Treating donors fairly

Excellent fundraising also has a beneficial impact on supporters themselves leading them to find out more about issues, connecting them with others, inspiring them to volunteer, as well as making them feel positive. This includes people who have used, or continue to use, a charity’s services. While charities will want to be sure that they fundraise with people who use their services in a sensitive and appropriate way, the act of donating can be empowering and a way for people who have benefited from a charity to give something back. As fundraisers go about their work, putting on events, reaching out to new supporters, planning activities and communications, it is inevitable that they will be in contact with people who may be in a vulnerable circumstance or need additional support on making a decision about any donation. This guide will help fundraisers respond appropriately in those situations, giving the most positive experience and support to everyone. We want to help fundraisers be in the best position to empower supporters to make informed decisions. It is not about judging people, but is instead focused on how the fundraiser can best respond in an inclusive, fair, and informed way

The rules for fundraising are set out in the Code of Fundraising Practice, which includes relevant legal requirements as well as the standards set by the Fundraising Regulator. The Code of Fundraising practice sets the standards for fundraising all across the UK. In Scotland, it is used by the Scottish Fundraising Standards Panel to assess complaints. We encourage all fundraisers to regularly review the Code of Fundraising Practice to ensure that all their fundraising activity is compliant with the standards it sets out. There are specific rules on fundraising and vulnerability within section 1.3 of the Code (as detailed below).

1.3.5. Your fundraising must meet equality law as it applies in England, Wales, Scotland and Northern Ireland. You must not discriminate against people with characteristics protected under the law of these countries. You can get more information from the Equality and Human Rights Commission and the Equality Commission for Northern Ireland.

1.3.6. You must take all reasonable steps to treat a donor fairly, so that they can make an informed decision about any donation.

1.3.7. You must take into account the needs of any possible donor who may be in vulnerable circumstances or need extra care and support to make an informed decision.

1.3.8. You must not exploit the trust, lack of knowledge, apparent need for care and support or vulnerable circumstance of any donor at any time.

1.3.9. You must not take a donation if you know, or have good reason to believe, that a person lacks capacity to make a decision to donate, or is in vulnerable circumstances which mean they may not be able to make an informed decision.

Among other things, you should consider:

• any physical or mental-health condition the person may have;
• any disability the person may have;
• any learning difficulties the person may have;
• whether the person is facing times of stress or anxiety (for example, following the death of a loved one or redundancy);
• whether a donation is likely to affect the person’s ability to sufficiently care for themselves or leave them in financial hardship;
• how well the person can communicate and understand what they are being told;
• whether the person is under the influence of alcohol or drugs;
• the person’s age.

1.3.10. If a donor makes a donation while they do not have the capacity to make an informed decision, you must return the money to them.

In addition to the standards for fundraising set in the Code of Fundraising Practice, there are additional legal requirements on this area for charities registered with the Charity Commission for England and Wales brought in by the Charities (Protection and Social Investment) Act 2016.

Under the Charities Act 2016, written agreements with professional fundraisers and other commercial third parties must include information on:

• Any fundraising standards that the commercial organisation has committed to be bound by.
• How the commercial organisation will protect people in vulnerable circumstances and others from unreasonable intrusion into their privacy, unreasonably persistent approaches or undue pressure to donate to the charity.
• The arrangements in place that will enable the charity to monitor compliance with the requirements in the agreement.

It also requires charities to include a statement in their annual report which sets out:

• Whether a professional fundraiser carried out any fundraising activities.
• Whether that professional fundraiser is bound by a voluntary or regulatory scheme for fundraising, and any failures to comply with that scheme.
• Whether the charity monitored the activity carried out by professional fundraisers and how.
• The number of complaints that have been received about fundraising activity.
• What the charity has done to protect vulnerable people as part of its fundraising activities.

There is an important distinction between whether an individual lacks capacity to make a decision, or simply needs more information and support to be able to make a decision to donate. Fundraisers need to be aware of this difference so that they can make a reasoned judgment and act appropriately when dealing with existing or potential donors.

Mental capacity is the ability to make a decision. Decisions can range from everyday decisions such as what to have for lunch, to more significant decisions such as buying a house. There is a presumption that a person has capacity unless it is established that he or she lacks capacity. It is important to note that what some people may regard as an unwise decision is different from that person not having capacity to make that decision.

Making a formal mental capacity assessment is something that the vast majority of fundraisers will be unable to do as it requires specialist training. Rather than making a decision on an individual’s capacity, fundraisers should focus on their own actions and behaviour in any interaction to ensure that they are responding appropriately.

If a fundraiser is concerned that someone may not have mental capacity to make a decision, then you should speak to the person, ask about any support requirements they have, and take extra steps to provide any further information in a way that best suits the individual.

A fundraiser should not ask for a donation if there is a reasonable belief that an individual is unable to make a decision, and could pause or refuse a donation that has been offered. If the donation has already been made and at the time of donating the individual lacked capacity (and the charity receives evidence of this), the gift will be invalid, and the charity must return that donation.

