3.1 Statutory Rules

3.1.1 Name

The FCA has the powers to register the name of a society, and to decide whether a proposed name is ‘undesirable’. A name should be unique, memorable, reflect the character of the society, and not be offensive. The FCA says that a name should generally include a reference to the business activity, membership, community of benefit and/or the geographic location of the society. Languages other than English and Welsh cannot be used unless a translation is given to the FCA for approval.

The name must not be the same as, or very similar to, that of another existing society, company or charity, unless it is somehow connected or related to this other entity, and has its express permission. The same applies to defunct entities that have traded within the previous 10 years. Exceptions to this principle will only be made if the proposed business activity or the location is very different from that of the defunct entity, or if the defunct entity never actually traded.

The FCA provides guidance on sensitive words in names, which can only be used if there is supporting evidence to justify their use, or the society has obtained the permission of the relevant authority. There are three main categories of sensitive word: words implying the society trades nationally or internationally, words implying an authoritative or representative status, and words implying a specific object or function. Included in the latter category are the words ‘charity’ and ‘co-operative’, which the FCA will only allow the appropriate type of society to use in their registered name. For instance, a community benefit society cannot call itself a co-operative in its name. Other words, such as ‘company’, cannot normally be used by a society, if they give a misleading impression about the legal form of the society.

All societies must include the word ‘limited’ in its name, unless it is a charitable community benefit society or if its objects are wholly benevolent, in which case it can apply to not use the word in its name. Charitable community benefit societies registered as charities in Scotland must also comply with the requirements of Scottish charity law on ‘objectionable names’.  These are similar in most respects to the FCA’s requirements (see www.oscr.org.uk/media/1591/changing-your-charity-name.pdf ).

A society, like other legal entities, can use a business name that is different to its registered name. However, the principle of sensitive names applies equally to business names as it does to registered names.

3.1.2 Objects

Objects describe the purpose of an enterprise and the scope of its operations. Most sponsoring bodies provide standard objects rules that are broad and flexible enough to enable the enterprise to fully engage in all forms of business or trade. Some sponsoring bodies encourage societies to be more specific about their purpose, in order to protect the vision of the founders, and to prevent a society changing its purpose without the consent of at least three-quarters of its membership.  

To register as a co-operative society, it is a legal requirement that the society should be carrying on “an industry, business or trade”. This excludes co-operatives that are set up just as investment vehicles in order to invest in the activities of other legal entities. This is reinforced by another requirement that “a society may not be a bona fide co-operative if it carries on business with the object of making profits mainly for paying interest, dividends or bonuses on money invested with or lent to it, or to any other person”.

To register a community benefit society, the objects rules must be consistent with other requirements of the FCA to test whether the society is of benefit to the community (see Sections 2.1.3 and 2.1.4).

The objects of a charitable community benefit society must be exclusively charitable and be of public benefit if it is to be recognised as a charity. In Scotland, applications for charitable status must be made to the Scottish Charity Regulator (see www.oscr.org.uk/charities/becoming-a-charity). In England and Wales, even though a charitable community benefit society cannot register as a charity with the Charity Commission, it must comply with the Charity Commission’s guidance on public benefit if it is to be recognised as an exempt charity by HMRC. (See www.gov.uk/government/collections/charitable-purposes-and-public-benefit)

3.1.3 Address

The rules must give the address for the registered office of the named society, which must be in Great Britain or the Channel Islands if registered with the FCA. The FCA must be notified of any subsequent change of address for the registered office.

3.1.4 Admission of members

The rules must state who can (and cannot) be a member, including individuals, corporate bodies, and the nominees of unincorporated bodies. This includes joint members, where one member must be the nominee representing the interests of the joint members. A society must have a minimum of three founder members, or two founder members if both are societies.

Society legislation has little to say about membership. Section 2 of the Co-operative and Community Benefit Societies Act 2014 requires the registering authority, the FCA, to be satisfied that a co-operative society is a bona fide co-operative, which implies that it must meet internationally agreed principles for membership of co-operatives. No similar requirements apply to community benefit societies.

