Guidance

Total return investment for permanently endowed charities

Updated 14 June 2023

Applies to England and Wales

1. Introduction

1.1 About this guidance

The Charities Act 2011 (as amended) enables trustees of permanently endowed charities to adopt a total return approach to investment and then (if they so decide) use their permanent endowment to make social investments which are expected to make a negative or uncertain financial return.

The Charity Commission’s Charities (Total Return) Regulations 2013 (as amended 2018 and 2023) (the ‘Regulations’) set out legal requirements that charities must follow when exercising these powers.

This guidance covers the following key areas:

• what total return investment means for permanently endowed charities
• adopting the power to use total return investment
• adopting the power to make social investments using permanent endowment which are expected to make a negative or uncertain financial return
• trustees’ duties with regard to using the powers in the Charities Act and the Regulations
• allocating total return between income and capital
• what happens if the charity already has a total return investment order or an order authorising social investment with a negative or uncertain financial return

1.2 What is a total return approach to investment?

Put simply, this approach allows any increase in the value of an investment to be used as income. Charities with permanent endowment investments need a specific power to adopt such an approach; without it, they must use the ‘standard rules’ which require such increases to be kept as permanent endowment and invested. The Regulations and this guidance set out how a total return approach operates.

1.3 Background to the Regulations

Section 4 of the Trusts (Capital and Income) Act 2013 amended the Charities Act 2011 (‘the Act’) to give permanently endowed charities in England and Wales the power to adopt a total return approach to investment. The amendment also allowed the Charity Commission to make Regulations creating a statutory framework for exercising and operating the power.

The Charities (Total Return) Regulations 2013 set out the requirements for trustees wishing to exercise the power to invest on a total return basis set out in section 104A(2) of the Act.

These Regulations were amended in 2018 to make minor technical updates.

The Charities Act 2022 gives trustees a power, once they have made a section 104A(2) resolution to then resolve (under section 104AA(2)) to use permanent endowment to make social investments with a negative or uncertain financial return, provided that any losses are offset by gains made elsewhere in the relevant fund.

The Charities (Total Return) (Amendment) Regulations 2023 set out when and how charities can use the power under section 104AA(2) of the Act.

1.4 Who are the Regulations and the guidance for?

The Regulations and guidance are for use by trustees of permanently endowed charities who wish to preserve their charity’s permanent endowment and adopt a total return approach to investment.

It is also for those who want to further release the permanent endowment restrictions to permit social investments with a negative or uncertain financial return.

1.5 The Commission’s regulatory role

The Act, supported by the Regulations, gives trustees greater power to decide what is in the interests of their charity and removes the need for trustees to seek our consent to the adoption of a total return approach to investment and for subsequent authorisation to make social investments with a negative or uncertain financial return. If trustees can demonstrate that they have:

• considered the relevant issues
• taken advice where appropriate; and
• reached a decision that is within the range of decisions that a reasonable body of trustees could make in the circumstances

they are unlikely to be criticised for their decisions, or for adopting a particular policy.

Although the law does not allow us to become involved in the internal administration of a charity, we will have a regulatory interest where there is mismanagement and/or misconduct or where there is a need to protect property held for charitable purposes.

1.6 ‘Must’ and ‘should’ - what we mean

We use ‘must’ to indicate specific legal or regulatory requirements that trustees must comply with.

‘Should’ is used for minimum good practice guidance you should follow unless there is good reason not to.

2. Explanation of some terms used in this guidance

Here we explain some terms which apply generally to charities as well as the main terms and concepts which are precisely defined in the legislation and which need to be understood in order to manage a total return approach to investment.

2.1 Some general definitions

The Act or the Charities Act is the Charities Act 2011 (as amended).

The Regulations means the Charities (Total Return) Regulations 2013, as amended by the Charities (Total Return) (Amendment) Regulations 2018 and the Charities (Total Return) (Amendment) Regulations 2023.

Purposes mean the purposes which the charity is set up to achieve. A charity’s purposes are set out in its governing document.

Governing document sets out the charity’s purposes, how it is to be managed and what powers the trustees have. It may be a trust deed, constitution, memorandum and articles of association, Royal Charter, Scheme of the Charity Commission, conveyance or will.

