England and Wales

The most common for-profit organizational forms utilized are (i) companies limited by shares, (ii) partnerships, and (iii) limited liability partnerships. A brief description of these organizational forms is as follows:

• Company Limited by Shares: Private companies limited by shares are the most common company structure in England and Wales. A company limited by shares can be a private company or a public company. The key features of all companies limited by shares (whether private or public include):
  • A company limited by shares is a body corporate and has a separate legal personality from that of its owners (known as shareholders).
  • A company limited by shares is responsible for its own debts and liabilities.
  • There is a separation between the management and ownership of a limited company. The owners of the company are its shareholders, and responsibility for the management of the company generally falls to its directors.
  • A company limited by shares must have an issued share capital comprising at least one share.

There are also companies limited by guarantee and unlimited companies; however, neither of these corporate structures are typically used by for-profit organizations.

• Partnership: A partnership involves two or more individuals that agree to share in the profits or losses of a business. Partnerships are referred to as unincorporated entities. A partnership can be a general partnership or a limited partnership, which are broadly similar except that limited partnerships have two different categories of partner: (i) general partner(s) who have responsibility for managing the business; and (ii) limited partner(s) who do not take an active role in the partnership’s operation. The key feature of a partnership is that it does not have a separate legal personality separate from its partner and cannot own assets in its own right.                                                                                                                                                                        
• Limited Liability Partnership: A limited liability partnership (“LLP”) is a hybrid form of business entity that combines many of the benefits of a limited company (e.g. separate legal personality and the ability to hold its own assets) with the organizational flexibility of a general partnership.

a. Enterprises that seek financing from investors and will have multiple owners tend to form companies limited by shares. Equity finance can be raised by issuing shares and debt finance can also be provided to the company. Please note, in order to offer shares to the public, a public company limited by shares would be required. Limited partnerships are another vehicle through which multiple investors can provide financing, though these structures are less common. 

b. The most common organizational forms used by Social Enterprises that want to return profit to members are (i) company limited by shares, (ii) partnership and (iii) limited liability partnership (see Section 1 above), and (iv) “co-operative” Industrial and Provident Society (“Co-op”) which is formed for the benefit of its members and tends to be used where it is appropriate to give a wide membership an equal stake and an equal say in management.

The most common organizational forms used by Social Enterprises that want to use profit for public/community benefit are (i) unincorporated associations, (ii) community interest companies (“CIC”), (iii) companies limited by guarantee (“CLG”), and (iv) “community benefit” industrial and provident societies (“CBS”). A brief description of these organizational forms is as follows:

• Unincorporated association: Unincorporated associations are groups that come together for a particular purpose, for example, to run a sports club or voluntary group. The central features of most unincorporated associates are: (i) a constitution that sets out the rules governing their relationship and a broad membership that elects the management committee; and (ii) personal liability for the members of the management committee. The main advantages of being unincorporated are the relatively “light touch” regulation (for example, no requirement to send and file annual returns or accounts with Companies House) and some tax advantages (for example, sole traders and partners pay their tax in arrears rather than up front).
• CIC: See Section 4 below.
• CLG: A CLG is a company that, like a CLS, has a separate legal personality from its owners. However, unlike a CLS, a CLG does not have share capital and the members give a nominal guarantee to cover the company’s liability, normally limited to £1. By not having a share capital and as CLGs do not have the inbuilt “for-profit” framework which CLSs do, allowing investors in the company to receive a return on their investment, the CLG brand has been traditionally associated with charities, trade associations and not-for-profit companies.
• CBS: See Section 4 below.

Yes - Companies. Under English law, a director of a company is required to act in the way he or she considers most likely to promote the success of the company for the benefit of its shareholders as a whole, and in doing so have regard, (amongst other matters) to the likely consequences of any decision in the long term, the interests of the company’s employees, the need to foster the company’s business relationships with suppliers, customers and others, the impact of the company’s operations on the community and the environment, the desirability of the company maintaining a reputation for high standards of business conduct, and the need to act fairly as between members of the company.

