What can trustees delegate, and what must the board decide itself?

England and Wales: This page sets out the position in full for charitable trusts and CIOs; for a charitable company, delegation runs on the articles, and the model articles were not read for this step. Scotland: partly covered — the current statutory power is far narrower than the England and Wales one, and the wide replacement power passed in 2024 is not yet in force. What a Scottish board may safely delegate beyond that narrow power is not settled. Northern Ireland: covered in full — the Trustee Act (Northern Ireland) 2001 was read at source and mirrors the England and Wales scheme section for section.

When are trustees protected if a delegate goes wrong?

In England and Wales, a trustee is not liable for an agent’s default unless they failed the duty of care. The failure can be when making the arrangement or when reviewing it.

This page covers delegation and the scheme of delegation for trustees in England and Wales. There, the Charity Commission’s guidance applies. The page then covers Scotland and Northern Ireland.

Before writing a scheme, map your governing document: it can widen or narrow everything below. Also set your meeting rhythm, because each delegated line reports back into those meetings.

This is the framing to take away, in the research record’s own words. The statute says a trustee is not liable for an act or default of the agent, nominee or custodian.

Everything turns on one exception: unless the trustee failed the duty of care — one of the trustee duties. The failure can come when entering into the arrangement. Or it can come when carrying out the continuing duty to review it.

Read the shape of that. It protects you if you met the duty of care at both moments. Fail either one and the protection is gone. A board that chose its delegate with care and then never looked again has no shield. Nor does a board that reviewed with care but appointed carelessly at the start.

That continuing duty is real and it is written out. While the agent, nominee or custodian is still acting, the trustees must:

• keep the arrangements under review
• where circumstances make it appropriate, consider whether there is a need to intervene
• intervene if they think there is a need to

To appoint and forget is a breach in itself, whatever the delegate does.

Two smaller points sit under the same provisions and belong on the page. The same test applies to a substitute the delegate is allowed to appoint.

A failure to stay inside the statutory limits does not invalidate the authorisation or the appointment. A third party dealing with your delegate will rely on that. Going beyond the power is a problem between the trustees and the charity. It is not a way to undo the contract.

A condition sits underneath the condition, and it is easy to miss. Everything here rests on the duty of care. The governing document can switch that duty off. For a charitable trust, the duty of care does not apply if or so far as it appears from the trust instrument that it is not meant to apply.

For a CIO, the duty is a different one (see the section on CIOs). A CIO’s constitution can be permitted to disapply it too. So a page that presents this as a clean conditional shield is incomplete. It also needs to say that the condition itself can be removed. Check your own document for that as well.

What can charity trustees delegate by default?

By default, trustees may delegate carrying out a decision they have taken, but not taking it. Investment and fundraising are the exceptions. For a charitable trust, the delegable functions are a closed list:

(a) (a) any function consisting of carrying out a decision that the trustees have taken
(b) (b) any function relating to the investment of assets subject to the trust (including, in the case of land held as an investment, managing the land and creating or disposing of an interest in the land)
(c) (c) any function relating to the raising of funds for the trust otherwise than by means of profits of a trade which is an integral part of carrying out the trust's charitable purpose — s.11(4) defines when a trade is 'integral'
(d) (d) any other function prescribed by an order made by the Secretary of State

Limb (a) is the general rule, and it is narrow. The function that may go is carrying out a decision the trustees have taken, not the taking of it. Limbs (b) and (c) are the two carve-outs where the judgement itself can be handed over. They cover investment, and raising funds.

Fundraising excludes the profits of a trade that is integral to carrying out the charity’s purposes. The statute defines when a trade counts as integral.

But that list is a default, and the source check for this step turned on that. The Part opens “subject to the provisions of this Part”. The decisive provision then says the statutory powers are in addition to powers the trustees have from elsewhere. They are also subject to any restriction or exclusion imposed by the trust instrument or by legislation.

So your document can change this answer in two ways, in opposite directions:

• It may confer an express wider power of delegation. If it does, a delegation the statutory list does not cover may be perfectly valid. The list does not cut down what your document gives you.
• It may restrict or exclude the statutory power. If it does, something the statute would allow may still be outside your powers.

