A Freedom of Information request has revealed that the 4 Winds Trust has been under investigation by the Scottish charity regulator for multiple breaches since 18 May 2015. Lochgelly, Lumphinnans, Auchtertool and Cowdenbeath community councils are all members of the 4 Winds Trust, but it appears that the community councils were kept in the dark about the investigation by the trustees, which include Lochgelly community councillors Stevie Murray and Brian Schulz.
The 4 Winds Trust is a local charity that was set-up to distribute funds from the Little Raith Wind Farm and it is managed by community councillors in the Central Fife area.
The Freedom of Information response, which was published on the website whatdotheyknow.com on 15 March 2016, shows that on 18th May 2015 OSCR (Office for the Scottish Charity Regulator) began inquiring into the reason for the non-submission of audited annual accounts for the financial year 2013-2014.
OSCR’s email of 18th May 2015 to the 4 Winds Trust appears to have been ignored by Trustees until early October 2015 when Trustee Stevie Murray started contacting OSCR to discover if any complaints had been made against the 4 Winds Trust.
On 30 October OSCR wrote a letter to Mr Murray informing him “as the principal contact and trustee of the above named charity that the Office of the Scottish charity regulator has received a complaint about the charity”. It asked him to “bring this letter to the attention of all the charity trustees”.
As to the complaint, it states that a
The trustees have not been following the constitution in relation to:
- Keeping minutes
- Forming a quorum
- Annual members meetings
- Community councillor membership
- Submitting accounts for 2014
The letter also asks Mr Murray to provide the following information:
- A list of the current trustees, detailing full names, private addresses, dates of appointment and method of appointment.
- Names and addresses of any connected bodies, such as trading arms or directly associated organisations, businesses or companies, detailing the nature of the relationship and in the case of any trading arm, a copy of its founding document.
- Copies of the minutes of all meetings of the charity’s governing body held since gaining charitable status.
- Copies of the minutes of the last two Annual General/Members Meetings the charity has held.
- Copies of the minutes of any extraordinary general meetings held since April 2013.
- A comment from the trustees regarding the allegations made about the charity if they wish to provide a response.
On November 23 2015 OSCR emailed Mr Murray the same letter, asking whether the address they hold for him is up to date as their original letter has been returned. Mr Murray responds by emailing OSCR to claim that the home address is incorrect and that “I am not and have never been named as a principal contact” for the 4 Winds Trust (despite his details being logged in OSCR as being such) and to allege that the complaint is part of a personal vendetta:
I am of the opinion that there is a personal vendetta being conducted against me by certain individual(s) from the town and given that they previously falsely alleged that the Trust were being investigated I find it strange that this has now arisen.
In its response OSCR points out the 4 Winds Trust was being investigated before a complaint was made against the charity due to the lack of submitted accounts, and that the complaint was an additional investigation into the governance issues that emerged subsequently:
The case was passed to the Compliance and Investigations team internally as the charity was previously being investigated for the non submission of it’s first set of accounts. Subsequently some concerns were raised about the governance of the charity of which I am also looking into further.
(Our bold for emphasis)
Mr Murray then responds by apologising for misunderstanding “the use of the title principal” and asserting that he is “happy to remain as principal contact”. Nevertheless he claims to know nothing of “a previous investigation” and again demands to see a copy of the complaint.
OSCR made the following reply:
The investigation is still ongoing it has simply been passed over to me to investigate further following some concerns being raised about the alleged lack of governance. I am now investigating the non submission of accounts and the governance practices at the charity.
As I have indicated earlier I cannot provide you with a copy of the complaint.
Asked to confirm his position with the charity, Mr Murray tells OSCR:
I am not sure why OSCR would communicate with Mr REDACTED if I was the principal contact?
Mr REDACTED has no involvement with the Trust therefore is not obliged to circulate anything.
This is not new and he hasn’t had any since prior to the Trusts inception in November 2013.