It is a matter of ongoing debate the extent to which those running the company are required to simply act in a way which they feel would maximize shareholder value or not, with larger public companies coming under pressure to act in a way that takes into account the interests of a wider group of stakeholders.

Yes.

a. The CIC and the CBS are designed as vehicles for Social Enterprises. A brief description of these organizational forms follows:

• CIC: A CIC is a limited liability company designed for Social Enterprises that want to use their profits and assets for the public benefit. CICs can have a share capital or be limited by guarantee provided the “community interest test” is satisfied, i.e. whether a reasonable person might consider its activities are carried on for the benefit of the community. CICs are regulated by the Regulator of Community Interest Companies but the entity is registered with Companies House. A CIC cannot be a charitable company. A key feature of CICs is the “asset lock” rules - these provisions limit the way in which distribution of profits and assets can be made and are designed to ensure that a CIC’s assets are used for the benefit of the community.
• CBS: A CBS is a corporate vehicle formed to serve some community benefit. This legal structure tends to be used where it is appropriate to give a wide membership an equal stake in the organization and an equal say in management and other affairs. A CBS is not registered at Companies House. There is a potential to apply an “asset-lock”. The regulator of registered societies is the Financial Conduct Authority (“FCA”), which has a significant regulatory function.

Many Social Enterprises are also charities; the key feature of a charitable Social Enterprise is that it is established with exclusively charitable objects, such as the advancement of education or the relief of poverty. Being a charity is a status; it is possible to establish a charity using a variety of legal forms, including a trust, an unincorporated association, a CLG, a CBS and a Charitable Incorporated Organisation (a “CIO”). Please note, the CIO is a corporate structure designed specifically and exclusively for charities, that was introduced in January 2013 and for which an “asset lock” applies under charity law whereby the trustees have a duty to protect the charity’s assets and resources and to make sure they are only used to further the charity’s aims.

b. A CIC, CBS and CIO materially differ from the companies discussed in Section 1 above in the following key ways:

• The directors/trustees (managers) are required to further the specified purposes of the organization (which are set out in the organization’s constitutional documents).
• They are “asset-locked” which means there are restrictions in the constitutional documents of the organization which aim to ensure that its assets are only used for the specified purposes and not distributed to the shareholder/members (or transferred to others for less than their value).
• There are also a number of specific restrictions e.g. regarding record keeping, making changes to the governing documents, dealing with trustees/directors/managers and taking part in certain political and campaigning activities which these organizations are bound by.

c. the main benefits of a CIC, CBS and CIO for founders and funders are that they are an established form of Social Enterprise which will use its funds to further its specified purposes and so attract funding as funders can be confident that their donations are being used for the stated purposes. A CIO, as a charitable entity, is generally exempt from corporation tax where the profits of its charitable trade are applied solely for the purposes of the charitable entity and where the entity makes a claim for exemption.

d. CICs, CBSs and CIOs are “asset-locked”.  They are also subject to reporting requirements by the relevant regulator/register i.e., Companies House, the Register of Charities and the FCA respectively.

e. Costs – no. Timing – incorporation of (i) CIC requires consent from the Regulator of Community Interest Companies, (ii) CBS requires consent from the FCA and (iii) CIO requires consent from the Charity Commission.

f. Well-known, although CIOs are only now becoming increasingly well-known given that they were introduced in 2013.

Yes.

a. No.

b. No.

c. No.

d. Nonprofits are used for Social Enterprises.

The 2019 Social Enterprise UK report stated that Social Enterprises used the following organizational forms: (i) CLG (28%), (ii) CLS (18%), (iii) CIC CLG (15%); (iv) Co-op (8%); (v) CBS (7%); (vi) CIC CLS (5%); (vii) Sole proprietorship (4%); (viii) CIC (unsure which) (3%); (ix) LLP (1%); (x) Other (11%); and (xi) don’t know/can’t remember (4%).

Yes. It is possible for workers to own, or part own, any of the organizational forms mentioned above, e.g., a Co-op, LLP, CLS or CLG. One well-known UK retail company called John Lewis is famously “employee-owned” in that it is owned by a trust on behalf of all its employees.

