Donors in vulnerable circumstances

This guide is not legal advice. It is advisory and non-exhaustive and is aimed at fundraising charities, their trustees and third-party fundraisers. It may also be of interest to in-aid-of fundraising volunteers and donors to understand more about good practice in charity fundraising. 

You should use this guide alongside other sources of guidance, good practice and your reasonable judgement to help you meet the requirements of the Code of Fundraising Practice (the code).  

Where we say ‘you’ or ‘your’, it means a charitable institution and/or its trustees, and/or a third-party fundraiser, as applicable to you. Where we say ‘donor’ or ‘donors’, we mean current and potential donors and testators. You may also find information in this guide helpful when engaging with in-aid-of fundraising volunteers and any others who may be in vulnerable circumstances. 

Contact the Code Advice Service with any enquiries about the code and this guide. 

Introduction 

This is a guide to engaging with donors who may be in vulnerable circumstances, to help you meet the code. It is particularly relevant to sections 1, 2, 5, 7, 8, 9 and 14 of the code, but you must take all relevant parts of the code into account, even if they are not referred to in this guide.  

Using this guide and other trusted sources of good practice will help you meet the code. 

Throughout this guide we use the term ‘vulnerable circumstances’, although other organisations might use different terms. 

You should consider this guide in the context of the reasonable needs of your donors and the scale and nature of your fundraising activity. In complex situations or situations you are uncertain about, you should take professional specialist advice. 

A list of top tips is provided at the end. You may also find it helpful to read some of our other guides together with this one, including ‘Documenting your fundraising decisions’, ‘Due diligence and fundraising’ and ‘Fundraising events’.  

Fundraising behaviour

See code sections 1, 2, 5, 8 and 14

The code requires your fundraising to be legal, open, honest and respectful at all times.

Meeting these and other requirements in the code will help you to treat all your donors fairly and safely. We have set out examples of what this includes in our key behaviours of fundraisers guidance. This is important for all your donors and it is especially important for those who are in vulnerable circumstances. 

Anyone not wishing to receive direct marketing from charities, by addressed mail, emails, text messages or phone calls may use the Fundraising Preference Service (FPS). In relation to charities registered in Scotland, the Telephone Preference Service (TPS) and the Mail Preference Service (MPS) can be used by individuals to stop communications from charities. These services inform charities that a person wants direct marketing to them by charities to stop. Sub-section 8.4 of the code sets out the rules relating to opting out of communications and consent. If you receive an FPS or other notification to stop sending a person direct marketing, you must stop. Individuals can also contact a charity directly and ask them to remove their personal data from their system in accordance with the applicable data protection laws.   

Learning from your fundraising experience and from feedback, concerns and complaints from donors and others can also help you continuously improve how you engage with your donors. The code rule 2.3.1 requires you to have a process to enable donors to make a complaint to you about your fundraising. The code rule 2.3.3 also requires you to have a published procedure explaining how staff and volunteers can report any concerns to you about your fundraising practice, sometimes called ‘whistleblowing’, speaking out’ or ‘speaking up’ policies (also see safeguarding below). 

Section 13 of the Charities (Protection and Social Investment) Act 2016 requires charities in England and Wales with an income of over £1 million to provide statements on specific areas of their fundraising in their annual report, which is submitted to the Charity Commission for England and Wales. This includes setting out ‘the steps taken to make sure vulnerable people are protected’.  

Charities with an income below £1 million do not have a legal duty to meet these requirements. However, we consider it good practice for all charitable fundraising institutions that produce an annual report to include this and the other statements listed in the Act. See more in our guidance on The Charities (Protection and Social Investment) Act 2016: Fundraising reporting requirements. 

People in vulnerable circumstances

See code sections 1 and 5

Everyone has the potential to experience vulnerability. There could be a range of reasons for this including difficult life events, certain mental or physical health conditions, or cognitive difficulties. 

Be aware that people under the age of 18 are children in law in all four countries of the UK and are always considered as being in vulnerable circumstances. If an adult does not have the mental capacity to decide whether to donate to charity, they will automatically be in vulnerable circumstances. 

There is no single definition of ‘vulnerability’. The Fundraising Regulator defines it as: “a state in which a person is especially susceptible to harm due to their personal circumstances.” Other regulators have defined the term relevant to their own context. For example the Financial Conduct Authority, the UK regulator of financial services firms and markets, has defined a vulnerable consumer as: “…someone who, due to their personal circumstances, is especially susceptible to detriment, particularly when a [financial services] firm is not acting with appropriate levels of care.” 

It is important to note that vulnerable circumstances may arise due to factors relating to the donor that are independent of the charitable fundraising institution and/or acts or omissions of the charitable fundraising institution. 

Engaging with donors 

See code sections 1, 2, 5, 7, 8, 10 and 14

You should take this guide into account in all your fundraising activities to help you to treat others safely and fairly, including when developing and delivering your:

• Fundraising strategy
• Data protection policies
• Donor relations policies
• Artificial Intelligence (AI)
• Training for your trustees, fundraising staff, and third-party fundraisers
• Fundraising communication and marketing content, and
• Fundraising events. 