It is important to recognise the distinction between an individual lacking the mental capacity to make a decision (as defined under the Mental Capacity Act 2005), and someone who has the capacity to make a decision but may otherwise be vulnerable or be in a vulnerable circumstance at that moment in time. This is not straightforward and will depend on how a condition impacts the individual. For example, someone may have a mild form of dementia which means that they do have capacity for most financial decisions, but might need additional support in making that decision. However, another individual may be more severely impacted with their ability to make financial decisions severely compromised. While both situations require a fundraiser to respond appropriately, the fact that issues around mental capacity has a legal context is something fundraisers need to be mindful of.

Useful information on issues around vulnerability, capacity, and best practice in responding in an inclusive way is available from a range of charities including Alzherimer’s Society, Dementia UK, Mencap, and Age UK.

It is a good idea to make a note of the conversation with a supporter and, where appropriate, follow up in writing confirming the actions taken and the steps that have been gone through, explaining any reasons for decisions taken.

Where a donation is made, this could be part of your normal supporter care and thank you process. This provides the opportunity to tailor the communication around the individual and your interaction with them, as well as document the outcome of conversations for both you and the supporter so that they can keep as a record.

In some cases, it may be necessary to take the donation details and then re-assess the case within the fundraising team to decide if there is a need for any further actions such as confirming the donation again with the supporter or asking any further questions.

When a fundraiser chooses to not ask for a donation, then ending the conversation or interaction sensitively and with care is important. In many cases, offering to send information to give the individual more details and time to think about whether they want to make a donation, and use that as a time to ask any further questions about additional support the individual may need, or schedule a time for a follow up call or meeting to discuss further.

If an individual tells you about a particular condition or circumstance, you may want to signpost them to a relevant service or further information (e.g, another charity, NHS, etc.) but that will not be appropriate in every case – for example, it could provoke anger or cause offence – and so should only be done where the fundraiser is confident in doing so. When ending an interaction with a supporter, a fundraiser should – where appropriate to do so – check an individual’s preferences for future contact from the organisation.

A decision to refuse a donation or to return a donation requires careful consideration. Depending on the size of the donation this may need to be a decision made by the trustees, and it is recommended that the charity has a policy on accepting and refusing donations, which also sets out the level of authority for making such a decision. Consider including in the policy a specific reference to people in vulnerable circumstances and the legal and risk factors that fundraisers should account for. 

1. Establish what has happened and how and why the supporter was contacted. At the supporter’s request, charities should make it easy for a friend or family member to help.
2. Reassure the supporter or their family member that you will investigate the matter. Ensure that frontline staff are equipped to respond appropriately by taking time to listen to what the individual is saying, are flexible enough to let the conversation take its natural course and ask the right questions whilst recognising this can at times be a difficult conversation.
3. Review the supporters’ record and check for any previous information about vulnerability, if they were contacted by an external supplier contact them and find out exactly what happened and how the supporter responded.
4. Contact the supporter or their family member in a timely fashion noting that long delays and lack of clear information that can cause further distress to vulnerable supporters. Come to a mutual resolution wherever possible, for example, in the case of a direct debit being set up, it could mean cancelling it and refunding all monies paid to date. Tell them what steps you have taken to ensure that this does not happen again and communicate any changes you have made as a result.
5. Thank the supporter or family member for bringing this to your attention and thank them for the support that the supporter has given your cause, the aim should always be to end the conversation on a positive note. It might also be helpful to sign post them to further support/resource e.g. your own charity’s service, or if they have got a different condition/circumstance, an appropriate other charity/ organisation
6. Update the supporter’s record to reflect steps taken and ensure it is noted that they should no longer be contacted with fundraising asks/or at all. If the process has thrown up any gaps in your procedures or policy, take the time to update these now so you are prepared if this happens again:

• • Ensuring that you have a clear vulnerable people’s policy for fundraising
  • Ensuring you have clear escalation processes in place
  • Ensuring that your CRM or supporter database is able to appropriately mark records and exclude people from direct contact where needed (following the guidance below on recording special category data)
  • Ensuring that vulnerable supporters have access to practical, jargon-free information
  • Ensuring that vulnerable supporters can communicate through the range of communication channels in ways that best suits them as individuals, for example face-toface, phone, post, email, text, large print, web chat, audio, Braille, video relay, Type Talk or text relay, interpreting services etc.

When a charity is communicating with someone who they think needs additional support to make a donation, fundraisers often ask what records they should or shouldn’t keep. It might be that the charity wants to record some information about an individual which stops that person from receiving fundraising communications, or so they know additional consideration is needed when soliciting and/or accepting a future donation from that person.

This can also make sense from the point of view of delivering good supporter care – for example, being able to know if the person has been a previous service user of the charity in the past. Having that information to hand can help to make sure that any conversations or communications with that individual in the future can be appropriately, respectfully, and sensitively handled.