Trustee means a charity trustee. Charity trustees are the people who have overall responsibility for governing the charity. They decide its strategy and direct its management. They may be called trustees, the board, managing trustees, the management committee, governors, directors, or something else. The Charities Act defines them as charity trustees because of their responsibility.

2.2 Terms that are particularly important when using the Total Return Regulations

Permanent endowment is property that your charity must keep rather than spend. For example, money or assets given to your charity for investment. Only the investment income can be spent.

The powers described in this guidance about total return are only available to charities that have permanent endowment. If you are unsure whether you have permanent endowment, read our guidance or take professional advice.

Investment fund is the term used in this guidance to mean the investments representing the permanent endowment. In this guidance the term applies only to charities using a total return approach to investment. All income arising from the investment fund forms the unapplied total return which can then be allocated for use by the trustees. In the Regulations this fund is called the trust for investment.

Income fund is the term used in this guidance to mean the part of the charity’s unapplied total return which the trustees have decided to spend on its purposes. In the Regulations this fund is called the trust for application.

Capital gain means the difference between the purchase price of an asset, and the higher price at which the asset is sold or re-valued, while capital loss means the difference between the purchase price of an asset and the lower price at which it is sold or re-valued.

Investment return is the income a charity receives from its investments. Generally speaking, interest, rents, licence fees and cash dividends from a company carrying on a business are income. If a charity is not using total return investment, it does not include any capital gains. For a charity using total return investment it does include capital gains and will form its unapplied total return. Investment return can be positive or negative. If the charity has passed a resolution to enable it to make social investments with a negative or uncertain financial return, any capital losses from these investments are deducted from the investment return.

Negative total return means that the value of the assets at any time held in the charity’s investment fund is less than the value of the original endowment that established the fund. The value of the original endowment will have been established at the time of passing the resolution to use total return and is referred to in this guidance and the Regulations as ‘the relevant value’.

Relevant fund is the term used to describe the endowment, or part of it, that the trustees resolve will be used for total return investment. Trustees must identify the relevant fund when they first decide to use a total return approach. Section 4.1 gives a practical example of identifying a relevant fund. The relevant fund is the one which the trustees must apportion between the part that represents the value of the original endowment (which will form the investment fund) and the part that represents unapplied investment return (which will form the unapplied total return).

Relevant percentage is the percentage equivalent to the rise in the most recently published version of the prices index adopted by a charity. In our Regulations the term ‘relevant percentage’ is used differently depending on whether the charity is making a calculation under Regulation 5 (allocating unapplied return to the investment fund) or Regulation 8(2) and (3) (reverting to the standard rules for investment).

If a charity is using Regulation 5, then the rise in the most recently published version of the index will either be:

• the rise since the last time the charity made an allocation to the investment fund; or
• the rise since the initial valuation of the investment fund before the resolution was made - this applies where there has been no allocation to the investment fund since that valuation

If the charity is using Regulation 8, the rise in the most recently published version of the index will be from the date of the initial valuation of the investment fund at the time the resolution was made.

The index used can be the Retail Price Index, Consumer Price Index or another prices index which is relevant to the charity’s area of activity. The price index is used in different ways for the purposes of Regulation 5 and regulation 8(2) and (3) and this is explained in sections 5 and 8 of this guidance.

Relevant social investment fund is the term used to describe the endowment, or part of it, and any returns from the investment of the fund (or part of it) that the trustees resolve will be used to make social investments expected to make a negative or uncertain financial return.

Recoupment in this guidance means the replacement of any part of the investment fund that the trustees have decided to spend. Our Regulations give charity trustees the power to spend funds from the investment fund as income up to a certain limit (see Regulation 4). However, any funds spent from the investment fund will need to be replaced at a rate and over a period to be decided by the trustees.

Relevant value is the value of the investment fund itself at any particular time. It does not include any unapplied total return.

Social investment has the same meaning as in section 292A of the Act.

Standard rules are those that govern the allocation of investment returns from invested permanent endowment between capital and income. Under the standard rules any capital gains arising from the charity’s investment portfolio must be reinvested as capital. These rules apply unless trustees have a specific power to use a total return approach to investment.