So telling a charity “you cannot delegate that” on the strength of the statutory list alone can be wrong. The Commission’s own decision-making guidance assumes charities do delegate decision-making. Check the document first, every time.

CIOs: trust-law delegation with a different duty of care

A CIO delegates under the same Trustee Act rules as a charitable trust. But its trustees owe a different duty of care. A CIO is not a self-contained regime here.

The CIO Regulations apply the Trustee Act’s delegation Part to a CIO as it applies to a charitable trust. A short list of changes comes with it: “trust” reads as “CIO”, “trust instrument” reads as “constitution”, and several provisions drop away.

One of those changes matters more than the rest. For a CIO, the duty of care behind the liability shield is not the Trustee Act’s Schedule 1 duty. The Regulations put the Charities Act’s own duty on a CIO trustee in its place.

That duty is to exercise such care and skill as is reasonable in the circumstances. It takes account of any special knowledge or experience the trustee has, or claims to have. And where the trustee acts in the course of a business or profession, it takes account of what it is reasonable to expect of someone in that kind of business or profession. That duty can itself be switched off by the CIO’s constitution, where the regulations allow it.

Quoting the unchanged Schedule 1 test at a CIO is the wrong test. It is a common error because CIOs are presented as modern and self-contained. In fact they are grafted onto trust law.

What must the board keep out of a scheme of delegation?

The board stays accountable for whatever it delegates. It should keep high-risk or novel decisions for itself. CC27 puts this in one sentence, verbatim:

“If you delegate decision-making, you as the trustee board remain responsible and accountable for all decisions… You should not usually delegate high risk or novel decisions.”

The second half is a should: good practice the Commission expects, not a legal ban. The first half is not advice at all. It describes where accountability sits. Accountability does not move because you wrote a scheme of delegation.

This matters for the document you are about to write. A scheme of delegation is a list of who does what, with what limits, and how the board finds out. It is not a list of things the board has stopped being responsible for. Each delegated line needs a reporting route back. Without one, the review duty cannot be met.

Any money limits in the scheme should match the authorisation limits and bank mandate.

Two things stay with the board. One is all that the governing document reserves to it. The other is all that the statutory list does not reach. As a matter of good practice rather than law, so does anything high-risk or novel.

The seven decision-making principles are what a reserved decision is judged against. A delegated decision does not escape them. But the board has to be able to show it oversaw the person who applied them.

Scotland: a narrow statutory power, and a wider one not yet in force

Scottish trustees have only a narrow statutory power to delegate. So a Scottish scheme rests on the governing document.

Do not read the England and Wales position across to Scotland. The Trustee Act 2000 does not apply there.

The current Scottish statutory delegation power is a narrow one in the Trusts (Scotland) Act 1921. It is a power to appoint factors and law agents and pay them suitable remuneration. That makes it a power to appoint agents, not a general power to delegate any trustee function.

One more power was added later, and it is declaratory. It lets trustees authorise an agent to exercise their investment management functions at the agent’s discretion. A separate power lets trustees appoint a nominee to hold trust property.

That is the statutory picture the research found. It found no Scottish equivalent of the “carrying out a decision” limb, and none of the fundraising limb.

A wider power has been passed, and it is not law yet. The Trusts and Succession (Scotland) Act 2024 would give Scottish trustees a broad power to delegate any of their powers. It adds a nominee power, with a duty to keep a nominee arrangement under review. In shape it is much closer to the England and Wales scheme. Its delegation provisions are not in force.

From that part of the Act, only a narrow power for Scottish Ministers to make regulations is in force. Professional commentary says the 2024 Act reformed Scottish delegation law. Anyone who relies on that is describing law that does not yet bind anyone.

So the practical instruction for a Scottish charity differs from the one above. It is not a translation of it. A Scottish scheme of delegation has to be built almost entirely on the charity’s own governing document. The statutory floor underneath it is narrow.

When those provisions come into force, this changes a great deal. A scheme written today will then need rewriting rather than re-checking.

One honest limit. How far a Scottish board can safely go beyond the narrow statutory power is not settled here. That turns on the common-law rule against a delegate delegating further, and its recognised exceptions. That is a question for a Scottish-qualified solicitor, and it is the main point on which this page sends a Scottish reader to one.

