There have always been differences in the law applying to be a charity in England, Wales and Scotland, but with increasing devolution these differences are multiplying rapidly. One of the most significant is the power of the Scottish Parliament to vary the income tax rate in Scotland which could have implications for Gift Aid recovery by charities.
A key issue for any charity operating in England & Wales (and Cornwall) is whether it should also register with the Scottish charity regulator (OSCR). The threshold to require registration is not as high as you might think and increasingly charities which mainly work in England, but carry out limited operations in Scotland may be required to register there also.
The starting point is that all bodies wishing to represent themselves as charities in Scotland need to register with OSCR. It is then a matter of whether one of the exemptions applies.
Key factors to be taken into account are:
- whether you wish to represent yourself as a charity in Scotland
- whether you are recognised as a charity in England & Wales
- whether your organisation is managed or controlled wholly or mainly within Scotland
- whether your organisation occupies land or premises in Scotland
- whether you carry out activities in any office, shop or similar premises in Scotland.
Various of these points are widely drawn. For example, if you hold regular self-help groups for a particular illness in a Church hall in Scotland without owning or having a formal lease it could still be considered occupying land. Also, fundraising activities can be taken into account.
There are consequences and enforcement action can be taken against you if you fail to register in Scotland when legally required to do so.
If you need advice on whether you should be registering in Scotland please contact 01726 74433 or enquiries@stephens-scown.co.uk.