Unapplied total return means that part of the total investment return from the charity’s investment fund has not yet been allocated to either the income fund or the investment fund. It can be carried forward if not needed or allocated to be spent as income or reinvested in the investment fund in a particular year. If there is a negative unapplied total return, this means that the amount of unapplied total return in that year is less than nil.

3. What do trustees need to consider before adopting a total return approach to investment?

Trustees of permanently endowed charities normally have to invest their funds using the standard rules. Adopting a total return approach may give them greater flexibility to respond to their beneficiaries’ needs in a changing financial environment. The Total Return Regulations require trustees to take proper advice when considering changing their investment approach (unless an exception applies).

3.1 Do the standard rules for investment of permanent endowment serve the charity’s interests?

A unique feature of charities is that they can hold permanent endowment and exist in the long term. This means that the trustees must invest in a way that has regard to the furtherance of the charity’s purposes both now and in the future. Under the standard rules, this means investing in a way that provides enough income for current needs and enough capital growth to safeguard future income.

The standard rules can sometimes cause difficulty where income from dividends, interest etc is low and capital gains are high. These conditions can mean that a charity is less able to meet current needs due to lower income and could mean that future needs will be over-provided for.

Example of how investment using the standard rules works

Using the standard rules only the income from investments can be spent on the charity’s aims. Any capital growth has to be reinvested.

3.2 What difference can a total return approach make?

A total return approach can enable a permanently endowed charity to take steps to address difficulties caused by the standard rules. However, this approach carries risks and trustees must take proper advice and carefully consider that advice, unless an exception applies (explained further below). Trustees continue to be under a duty to manage their investments in a way that enables their charity to further its purposes both now and in the future.

This example shows how investment returns could be treated if trustees adopt a total return approach to investment and use the framework set out in the Regulations. All investment returns are designated as unapplied total return until the trustees decide how it is to be used. Trustees may allocate some of the unapplied total return to the income fund to be spent on the charity’s purposes. They may also allocate a limited amount of the unapplied total return to the investment fund and a limited amount of the investment fund to the income fund.

Any unapplied total return is carried over to the next year.

Example of how using the total return approach works

Using the total return approach to investment as set out in our Regulations there are different options.

3.3 What is the power to make a further resolution allowing social investments with a negative or uncertain return?

Charities that have passed a resolution to enable them to invest on a total return basis, may pass a further resolution to enable them to invest the total return fund, or part of it, in social investments which they could not otherwise make because they expect to make a negative or uncertain financial return.

In order to pass a resolution under section 104AA(2) of the Act to enable social investments that are expected to make a negative or uncertain financial return, the trustees must have already passed a total return resolution under section 104A(2) to adopt a total return approach.

The funds that can be invested in social investments may be all of the total return fund, or a part of it, and includes the returns from the investment of the total return fund or part of it.

Any losses that the social investment makes must be offset by gains made as part of the total return investment from the relevant fund. This is to ensure that the charity’s permanent endowment maintains its overall value in the long term. Charities who wish to make social investments with an expected positive financial return do not need to pass a further resolution to do so, because such social investments would already be permitted under the section 104A(2) resolution.

When considering making social investments that are expected to make a negative or uncertain financial return trustees must take proper advice and carefully consider that advice, unless an exception applies (explained further below). Trustees continue to be under a duty to manage their investments in a way that enables their charity to further its purposes both now and in the future.

This is an example of the two powers being used, taken from the Explanatory Notes to the Charities Act.

• a housing charity has a permanent endowment fund valued at £100,000
• the trustees pass a section 104A resolution to adopt a total return approach to the investment of this fund
• the trustees want to use £50,000 of the permanent endowment fund to purchase a property to be occupied by its beneficiaries at a low rent
• the trustees know that the capital value of the property is likely to decrease over time and that the modest income from rent is unlikely to cover this depreciation in value. However, they wish to invest the permanent endowment fund in this way both to further the charity’s purposes and make some financial return. This investment would constitute a social investment under section 292A of the Charities Act
• they also believe that they can offset any loss over time through investing the remaining £50,000 in shares which they believe will appreciate in value and pay dividends
• the trustees can pass a resolution under section 104AA(2) enabling them to use the permanent endowment fund (and the unapplied total return) to make social investments which they expect to make an uncertain or negative financial return. Without this further resolution, the trustees would not be able to make this type of investment as it would decrease the value of the permanent endowment
• they can choose to pass the resolution in respect of the whole of the permanent endowment fund (£100,000) or only in respect of the £50,000 that they wish to use to make the social investment

3.4 The effect of the Regulations

The Regulations establish a framework setting out how permanently endowed charities can adopt and use a total return approach to investment and then, if they decide, make social investments expected to make a negative or uncertain financial return without applying to the Commission.