Legislative changes introduced in 2012 scrapped the minimum age for membership of a society, and lowered the minimum age for election as a management committee member to 16. However, societies are free to set a minimum age for membership, and many societies have chosen to retain 16 as a minimum age for members. Members under the age of 16 are allowed to hold share capital in a society, but Section 31 of the Co-operative and Community Benefit Societies Act 2014 prevents a person under 16 from issuing a receipt, which means they are unable to withdraw their share capital.

The FCA acknowledges that the question of whether a society is a bona fide co-operative should take into account the International Co-operative Alliance (ICA) Statement on Co-operative Identity. The First Principle of this statement is “Voluntary and Open Membership: co-operatives are voluntary organisations, open to all persons to use their services and willing to accept the responsibilities of membership, without gender, social, racial, political or religious discrimination”.

This has been taken to mean that membership of a co-operative should focus on a user relationship, such as customer, employee or supplier. Most co-operatives focus on a single user group, although some sponsoring bodies offer model rules for multi-stakeholder co-operatives. Being an investor is not normally considered to be a user relationship. The FCA provides registration guidance for co-operative societies that want to provide for non-user investor shareholders. This is covered in more detail in Section 2.2.4.

The concept of a non-user member does not apply to community benefit societies, which are free to admit whoever they choose to membership. Most model rules for community benefit societies define members as those who support the objects of the society.

A society can have more than one category of membership, with different rights attached to these categories. However, co-operative societies must ensure that such membership rules are consistent with the International Co-operative Alliance’s Statement on Co-operative Identity.

There is also scope to impose an annual subscription fee as a condition of membership. Annual subscriptions are a useful way of covering the cost of providing membership services and can assist the society in maintaining an up-to-date membership list, by requiring members to stay in touch with the society.  However, requiring members to pay an annual subscription can be incompatible with encouraging members to maintain their investment in share capital, unless provisions are made to distinguish between the two types of membership, or subscriptions are waived for members holding more than a specified minimum amount of share capital. Others ways of addressing this issue include rules that allow the society to deduct annual subscriptions from the member’s share account, or that convert share capital into debt if membership is terminated as a consequence of failing to pay the annual subscription.

The FCA has also approved model rules that allow for nominee shareholdings. This is where an approved nominee holds shares on behalf of their clients, and exercises their proxy votes at general meetings, subject to restrictions. Nominees will normally be independent financial advisers or the managers of investment funds. While such arrangements may make it possible to attract investment from wider sources, they could weaken the community engagement aspects of community investment, and make the society vulnerable to the influence of the nominee.   

3.1.5 Conduct of meetings

All societies are required by law to hold general meetings of their members on at least an annual basis to oversee the affairs of the society. The rules of a society set out how these meetings should be conducted. Most societies adopt rules that provide for an annual general meeting, where the annual report and accounts are considered, auditors are appointed, directors are elected, and decisions are taken on the use of profits and any resolutions to change the rules of the society. 

The rules will normally set a quorum for general meetings, usually expressed either as a minimum proportion of the total membership, typically 10%, or as a minimum number of members. Some societies have rules that set the quorum as an either/or option, whichever is the lower. Rules may also be adopted to allow for proxy votes, and postal or electronic ballots.

The rules must describe how votes will be conducted in meetings, and the arrangements for deciding between a simple show of hands or a secret ballot. Nearly all societies work to the principle of one-member-one-vote (there are some secondary and federal co-operative societies with corporate membership rules where there is proportionate voting). There is no provision in society legislation for allocating voting rights to shares. The rules must also set the majority required to amend, rescind or add new rules. The 2014 Act requires special resolutions with specified minimum majorities for decisions to amalgamate with, or transfer engagements to, another society or company (see Section 2.7), or to convert a society into a company (see Section 2.6.4). 