No. However, there are unique reporting requirements for certain organizational forms, for example:

• Charities: Each financial year and depending on the organization’s size, a charity (e.g., a CIO) is required to produce an annual report, a set of accounts and submit an annual return to the Charity Commission.
• Organizations registered at Companies House (e.g., CLS, CLG, CIC and LLP): Organizations registered with Companies House are required to submit annual accounts, annual report and other information to Companies House.
• Organizations registered with the FCA (e.g., CBS): Within seven months from the end of its accounting year, a CBS must submit an annual return to the FCA that includes a balance sheet and an auditor’s report.

No.

No.

No.

No.

Disclosure rules require UK pension fund trustees to outline their approach to engagement with and voting of their shares in investee companies, and how they take account of financially material factors, including ESG and climate change considerations.

Pension funds, mutual funds etc. are permitted to consider these factors and there is no pension fund legislation that is as strict in setting out the operation and governance of pension funds as, say, Canada. 

On top of this, there are a number of large funds which consider ESG issues when making their investment decisions, and there has been a large increase in the number of funds that use ESG as a part of the investment process. ESG considerations have become mainstream for major investor classes and they consider that at a minimum, investee companies will need a robust ESG policy before making investments. Some funds will insist that there is real engagement with ESG issues (and perhaps alignment and engagement with some of the UN SDGs) before investing. See Q3 below for further details.

Social Enterprises receive funding from individuals (in the form of donations and purchases), grants from statutory bodies, charitable investments, and traditional investments.

There are a number of organizations which provide significant amounts of funding to Social Enterprises in the UK; including:

• The Big Lottery Fund, which is responsible for distributing around 40% of the money raised through the UK’s National Lottery. It provides grants primarily to charities and Social Enterprises. In the year to March 2020 alone it awarded over £700 million to projects supporting health, education, the environment and other charitable purposes.
• Big Society Capital, which is an independent financial institution, set up by the UK government to help grow the social investment market in the UK. Since it was set up in 2012, Big Society Capital has invested more than £300 million in fund managers and social banks, who in turn lend to social enterprises and charities.
• Big Issue Invest, which is the social investment arm of social enterprise The Big Issue. It helps scale-up Social Enterprises and charities by providing finance, not grants, from unsecured loans to equity investment. Loans range from £50,000 to £1.5 million.

Impact investing is becoming more prevalent in the UK, with ESG factors becoming a highly relevant consideration for investors and asset managers assessing potential opportunities. In 2021, the UK will issue its first green government bonds with the capital raised being directed to fund renewable energy or clean energy projects. This has been at least partially led by buy side managers having increasingly large mandates to purchase green bonds and ESG assets. For profit impact investing is the most prevalent kind of impact investing in the UK. As ESG factors have moved into the mainstream, there are relatively few funds offering lower than market returns with a specific ESG focus. There has been a realization of late that market returns and a focus on impact and ESG objectives are aligned (particularly in the wake of the climate crisis and COVID-19).

Social Enterprises in the UK repeatedly report that access to finance is the main barrier they face, both at start-up and in trying to reach sustainability.

There are support grants and similar sources of funding available to Social Enterprises. However, most grants for Social Enterprises are not managed by the UK government, but many are funded from government money, often through local authorities, or devolved governments in Wales, Scotland and Northern Ireland.

In the UK, the National Health Service (“NHS”) is closely linked with a large number of Social Enterprises which were “spun out” of the NHS but continue to be at least partially funded by the NHS. Approximately 10% of the entire turnover of the Social Enterprise sector in the UK is generated by spin outs from the NHS.

Big Society Capital (see 2 above) also plays a role as a champion for the social investment market. It shares information and experiences from the sector, defines and demonstrates best practice, and informs government policy.

In recent history, the EU has also provided funds to Social Enterprises in the UK; however; it is unclear whether this support will continue to be available or be replaced.

Yes, e.g. the Schroder BSC Social Impact Trust which was created by Big Society Capital and raised £75m in an IPO in December 2020.

In its 2019 Green Finance Strategy, the UK Government set an expectation that all listed issuers and large asset owners would be disclosing in line with the Financial Stability Board’s Taskforce on Climate-related Financial Disclosures recommendations by 2022. Furthermore, credit ratings agencies will have to include ESG factors in their ratings by 2022.