Our Regulations give trustees flexibility in using this investment approach but at the same time:

• there are safeguards on the use of the power
• they preserve the principle of permanent endowment and the right of donors and settlors to establish a charity with a permanent endowment
• they enable trustees to further the purposes of the charity both now and in the future.

3.5 The key features of the Regulations

The Regulations contain key features which are explained in this guidance and summarised here.

• Adopting a power to use a total return approach and make a further resolution to enable social investments with an expected negative or uncertain financial return:

Trustees of permanently endowed charities are able to adopt the power to use a total return approach by resolution if they consider it is in their charity’s interest to do so. If they adopt a total return approach, trustees are also able to resolve to make social investments which they could not otherwise make as they are expected to make a negative or uncertain return.

• Spending or reinvesting total returns:

Trustees can decide to use unapplied total return as income, but they may also reinvest it in the investment fund subject to the terms of the Regulations.

• Spending some of the investment fund:

Trustees of permanently endowed charities are able to release a limited amount of their investment fund to the income fund. The amount released will be subject to recoupment.

• Replacing existing total return or loss-making social investment powers:

The Regulations allow trustees to discharge any total return orders or orders authorising social investments which make a negative or uncertain financial return the Commission has already made if trustees wish to adopt the powers conferred by the Act and set out in our Regulations.

• Withdrawing from total return:

In exceptional circumstances, trustees may decide to return to the standard rules if they consider it is in the interests of their charity to do so.

4. Adopting the total return approach to investment

Trustees wishing to adopt a total return approach, and wishing to further resolve to make social investments that are expected to provide a negative or uncertain financial return, must pass relevant resolutions. We explain here the key questions and issues to consider when deciding whether or not to do this.

4.1 Identifying the endowment to be used for total return investment

In order to adopt a total return approach to investment, there must actually be a trust for investment in the first place. This means that the charity should have assets which are held on a trust that specifies that they must be invested to produce income to be spent on furthering its purposes. Permanent endowment can be held under a trust which might mean that it would not be available for the purposes of total return investment.

Example

A simple example of a charity holding its permanent endowment under different trusts might be where a local charity holds:

• a village hall which was given to the charity on the condition that it would only be used for the benefit of the local inhabitants (the purposes of the charity); and
• a gift of £5,000 on the condition that it is to be permanently invested and only the income arising from that investment used for the purposes of the charity.

Looking at this example, it is clear that it would only be practical for the trustees to pass a resolution releasing the gift of £5,000 for the purposes of total return investment. This would be the available endowment fund referred to as the relevant fund in the Regulations and in this guidance.

4.2 Does a resolution apply to all of a charity’s endowment?

Not necessarily. If a charity has more than one endowment, the trustees should specify in their resolution which of them will be subject to total return investment (known as the ‘relevant fund’) or any subsequent social investment with a negative or uncertain financial return (known as the ‘relevant social investment fund’). The charity’s accounts will normally identify the different endowments as restricted funds.

4.3 What happens if a charity already has a Charity Commission order authorising total return investment or social investment with a negative or uncertain financial return?

Some charities will already have an order made by the Charity Commission giving the trustees the power to adopt a total approach to investment. The Regulations only override any such order if the trustees pass a resolution under section 104A(2) of the Act to operate a total return approach to investment in accordance with our Regulations.

Some charities may also have an order made by the Charity Commission giving the trustees the power to use permanent endowment to make social investments with a negative or uncertain financial return. The Regulations only override any such order if the trustees pass a further resolution under section 104AA(2) of the Act.

Any resolution passed should record the fact that an existing order is being discharged. However, if the order contains any recoupment directions in connection with the repayment of the capital expended, then these will continue to apply and payments must be continued in accordance with the terms in the original order even if the trustees use the powers in the Regulations.

