L8.0 Professional Fundraisers and Agreements L8.0 Professional Fundraisers and Agreements
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Note: MUST* and MUST NOT* (with asterisk) denotes legal requirement
MUST and MUST NOT (without asterisk) denotes requirement of the Code of Fundraising Practice
This section applies to fundraising organisations which are charities
L8.2 England and Wales – Definition of a Professional Fundraiser
A “Professional Fundraiser” is:
i) any person who carries on a business for gain which is wholly or primarily engaged in soliciting or otherwise procuring money or other property for charitable, philanthropic or benevolent purposes (but charities themselves and their trading subsidiaries are excluded)
ii) any other person who solicits money or other property “for reward” (but again charities themselves, their employees and trustees and charity trading subsidiaries are excluded.) There are also exclusions aimed at celebrities who do TV or radio appeals, low paid fundraisers – i.e. those who do not receive more than £1,000 per year or £10 per day, and businesses which fall within the definition of commercial participator.
L8.3 Scotland- Definition of a Professional Fundraiser
The relevant law is set out in the Charities and Trustee Investment (Scotland) Act 2005 (“the 2005 Act”) and the Charities and Benevolent Fundraising Regulations (Scotland) 2009
A “Professional Fundraiser” is:
- any person (other than a benevolent body or a company connected with it) who carries on a fundraising business – being a business carried on for profit which is wholly or primarily engaged in soliciting or otherwise procuring money or promises of money (but, unlike England and Wales, not other property) for one or more particular benevolent body, or for charitable, benevolent or philanthropic purposes; OR:
- any other person who, other than in the course of a fundraising venture undertaken by a person within the above definition, for reward solicits money or other property for the benefit of a benevolent body or for charitable, benevolent or philanthropic purposes, but excluding:
- i) a benevolent body or a company connected with it
- ii) any person concerned in the management or control of, or who is an employee of, a benevolent body or connected company
- iii) people who solicit funds at the instance of a benevolent body or connected company in the course of a TV or radio programme during which that body undertakes a fundraising venture
- iv) commercial participator
Unlike England and Wales, those undertaking public charitable collections are not exempted. In addition, while Scotland has provision allowing it to pass similar de minimus rules to those that exist in England and Wales, it has not used this power.
L8.4 England and Wales, and Scotland: Requirement to have a Written Agreement
L8.4.1 Written Agreements
a) It is unlawful for a professional fundraiser to solicit money for a particular institution unless it is done in accordance with a written agreement with the organisation it is raising funds for. The agreement MUST* be in writing and signed by or on behalf of both the professional fundraiser and the organisation it is raising funds for. The agreement MUST* specify:
The names and addresses of all the parties to the agreement;
The date on which each party signed and the duration of the agreement;
- any terms dealing with early termination or variation;
- a statement of the principal objectives of the agreement and the methods to be used to achieve those objectives;
- terms for the payment of fees and expenses to the Professional Fundraiser; and
- if more than one charity is involved, how funds raised will be shared between them.
b) Fundraising agreements between Charities registered in England and Wales and professional fundraisers MUST* include:
- details of any voluntary regulatory fundraising scheme or standard that the professional fundraiser undertakes to be bound by;
- how the commercial organisation will protect the public from unreasonable intrusion on a person’s privacy, unreasonably persistent approaches or undue pressure to give; and
- how compliance with the agreement will be monitored by the charity, as specified within section 13 of the Charities (Protection and Social Investment) Act 2016.
L8.4.2 England and Wales – Professional Fundraisers: other requirements
a) A professional fundraiser MUST* comply with further specific disclosure requirements in relation to television, radio and telephone appeals: (Sections 60(4)(5)(6) of the 1992 Act), including rights to cancel a donation and receive a refund (Section 61 of the 1992 Act).
b) A professional fundraiser with an agreement in place with a fundraising organisation MUST* on request make its books, documents and records relating to that organisation available for inspection and MUST*, subject to a reasonable excuse, pass on funds to the organisation as soon as reasonably practicable and within a maximum of 28 days.
L8.4.3 Scotland – Professional Fundraisers: other requirements
a) A professional fundraiser MUST* pass on funds to the charitable institution/benevolent body in accordance with the Regulations. In Scotland, the funds MUST be passed on as soon as reasonably practicable and in any event within a maximum of 28 days of receipt. Scots law does not permit the parties to agree otherwise, nor does it make an exemption where there is a reasonable excuse.