A lawyer's view on how arts charities can support freelancers during lockdown
Sean Egan
One of the key concerns for the arts sector during this crisis is the plight of freelancers who have lost all or most of their income for the foreseeable future.
The government’s support for the self-employed is full of cracks and leaves many, particularly those at the early stage of their careers, ineligible and facing the prospect of needing Universal Credit for some time.
Arts Council England speedily launched a £20 million fund to support individuals, but that can only offer limited help to a small proportion of the industry.
Many arts organisations want to support individuals in the sector, but are unsure of the legal restrictions. What does that mean for arts charities making these sorts of decisions?
The simple answer to the question is contained in the Charity Commission’s coronavirus-related advice. Charities can use their assets so long as the cause promotes the charity’s objects and is in the interests of the charity.
Many arts organisations want to support individuals in the sector, but are unsure of the legal restrictions
The Charity Commission has no power to waive legal obligations, so the rules that apply are the same as if there was no emergency. If a charity does not have the right to make the payment, it can only do so if the Charity Commission provides consent.
It is unattractive for charities to approach the Charity Commission in this way, given that even before Covid-19 struck the delays at the Charity Commission were substantial – it won’t work in practice for a charity to receive the go-ahead after a significant delay.
In any case, I question how sensible it is for charities to incur professional fees on approaching the Charity Commission unless it is absolutely essential to do so. Trustees should bear in mind that a Charity Commission ruling that a payment was unjustified could, in theory, result in trustees being ordered to repay sums personally.
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The object of most arts charities is the promotion of education or the promotion of the arts. The particular wording of the constitution is crucial and needs to be considered. Any plan to help individuals needs to have a clear rationale even if the immediate aim is to relieve hardship.
There are charities set up to relieve poverty or hardship, many of which focus on the theatre or entertainment sectors. For example, the Royal Theatrical Fund provides support for those who cannot practice due to illness, adversity or infirmity and the Equity Charitable Trust has an educational object as well as the object of supporting the health and welfare of performers.
Arts charities may wish to focus on supporting people who are working with the organisation, those who have worked with it in the past, or anyone within the sector. The underlying rationale may be that the support means individuals will stay in the arts and maintain their practice to a meaningful extent until the situation eases.
There are many different approaches and charities need to work out which suits them best. Charities may choose to commission artists even if it is unclear whether or how the work can be performed. This kind of approach lends itself to payments to artists, performers and those with technical skills, but is not so useful for casual workers.
The requirement that the payment needs to be in the interests of the charity is harder to pin down. The opposite – that making the payment will not harm the charity, so long as it has sufficient funds to make the payments – will undoubtedly be true.
I would say that enabling or encouraging individuals to stay working in the arts – to maintain a viable workforce for when the emergency lifts – is a direct benefit to arts organisations generally, and a firm connection between a specific individual and future work with the charity in question is not necessary.
Arts charities should be able to overcome any legal issues and be able to support most, or all, of the individuals they wish to support, if they have the resources. For many organisations the current situation may be so precarious and uncertain that this is not an option.
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