In the absence of such a resolution, the trustees must continue to comply with the terms of the original order and the Regulations will not apply.

4.4 Is passing the total return resolution or a resolution to make social investments with an expected uncertain or negative return in the interests of the charity?

This is something that the trustees must decide before passing a resolution. Trustees must only adopt the power to use the total return approach to investment if they are satisfied that it would be in the interests of their charity. If they are so satisfied, then, once the resolution has been passed, the provisions of section 104B of the Act (and therefore our Regulations) will apply to the use of the relevant fund.

Our guidance on trustee decision-making sets out in detail the principles for trustees making important decisions affecting their charity. These mean that trustees must be able to demonstrate that they have:

• acted within their powers
• acted in good faith and only in the interests of their charity
• adequately informed themselves
• taken into account all relevant factors
• disregarded any irrelevant factors
• managed any conflicts of interest
• made decisions that are within the range of decisions that a reasonable trustee body could make

Trustees must be able to demonstrate that they have addressed each of these points in making their decision to adopt a total return approach.

4.5 What trustees need to establish before passing the total return resolution

Before passing a total return resolution, the trustees must first be able to identify and record:

• the assets they hold which represent the value of the original endowment when made. The value of the endowment will include any additions that are not the result of investment, for example further gifts which have been made to the original endowment
• the assets they hold which represent the unapplied investment return arising from the original endowment

Unapplied investment return includes:

• any interest receivable; plus
• any net rent and other income or gains derived from the use or exploitation of assets; plus
• any dividends; plus
• all forms of capital gain resulting on, or from, the disposal, redemption or revaluation of investment assets (including the issue or repayment of share or loan capital); less
• any capital losses resulting on or from the disposal, redemption or revaluation of investment assets; less
• any capital losses resulting from the making of any social investments

It excludes investment income which has already been applied for the purposes of the charity.

Once the identification has been made, the unapplied investment return will form the unapplied total return and any remaining resources will be assumed to represent the endowment itself and will form the investment fund. Trustees will not be able to go back and alter this decision.

4.6 What trustees need to do before passing any further resolution to make a social investment with a negative or uncertain financial return

As set out in section 3.3 , the social investment must be made with a view to directly furthering the charity’s purposes as well as achieving a financial return.

4.7 How to decide what is unapplied investment return and what is the original endowment

Trustees won’t be expected to carry out an elaborate tracing exercise here, as it might not be practical, particularly in the case of that part of the unapplied investment return which takes the form of capital gains, rather than the form of retained investment income. Under the standard rules capital gains would not have been distinguished from the assets representing the actual endowment. In many cases trustees will have to make a ‘reasonable estimate’ as to which part of their resources represents the unapplied investment return from the investment of the endowment

We cannot recommend any particular basis for making the reasonable estimate. How far back in time it is reasonable to go in making the analysis will depend on the charity’s circumstances, the amounts involved, the state of the charity’s records and so on. In some cases, it will not be practical to go back to the founding of the charity.

Once the trustees have decided which of the charity’s resources represent the unapplied investment return and which resources represent the value of the original endowment (plus additions, see section 4.5) they will not be able to go back and alter this decision.

We recommend that trustees take legal and accountancy advice in making this decision. Whatever the decision reached by the trustees on what they identify as belonging to the two different categories, they must be able to demonstrate how they reached it and how it is within the range of decisions that a reasonable body of trustees could make in the circumstances.

4.8 Passing the total return resolution or the further resolution to permit social investments with a negative or uncertain financial return

Both of these resolutions must be made in accordance with any relevant provisions in the charity’s governing document. The Regulations do not contain any specific instructions on the content or format and therefore the wording will be a matter for the trustees to decide. We do not need to be notified that either resolution has been passed.

However, we recommend that the resolutions record any information that the trustees consider relevant, for example:

• identifying the relevant fund that will be subject to total return investment or the social investments with negative or uncertain financial return
• whether an existing Charity Commission order is being discharged and if there are any outstanding recoupment provisions
• when passing a total return resolution, the date of the valuation of the relevant fund

5. Allocating unapplied total return

Once trustees have adopted a total return approach, they will need to decide how to allocate unapplied total return; in other words, the return from a charity’s investments, regardless of its source, that has not been allocated to the income or the investment fund.

