Section 116 Request for SUMs information

Firstly for anyone reading this who is not a member of Education Otherwise. This page has been made available to address a situation causing, understandably, great concern to it's members. You are very welcome to read further but this page applies only to the members of EO and is not directly concerned with the review.

HISTORY OF THE REQUEST

On the 2nd January, prior to the imminent EGM, a voting member, Kevin Denton, emailed EO requesting to know the number and details of SUMs. This was not an application under section 116, simply a request following a discussion with both Companies House and The Charity Commission help desk.

At that time the request was made for a very simple reason. A number of SUMs were very concerned at the attempt to pass new M and A's which were seriously flawed. We now know that they were defeated. The reason for the request was to allow SUMs who were involved to be able to understand how many SUMs there are, what the percentages of SUMs would be needed to defeat the motion and to understand, if it was ever considered necessary how many SUM's would need to join together to request an EGM to take place. For this to be possible it would need for the SUMs to have contact with one another.

On the 9th January a reply was received from EO referring to sect 116 of the Companies Act. Prior to this Kevin did not know of this section in the Act and it is in fact EO who effectively forced the request to be made under the provisions of section 116 of the Company Act

On the 13th January Kevin supplied this information via an email to EO. This information was provided one week prior to the announcement of the review which now is the focus of all people who have an interest and involvement in home education. Despite reminders there was no further contact from EO until an email from Mr Roarke dated 27th January asking for clarification of the reason for the request. This was provided on the 28th January.

SUMMARY

The request was made prior to the EGM which has been discussed and for which there remains serious concerns that still need to be addressed. Given the nature of the attack we are now all under from the review should not simply be put to one side.

This request was made for 2 reasons.

• so that the total number of current SUMs could be known. This is important information because the M and As provide for the calling of meetings if a certain percentage of SUMs agree. Unless the total number is known, the required percentage can only be guessed, a situation which is neither democratic or in the best interests of transparent governance.
• so that, if it became necessary, contact could be made with other SUMs to seek opinion and put forward views relating to matters connected with EO.

If an organisation is accountable to it's members that can not happen unless those members are aware and involved in the issues that affect the running of that organisation. Communication between voting members is desirable, essential and a normal part of a democratic process.

The person applying for this information, Kevin Denton, is a SUM, and is fully aware of the delicate situation re sharing of information and will not under any circumstances allow this information to come into the possession of any person who would use or allow it to be used for any other purposes. The information requested was only in respect of SUMs, not the general membership, and before making the application the member sought advice from both the Charity Commission's and Companies House help departments. Both organizations said that it is perfectly reasonable that voting members should be able to contact one another and both were surprised that this information were not easily available.

If the question of safeguarding information was at the forefront of the trustees' minds it is surprising that they delayed raising this issue with the member and took no action within the legally specified time frame in section 116.

This application is entirely legal and morally proper and is specifically provided for in the Companies Act 2006 in section 116.

This is known as a section 116 request, this is the relevant section in the Companies Act:

116 Rights to inspect and require copies
(1) The register and the index of members’ names must be open to the
inspection—
(a) of any member of the company without charge, and
(b) of any other person on payment of such fee as may be prescribed.
(2) Any person may require a copy of a company’s register of members, or of any
part of it, on payment of such fee as may be prescribed.
(3) A person seeking to exercise either of the rights conferred by this section must
make a request to the company to that effect.
(4) The request must contain the following information—
(a) in the case of an individual, his name and address;
(b) in the case of an organisation, the name and address of an individual
responsible for making the request on behalf of the organisation;
(c) the purpose for which the information is to be used; and
(d) whether the information will be disclosed to any other person, and if so -
(i) where that person is an individual, his name and address,
(ii) where that person is an organisation, the name and address of
an individual responsible for receiving the information on its
behalf, and
(iii) the purpose for which the information is to be used by that
person.