I am still slightly concerned that despite confirmation provided by OSCR that there were no ongoing enquiries, we have had no communication until this latest correspondence.
I do sincerely appreciate that you are only doing your job, however you must appreciate that we are simply volunteers trying our best with other full time commitments without any support for us.
I will ask the Treasurer to take steps to have the current accounts fully audited.
Please advise me of the name of your Data Protection Officer/ Information Officer in order that the subject access request can be made.
On 24 November Mr Murray made a FOI request to the regulator for copies of any complaints raised against the Trust.
The request was declined on December 1 as it was deemed to be exempt from disclosure under Section 35 of FOISA: Law enforcement as the disclosure would prejudice substantially the exercise by OSCR and that the information held constitutes the personal data of the complainant(s).
A prompt response from OSCR sent to Mr Murray on 24th November 2015 states:
OSCR was communicating with Mr REDACTED as he was the previous principal contact and a trustee at the inception of the charity, if this was not accurate then it is the responsibility of the trustees to update this. I do not know at which point he became no longer a trustee because we do not have a copy of the annual report, which would tell us this information. At some point this has been changed to you, he could not be removed as being the contact without giving an alternative, the system will not allow it. I find it concerning that the trustees did not know he was the contact and did not know they had to submit annual account. Was this not discussed at meetings? It appears that the main concern here is who complained about the charity.
Every charity that fails to submit it’s annual return will go under investigation for non submission of accounts only with this charity some further concerns were raised which is why this inquiry is now being handled by me, in a different team. When you contacted OSCR previously the complaint had only just been submitted and had not been processed so it would not have been regarded as an open Inquiry at that stage – which it is now.
I appreciate that you are all volunteers but so is most of the sector. The fact of the matter remains, you are bound by the charities and Trustee Investment Act 2005 and in particular the trustee duties set out in section 66 and we have not yet received the charity’s first annual return. The only indication we have about the level of assets running through this charity is from a recent news paper article which says that £100,000 has been distributed from the charity. This is concerning to say the least and as such I think it will be necessary to meet with all the charity trustees to get an more accurate picture of how this charity is operating.
After this response from OSCR, Mr Murray tells OSCR he has arranged a meeting for the Trustees for November 30th and that “all of our emails are shared with the Trustees”. He also submits to OSCR an “initial response to the ‘complaints’ about the 4 winds Trust, […] the minutes of the Trustee meetings and the most recent ledger.”
These documents were withheld from the FOI request under several exemptions including:
Public interest in not disclosing the information:
- The release of the information under FOISA – and therefore to the public – would be damaging to the charity, its trustees and reputation without the protection afforded by OSCR’s inquiry process or the courts
- OSCR must have the confidence of individuals and organisations when carrying out our statutory functions. Should organisations or individuals believe that information will routinely be made public, without the protection afforded by relevant criminal or civil proceedings, confidence in OSCR will be undermined.
- This is an open inquiry.
- Releasing this information may damage the willingness of the public to provide us with information in confidence. This unwillingness to provide information may seriously undermine the robustness of our inquiry process.
On 9th February Mr Murray emails OSCR to ask if the LOSW article https://lochgelly.org.uk/2016/02/4-winds-trust-breaches-charitable-regulations/ has been corroborated by OSCR.
On 10th February, Mr Murray sent OSCR “audited accounts for the previous few years”.
On 15th January a new Investigations Officer at OSCR takes over the case and emails Mr Murray to say that she has “examined all of the information surrounding the case and […] concluded that the most useful way of moving this forward would be to meet with the charity trustees to explain the issues that have arisen from the complaint and other governance matters that have emerged from the investigation”.
Mr Murray responds by offering a meeting with trustees on Monday 2nd February “which is the date of the general meeting” in Auchtertool. He adds: “As Trustees we don’t believe that the ‘complaint’ was handled well initially and were very upset at the tone of the communication from OSCR. To the extent that it has led to one other Trustee tendering their resignation”.