5.1 The treatment of unapplied total return

The Regulations allow the trustees to allocate some of their unapplied total return to the income fund and some to the investment fund.

The funds that represent a charity’s unapplied total return will change as investment returns are added to it and some of them are taken out and allocated to the income fund and/or the investment fund. Although the unapplied total return may increase, this does not infringe the rule against accumulations because it is authorised by these Regulations.

Any funds not allocated and remaining as unapplied total return should be invested in the same way as the permanent endowment. This is because, at that point, they are not freely available for expenditure on the purposes of the charity. Only when the trustees have allocated unapplied total return to the income fund (see section 5.2) does it become freely available to spend.

Trustees should be able to justify the balance of funds remaining as unapplied total return after any allocations to the income and/or investment funds have been made. The justification should be based on the need to ensure that the charity will be able to carry out its purposes effectively in the future, even if there is a reduction in the charity’s unapplied total return caused by a fall in the value of the charity’s investment assets.

Trustees who do not have a policy for determining how the unapplied total return should be treated, or who do not act in accordance with that policy, may be open to the same level of criticism levelled against charities applying the standard rules who keep excessive income reserves.

5.2 Allocating unapplied total return to the income fund

The income fund is to be spent to further the purposes of the charity. Once a part of the unapplied total return has been allocated to the income fund, it must be used within a reasonable period in just the same way as under the standard rules.

Each time charity trustees allocate part of the unapplied total return to the income fund, they should look at the overall amount of total unapplied return available to them, rather than just the charity’s investment return received in that financial year. The fact that a charity might receive a negative total return in a financial year does not prevent the charity from allocating funds to the income fund from the unapplied total return in that year. What is important is that the unapplied total return is positive.

In deciding what part of the unapplied total return is to be used as income, the trustees should take account of such factors as:

• fluctuations in the value of investment assets from year to year and the effect of any anticipated inflationary increase in the cost of funding the charity’s purposes
• analysis of potential investment risks
• changes in the services the charity provides

Trustees should not normally need to retain funds for any length of time in the income fund. This is because any part of a charity’s unapplied total return may be allocated to the income fund at any time. However, on each occasion the allocation must be compatible with the trustees’ duty to further the charity’s purposes both now and in the future. Therefore, there is no need to build up reserves in the income fund to cover a year when the investment returns might be small or non-existent. If funds are held in the income fund, they should be treated in the same way as a charity’s reserves.

5.3 Allocating unapplied total return to the investment fund

The investment fund represents the permanent endowment of the charity and it is invested to produce a return. Regulation 5 allows trustees to add part of the unapplied total return to the investment fund.

However, the amount that can be added is capped and the Regulations specify what the upper limit is. The amount that may be added is calculated by using the rise in inflation based on whichever index the trustees think is appropriate to the sector their charity works in from a particular date and the value of the investment fund. The ‘particular date’ referred to here is the date of the last allocation to the investment fund or, if no allocation has previously been made, then the date used will be the date of the valuation made at the time of passing the resolution to use total return (see section 4.5).

Example 3 of Annex 1 shows how an allocation to the investment fund could be made.

Decisions about what part of the unapplied total return should be allocated to the investment fund (subject to the upper limit) must be compatible with the trustees’ duty to further the charity’s purposes both now and in the future.

5.4 Releasing funds from the investment fund to the income fund

Under Regulation 4, charities have the power to release some of the funds held in their investment fund so that they can be used as income and spent on the charity’s purposes. Charities using this power must also comply with Regulation 6(1), (2) and (3) which describe trustee duties, the need to act in the interests of the charity and the need to take proper advice if appropriate.

It is important to note that this power can only be used in the context of total return investment and the use of these Regulations: the power does not allow trustees to release permanent endowment for expenditure in any other situation. There are other general powers in the Act to remove the restrictions on the expenditure of permanent endowment in certain circumstances and these are available to permanently endowed charities generally.

