OG702 Authorised Officer powers

Last reviewed:
11 April 2012
Last updated:
5 September 2014

Policy Statement/Overview

An Authorised Officer is a person who is authorised, under powers in the Charities Act, to carry out an action on behalf of the Commission.    

Our policy is that all Authorised Officers, regardless of grade or seniority, are able to take a decision to exercise any of the Commission's powers relevant to that Authorised Officer's function area, unless the exceptions grid (see Charts) indicates that the decision to exercise a power must be taken at an escalated level.

The exceptions grid indicates the minimum level at which a decision must be taken. The appropriate Authorised Officer might decide that, for any reason, the decision should be taken at a higher level than as set out in the grid. 

Where a decision must be taken at an escalated level, this does not mean that the actioning of the power must be carried out at that level. As long as the decision is taken at the correct level, and this is clearly recorded, the action of giving consent, by making an Order etc, can be carried out at a different level.

Authorised Officer powers are linked to the post a person holds in the Commission and not to a person's grade.

Summary of the guidance

This guidance:

  • explains what we mean by 'Authorised Officer powers' and sets out the legal basis behind our Authorised Officer policy 
  • includes the exceptions grid that indicates which decisions must be taken at an escalated level, according to different function areas
  • explains how our Authorised Officer policy is applied during the course of a case.

OG Contents (Site map)

Casework Guidance

B1 Assessing new work in First Contact Allocation Gateway

All new post, email or telephone traffic usually comes into the Commission via the First Contact Allocation Gateway. At this point, the correspondence is assessed against the function brief and allocated to the CRM queue of the appropriate function area in accordance with the Commission's Risk Framework. No detailed risk assessment is undertaken nor is the level of Authorised Officer (AO) powers considered.

B2 What to do once new work reaches the relevant function area

Once the incoming correspondence has been allocated to the appropriate CRM queue, the gatekeeper will consider:

  • the issues, and level of risk, using the Risk Framework and any local allocation criteria 
  • the AO powers that might need to be exercised, using the AO exceptions grid (see Charts).

Having done this, the gatekeeper will allocate the case to a caseworker adding any instructions or directions as necessary.

B3 Making and recording decisions during a case  

The caseworker will take responsibility for the case and, in most cases, will be able to take all decisions and actions necessary to resolve the case. They will ensure that regulatory advice and decisions are taken at the correct level, according to the standard for the function, the issues and risks of the case and in accordance with the AO exceptions grid (see Charts).

If the AO exceptions grid indicates that a decision to exercise a power must be taken at an escalated level, or if the circumstances of the case lead the caseworker to think a more senior person should be involved, the caseworker should first talk to the relevant senior officer. The senior officer might:

  • advise the caseworker (but leave any decision to exercise a power to the caseworker)
  • make a decision to exercise a power on the case but leave case ownership and the responsibility for actioning the power with the caseworker (it is not necessary for the person making the decision to action the power by making an Order, etc)   

or

  • take over ownership of the decision or the case.

Whatever action is taken, this must be clearly recorded on the case. This is particularly important where the decision is taken at an escalated level but where the actioning of the power is carried out at a different level.

During the course of the case, additional issues or information may come up that require us to decide whether to exercise a power that was not apparent at the outset, or alter the risk level of the case. Where this happens, the caseworker takes responsibility for reassessing the case, checking any relevant powers against the AO exceptions grid and taking whatever action is appropriate.

Top of page

Charts

Summary of exceptions by function area

C1 First Contact, Operations & Registration

If a case is allocated to an Authorised Officer, they are able to exercise the relevant powers to resolve that case, except as set out below. 

Section 2011 Act  Description Level of authority
Section 42 Directing a charity to change its name Head of Function
Section 52 Information gathering

Where the Order is to a bank and relates to a charity account - Case Manager

Where the Order is to a bank and is unrelated to a charity account - Head of Function

All other s.52 Orders - Senior Case Manager 

Section 73 Establishing a Parliamentary Scheme Case held by Legal Services, decision taken by Head of Legal Services and Chief Legal Adviser
Section 85 Directing application of property Head of Function
Section 96 Common Investment Funds Board and Executive CIF Committee
Section 100 Common Deposit Funds Board and Executive CIF Committee
Section 105 Order authorising litigation costs only (not other s105 Orders) With written legal advice
Section 105

Order authorising payment of half, or more than half, of a charity’s trustee board for serving as trustee (not other s105 Orders)