The case officer points out the 2nd February is a Tuesday, not a Monday, and that she is only available on Tuesday 2nd February, not on the Monday. She adds:
What has emerged from the concerns that were raised and your response is that there appears to be some misunderstandings on the part of the charity trustees as to how the charity should be run and I think it would be more useful to explain these in person and perhaps provide you with some tools or ideas for improvement rather than write you a very long letter. One of the most important things is that the charity needs to find sufficient trustees to operate with a quorum which is 5. I can talk you through this and again make some suggestions for a way forward.
Good governance is a factor that most funders look for when passing on funds and it is important that your charity gets this right before any serious problems arise.
The lack of a response from Mr Murray leads her to chase him up for a meeting in the week beginning 8 February. Mr Murray offers February 15th, which the case officer cannot make.
This was the last contact between Mr Murray and OSCR as recorded in the FOI materials. It is not known whether further contact ensued, whether OSCR managed to meet the trustees, or how the 4 Winds Trust has amended its procedures in the light of its non-compliance issues.
What is known is that on 18 May 2015 and 30 October 2015 OSCR wrote to the principal contact at the 4 Winds Trust, first about a failure to submit accounts in time, and second about a whole raft of governance issues, and that trustee and principal contact Stevie Murray claims not to have received the latter until November 23 2015.
It is also known that Mr Murray and Mr Schulz, the trustees on the 4 Winds Trust who represent Lochgelly Community Council (LCC), did not notify LCC of OSCR’s on-going investigations at the community council meetings in October 2015, November 2015, December 2015, January 2016 and February 2016.
The minutes for the LCC meeting in October 2015 record Mr Murray telling his fellow Councillors that the Trust was not being investigated and producing an email from OSCR confirming this.
The minutes for the LCC meeting in February 2016 record that Mr Murray reported that “we had arranged a meeting for next week with the Trustees and OSCR to talk about the role of the Trust and increasing participation. Johnny Kennedy from Kennedy Renewables was also going to attend”.
The minutes of the LCC meeting of 9 March 2016 record Mr Murray advising that the
- Minutes of the meetings, OSCR accepted that they were in place but perhaps could include more about the development of the group.
- The format and layout of the accounts weren’t consistent with OSCR requirements although they had been submitted.
- The group need to encourage more trustees from the other areas.
The group had also been criticised, by the anonymous complainant for making donations even though only 4 trustees participated. OSCR advised that they accept that this is a technicality, however it should be noted although Cowdenbeath had appointed someone.
Mr Murray also told the Council that “this process had been frustrating, tiresome and tedious”.
What is striking is that Mr Murray and Mr Schulz did not inform LCC that there were any concerns about the operation of the 4 Winds Trust until March 2016, a full 9 months after OSCR first opened inquiries into the 4 Winds Trust because of missing accounts. More striking still is that when Mr Murray could have been in no doubt that the Trust was under investigation, he did not take the opportunity at four subsequent LCC meetings to correct the mistaken assurance he gave LCC in October 2015 that there was no investigation. Even when Mr Murray finally admitted in March 2016 that there had been a complaint, and reported OSCR’s apparently satisfied response to various “concerns”, he avoided calling it an investigation.
It will of course be up to Lochgelly’s community councillors whether they feel this FOI shows that Mr Murray and Mr Schulz have deliberately withheld information about a fairly extensive investigation by OSCR into the 4 Winds Trust, whether Mr Murray’s implicit assurances that OSCR are perfectly happy with the way the 4 Winds Trust is being run are credible and whether Mr Murray and Mr Schulz are suitably trustworthy representatives for the LCC on a body responsible for disbursing tens of thousands of pounds annually.
The full set of emails between OSCR and the 4 Winds Trust can be viewed at: https://www.whatdotheyknow.com/request/communications_between_oscr_and#incoming-782951