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5. Duties of Charity Trustees under the Charities Act 2009
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The Charities Act 2009 sets out additional duties for charity trustees, as well as those outlined previously. It is important to remember that you may not profit from carrying out your duties as a charity trustee. However, reasonable expenses incurred in carrying out your duties may be reimbursed by your charity.
What are the additional duties of charity trustees under the Charities Act 2009?
Ensure that your charity is registered on the Charities Regulator’s Register of Charities
You must ensure that your charity is registered with the Charities Regulator and you must keep your details up to date with us. It is an offence to knowingly or recklessly provide false or misleading information to the Charities Regulator when registering your charity. It is an offence for any person on behalf of a charitable organisation, or for a body corporate that is a charitable organisation, to carry on activities in the State, if the charitable organisation is not registered, or deemed to be registered. If a body is representing itself as being a charity, it will be guilty of an offence if it has failed to register with the Charities Regulator.
You must make sure that your charity keeps proper books of account. The books of account must have entries from day to day of all money received and paid out by your charity. A record of the assets and liabilities of your charity must also be maintained. Under the Charities Act 2009 you must ensure that books of account are preserved for at least six years from the end of the financial year to which they refer.
Ministerial regulations regarding the form and content of annual statements of account for charitable organisations are yet to be introduced. The regulations are currently being finalised following a period of public consultation.
The current position of the Charities Regulator is: You must make sure that your charity prepares and furnishes a statement of accounts for each financial year to the Charities Regulator. Charity trustees must arrange for the accounts to be audited within nine months of the end of the relevant financial year, subject to exceptions as outlined in section 50 of the
Charities Act 2009.
If your charity’s gross income or total expenditure is less than €10,000 in a financial year then under section 48(6) of the Charities Act 2009, the requirement to prepare an annual statement of accounts currently does not apply.
It is optional to submit a profit and loss account or an income and expenditure account and statement of assets and liabilities of your charity to the Charities
Regulator. If your charity’s gross income or total expenditure is less than €100,000 in a financial year, an income and expenditure account and a statement of assets and liabilities of your charity may be submitted to the Charities Regulator instead of a statement of accounts.
Currently, education bodies and companies are exempted from submitting accounts to the Charities Regulator. However, such bodies may have obligations to submit their accounts elsewhere, e.g. in the case of companies they must file annual accounts with the Companies Registration Office. It is your responsibility as a charity trustee to review the relevant legislation on a regular basis, to ensure that your charity is meeting applicable accounting requirements.
Regardless of the size of your charity, you must prepare and submit an annual report to the Charities Regulator regarding your activities in that financial year. This annual report is due within 10 months after the end of each financial year and should include the financial accounts of your charity (if applicable). Please visit the Charities Regulator’s website www.charitiesregulator.ie to access the Charities Regulator Annual Reporting User Guide (S.40).
Ensure the Charities Regulator is informed if you are of the opinion that there are reasonable grounds for believing a theft or fraud has occurred (Disclosure obligation)
If, in the course of your duties, information comes into your possession that causes you to form the opinion that there are reasonable grounds for believing that an offence under the Criminal Justice (Theft and Fraud Offences) Act 2001 has been, or is being, committed, you have a duty to disclose this to the Charities Regulator in writing, as soon as may be. You should provide the Charities Regulator with a report in writing, as soon as may be, outlining the particulars of the grounds upon which your opinion was formed.
Failure to provide a report in writing to the Charities Regulator in such circumstances is an offence under section 59(2) of the Charities Act 2009, as is knowingly submitting a false report.
You must comply with any statutory direction in writing by the Charities Regulator to provide information or documentation to enable us to carry out our functions. This includes producing documents and records or providing explanations as to the whereabouts of these documents if not produced.
Failure to comply with such a direction is an offence under section 68 of the Charities Act 2009.
You must also assist an inspector appointed by the Charities Regulator to investigate your charity. This includes producing any documents and records required for the investigation and you may be required to attend before an inspector. An inspector may also require you to furnish documents relating to your bank account if they have reasonable grounds to believe that money connected with any act by you, constituting misconduct in respect of the charity, passed through your account.
It is an offence to obstruct or interfere with an Inspector who is exercising a power conferred on him or her by a warrant issued under section 69 of the Charities Act 2009.
Please note this duty to comply with directions issued by the Regulator also applies to former charity trustees of your charity.