3.1.6 Directors

The FCA requires all societies’ rules to state how the board of directors will be appointed and removed, and similarly, how the officers of the board will be appointed and removed, and the arrangements, if any, for paying directors. Under society legislation the minimum age for directors is 16.

The good governance of a society depends on having an active board, elected by the members, to oversee the affairs of the society. In electing a board, members are delegating their sovereign powers to this body. The directors are accountable to the membership, and are responsible for supervising the managers and executive staff who run the business. Societies, except for charitable societies, can choose to have a mix of executive and non-executive directors, or opt for an exclusively non-executive board, serviced by executive staff.  The directors of charitable community benefit societies have a duty to act solely in the interest of the charity and must prevent conflicts of interest from affecting their decisions. This means they cannot receive any payment or benefit without authority, so it is unusual for charities to have executive directors on the board (see www.gov.uk/payments-to-charity-trustees-what-the-rules-are).

Consideration needs to be given to the size of the board, its composition, and the length of service of directors. Usually the size of the board is expressed in terms of a minimum and maximum number of directors, typically between three and 12.  Some multi-stakeholder societies have rules that reserve a set number of places on the board for different membership categories.  Societies may also have rules that allow the board to co-opt directors with specialist or professional skills. Most societies require directors to either retire or seek re-election after a defined period, typically three years, usually on a rotational basis so that no more than a third of the board are standing for election, thus allowing for some continuity of membership.

As a matter of good practice most societies, including charitable community benefit societies, will pay directors out-of-pocket expenses. Some societies also pay directors a fee commensurate with the services they provide.  Charitable community benefit societies should follow the guidance provided by their national charity regulator on this matter, and ensure that their rules are compatible with this guidance.

Societies must have rules to remove directors. Usually this is a power held by a simple majority vote of members at a general meeting. Societies will normally have rules for removing directors who have been declared bankrupt, or are deemed medically incapable of carrying out their duties. Some societies have rules to remove directors if they fail to attend a minimum consecutive number of meetings.

The rules must also address the appointment of officers. All societies are obliged by law to appoint a secretary.  Other officer posts, such as treasurer, chair and vice-chair, are at the discretion of the society. Other discretionary rules include provisions for the proceedings at board meetings, focusing mainly on quora and the role of the chair and the use of electronic media to conduct remote meetings.

The directors of a charitable community benefit society are charity trustees by law, and are responsible for fulfilling their personal duties as trustees and ensuring that the society complies with the requirements of charity law. (See Charity Commission CC3: The Essential Trustee.)

3.1.7 Maximum shareholdings

All societies must have a rule that stipulates the maximum shareholding a member may have. Many societies set their maximum shareholding at the maximum permitted by law for withdrawable share capital, currently £100,000. This maximum does not apply to corporate members that are registered co-operative societies or community benefit societies, where no upper limit applies.

Careful consideration should be given to the proportion of total capital any one individual or corporate entity can invest in a society, in order to limit dependency on larger investors. Societies seeking to raise less than £1m in capital, may choose to set a maximum shareholding limit, below the legal limit, typically 10% of the total share capital required by the society (see also Section 4.5.6). A society may also choose to limit the maximum amount that another society can invest in it, or at least to have special reasons for allowing another society to invest more than 10% of the total share capital it requires.

There is no legal maximum limit for transferable share capital issued by a society. For reasons explained in Section 2.2.3, the Community Shares Unit does not provide guidance to societies about offering transferable share capital to the general public.

Most societies also adopt rules that set a minimum shareholding for membership. This can vary from a nominal £1 to as much as £1,000 or more. A higher minimum shareholding may be justified if the society does not charge an annual subscription, in order to cover the cost of providing membership services.  However, a high minimum shareholding may be a barrier to membership, which could contravene the co-operative principle of open membership, for societies registering as co-operatives. This can be mitigated by establishing mechanisms to allow members to invest in instalments to reach the minimum level.

A society may decide to adopt a higher minimum and/or lower maximum shareholding for a particular share offer than is stated in its rules. This is normal practice for new societies where the targets for an initial share offer might make this a prudent strategy.