Impact bonds are a developing market, though their use is not widespread. The Cabinet Office, a government department, set up the Centre for Social Impact Bonds which works to increase understanding of SIBs across government and to provide support to SIB developers.

No.

Crowdfunding is relatively marginal in the UK, allowing small businesses and Social Enterprises to solicit investment from the general public. This process is often hosted on web platforms that create space for organisations to present their work to prospective micro investors who can then transfer funds online.

The rules on crowdfunding registered charities are less restrictive than those which are not (i.e. there is no need to self-certify that you are an accredited / high net worth / sophisticated investor).

However, certain types of crowdfunding, namely peer-to-peer lending have recently received widespread negative coverage in the media and limits imposed by the UK Financial Conduct Authority which now limits investors from putting more than 10% of their investable assets into peer-to-peer lending.

There are tax exemptions available for Nonprofits generally, but there are no tax exemptions that are uniquely available for Social Enterprises structured using a for-profit organizational form.

Nonprofits (whether or not Social Enterprise) have two key tax exemption provisions, one being that they do not have to pay income tax themselves, and the other being that donors may take deductions on their reported income.

No.

No.

No.

No.

There are government grants and loan guarantees available for small businesses.

The British Business Bank provides guidance for small and medium sized enterprises and links to the various loan schemes administered by the Department for Business, Energy and Industrial Strategy. At the time of writing, there are 173 schemes listed on the UK government website including, loans to support agri-tech in Cornwall, support for projects at a Bio-renewables Development Centre and a national Construction Industry Training Board grants scheme.

In England particularly, the Social Enterprise support model has moved from predominantly government funded to predominantly private sector funded. Increasingly, incubation programs that specialize in supporting promising Social enterprises to become “investment ready” are being developed by the private sector; one example is a £2m program launched by the Higher Education Funding Council of England which seeks to strengthen and broaden support for Social Enterprise in universities across England.

Yes. There are different compliance requirements for certain organizational forms, for example:

• Charities: Charitable organizations registered with the Charity Commission (e.g., CIOs) are required to produce and send to the Charity Commission annual reports and accounts. This report must detail the organization’s activities and objectives in the year, its achievements and performance, including reporting on its public benefit, a financial review and details of any funds held as a custodian trustee.
• CICs: A CIC is required to prepare and deliver annually, to the Registrar of Companies (i) accounts, (ii) a CIC Report with a £15 filing fee, and (iii) an Annual return with a £15 filing fee.
• CBSs: CBSs are required to continue to meet the conditions for registration, have at least three members (or two members who are societies), maintain a registered office in Great Britain or the Channel Islands, tell the FCA of any change to the registered office address, maintain a register of members, maintain accounts, submit an annual return and accounts to the FCA within seven months of their financial year-end, notify the FCA of any change to the financial year-end date, register any rule changes with the FCA, and pay the FCA an annual fee.

There is not a dedicated government agency that oversees Social Enterprises; however, there are specific regulators for different forms of Enterprise (for example, Regulator of Community Interest Companies for CICs, the Charity Commission for charitable organizations and the FCA for registered societies).

Charity Commission: The Charity Commission has five statutory objectives. These are:

1. increase public trust and confidence in charities;
2. promote awareness and understanding of the operation of the public benefit requirement (the requirement that charitable purposes must be for the public benefit);
3. promote compliance by charity trustees with their legal obligations in exercising control and management of their charities;
4. promote the effective use of charitable resources; and
5. enhance the accountability of charities to donors, beneficiaries and the general public.

The Charity Commission also has some general statutory functions, including:

• determining whether institutions are charities;
• encouraging and facilitating the better administration of charities; and
• identifying and investigating apparent misconduct or mismanagement in the administration of charities and taking remedial or protective action in connection with such misconduct or mismanagement.

FCA: The UK Financial Conduct Authority (“FCA”) is the conduct regulator for nearly 60,000 financial services firms and financial markets in the UK and the prudential supervisor for 49,000 firms, setting specific standards for 19,000 firms. The FCA is responsible for registering new mutual societies, keeping public records and receiving annual returns.