With Head of Function advice
Section 106 Ex-gratia payments With Legal SMT advice (and, if it is likely that payment should not be made, with Head of Legal Services and Chief Legal Adviser's agreement)
Section 110 Advice regarding reimbursement of litigation costs only, not other s110 advice With written legal advice
Section 111 Determining membership Head of Function
Section 114 Taking of legal proceedings and compromising claims  Case held by Legal Services, decision taken by Head of Legal Services and Chief Legal Adviser with the agreement of the Attorney General
Section 115 Authorising charity proceedings With written legal advice
Section 181 Power to waive trustee disqualification Head of Function (or as delegated locally by Head of Function)
Section 191 Power to relieve trustees etc from liability With legal advice, decision taken by Legal SMT member responsible for Compliance work, with Chief Legal Adviser's agreement

Section 198      

  

Consent to a regulated alteration that allows a charitable company to pay half, or more than half, of the charity’s trustee board for serving as trustee (not other s198 consents)  With Head of Function advice
Section 226 Consent to a regulated alteration that allows a CIO to pay half, or more than half, of the charity’s trustee board for serving as trustee (not other s226 consents) With Head of Function advice

Top of page 

C2 Investigations and Enforcement

If a case is allocated to an Authorised Officer, they are able to exercise the relevant powers to resolve that case, except as set out below. 

Section 2011 Act  Description Level of authority
Section 42 Directing a charity to change its name Head of Unit
Section 46 Decision to open an inquiry Head of Unit  (An exception to this authorisation procedure is in the Pre Investigations Assessment and Monitoring Unit where the authority may be given by the PB5 Pre Investigations Assessment and Monitoring Manager
Section 47 Direction to provide certain documents Senior Investigator, except for 47(2)(c) & 47(3) Head of Unit
Sections 48 & 49 To enter and seize property Head of Function with written legal advice
Section 52 Information gathering

Where the Order is to a bank and relates to a charity account - Investigator

Where the Order is to a bank and is unrelated to a charity account - Head of Unit

All other s.52 Orders - Senior Investigator

Section 73 Establishing a Parliamentary Scheme Case held by Legal Services, decision taken by Head of Legal Services and Chief Legal Adviser
Section 76(3)(a) Suspension of a trustee, etc  Head of Unit with legal advice
Section 76(3)(b) Appointment of trustees Senior Investigator
Section 76(3)(c) Vesting or transferring property in the name of the OC Senior Investigator with legal and Head of Unit advice
Section 76(3)(d) Order not to part with property Head of Unit
Section 76(3)(e) Order debtor not to make payment  Head of Unit, unless HoU authorises an Investigator or Senior Investigator to take the decision
Section 76(3)(f) Order to restrict transactions Head of Unit
Sections 76(3)(g) & 78 Appointment of an interim manager Head of Unit with legal advice
Section 79(2) Removal of trustee, etc Head of Unit with written legal advice
Section 79(2)(b) Establish a scheme for the administration of a charity Head of Unit with written legal advice
Section 80(1) Removal of trustee Head of Unit
Section 80(2) Appointment of trustee Investigator with line manager and Head of Unit advice
Section 83 To suspend or remove trustee from membership Head of Unit with legal advice
Section 84 To give specific directions for protection of charity

Straightforward directions relating to missing accounts, reports and returns - Investigator

All other cases - Senior Investigator with Head of Unit advice

Section 85 Direct application of property Senior Investigator with Head of Unit advice
Section 96 Common Investment Funds Board and Executive CIF Committee
Section 100 Common Deposit Funds Board and Executive CIF Committee
Section 105 Order authorising litigation only (not other s105 Orders) With written legal advice
Section 105

Order authorising payment of half, or more than half, of a charity’s trustee board for serving as trustee (not other s105 Orders)

