A few days ago we published details of the grants and other expenditure made by the 4 Winds Trust 2013-2015, which came to us via OSCR’s response to a Freedom of Information request following the conclusion of an investigation carried out by OSCR into the charity. Ever since the charity was founded in 2012, accounts and other financial information had been withheld not only from the public but also from the four community councils represented on the 4 Winds Trust. Its belated publication raises many questions about how the 4 Winds Trust distributes community benefit as well as issues over the general lack of public accountability and transparency in its operations.
The same Freedom of Information request also reveals the correspondence between Stevie Murray, secretary of the trustees, and OSCR at the end of their investigation. Mr Murray referred to OSCR’s letter and the allegedly satisfactory conclusion to their investigation at a Lochgelly Community Council meeting in April of this year. The minutes of that meeting indicate that Mr Murray would make the letter available to any member of the public on request. As far as we know, he has not done so, but happily OSCR’s response to the Freedom of Information request means the letter is now in the public domain.
The letter shows that OSCR in fact carried out two investigations into the charity, one into the late submission of annual accounts, and another pursuing several complaints of mismanagement, all of which were upheld by the charity regulator. Investigations officer Sharon Walker writes:
The letter begins by describing the nature of the complaint and the investigations conducted internally by OSCR.
On 7 October 2015 OSCR received a number of concerns about the 4 Winds charity from a member of the public. The concerns were:
- That the charity was not keeping proper minutes of meetings which is in breach of its constitution.
- That the charity was operating while inqorate, i.e. with four trustees instead of five as is required under the terms of the Constitution.
- That the charity had not held an Annual Members Meeting as it is required to do under the terms of its Constitution.
- That Community Councillors membership to the 4 Winds has never been acknowledged as per clauses 5.1.1 and 5.1.2 of the Constitution.
- That the charity had failed to submit accounts to OSCR and the accounts were now well overdue.
Around the same time as these concerns were submitted, OSCR’s Contact Team had raised an internal concern about the late submission of accounts and the lack of response from the charity.
Four of those who attended the meeting signed charity trustee Declarations when charity status was sought which made them aware of their charity trustee duties. We are disappointed therefore that they have failed to comply.*
* our bold for emphasis
The letter to the trustees continue with an in-depth look at each complaint and their conclusions.
The trustees are in breach of clause 12.6 of the Constitution by not keeping minutes that record all decisions made and the business transacted at each meeting. They are also failing to act with care and diligence by not recording their discussions and decisions. We discussed the document that the charity provided that was said to be the minutes. We made it clear that this was insufficient to be considered as proper minutes. While it does show the grants approved, the scores awarded and those attending the meeting it does not show other business that the charity trustees should be discussing such as financial reports, actions to appoint new trustees, arrangements for the AMM, the annual returns and accounts submission to OSCR, etc. It would be concerning if these discussions were not taking place.
We also discussed that there is no legal requirement for the charity to provide its minutes to the general public. However, in a charity such as 4 Winds which is set up for community benefit, the charity trustees may wish to consider the benefits of making its minutes publicly available on its website or through some other channel.
Clause 12.1.1. of the Constitution states:
“The quorum for Board meetings shall be not less than 5 Trustees. No business shall be dealt with at a Board Meeting unless a quorum is present”
You confirmed that for some considerable time the charity has been operating with only four trustees.
Clause 6.1 of the Constitution states that the Board will convene an AMM at least once in every fifteen month period. Charitable status was awarded on 5 April 2013 so an AMM should have been held by August 2014. You informed us that the first AMM was held on February 8th 2016. The charity trustees have again therefore failed to comply with the terms of their Constitution.
The charity’s accounts year end is 30 April 2014 and we allow charities 9 months from this date to submit their accounts. Our records show that the accounts were still outstanding as of the date of our meeting making them over a year late. This is concerning and is a factor taken into account in reaching the conclusion that governance is weak.
We discussed that the draft accounts prepared by Hugh McCormick & Co (Accountants) and submitted on 10 February do not comply with charity accounts regulations and are therefore unacceptable.
The accounts submitted on 15 March are still not SORP compliant, do not contain a Trustee’s Annual Report and have not been signed off by a charity trustee, however, we will accept them this year but advise that we expect them to be fully compliant next year.
Investigations officer for OSCR, Sharon Walker says “The breaches of the charity’s constitution and failure by the charity trustees to demonstrate their knowledge and understanding of their charity trustee duties and submit accounts on time is concerning.”
From the response by OSCR and the limited information that has come to light from FOI requests, it is clear that distribution of the community benefit from Little Raith Wind Farm has suffered from poor governance and an accompanying complete lack of accountability and transparency which has made any public scrutiny of its operations impossible. Inevitably, suspicions that grant applications have not always been distributed fairly have arisen.
The regulator has found the trustees responsible for serious and multiple breaches of charitable law which have undermined faith in the charity and brought it into disrepute. As representatives of the four community councils, responsibility for the trustees’ failures ultimately falls to the community councils of Auchtertool, Cowdenbeath, Lochgelly and Lumphinnans.
To date, none of the community councils involved has made a public statement about OSCR’s findings or taken action to address the shortcomings of their representatives. Nor has Kenendy Renewables, the owner and operator of Little Raith wind farm which pays in the region of £49,000 in community benefit into the 4 Winds Trust annually for wider distribution, made any public comments about OSCR’s findings. (Kennedy Renewables is estimated to have received an income of £5,021,950 from the wind farm in the last 12 months – see http://www.variablepitch.co.uk/finance/station/2081/).
To restore public faith in the 4 Winds Trust and ensure that its future distribution of funds is as fair as possible, the four community councils should remove the trustees castigated by OSCR as a matter of urgency. Vacancies for new trustees should be openly advertised and those appointed be required to undergo adequate training for their role as charitable trustees. All this would entail a new commitment to standards of transparency and accountability, with full, timely and properly compliant accounts as well as minutes of all meetings published in such a way as to allow scrutiny from any interested members of the four communities the 4 Winds Trust exists to serve.
OSCR Communications & 4 Winds Trust Expenditure: https://www.whatdotheyknow.com/request/341323/response/840986/attach/2/2016%2007%2014%20released%20info%20combined.pdf
Email communications between OSCR and Trustee Steven Murray: http://files.whatdotheyknow.com/request/communications_between_oscr_and/2016-03-08%20COMBINED.pdf
Submitted financial accounts (2013-2014): http://www.oscr.org.uk/downloadfile.aspx?id=83229&type=5&charityid=SC043913&arid=165873
Submitted financial accounts (2014-2015): http://www.oscr.org.uk/downloadfile.aspx?id=83304&type=5&charityid=SC043913&arid=210416