (see Part two – Helpful hints & tips) but we will start by sharing the perspective of our Trustee applicant and charity CEO.

Part one – Our perspective

As challenging as we found the required work (we spent two months trying to decipher the requirements, drafting and redrafting the forms), as time-consuming as we found the process (it took nearly four months for what we were told would be a four-week turnaround), this was not as difficult as the emotional turbulence we had to navigate while applying.

Was this an appropriate and necessary level of scrutiny? Surely, there are much better ways of achieving the same intended outcome.

1. Positive intentions & negative experience

Charity CEO: “Despite the stated positive intention behind this process of protecting the best interests of the charity, it didn’t feel that way.

“The process itself felt degrading and patronising. Putting together the required documentation meant that all of our existing Trustees had access to information on the worst decision that the waiver applicant had ever made. That imbalance of information could warp the power dynamic present on the Board and unintentionally manifest all sorts of implicit biases.

“In addition, the way in which the letters had to be written further puts the waiver applicant in a degrading position: instead of taking an asset-based approach, beginning with the reasons why the applicant should be considered for a Trustee position, it takes a deficits and risk-based approach, requiring the charity to defend itself against the harm this person could cause going forwards.”

Waiver trustee applicant: “When a process is difficult, intrusive and drawn out it is only natural to get frustrated but remember it’s not directly the fault of the people you are dealing with. For me I handled this by remembering the ‘why’.

“Why am I doing this? I’m doing it because I am deeply passionate about helping people in a difficult situation. If I get frustrated or take anything too personally it risks me being able to do something that I passionately want to do. So be smart, work with the people involved and not against them. Be humble and grateful for anything they do to help you accomplish your goals.”

2. Contribution barriers

Charity CEO: “People with convictions are told (and often believe) that it’s important to give back to the community through volunteering. Charities are told (and often believe) that their governance bodies should include people with lived experience of the issues that they’re working on. For charities like ours working in the criminal justice sector, accountability to our stakeholders means we should have strong representation of Trustees with lived experience of the system.

“And yet, the barrier to doing so is high – potential Trustees with convictions need to go through a charity’s normal application process without any guarantee of being able to accept the role, even if it is offered to them, given the waiver requirement. They must then go through a non-transparent waiver application process, which could take any number of months, handled virtually by the Charity Commission without a stated contact for questions. For applicants who have recently left prison and are trying to navigate the challenges of re-entry to society, this would add even more uncertainty and instability at a pivotal stage in their lives.”

Waiver trustee applicant: “As anyone with a conviction will tell you, one of the things you have to learn quickly and accept, is that life will be harder from the moment you return to society. You will have to work harder than anyone else; likely have to accept lower compensation than everyone else; prove yourself far more than others have to – but you won’t be able to change this. The only approach that made sense to me was to see it as a challenge.

“Each hurdle I overcome gives me great satisfaction and enduring strength. Becoming a trustee is certainly one of those challenges and I would encourage any applicant to develop the same mind-set.”

3. An uneven playing field

Charity CEO: “In many ways, the waiver requirement felt like yet another restriction placed to curtail the power of charities to hire and recruit the talent we need to do our work well. Otherwise, why would this restriction only apply to charities and not to other types of organisations? I’m not recommending that it should; but if companies can freely choose their Board of Directors, why can’t charities?”

Waiver trustee applicant: “It is entirely proper that the governance and management of charities continues to improve, as indeed it should for any corporation. I very much support due process but wonder why it is applied to one group of people in exclusion. Why is it acceptable that companies can freely choose their Board of Directors but charities cannot?

Vetting for positions of responsibility should be fair and unbiased and most importantly based on the merit of the individual. The Trustee recruitment process this charity ran was one of the most inclusive and comprehensive processes I have ever been a part of – public or private.

“Whilst I respect the due process of the Charity Commission in this regard, it should be aware of just how much importance charities place on good governance themselves.”  

Part two – Helpful hints and tips

Charity CEO: “Give yourself a good six months for this process (two to comfortably draft the documents, and four to receive the final decision). Ensure you address every point and subpoint, even if it feels repetitive. Prepare yourselves emotionally for the way in which you’ll need to write about a human being, and someone you respect enough to want on your Board (or Senior Management Team).

“And when you successfully complete the process, contact Unlock, and help them to demand change to this process. There is a much better way to ensure charities operate effectively, efficiently and in the best interests of the public without going through a humiliating process like this.”

Waiver trustee applicant: “The reason I wanted to write this blog was to help applicants and charities to understand the process a little better. The charity has done an amazing job laying out the roadmap of what needs to be done and by whom. I am honoured and excited to be joining their Board and look forward to contributing as much as I can.

“Follow this template carefully – it works. I also wanted to encourage all stakeholders to stick with it, the process is long and there are extended periods of radio silence. Charities and applicants alike remember why you are doing this – to be a resource for and to develop structures that really help people in need. Let’s get more Charity Commission waivers granted.”

