Disclosing a serious incident to the Charity Commission 

Where a serious incident occurs involving a school that is also a registered charity, additional obligations under charity law may be triggered, including a requirement to submit a serious incident report (SIR) to the Charity Commission.

The Commission defines a serious incident as an actual or alleged adverse event, which results in, or risks, significant harm to individuals connected with a charity, loss of charitable funds or assets, damage to property or harm to a charity’s work or reputation.

Whether an incident is “significant” will depend on the charity’s relative size, operations, finances and reputation. Trustees are responsible for deciding whether an incident meets this threshold and requires reporting. The Commission provides detailed guidance on the SIR regime, including an examples table to help trustees decide what may or may not be a serious incident.

Where a serious incident has occurred, the Commission expects charities to provide a prompt, full and frank disclosure of the incident, including:

• Details of what happened
• The impact on the charity and connected people
• Whether other regulators have been informed (such as the Department for Education, the local authority or the police)
• Steps taken to manage the incident
• Measures put in place to prevent the recurrence of an incident of a similar nature.

Trustees may be required to justify any decision not to report a particular incident. Clear, detailed and factual record-keeping is essential, particularly when dealing with borderline incidents that are ultimately not reported.

Although the action of reporting a serious incident may be delegated, for example to a member of the senior leadership team or the designated safeguarding lead (DSL), ultimate and collective responsibility for reporting sits with the trustees, including ensuring reports are accurate and not misleading.

Alongside lawyers, schools regularly work with PR professionals where serious incidents occur, to assist with preparing communications and statements to students, parents, staff and the media. This is an effective way of demonstrating steps taken to manage an incident and can allow a school to be on the front foot with both its stakeholders and the Commission.

It’s nearly always preferable for a school to report serious incidents itself, and in a prompt manner. Where the Commission is informed of a potentially serious incident by a third party, such as parents, a local authority or the media, trustees may be approached to explain what has occurred and why the incident has not been reported.

The SIR regime sits alongside – and doesn’t replace – other regulatory reporting obligations.

Takeaways 

• Early engagement of the lawyers secures privilege over an investigation, providing protection to the organisation
• Guidance can be offered in relation to RIDDOR reporting
• Representation can be provided at interview, including whether to attend at all – in some circumstances, written representation may be more appropriate
• Advice can be provided where Prohibition and Improvement Notices are issued
• Experts can be instructed to provide insight into the cause of an incident and whether there has been a failing, or whether there’s a defence to an offence

Charitable schools must also consider their obligations under the Charity Commission’s Serious Incident Reporting regime, which sits alongside other regulatory reporting requirements and is ultimately a trustee responsibility.