3.1.8 Loans and deposits

A society must have rules stating whether it will allow members or others to hold deposits or make loans to the society and, if so, under what terms and conditions. The rules must also state the maximum amount that can be borrowed.

The distinction between loans and deposits is crucial. Deposit-taking is a regulated activity, whereas accepting loans for the purposes of the business is not regulated. Debt securities are normally exempt from prospectus requirements, and a society is allowed to make non-real-time communications about its own debt securities without complying with the financial promotion rules, which would otherwise require an authorised person to approve the material communicated.

Most societies adopt rules that expressly forbid deposit taking, but allow the society to borrow from members as well as from other sources such as banks, commercial lenders or institutional investors. Some societies have rules that fix the maximum amount that can be borrowed and/or the maximum interest rate that can be paid on loans. Borrowing can be an important way of raising additional capital, especially from members who already have the maximum permitted shareholding.

3.1.9 Terms and conditions for share capital

Societies can issue shares that are transferable and/or withdrawable, or non-withdrawable and non-transferable (this type of share capital is cancelled on termination of membership, and the money is transferred to the general reserves of the society). The rules must state what type of share capital the society intends to issue, and the terms and conditions applying to these shares. Only shares that are withdrawable and non-transferable fit the CSU definition of community shares.  

Very few societies choose to issue transferable shares, for the reasons explained in Section 2.2.3. Withdrawable, non-transferable share capital is the norm for societies, although there are major differences in the terms and conditions adopted by societies for this type of capital, which in turn affect the liquidity of the shares and the capital flows of the society. These terms and conditions also have a bearing on how withdrawable share capital is treated in the accounts of the society.

Most societies adopt rules that give the board the discretion to suspend the right of withdrawal. This rule is necessary for withdrawable share capital to be treated as equity, not debt, on the balance sheet of the society. Shareholders must be told if the board has the right to suspend withdrawals.

The main reason for suspending withdrawals is the time it takes for a new investment to generate sufficient surpluses to finance withdrawals. Societies need to plan for the liquidity of their share capital, and reflect these plans in the terms and conditions of their share offer. Societies planning to apply for Enterprise Investment Scheme (EIS) or Social Investment Tax Relief (SITR) also need to make it clear that withdrawals are at the discretion of the management committee. Beneficiaries of these tax relief schemes must maintain their shareholding for at least the first three years of trading after investment (see Sections 8.4 to 8.6).

However, the main reason why a society may suspend withdrawals is to protect the interests of creditors other than its members. This duty is underlined by Section 124 of the Co-operatives and Community Benefit Societies Act 2014, which states that former members remain liable for any debts incurred by the society before they withdrew their share capital for up to one year after withdrawal, if the society is wound up during this period. It is the duty of the management committee to ensure that such a situation does not arise, by suspending the withdrawal of share capital during any period of anticipated insolvency. This matter is dealt with in greater depth in Section 2.3.

The rules should also state what period of notice a member must give when they ask to withdraw some or all of their share capital. This is usually stated as a minimum period of notice, typically ranging from one week to one year. Some societies also adopt rules that limit the proportion of share capital that can be withdrawn in a year, or that limit withdrawals in some other way, such as linking them to retained profit, or the issue of new share capital.

Another condition sometimes applied to withdrawable share capital is the right of the board to reduce the value of shares. This right is usually linked to an assessment that the net asset value of the enterprise can no longer support the full value of the share capital, justifying a temporary or permanent reduction in share value. Some societies have a rule which allows them to deduct an administrative charge for withdrawals.

The terms and conditions applied to withdrawable share capital have a big impact on the liquidity of share capital and therefore its attractiveness to potential investors. It is very important to ensure that the rules address all the terms and conditions a society may want to place on its share offers. 