With Head of Unit advice
Section 106 Ex-gratia payments With Legal SMT advice (and, if it is likely that payment should not be made, with Head of Legal Services and Chief Legal Adviser's agreement)
Section 110 Advice regarding reimbursement of litigation costs only, not other s110 advice With written legal advice 
Section 111 Determining membership Head of Unit with legal advice
Section 114 Taking of legal proceedings Case held by Legal Services, decision taken by Head of Legal Services and Chief Legal Adviser with the agreement of the Attorney General
Section 115 Authorising charity proceedings With written legal advice
Section 181   Power to waive trustee disqualification Head of Unit (or as delegated locally by Head of Unit)
Section 191 Power to relieve trustees etc from liability With legal advice, decision taken by Legal SMT member responsible for Compliance work, with Chief Legal Adviser's agreement
Section 198 Consent to a regulated alteration that allows a charitable company to pay half, or more than half, of the charity’s trustee board for serving as trustee (not other s198 consents) With Head of Unit advice
Section 226 Consent to a regulated alteration that allows a CIO to pay half, or more than half, of the charity’s trustee board for serving as trustee (not other s226 consents) With Head of Unit advice

Top of page  

C3 Legal Services

If a case is allocated to a Legal Officer, they are able to exercise the relevant powers to resolve that case, except as set out below. 

Section 2011 Act  Description Level of authority
Section 73 Establishing a Parliamentary Scheme Head of Legal Services and Chief Legal Advisor
Section 96 Common Investment Funds Board and Executive CIF Committee
Section 100 Common Deposit Funds Board and Executive CIF Committee
Section 106 Ex-gratia payments With Legal SMT advice (and, if it is likely that payment should not be made, with Head of Legal Services and Chief Legal Adviser's agreement)
Section 114 Taking of legal proceedings and compromising claims  Head of Legal Services and Chief Legal Adviser with the agreement of the Attorney General
Section 191 Power to relieve trustees etc from liability Legal SMT member responsible for Compliance work, with Chief Legal Adviser's agreement
Top of page

Legal and Policy Framework

E1 The legal basis of Authorised Officer powers

E1.1 The Charities Act

Paragraph 5 of Schedule 1 of the Charities Act 2011 states, under the heading 'Staff', that:

'(1) The Commission –

(a) must appoint a chief executive, and

(b) may appoint such other staff as it may determine.

(2) The terms and conditions of service of persons appointed under sub-paragraph (1) are to be such as the Commission may determine with the approval of the Minister for the Civil Service.'

Paragraph 7 of Schedule 1 of the Charities Act 2011 states, under the heading 'Procedure, etc', that:

'(1) The Commission may regulate its own procedure (including quorum).

(2) The validity of anything done by the Commission is not affected by -

(a) a vacancy among its members, or

(b) a defect in the appointment of a member.'

Paragraph 8 of Schedule 1 of the Charities Act 2011 states, under the heading 'Performance of functions', that:

'Anything authorised or required to be done by the Commission may be done by -

(a) any member or member of staff of the Commission who is authorised for that purpose by the Commission, whether generally or specially;

(b) any committee of the Commission which has been so authorised.'

E1.2 The Commission's Governance Framework

Appendix V of the Governance Framework adopted by the Commission states:  

‘1.2 The majority of operational decisions are delegated to the Chief Executive, in line with his responsibilities for managing the Commission in accordance with the strategic, planning and budgetary parameters, and risk management strategy approved by the Board.  

1.3. The Commission's quasi judicial powers are delegated by the Board through the Chief Executive to the SMT and staff designated as duly authorised members of staff of the Charity Commission (in accordance with current statute).’

Top of page

E2 Our policy regarding Authorised Officer powers 

Our policy is that an Authorised Officer is able to make a decision to exercise any powers available to the Commission. This applies to powers given by all sections of the Act, except where we have decided that the decision must be taken by an officer holding a particular senior post. This might be because the power to be exercised carries with it inherent risks. The level at which decisions must be taken varies depending on the function area that handles the case. The decision levels in Investigations and Enforcement are different to those in First Contact, Operations and Registration, this is because the risks involved in cases handled in IAE are likely to be higher and the regulatory issues the most serious.  

Even where the exceptions grid indicates that a decision must be taken at an escalated level, the actioning of the power can be carried out at a different level.

Top of page

E3 Authorised Officer powers and the Risk Framework

While the levels at which Authorised Officer powers can be exercised are set out in this OG, these are the minimum levels at which decisions can be taken. There may be other factors, regardless of the AO powers to be exercised, that raise the risk of a case to the extent that the case should be handled, or decisions taken, at an escalated level. The Commission's Risk Framework should be used to determine whether or not this is the case.

Top of page

E4 The use of Authorised Officer powers in First Contact, Operations and Registration  

All Authorised Officers in First Contact, Operations and Registration can make decisions regarding the exercise of all of the powers relevant to a case held in these function areas, subject to:

  • the case being handled in accordance with relevant desk guidance;
  • the case being appropriately assessed against the Risk Framework; and
  • where the power to be exercised is not one of those set out below (and in the exceptions grid).  

