The importance of good governance in safeguarding?

You're a large charity. You've outsourced some of your operations to other organisations – operations that include working with children and vulnerable adults. How do you make sure the organisations carrying out this work comply with the relevant law and that your beneficiaries are protected?

The recent Charity Commission inquiry report into the Royal National Institute of Blind People (the RNIB) and its wholly owned subsidiary RNIB Charity, provides some valuable lessons on what can go wrong without a proper governance framework.

Background

As part of a restructure in 2014, RNIB Charity was established to take on "regulated services", that is, services regulated by Ofsted, the Care Quality Commission (CQC), or the Care Inspectorate (broadly, the Scottish equivalent of the CQC). There was another restructure in 2017, during which staff were moved around and RNIB Charity was left with three trustees, all of whom were also trustees of the RNIB.

One of the establishments run by the RNIB Charity was RNIB Pears Centre for Specialist Learning (the Pears Centre), which comprised a school and a children's home. The Charity Commission initially engaged with the RNIB after it received two serious incident reports in March 2018 relating to the Pears Centre. One report concerned a safeguarding incident; the other related to Ofsted’s intention to cancel the Pears Centre's registration. The Commission opened an inquiry in the same month, covering safeguarding, regulatory compliance, reporting to regulators, and general governance issues.

The RNIB commissioned an independent review into its operations, as well as two further reviews, one into safeguarding and one into governance. The Charity Commission took the findings of these various views into consideration in its inquiry report.

The Charity Commission's findings

The failings identified by the Commission fall into two main categories:

1. lack of safeguarding expertise both at institutions providing regulated services and in the bodies the RNIB established to monitor those institutions, including the trustee board; and
   
   
2. inadequate oversight and monitoring caused by governance weaknesses, which in turn caused and exacerbated the safeguarding issues. The following were identified as contributors:
   
   

   a. The regulated institutions operated with undue independence from the RNIB. Since the RNIB did not have a central system for logging safeguarding concerns and records at individual institutions were patchy, it was difficult to keep track of issues and ensure that incidents were reported to the appropriate regulators.

   b. The RNIB's trustees delegated oversight of the regulated institutions to committees. The report criticises these committees as ineffective: they provided only superficial scrutiny, over-relying on regulatory reports and meeting too infrequently to ensure that the regulated services were adequately monitored.

   c. RNIB's governing document required 50% of trustees to be elected and for a minimum of 75 per cent of trustees to be blind or partially sighted. This hampered its ability to ensure that the board included members with all the skills necessary to oversee the charity's operations.

   d. The board did not appear to have considered whether, strategically, it would be better for the RNIB to withdraw from certain services. There was limited documentation setting out the relationship between the RNIB and its subsidiaries, and no intragroup agreement defining the relationship between the entities and prescribing reporting arrangements.

It is relevant that the risk of harm at the charity's regulated establishments was not only theoretical – there was evidence of harm caused to beneficiaries and their families.

What can charities do?

Service-providing charities should read both the Commission’s inquiry report and its alert for charities on the importance of transparent and accountable governance. The alert provides advice on actions that trustees and executive teams can take to prevent problems like those at RNIB from arising.

The key things to bear in mind are that:

• Complexity "can increase the risk of communication breakdowns, especially if oversight is weak or compromised". There are risks associated with rapid growth, if unaccompanied by evolving governance and oversight arrangements.
  
  
• Trustees should ensure there are channels of communication between themselves and the executive/committees, review risks to the charity (and the approach to risk) regularly, make sure committees have appropriate terms of reference and suitably skilled members, and have processes in place to deal with internal and external complaints. Trustees may wish to review Charity Governance Code for further guidance.
  
  
• Executives should report regularly to the board on matters of concern (together with thoughts on how to deal with those matters), provide the information the board needs to be assured that risks are being handled, and make sure they are satisfied that third party providers are competent to accomplish their tasks.
  
  
• Charities are advised to establish (and regularly review) safeguarding policies and procedures, with reporting lines both within the charity and throughout any chain of structures through which the charity operates. Charities should devote sufficient resources to safeguarding, including properly skilled and trained personnel and a designated lead person. They should embed a culture that encourages people to speak up with concerns, and implement policies to deal with misconduct, "regardless of how senior the personnel involved may be".

Putting these systems in place requires a lot of strategic thinking, paperwork, and ongoing effort to ensure they are implemented and remain fit for purpose. However, as the RNIB report shows, it is important to be diligent, primarily for the sake of your beneficiaries, but also for your charity's reputation.

Farrer & Co's Safeguarding Unit consists of a team of lawyers from across different disciplines in the firm including safeguarding and child protection, for more information click here.

If you require further information about anything covered in this briefing, please contact Rachel Holmes, Philip Reed, or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, August 2020