3.1.10 Audits and auditors

All societies are required to have a rule stating their obligation to appoint an auditor in accordance with the relevant Act. Societies can, if their rules permit it, pass a resolution at their AGM exempting them from a full professional audit, if their turnover and assets are below a prescribed level (see Section 3.5). Part 7 of the Co-operative and Community Benefit Societies Act 2014 sets out the account, audit and annual returns requirements of societies.  Some societies also have additional rules stating their statutory obligation to make annual returns to the FCA. 

3.2.11 Terminating membership

Rules governing the termination of membership have important long-term consequences for societies that promote community investment. The rules should enable a society to manage their membership, ensure that members remain in contact with the society, and provide the scope for dealing with dormant or untraceable members.

Provision must be made for the circumstances under which membership of the society may be terminated, and the arrangements for handling terminations. The rules must allow members to cancel their membership, or for membership to be terminated if the member no longer satisfies the criteria for admission. Most societies also adopt rules that allow the board to expel members, for instance, if a member fails to pay an annual subscription, or fails to respond to communications over a period of two years, or is untraceable by the society.

The rules must also state what provisions have been made to handle claims by the representatives of a deceased member, or by the trustee of a member who has been declared bankrupt.

The rules should also make provision for any withdrawable share capital held by a person whose membership has been terminated. Some societies have rules specifying that nominal amounts of share capital are neither withdrawable nor transferable, but are forfeited if membership is terminated. Other societies have rules that allow withdrawable share capital to be converted into loans upon termination of membership.

3.1.12 Use of profits

The FCA has different approaches to how profits can be used in a co-operative society and a community benefit society. In addition to this, both the Charity Commission and the Scottish Charity Regulator have agreed a policy about the use of profits by a charitable community benefit society. Interest on share capital is an operating expense for a society and must not be used as a mechanism for distributing profits or surpluses to investors. Section 6 of the Handbook addresses these matters in more detail.

The FCA’s registration guidance for co-operative societies draws on the ICA Statement on Co-operative Identity, and the fourth principle on member economic participation, addresses the use of profits in the following way “Members allocate surpluses in for any or all of the following purposes; developing their co-operative, possibly by setting up reserves, part of which at least would be indivisible; benefiting members in proportion to their transactions with the co-operative; and supporting other activities approved by the membership.” 

The FCA’s registration guidance for community benefit societies is much more emphatic: “any profit made by a community benefit society must be used for the benefit of the community”. This can include the profits being ploughed back into the business, or by being distributed to beneficiaries with objects the same as, or similar to, those of the society.

There are further constraints on how a charitable community benefit society may use profits. Both the Charity Commission and the Scottish Charity Regulator consider that a power to distribute profits is fundamentally incompatible with charity status and have agreed specific policy guidance for charitable community benefit societies with shareholder members, on how these members may be paid interest on their share capital (see Section 6.2).

3.1.13 Official documents

The FCA requires that the rules state whether the society intends to have a ‘common seal’, a device for stamping official documents such as share certificates, and if it does have a common seal, to state how it will be used. Most societies make provisions for a common seal or its equivalent.

The law does not require societies to have a common seal, or to issue share certificates, although if a society decides against issuing share certificates it should make alternative provisions so that members know how much share capital they hold.

Societies that intend to pay interest and/or dividends, or that plan to charge members an annual subscription fee, should consider introducing individual share accounts for members. Instead of sending out cheques for interest and/or dividend payments, or share certificates worth the same amount, the society could send members an annual statement of their share account, listing all receipts, withdrawals and charges. This would mean all interest and dividend payments are automatically re-invested, as well as enabling a society to charge an annual subscription fee without having to get members to make an annual payment. In order to manage share accounts this way, a society would need to have a ‘lien on shares’, which is the right to offset a member’s debt against their share capital. The rules would also have to state that any payments to members will be automatically credited to their accounts, unless they already hold the maximum individual shareholding allowed.  

3.1.14 Investments

Section 27 of the Co-operative and Community Benefit Societies Act 2014 allows societies to invest funds in other corporate bodies and local authorities. Societies must have rules making provisions for investment. Some societies have rules determining how investment decisions above a set value must be made. Section 2.8 addresses investment in other legal entities.