Do not assume that due to someone’s characteristics, such as their age (unless they are under 18 years old) or disability, they are in vulnerable circumstances. To do so could be discriminatory. However, you should be alert to situations when a donor is finding understanding or decision-making difficult. Applying the BRUCE protocol may help you do this. When interacting with a donor, you can use the protocol to think about the following:

Behaviour: Monitor a person’s behaviour and speech for indications of difficulties with the following:

Remembering: Is a person exhibiting any problems with their memory or recall?

Understanding: Does a person grasp or understand the information given to them?

Communication: Can a person share and communicate their thoughts, questions, or decisions about what they want to do?

Evaluation: Can a person ‘weigh up’ the different options open to them?

There may also be times when something is disclosed to you which requires you to make a report or take certain steps under your charity’s safeguarding rules. You should always follow your charity’s safeguarding policies and procedures or speak to the Designated Safeguarding Lead (or equivalent) in your charity. For more information about safeguarding, see below.

Any information disclosed to you about a donor’s circumstances, by themselves or someone else, must be processed in accordance with data protection legislation. Some donors may have a general or lasting (enduring) power of attorney in place. 

Informed decision-making

See code sections 1, 5, 8, 9, 10, 11 and 14

An informed decision is always one that is freely made by a person. The ability to make an informed decision is not necessarily linked to someone being in vulnerable circumstances, although it might be. Anyone might be unable to make an informed decision relating to your fundraising activity because of the way you communicate with them.   

You can help all your donors make an informed decision about your fundraising by providing information that is clear and accessible. You should be aware that someone who is unable to make an informed decision now might (depending on the circumstances) be able to do so in the future. However, if someone makes a decision that they believe, at the time or subsequently, was unwise it does not necessarily mean they did not or could not make an informed decision.

Even when someone is in vulnerable circumstances, it does not mean they are unable to make an informed decision. Whether or not they are able to make an informed decision will depend on the circumstances. You may have evidence that causes you to reasonably believe that someone is not able to make an informed decision to make a donation or participate in a fundraising activity. In accordance with code rule 5.2.3, you should not accept a donation from anyone who you know or reasonably believe is not able to make an informed decision and should return the donation if you later find out they could not make an informed decision at the time of the donation.

Relevant evidence might include where someone:

• Needs additional information from you or information in alternative formats before deciding
• Lacks the mental capacity to decide

In certain cases, it may be relevant to explore making an ex gratia payment where applicable. You may need to obtain professional specialist advice about this if you are unsure whether it applies.

Some donors may additionally be supported by a carer or a personal assistant who the donor may wish to assist them so they can make an informed decision. Other donors who still have mental capacity may have an Ordinary Power of Attorney in place that may mean someone they designate can temporarily transact donations on behalf of the donor. 

Mental capacity

See code sections 1, 5, 8, 10 and 14

Mental capacity is a legal term relating to a person’s ability to make a particular decision due to their mental and cognitive functioning. An adult is always assumed to have mental capacity to make decisions for themselves unless they are assessed as lacking mental capacity, typically by a health professional. There are different laws that apply to mental capacity in England and Wales, Northern Ireland, and Scotland. 

Mental capacity is different from informed decision-making. If someone lacks the mental capacity to make a decision relating to your fundraising activity, they will be unable to make an informed decision at all. 

Be careful not to make assumptions about someone’s mental capacity. Mental capacity can come and go – a person’s capacity may be decision and time specific. They may have the capacity to make smaller decisions but not more significant ones, and their capacity may be better at different times of day. If you know or reasonably believe a person lacks the mental capacity to make a decision relating to donating to your charitable institution, their donation must not be accepted. If a donation is accepted and it is subsequently found that the donor lacked the mental capacity to make an informed decision about donating at the time it was made, the donation must be returned.

Powers of Attorney (PoA) or deputies may be used if someone does not have the mental capacity to make their own decisions (or has chosen to delegate their decision to someone they trust) and has registered the relevant PoA with the relevant official body:

• If made in England and Wales, someone may have a Property and Financial Affairs Lasting Power of Attorney in place (or Enduring Power of Attorney, if made before 1 October 2007) and the relevant body is the Office of the Public Guardian.
• If made in Northern Ireland, someone may have an Enduring Power of Attorney and the relevant body is the Office of Care and Protection
• If made in Scotland, someone may have Continuing Power of Attorney and Combined Power of Attorney and the relevant body is the Office of the Public Guardian (Scotland)

In these cases, donations to charity may only be made by a designated attorney or deputy in certain circumstances, in accordance with the respective law. When any person claims to hold such powers, you should check with the relevant official body that they are valid before acting on them.

Risk assessment

See code sections 1, 2 and 5

To meet the requirements of the code, you should assess and manage the risks associated with your fundraising activity and make decisions based on what you find. This includes considering the impact of your fundraising activity on donors in vulnerable circumstances, including the lessons you have learned from previous activity, and reducing the risk that your fundraising activity would put people in vulnerable circumstances. You should carry out risk assessments, for example, to:

• Assure yourself that your fundraising activities will not cause harm
• Assess whether to accept, decline or return certain donations
• Check that those who fundraise on your behalf, such as trustees, staff, or third-party fundraisers, do not pose a risk of harm to others.