While there can be obvious benefits to recording information, charities must be aware of their responsibilities under data protection law, including the UK General Data Protection Regulation (GDPR) and Data Protection Act 2018, particularly where the information that they are recording is sensitive or ‘special category data’ such as any details of views or opinions about a person’s physical or mental health conditions. Making a note on someone’s record such as ‘Vulnerable’ may constitute special category data as it can infer a physical or medical health condition.

For full information about the requirements of GDPR see the information provided by the Information Commissioner’s Office.

Having a policy for your organisation’s fundraising and its approach to people in vulnerable circumstances has multiple benefits: it demonstrates good governance processes; expresses the values of the organisation; and provides a framework so that all staff and volunteers know what’s expected of them. It can also be used to explain to supporters or the public how you are going about your work and aid transparency and accountability.

• Consider what the purpose/aims/objectives of the policy are – why are you putting a policy together. What do you hope that this policy will achieve? What do you intend to do with it? Are you creating a policy to address an existing problem or to direct a future way of working?
• Consider a range of viewpoints and perspectives (beneficiaries, supporters, staff, funders and trustees). Consult with all relevant stakeholders to ensure their input is gathered at the front end of the process?
• Establish which groups or individuals are likely to be impacted by this policy. Are there any unintended consequences or practical issues you need to think through?.

• Does your organisation have a framework or protocol that it follows when creating a policy?
• Organisational policies should be approved by your Board of Trustees – check your protocols and processes for reviewing and setting new policies within your organisation
• Build in a test and reflection stage(s) to take a step back and review your progress – are there any unexpected issues? Do you need to get a sense check or feedback from others?
• Consider how you will enact the policy, who will need to be involved and what processes or systems may need changing?

• Will it apply to all employees, volunteers, trustees, ambassadors, third party organisations, (e.g. third party agencies and professional fundraisers, commercial partners)?
• Will your policy align and complement the policies of thirdparty organisations? Are there any issues or conflicts to iron out?
• Will it overlap with any existing policies, (e.g. acceptance of gifts, complaints policy)?
• Discuss and agree what you think the expectations and outcome should be. How will you know that this policy is achieving its aims? What evidence, information, feedback will you need to gather and consider?
• Consider how employees and others will engage with this policy. For example, in-house inductions and training programmes could include a section on understanding the organisation’s approach to vulnerability
• Will individuals be assessed on how they perform in relation to it? Will there be any sanctions if they breach or disregard the policy?

Where possible, consider if there are any exceptions that could apply? Would there be any cases where this policy wouldn’t apply? For what reason? There may be a genuine and justified reason why not following the policy could be the right thing to do. What would be the process to best deal with this? Who should be included in this decision?

• Don’t create the policy in a vacuum, the best policies are created with input from all those who are affected by them – consider your employees, volunteers, trustees, supporters, donors (including potentially those with lived experiences of vulnerability), service beneficiaries and providers.
• The final version may not be able to reflect all viewpoints, but it is important to ensure that all stakeholders’ opinions were heard, to allow all the risks to be considered and addressed to minimise the risk of unintended consequences
• Make sure that fundraisers are involved in the process alongside colleagues in a compliance or governance role. Consider the practicalities of how the policy would work in the day to day activity of your fundraising.

• Be as clear as possible, using straightforward language to avoid confusion or alternative interpretations. If this is to be public or available to supporters, then make sure you avoid (or explain) any difficult terminology, internal ‘shorthand’/ ‘phrases’ and acronyms.
• If using phrases to indicate required behaviour or action, use clear words like ‘must’ and ‘will’ to avoid any implications that the policy is optional.
• Where the individual is expected to use their own judgement, be equally clear that this is the case.
• Ensure that your policy is inclusive and does not risk isolating those in vulnerable circumstances or curtail their equal opportunities. Consider the Equalities Act and use inclusive terminology, e.g. people in vulnerable circumstances not vulnerable people.

Think about a testing or pilot period to establish whether the policy is having the expected and desired impact. Test it with different teams and campaigns (telephone, community, volunteer fundraising) and encourage feedback and comment.

• Identify which role(s), within the organisation will be responsible for administering/enforcing this policy and/or for providing guidance on it. Try to avoid naming/ specifying individual employee names – instead use roles and non-personalised contact details – to avoid updates due to changes in personnel.
• Ensure that the person holding that role is aware of this responsibility and what it means. Do they need any support or training?.
• What happens if that individual is sick or on leave? Who else will be the point of contact?

• How will you launch this policy and ensure all affected are aware of its existence? Will this be by an all- staff briefing, emails, and/or presentations? Will it be part of future inductions and training?
• Think about other partners and stakeholders. How will you make any agencies or partners aware of your policy and will they need to embed it in their work? Will you monitor that they have done so?
• Do you have volunteer managers and community fundraisers? Ensure that these people have access to any support or training they may need and that there are adequate safeguards in place to protect their wellbeing and mental health.
• Will you make your policy publicly available? Many charities publish their policy, or a summarised statement about it, on their websites and make available with supporters or others if they are asked.