The investment side is better settled; the policy itself is on set your investment policy. Scottish trustees have a general power of investment. Before exercising it, they must have regard to:

• the suitability of the proposed investment
• the need for diversification

They must also get and consider proper advice, both before investing and when reviewing the investments, unless they reasonably conclude that in the circumstances it is unnecessary or inappropriate. That advice duty is a live one, not a formality.

Northern Ireland: the same scheme, in its own Act

The Trustee Act (Northern Ireland) 2001 mirrors the England and Wales delegation rules section for section. It was read at source for this step. The Act has the same closed list of delegable functions for a charitable trust. It also has the same continuing review duty.

The conditional liability shield is the same too. So is the rule that the governing document may widen or narrow the statutory powers. Verbatim, on that last point:

"The powers conferred by this Part are— (a) in addition to powers conferred on trustees otherwise than by this Part, but (b) subject to any restriction or exclusion imposed by the trust instrument or by any statutory provision."

And on exceeding the powers:

"A failure by the trustees to act within the limits of the powers conferred by this Part— (a) in authorising a person to exercise a function of theirs as an agent, or (b) in appointing a person to act as a nominee or custodian, does not invalidate the authorisation or appointment."

Northern Irish trustees also have their own general power of investment. It has the same standard criteria and the same advice duty. It sits in their own Act rather than coming by extension from Great Britain’s.

Two cautions, both from the record rather than added here. The numbering match holds for this Part of the Act. It should not be assumed for any other Part without checking. And the exact commencement date of the Part was not independently confirmed against the order’s own text. The mechanism was.

Charitable companies: delegation under the articles

For a charitable company, delegation runs on the articles of association, not on the Trustee Act. The model articles were not read for this step. So the research confidence on the company position is lower than on the rest of the page.

Three earlier points still apply:

• accountability
• the review duty, as a matter of good practice
• the decision-making principles

What is said about the statutory list does not.

A charitable company writing a scheme of delegation should work from its own articles. It should treat this page as a checklist of questions to ask of them, not as an answer.

Common mistake: delegating a decision rather than its execution

Boards think of delegation as handing over a whole area of responsibility. The statutory default lets trustees delegate the function of carrying out a decision they have taken. Investment and fundraising are the only broader carve-outs.

Everything else has to be authorised by the governing document, if it is authorised at all. That is why the document is the first place to look, not the last.

Common mistake: appointing a delegate and then not reviewing the arrangement

The appointment feels like the end of the task. With a good delegate, nothing then prompts a second look. The review duty is continuing: keep the arrangement under review, consider intervening where circumstances make it appropriate, and intervene if there is a need. Failing it removes the liability protection, whether or not the delegate has done anything wrong.

Common mistake: assuming CIOs have their own delegation rules

CIOs are presented as a modern, self-contained structure. So people look for CIO-specific rules and find none.

The CIO Regulations apply the Trustee Act’s delegation Part to a CIO as it applies to a charitable trust. The one thing that changes is the duty of care. It is the Charities Act duty rather than the Trustee Act one. That is the provision the whole liability question hangs on.

Worked example

Saltmarsh Trust’s board delegates all grant-making decisions below a set figure to its chief executive. It then does not look at the arrangement again for three board years.

Take the two questions separately, because they have different answers.

Whether the delegation was valid. Grant-making is neither investment nor fundraising. So delegating the decision sits outside the statutory default. But the default is not the end of it.

The arrangement may be perfectly valid if Saltmarsh’s articles or trust deed confer an express wider power of delegation. That is because the statutory powers are in addition to what the document gives. The board cannot answer this without reading its own document — and neither can this page.

Whether the board was protected. It was not, and this half does not depend on the first.

The review duty ran throughout, and it was not met. The conditional shield is not available to trustees who failed the duty of care in carrying out that review. That holds whatever the position on the delegation itself.

Only the governing document’s own wording could change this, for example if it had switched the duty of care off. That is possible and is worth checking.

The lesson of the example is this. A board can be right about the delegation and still personally exposed. Different provisions govern the two questions, and each is answered on its own.

With the scheme written, the next step is to build your conflicts of interest register. It shows that the people deciding under the scheme have no stake in the outcome.