This is not an exhaustive list. Your risk assessments, and the steps you take to reduce the risks you have identified in relation to donors in vulnerable circumstances, will vary depending on the specific nature of your fundraising activities.

See more in our guides to ‘Due diligence and fundraising’, and ‘Documenting your fundraising decisions’.

Health and safety

See code sections 2, 5, 7 and 10

Make sure that your health and safety arrangements are appropriate for your fundraising activity and anyone it will affect. The health and safety measures you put in place should reduce the risk of putting any person in circumstances that may make them vulnerable or otherwise cause harm. They should also take into account the needs of people whose circumstances already make them vulnerable. Be aware that some methods of fundraising, for example, those involving gambling such as lotteries, could contain hidden harms. Please note, the law on lotteries in Northern Ireland significantly differs from England, Wales and Scotland. You should take these into account in your risk assessment and health and safety arrangements. Also see our guide to ‘Due diligence and fundraising’, ‘Fundraising events', and ‘Online gaming and fundraising’. 

Safeguarding

See code sections 5 and 7

You must meet your legal duties to safeguard and protect from harm anyone that comes into contact with you (including via trustees, staff, volunteers or third-party representatives). This includes your beneficiaries as well as donors and others you may come into contact with through your fundraising activities. 

You are required to carry out appropriate checks on those fundraising on your behalf. This should include - at least - carrying out a basic Disclosure and Barring Service (DBS) check in England and Wales, an Access NI check in Northern Ireland, and/or a Level 1 (formerly ‘basic’) Disclosure Scotland check in Scotland, on anyone aged 16 or over, if your risk assessment determines it is appropriate.

If any fundraising role will involve contact with children or adults at risk, you must consider whether it is eligible for a higher-level check but only request such a check where you are legally allowed to do so. You should get the highest level of check that the person is eligible for.

You should also conduct any other appropriate checks to ensure that people are safe and suitable to be carrying out their role. This may include, for example, obtaining overseas criminal records checks (where applicable), getting two satisfactory references, checking qualifications, conducting in person interviews. 

You and your fundraising partners must also know how to rapidly refer or report safeguarding concerns and suspected or actual incidents of harm and ensure you do so where the situation arises and must always act in accordance with the charity’s safeguarding policies and procedures.

You should read the Charity Commission for England and Wales (CCEW) guidance about safeguarding and protecting people for charities and trustees or the safeguarding resources available at the Charity Commission for Northern Ireland (CCNI) or Office of the Scottish Charity Regulator (OSCR). These should be understood and followed by everyone working for or representing the charity when carrying out fundraising activities, including staff, trustees and volunteers. 

Fundraising and children

See code section 5

Children (any person under the age of 18 years old) must not carry out certain fundraising activities, including:

• Street and house-to-house collections
• Lotteries or raffles, or
• Events involving alcohol.

There are also fundraising activities where children should be supervised by a responsible adult. When consent to participate in any fundraising activity is sought from someone under the age of 18, you must consider on a case-by-case basis whether they have the capacity to give consent themselves. The age at which a child is able to give consent may be set out in law and you must follow the law in those cases. Where no minimum age is set out in law or where a child is above that age, a child’s capacity to give consent may vary between children and in the light of your particular fundraising activity. If you reasonably believe a child does not have the capacity to give consent themselves, a responsible adult may do so on their behalf where the law allows. 

Accessible and inclusive communication 

See code sections 1, 5, 8 and 9 

Communicate information relating to your fundraising activity in a legal, open, honest and respectful way, in accordance with the code. 

If your fundraising activity means you could be interacting with someone who is in vulnerable circumstances, you should think about whether your communication approach could risk or cause harm. You should take steps to avoid such risk or harm. 

You should be mindful that association with a charity could be perceived by some donors (whether in vulnerable circumstances or not) as implying a particular authority, power or position of trust. Be mindful of this in your interactions and never exploit or misuse it. In accordance with the code, you must not, at any time, take advantage of the trust, lack of knowledge, apparent need for care and support, or vulnerable circumstances of an existing or potential donor.

Your communication should also be accessible and inclusive. Bear in mind that what may seem clear to you may not be clear to others. 

Make sure you consider the needs of your donors and make any anticipatory adjustments and adjustments in response to a request where it is reasonable to do so. Seek out communication good practice relevant to your fundraising activity. Many organisations, such as specialist advice charities, provide guides to good practice about communicating with different groups of people accessibly and inclusively.

Take the time to consider whether your website is accessible to your donors. The internationally accepted standards for website accessibility are set out by the Web Accessibility Initiative (W3C). Some donors may make use of assistive technology to engage with you. Sometimes this will be technology that you enable or provide. Where your technology makes use of artificial intelligence (AI), follow our Guidance for using artificial intelligence in fundraising, and any other applicable regulatory guidance.