An external review of our casework: 2019

This is the Executive Summary of an External Review of the Fundraising Regulator’s casework conducted in 2018/19.

Authored by Jon Wigmore, External Reviewer for the Fundraising Regulator


1.1    The Fundraising Regulator (FR), an independent, non statutory body, exists to:

“… stand up for best practice in fundraising, in order to protect donors and support the vital work of fundraisers.

We work in partnership with other regulators and the representative bodies in the charitable and fundraising sectors to build public confidence and ensure consistent fundraising standards across the UK.

We do this by:

  • setting and promoting the standards for fundraising (in the Code of Fundraising Practice and associated rulebooks) in consultation with the public, fundraising stakeholders and legislators
  • investigating complaints from the public about fundraising, where these cannot be resolved by the charities themselves
  • investigating fundraising that has caused significant public concern
  • enabling people to manage their contact with charities using our Fundraising Preference Service, and
  • publishing a Fundraising Directory of all organisations who have registered with us to demonstrate their commitment to best practice fundraising.”

1.2    The FR is funded mainly by levy paying charities. Charities fall within the voluntary levy if they spend £100,000 or more on fundraising. Levy payers agree to comply with the Code of Fundraising Practice and the Fundraising Promise. Against Breast Cancer (that I refer to as ABC or the charity) is a levy paying charity. 

1.3    I was appointed External Reviewer (ER) to the FR in May 2017. My involvement in this complaint, the first referred to me, was triggered by the Vice Chair of the FR on 13 June 2019. They wanted an external perspective following the submission of new evidence by ABC following the closure of an FR investigation into the charity and its agent, the Recycling Clothes Company (RCC). As ER I am required to provide findings and conclusions to the FR in respect of:

  • Any key facts that are in dispute;
  • The extent to which the complaint is justified;
  • Where any part of the complaint is upheld, any recommendations to put it right; and
  • Any recommendation or suggestion for improving the handling of complaints or the matter complained about.

1.4    I have based this review on the evidence provided to me by the FR and ABC/RCC (I refer to ABC/RCC and the FR collectively as the parties). The FR provided me with a 262 page evidence bundle starting with its dealings with the complainant from their first contact with the FR (1 October 2018). This bundle included responses from ABC/RCC to the FR’s queries during the life of the investigation (1 November 2018 to 29 January 2019) and documents related to later dealings between the parties. In this time the FR had issued a draft report (19 December 2019) followed by a final report. 

1.5    On 27 June 2019, I asked the parties a series of questions that they answered on 12 July 2019; further evidence was provided. On 2 August 2019, I issued a draft of this report to the parties simultaneously for comment. On 14 August 2019, I had a very helpful telephone conference with the chair of ABC, its Chief Executive and its Recycling and Customer Service Manager. Also that day, the FR responded to the draft, confirming that it accepted the provisional conclusions and recommendations (this was echoed by later comments from its Vice Chair and the Chair of its Complaints and Investigations Committee). On 15 August 2019, I had the pleasure of speaking to RCC’s Director of Governance and Operations. On 16 August 2019, ABC sent me a written response to the draft report. Further comments clarifying the involvement of the Vice Chair of the FR arrived shortly afterwards from the regulator and are reflected in the wording of paragraph 1.3 of this document. I have finalised this document with close attention to comments from the parties on the draft.

1.6    ABC exists to fund

“pioneering research into new treatments, tools for earlier diagnosis and advice to reduce the risk of recurrence and secondary spread. Working with expert scientists we want to increase the survival rates of all breast cancer patients and ultimately, discover a vaccine against breast cancer”.

1.7    ABC’s fundraising approach includes doorstep collections. ABC’s chair of trustees told the FR this about RCC, the company it uses to drop and collect collection bags:

“RCC and ABC have a long term relationship on clothes recycling, with RCC currently only providing such a service to ABC and no other charities. RCC nationwide doorstep collections are covered by the National Exemption Order held by Against Breast Cancer. The scale of this operation is that millions of bags are distributed annually via dozens of teams. In 2017 the FR received 4 complaints about ABC and investigated 3 of them. In 2018 the FR received 9 complaints about ABC and investigated 2 of them. So far in 2019, we are not aware that any complaints have been made.”

More information about RCC’s approach to charity bag distribution - the operational context of this complaint - is provided in the full report along with information about the national problem of charity bag fraud.

1.8    ABC confirmed the scope of its complaint to me in the following terms:

“We believe that with more, and crucially, clearer communications between all parties this case would have been satisfactorily resolved in a much shorter time span. We disputed the delivery of an ABC charity bag by RCC to the address in question, on the date claimed by the complainant. However, we felt that the decision taken 'on the balance of probability' failed to consider the supporting evidence we presented and that the FR did not give us the clarification advice we sought from the FR.”

1.9    The context of my review is FR’s investigation into the complainant’s complaint of a bag drop after their address was, they had been told, excluded by RCC. By way of background, ABC is the charity that the FR has received and investigated the most complaints about in relation to bag drops. The FR has three such live investigations and has received 34 complaints since December 2016, four of which were investigated and upheld to some extent. 

1.10    For their part, ABC and RCC feel that:

  • The FR’s approach to complaints about unwanted bag drops is disproportionate, and amounts to “seeking perfection in an imperfect world”; given the volume of bags dropped, the percentage of complaints is minuscule and belies the appreciation of many householders of the opportunity of having unwanted items removed with minimal overheads.
  • The FR is not mindful enough of the level of work for charities in meeting its requests for information; too many of these requests were repetitive and unnecessary as the information had been provided already.
  • The FR’s approach to evidence gathering in this and other cases has been one-sided and insufficient; there has been a “presumption of guilt” as far as the charity and its agent is concerned. 
  • The FR is not delivering sufficiently on its commitment to promote standards by providing guidance and sharing learning.
  • The FR’s approach to providing anonymised information about other investigations to enable ABC to benchmark is insufficient.