Regulator of Community Interest Companies: The Office of the Regulator of Community Interest Companies decides whether an organization is eligible to become, or continue to be, a CIC. It is responsible for investigating complaints - taking action if necessary - and it provides guidance and assistance to help people set up CICs. In general, regulators of Enterprises in the UK are considered effective and efficient.

No.

An Enterprise (a company limited by shares or by guarantee) can be formed and registered with Companies House the same day the application is made using the online portal (£30) or making a paper application (£100), or in return for lower fees, within a number of days if using the online portal (£10) or making a paper application (£40).

No formal setup is required for a partnership or an unincorporated association.

LLPs can be registered online using third-party software which costs approximately £30; it takes approximately 24 hours for an LLP to be registered, though an LLP can be registered the same day the application is made in return for a higher fee.

To set up a CIC, the application costs £27 online or £35 if made by post and the process normally takes several weeks. However, it can take anywhere between two weeks and several months for a charitable Enterprise to be registered with the Charity Commission depending on the level of review required.

Registering a CBS with the FCA costs between £40 and £950 depending on whether the applicant uses model rules, rules with changes or freely drafts their own. An annual fee of between £6 and £460 is also payable. The FCA will register the application within 15 working days of receipt.

In order to be registered as a charity, an organization would need to apply to the Charity Commission (either for charitable status or to form a charitable entity). To be successful, the organization will need to adopt a number of internal controls and have purposes that align with a predetermined list of charitable causes. 

To set up a CIC, an applicant needs to file a ‘community interest statement’, explaining what their business plans to do, with Companies House, set an ‘asset lock’- a legal promise stating that the company’s assets will only be used for its social objectives, and set limits to the money it can pay to shareholders, and apply to community interest company regulator.

CBSs: CBS applicants are required to submit different applications depending on the specific form of entity being sought. In general, these forms contain information about the applicant’s business, the benefits being provided and how they are delivered, whether the society intends to work with a specific community, how the society will deal with excess profit, any commercial arrangement the society will have, whether an asset lock has been included in the rules and the nature of the charitable objects. On an ongoing basis, they are required to continue to meet the conditions for registration, have at least three members (or two members who are societies), maintain a registered office in Great Britain or the Channel Islands, tell the FCA of any change to the registered office address, maintain a register of members, maintain accounts, submit an annual return and accounts to the FCA within seven months of their financial year end, notify the FCA of any change to the financial year-end date, register any rule changes with the FCA, and pay the FCA an annual fee.

Yes, startups and other entrepreneurial Enterprises can easily be formed and flourish in the United Kingdom. There is a broad range of organizational forms available to choose from, there are relatively few reporting requirements for private for-profit businesses and incorporation processes are fast, cheap and simple.

Yes, Social Enterprises can be formed easily and quickly and flourish thereafter. The majority of registrations can be easily done online and there is a broad range of organizational forms available for Social Enterprises to choose from. There can be delays to incorporation caused by the checks and controls of relevant regulators, for example, the Charity Commission, however these are often minor delays compared to some other European jurisdictions.

There are some challenges faced by Social Enterprises in accessing finance, though the private sector has developed in size and variety exponentially recently and it is becoming easier for Social Enterprises to access funding and support.

In Wales and Northern Ireland, there has been less emphasis on social investment or financial sustainability due in part to a recognition that achieving financial sustainability is much harder for Social Enterprises operating in more economically deprived, rural areas.

In general, directors must use their powers in the best interests of the company and shareholders. While they are not prevented from considering other interests, such as the environment or the larger community, it would be better were they more easily able to consider those interests.

No.

• Revising rules governing fiduciary duties of Enterprises to enable or require them to consider factors other than financial return.
• Making crowdfunding easier, cheaper and more accessible to broaden public investment in Social Enterprises.
• Expanding the scope of Government funding of Social Enterprises. Local authorities and government authorities need to consider the wider social value they can create with the money they spend on goods and services.

Implementing a uniform and mandatory range of standards for ESG policies and level of reporting applicable to all Enterprises, based on percentages and ratios for each type of business.

No.