E4.1 Where the decision must be taken by a Head of Function

Decisions regarding the exercise of the following powers must be taken by a Head of Function in First Contact, Operations or Registration (although the actioning of the authority can be delegated as appropriate):

  • Section 42 - directing a charity to change its name
  • Section 52 - to obtain information
  • Section 85 - to direct the application of charity property where the person in possession or control of the property is unwilling to apply it for its proper purposes
  • Section 111 - to determine the membership of a charity on the application of the charity
  • Section 181 - to grant a waiver from trustee disqualification (this power can be delegated as required by the Head of Function)

E4.2 Where written legal advice is required

  • Section 105 - where the Order authorises litigation costs only (not other s105 Orders) 
  • Section 110 - where the formal advice is regarding the reimbursement of litigation costs (not other s110 advice) 
  • Section 115 - to authorise charity proceedings. Any case involving the exercise of our power to authorise charity proceedings is likely to carry a heightened risk as defined by the Risk Framework. Whether or not this is the case, due to the complexities of this kind of case we must always take written legal advice before making our decision. 

E4.3 Where Legal SMT advice is required 

  • Section 106 - considering an application concerning ex-gratia payments. Use of this power is devolved from the Attorney General (AG) and we share this power with the AG. Because of this, and because of the need for knowledge of wills and probate, a decision regarding this type of case can only be taken following Legal SMT advice. This advice might suggest that it is appropriate for the decision to be escalated or the case transferred to Legal. Any case where the Legal SMT advice indicates that an ex-gratia payment should not be made must be agreed by the Head of Legal Services and Chief Legal Adviser. Additionally, very difficult and complex cases, in particular cases where there may be political or public interest sensitivity, should be held by Legal Services. These cases will require consultation with the Attorney General.   

E4.4 Where the decision must be taken by Legal 

  • Section 191 - applying the Commission's power to relieve from liability a trustee, an auditor or an examiner of a charity's accounts. A case regarding the exercise of this power should be conducted having taken legal advice, with the decision taken by the Legal SMT member responsible for Compliance work, with the agreement of the Chief Legal Adviser.

E4.5 Where the case must be held by Legal  

  • Section 73 - establishing a Parliamentary Scheme. Section 73 cases should be held by Legal Services with the decision taken by the Head of Legal Services and Chief Legal Adviser. This type of case will require detailed consultation with the Office of Civil Society and the Parliamentary Statutory Instruments Committee.
  • Section 114 - decisions regarding the taking of legal proceedings or compromising claims. Section 114 cases should be held by Legal Services with the decision taken by the Head of Legal Services and Chief Legal Adviser with the agreement of the Attorney General.

E4.6 Where Board involvement is required

  • Section 96 & section 104 - Common Investment Funds and Common Deposit Funds. All decisions regarding the establishment of CIFs or CDFs must be taken by the Board and the Executive CIF Committee.

Top of page

E5 The use of Authorised Officer powers in Investigations and Enforcement

All Authorised Officers in Investigations and Enforcement (IAE) can make decisions regarding the exercise of the same powers available to First Contact, Operations & Registration, subject to:

  • the case being handled in line with IAE desk guidance and standard processes and in accordance with OG117;
  • the case being appropriately assessed against the Risk Framework; and
  • with the same exceptions as set out in E4 (except that decisions regarding sections 42, 52, 85,111 & 181 powers are escalated to a Head of Unit in IAE rather than a Head of Function in Operations). 

There are additional powers that are available to the Commission once we open an inquiry and these will be used in IAE. All decisions regarding the use of these powers must be taken in accordance with the criteria set out in C2. This refers to the level at which the decision is made, the actioning of the power does not have to be carried out by the person making the decision. The making and authorising of the Order can be delegated as appropriate.

Top of page

E6 The use of Authorised Officer powers in Legal Services 

There may be cases of any kind which, due a particularly high level of complexity, should be held in Legal Services. This will be decided on a case by case basis.