1.11    I found that during the FR’s investigation into ABC/RCC, sufficient opportunities were provided for ABC/RCC to meet the FR’s evidential requirements. The following disputed facts emerged: that a bag drop occurred on 29 September 2018; and that the complainant had made calls to RCC and the charity that had not been acted on. 

1.12    I did not think that ABC/RCC provided enough operationally-generated evidence in support of their position on the disputed facts. I set out in this review the form and standard of evidence that I would expect to be available if the safeguards described by RCC/ABC were working properly. I have reservations about the evidential value of individual operator denials, particularly when the system operated by RCC penalises the identification and admission of error (as well as its commission) by operators.

1.13    ABC/RCC struggled throughout to understand how they could prove that calls were not received and a drop did not occur, at specific times. I thought that the FR could have been more directive here but my overall conclusion was that there should have been more systemic evidence of complaint handling and distributor activity to reinforce ABC/RCC’s position. 

1.14    I am critical of the weight attached by the FR to the complainant’s evidence to it; and of its decision not to seek further evidence from him when the disputed areas emerged. Although I agreed with the FR that it was positioned to find that a bag had been dropped at some point on or in the days prior to the complaint, contrary to the rules, I felt that the complainant’s oral accounts of when they had phoned ABC/RCC and when the drop had occurred were rather vague. They had clearly said different things about the date of the drop to both RCC and the charity but this inconsistency did not seem to be taken into account by the FR at all. 

1.15    I concluded that the FR’s decision making hinged on its insufficiently reasoned preference for the complainant’s rather vague evidence over ABC/RCC’s and that this was unfair. But I also kept in mind the fact that the evidence put forward by ABC/RCC in the life of the investigation did not provide sufficient assurance about its operations in the area at the time; and that there was evidence of a second drop. I therefore partially upheld the complaint.

1.16    In my conclusion, I did not find that the complainant’s presenting evidence represented a sufficient foundation on which to fully support all of the code breaches found by the FR and the consequential recommendations. However, I did find that some breaches related to complaint handling and the delivery of the bag were sustainable.

1.17    I had reservations about the way the FR conflated ABC/RCC’s denials that an incident had occurred with a refusal to learn lessons. And I did not think that ABC/RCC should be penalised for not reporting the matter to Action Fraud if they genuinely judged that imposters had not been operating on the complainant’s street. But here, and in other aspects of the investigation process, ABC/RCC needed to explain their thinking far more plausibly and with more direct references to the Code they subscribe to if their position was to be seen by the regulator as authoritative.

1.18    In line with the Regulator’s Code, the FR’s approach to ABC/RCC draws on a broader assessment of risk than that afforded by this single case. Clearly this informed the FR’s recommendations and therefore I do not regard it as within my ambit to comment in detail on them. I have reproduced ABC/RCC’s comments on the FR’s summary of past and current investigations in the full report and highlighted their Continuous Improvement Log as evidence of learning. 

1.19    I recommend that:

  • A member of FR staff or a board member not involved in the original investigation should review FR’s reasoning in light of my findings and comments about the contested evidence. This review should take on board my thoughts about the undue certainty attached by FR to the prior contact the complainant said they had had before the bag drop/drops; and about the date of the drop that had triggered their complaint to the FR. The FR should revisit the consequential code reasoning and recommendations. The review should also take into account ABC’s Continuous Improvement Log that summarises its responses to previous FR recommendations and the delivery staff’s affidavits ABC provided after the investigation ended.
  • The FR should review its handling of contested evidence in light of this case. An adverse regulatory finding is significant for a charity and should be founded on firm, and if necessary tested, evidence.
  • Given my view that both the FR and ABC/RCC had a part to play in the deadlock that arose in the investigation, I also recommend that the parties reflect further on ways of communicating better in future as they are committed to doing. 

1.20    Both the FR and ABC have affirmed to me their sincere commitment to continuing to work together constructively in order to ensure that the charity’s fundraising meets all of the requirements enshrined in the code. In the scheme of things, the deficits identified in the parties’ involvement in this investigation are relatively minor. They afford ample opportunity for learning and development on both sides as this important regulatory regime beds in. Both organisations tackle challenging work of considerable value to society and I hope that my thoughts in this review contribute positively to their efforts.

Biographical note: Jon Wigmore

Jon’s experience in the charity sector goes back to 1983 when, aged 18, he worked as a live-in volunteer in the Simon Community in Glasgow. Over the following twenty years he has worked in homelessness charities in Bristol, Bradford and London, latterly having trained and practised as a psychiatric nurse. 

Since 2002 Jon has worked in investigative and independent adjudication roles for the Health Service Ombudsman and other regulators and providers. Between 2008 and 2011, he held the statutory role of Ethical Standards Officer under the Local Government Act 2001. This required leading investigations into the conduct of local politicians and, where necessary, taking them to the national tribunal for determination. This required careful and neutral evidence gathering and reasoning. Jon is used to being put to proof when putting allegations of code breaches before a tribunal. 

In the last 8 years, working through his company ch&i associates, Jon has acted as independent complaints reviewer for the Charity Commission, the Department for Transport, the GMC and others. 

Jon is a trustee of East Cheshire Housing Consortium, a local charity providing support and housing services to people with severe mental health problems. 

Last year he was part of the team led by the ethicist Dr Suzanne Shale that undertook the independent culture review of Save the Children UK.