Tips for approaching the application

Until this process is drastically changed, to save other charities some time, here is an honest take on what, how and why we drafted our application in a certain way in the hope that it can help you too.

The three sections you’ll need to prepare are:

  1. The covering letter
  2. A letter from the board (with e-signatures) – we recommend including an Appendix (see below)
  3. A letter from the waiver applicant (and application)

1. Covering letter

This was the easiest part: we’ve included an outline of what we submitted, which you can use to draft yours.

2. Letter from the board

The first obstacle was to understand what the Charity Commission guidance for the Trustee Letter meant. We struggled to find helpful, practical information – it took days of combing through various articles. We leaned heavily on the charity Unlock to support us.

We summarised the information to be covered in the Trustee letter in the list available here. We then drafted a letter with the same subject headings, and addressed each bullet point individually and in depth.

We then took a further step: of thinking through each of the concerns that people at the Charity Commission might have (whether rational or irrational) including stereotypes about people with convictions. We responded to each one proactively e.g. the waiver applicant would not be the treasurer, they would not have access to the bank account, they would not be an account signatory… Yes, it felt demeaning; but also it felt necessary to include to get the waiver approved.

We also included an appendix that had the role specification for the Trustee (skills, expected commitments), information on our charity, and details of the open recruitment process that we underwent to select them.

The whole way through, we worked collaboratively with the waiver applicant, keeping them updated at every stage. We wrote multiple drafts and sent them back and forth, ensuring we were aligned throughout. The final version ended up being 10 pages with some repetition throughout – but we covered everything.

3. Letter from the waiver applicant (and application)

We downloaded the application questions and pasted them into word, a more accessible format – especially as we learned it was possible to email in the form, rather than submit it through the online portal. Some questions were confusing too – we didn’t understand what they meant and kept circling back to Unlock for help. Again, the waiver applicant and I passed the documents back and forth until we felt it was ready to submit.

I want to add that the applicant’s letter requirements (which were required to be focused on their crime and remorse) made me question whether the net harm caused to the applicant, in the discomfort, degradation and patronisation that we were requesting them to go through, was really worth the net benefit to the charity and the public as a result of having them as a Trustee. We envision a society where criminal records don’t come into the employment process, and if they must, they are considered against pre-conviction and post-release records rather than simply the crime itself. Every person must be given a chance to move on.

Covering letter skeleton

To Whom It May Concern:

CHARITY, a registered charity (no. XX) supports the application for a Trustee waiver by APPLICANT NAME.

On behalf of the Board of Trustees of CHARITY, we unanimously confirm that APPLICANT:

  • Is our agreed and preferred appointment to the Board of Trustees to fill the skillset of XXXX, supporting our strategic growth plans
  • Has been selected through a comprehensive, rigorous and open recruitment process, including DETAILS OF INTERVIEW/APPLICATION PROCESS
  • Is uniquely placed to support the charity, DETAIL SKILLS/FIT
  • Is not regarded as a risk to the charity’s governance or assets
  • Will not be in the role of Treasurer or be a signatory to the charity’s accounts
  • Would most effectively support the charity’s governance and strategic growth plans as a Board Trustee.

This reference is signed by the complete Board of CHARITY

Trustee letter

The following sections need to be included in the letter from the Board of Trustees (based on information from Unlock):

  • Details of the recruitment process that led to the applicant’s appointment or proposed appointment. Here you should emphasise your recruitment process (open is best practice) and this applicant was the best appointment as a result of that.
  • Support for the waiver by the Board of Trustees. Whether a majority of the trustees support the waiver application
  • Details of the duties and responsibilities of the trustee position that the applicant holds or wants to take up. Explain any relevance (or otherwise) of the reason the applicant is disqualified to the roles and responsibilities of the position. For example, if an unspent conviction is unrelated to the position, explain this.
  • The applicant’s unique contributions. Why the trustees consider that the applicant is the best appointment, for example, what special skills does this individual have which are not otherwise available from other applicants? Here you should mention the relevance of your charity objects/purpose, and highlight the user perspective your applicant can provide in this role.
  • Why the applicant cannot act in an advisory capacity rather than act as a trustee. You should emphasise that you were specifically seeking trustees. You should express your belief that the role you have is one that the charity should have the ability to appoint an individual to.
  • The view of the board of trustees. The trustees’ views on the position and reputation of the charity if the applicant’s appointment is made or maintained. You should also emphasise here the repercussions on the charity’s reputation if the waiver is refused.
  • Risk management. Whether the trustees have assessed, and can manage any risk to the charity and its assets in making or maintaining the appointment. For example, if the disqualification reason is financial mismanagement, if you have decided the applicant will not be in a treasurer position.

More information

We have shared this blog to help charities and individuals feel more confident in applying for a waiver for someone who might be disqualified because of their criminal record.

We have more information about doing this through our “Changes to charity rules” project page, in our practical guidance for charities and in our guidance for individuals.

You can also find details of Unlock’s policy work on this issue.

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