117 Register of members: response to request for inspection or copy
(1) Where a company receives a request under section 116 (register of members:
right to inspect and require copy), it must within five working days either—
(a) comply with the request, or
(b) apply to the court.
(2) If it applies to the court it must notify the person making the request.
(3) If on an application under this section the court is satisfied that the inspection
or copy is not sought for a proper purpose—
(a) it shall direct the company not to comply with the request, and
(b) it may further order that the company’s costs (in Scotland, expenses) on
the application be paid in whole or in part by the person who made the
request, even if he is not a party to the application.
(4) If the court makes such a direction and it appears to the court that the company
is or may be subject to other requests made for a similar purpose (whether
made by the same person or different persons), it may direct that the company
is not to comply with any such request.
The order must contain such provision as appears to the court appropriate to
identify the requests to which it applies.
(5) If on an application under this section the court does not direct the company
not to comply with the request, the company must comply with the request
immediately upon the court giving its decision or, as the case may be, the
proceedings being discontinued.

Despite the very specific time allowed for either the supply of the information or application to court, Kevin needed to make repeated reminders before any real response was received, by which time the reply period stipulated in the act had been far exceeded.

It has been suggested that there is some clandestine force at work to make the members details available to other agencies. This is not only untrue but ignores one very important part of section 116.

Each request is considered as a separate request and may therefore be subject to objection and application to court if the trustees believe the purpose for which the information is requested is improper. In simple terms if a request were received from an LA or Government body, objection could be made. The member concerned is neither of these nor will the use of this information compromise any person.

Proper purposes are subject to interpretation but are reasonably defined in guidelines issued by ICSA.

These proper purposes were reasonably stated in Kevins application to EO: "I require the information to establish the number of persons who have voting rights and to enable, if required, contact with those voting members for any of the following reasons: General representations regarding the activities of the company, communications in connection with the exercise of member rights under the act, circulating a statement relating to a resolution to be put to a company meeting, communications concerning voting for a particular course of action".

It is entirely right that we should all be aware that any individual or organisation can apply for this information and it is entirely right that we should all safeguard that information. It is also entirely proper that with the serious and significant concerns that exist regarding the recent history of EO, SUMs should be able to communicate and determine the position of other SUMs as part of a real democratic process that is not hindered by secrecy and the withholding of information.

SECURITY OF INFORMATION

Kevin agrees that this is a very important and incredibly significant matter. Up until he became aware of section 116 he had assumed that the details an organisation held were not available to others and that there was no risk of them falling into others hands. Section 116 would appear to challenge this very significantly.

Section 116 is clear, anyone can apply for inspection or copy of the members register. The question of whether this is only SUMs or the whole register is not clear and is one that needs to be investigated as a matter of extreme urgency, section 116 refers only to the register of members and does not appear to differentiate between voting an non voting, but common sense would dictate that it is only voting members.

Kevin sincerely believes that the request to be lawful and proper, but what if some other party requested such access to our details. The reality is that if this application had ben made by an organisation or government agency the disclosure could be denied since this is exactly what the principle of proper purpose in sect 116 defines.

It is clear that this problem regarding the potential availability of members details to an outside person or agency exists by virtue of EO being a limited company. If that were not the case the situation would not exist.

Finally Kevin confirms categorically that he has, and has never had, any intention of putting himself forward to be a trustee of EO.

ADDITIONAL HISTORY

There have been numerous examples of an apparent lack of direction to provide and make available important information.

At the EGM held on the 6th January a trustee informed the attendees that the minutes of the EGM would be emailed to them within a few days - this has not happened nor have they been made available on the members forum.

Following repeated requests that a forum be made available to discuss the proposed M and As a trustee stated that a new forum would hopefully be available within a few days, that was on the 13th January. So far it has not happened. This is in addition to the fact that no attempt was made to involve any members in the drafting of the new MandAs other than a group set up which was quickly disbanded by the trustees.

Minutes for the 2008 AGM, EGM and OTM have never been made available on the members forum of EO.

There have been very many instances where discussions on both the EO forum and EO yahoo group have been censored, closed down and in some extreme cases members posts edited without permission.

This information is given to demonstrate that there are a significant number of instances where trustees have taken no action to inform the members of important information. With this history in mind the member applying for the voting members details is of the opinion that there was reasonable cause to believe that the request would not be dealt with efficiently.

Below will be links to other pages that deal with the issue raised and some other peoples opinion as to what is involved:

Betsy Anderson. Opinion regarding the section 116 application CLICK HERE