In addition, cases regarding two specific sections of the Act, and one residual category, must always be held in Legal Services:

  • Section 73 - establishing a Parliamentary Scheme. Section 73 cases should be held by Legal Services with the decision taken by the Head of Legal Services and Chief Legal Adviser. This type of case will require detailed consultation with the OCS and the Parliamentary Statutory Instruments Committee.
  • Section 114 - decisions regarding the taking of legal proceedings or compromising claims. Section 114 cases should be held by Legal Services with the decision taken by the Head of Legal Services and Chief Legal Adviser with the agreement of the Attorney General.
  • Taking and defending legal proceedings on behalf of the Commission in both the Tribunal and the High Court - in these cases relevant Commission powers may be exercised by the case-owning legal officer subject to the qualifications outlined above and otherwise subject to approval by a member of Legal Services SMT.

    Top of page

Q&A

F1 What do we mean by 'Authorised Officer'?

We use the term 'Authorised Officer' to mean a member of staff of the Commission authorised to carry out an act on behalf of the Commission. The power to grant this authority is given by paragraphs 5, 7 & 8 of Schedule 1 of the Charities Act and the authority is given under paragraphs 1.2 and 1.3 of Appendix V to the Governance Framework adopted by the Commission (see E1).

Top of page

F2 What are Authorised Officer powers?

'Authorised Officer powers' refers to the power to take decisions regarding the exercise of Commission powers. The actioning of the power does not have to be carried out by the person making the decision, as long as the decision itself is taken at the correct level.

Top of page

F3 How are Authorised Officer powers given?

A staff member is given Authorised Officer powers by the Commission's Chair or Chief Executive on the request of the relevant Head of Function. This request would usually be made once the Head of Function is satisfied that the person has reached the required level of competence in a job and once it becomes necessary for the person to exercise an Authorised Officer power for the first time.   

To request Authorised Officer powers, the Head of Function should email the Governance team with the following:

'Please consider delegating Authorised Officer powers to [name]. I confirm that he/she has reached a sufficient level of competence to exercise the powers relevant to this function area.'

If the request is approved, the Chair or Chief Executive will sign a letter stating:

'In exercise of the powers delegated to me by the Board, under powers conferred by section 13(6) of, and paragraphs 5, 7 & 8 of Schedule 1 to, the Charities Act 2011, I appoint [name] to be an Authorised Officer of the Charity Commission.'

The name of the Authorised Officer should be recorded, by the Governance team, in the Authorised Officer database in CeRIS.

Top of page

F4 Are Authorised Officer powers linked to grades?

We do not set out Authorised Officer powers in relation to the grade of the officer required to make the decision, instead, we refer to the post held by the officer. This is because the post held by an Authorised Officer is not necessarily related to the officer's grade.

Top of page

F5 Does the decision maker have to action the power?

The person making the decision to exercise a power does not have to action the power (eg, make the Order). As long as the decision is taken at the correct level, and this is properly recorded, the actioning of the power can be carried out at a different level (see B3). 

Top of page

F6 How do we decide at which level a decision is made?

The position we have adopted is that all Authorised Officers can make decisions about all powers given by the Act, except where we have decided that particular decisions should be taken by officers holding a specific post (or where the Risk Framework indicates a heightened risk). 

The level at which certain decisions must be taken varies depending on the function area that holds the case. The decision levels in Investigations and Enforcement are different to those in First Contact, Operations and Registration, this is because the risks involved in cases handled in IAE are likely to be higher and the regulatory issues the most serious. The exceptions grid (see Charts) sets out the decision levels by section of the Act.   

Top of page

F7 What if we are refusing to exercise a power?

Taking a decision not to exercise our available powers is no different from taking a decision to exercise our powers. This means that the same criteria apply in either case. However, our AO powers policy only applies once it has been established that one of our powers is required in a particular case. This does not apply, for example, where a complainant asks the Commission to open a s46 inquiry but where the complaint is so minor that a First Contact team member decides that an inquiry is not appropriate. A decision not to open a s46 inquiry need only be taken in accordance with our AO powers policy where the case has gone through the full process leading up to the possible opening of an inquiry within IAE.

Top of page

F8 What if we are varying or discharging an Order or Scheme made in relation to the exercise of a power?

Where the exercise of one of our powers has resulted in us making an Order or a Scheme, any decision we take to vary or discharge the Order or Scheme must be taken in accordance with our Authorised Officer policy set out in this guidance. So, if the exceptions grid indicates that the decision to exercise a power must be taken at a specific level of authority, then the decision to vary or discharge any documentation related to the exercise of this power must be taken at the same (or a higher) level of authority.

Top of page