Regulation 4 specifies that:

• the amount that may be released from the investment fund to the income fund is subject to a cap
• the amount released is to be repaid (section 5.5)
• the amount released must not at any time bring the total of the sums released to more than 10% of the value of the investment fund at the relevant time
• the relevant time is the date of the first such release which has not yet been repaid
• if allocations have already been made, the amount that may be released will be 10% of the value of the investment fund as at the date of the first release that still needs to be repaid, less any amount outstanding

An upper limit for release has been set because it is our view that it will provide a suitable degree of protection for the investment fund representing the permanent endowment of the charity.

5.5 Recoupment

If charities wish to release funds held in their investment fund, they must recoup it. The Regulations give charities the power to decide over how long and at what rate this amount will be replaced. This decision must be one that is within the range of decisions that a reasonable trustee body could make and is firmly linked to the duty set out in section 6(2) of the Regulations.

As with all decisions trustees make, to protect their charity and themselves from criticism, they should ensure that they have considered the relevant issues, taken advice where appropriate and reached a decision that is within the range of decisions that a reasonable trustee body could make in the circumstances.

6. The trustees’ duties connected to the exercise of the powers in the Regulations

The duties set out in the Regulations apply to trustees of permanently endowed charities generally. They are restated in the Regulations in order to ensure that decisions about total return investment and making social investments protect a charity’s endowments and its ability to further its purposes now and in the future.

The duty to exercise such care and skill as is reasonable in the circumstances (regulation 6(1)) and the duty to take proper advice if required (regulation 6(3)) are both exercised in order that the charity’s ability to further its purposes now and in the future is not prejudiced (section 6(2)).

6.1 The trustees’ duty of care

Regulation 6(1) sets out the trustees’ duty of care in relation to the use of their powers and duties when adopting a total return approach to investment.

This duty of care is based on the requirements of section 1 of the Trustee Act 2000. This means that trustees must use reasonable skill and care when dealing with charity assets, and if there is ever any question as to whether they have exercised reasonable skill and care, the law will take into account any special knowledge or experience that they may have or hold themselves out as having. So, for example, the duty of care expected from a solicitor or a financial adviser, would be greater than that expected of a lay person where that solicitor or financial adviser has or holds themselves out as having relevant specialist knowledge or experience.

It has long been the case that a higher duty of care applies to trustees who act as trustee because of their profession, for example a solicitor or financial adviser, and who are paid for the provision of their professional services. These are generally known as professional trustees and their payment must be authorised by a charity’s governing document, by the Charity Commission or by the courts.

6.2 The trustees’ duty to obtain and consider proper advice

Trustees must obtain and consider proper advice before using their powers of total return investment and any additional power to make social investments with negative or uncertain financial returns (where applicable), unless they reasonably conclude that, taking all the circumstances into account, it is not necessary or appropriate to do so. ‘Proper advice’ in the Regulations is defined in terms similar to those used in section 5 of the Trustee Act 2000.

This means the advice must come from someone who is reasonably believed by the trustees to be qualified to give it by their ability in and practical experience of investment and financial matters relevant to the use of the total return investment and social investment power (where applicable). For the purposes of the Regulations, their ability and experience must be relevant to the trustees exercising their powers of total return investment and social investment with an uncertain or negative financial return where applicable.

The most common options for obtaining proper advice for trustees are:

• an investment manager
• an investment adviser
• a fellow trustee, if one of the trustees is reasonably believed to have the relevant experience and ability
• some other individual who meets the criteria set out above

Professional advice might not be appropriate where the cost of obtaining it would be disproportionate or unnecessary. Alternatively, the trustees may be suitably qualified or have expertise in a particular relevant area to make these decisions without taking additional advice.

Trustees should be careful to ensure that they receive impartial advice. If any trustee might benefit directly or indirectly from any financial advice provided to the charity, this should be identified and managed as a conflict of interest.

Trustees who give investment advice are responsible for the quality of the advice which they offer. Like any other advisers, they may be liable to the charity if it makes a loss as a result of their poor or negligent advice. The other trustees must also consider any advice from a fellow trustee objectively and act in the interests of the charity.

Although there is no requirement to obtain advice in writing, it will usually be regarded as good practice to have any advice confirmed in writing to show compliance with the general duty of care.

6.3 Protecting the resources of the charity for the future

When using a total return approach to investment (including in relation to any further power to make social investments with negative or uncertain financial returns), the Regulations make it clear that trustees must make decisions in a way which they reasonably believe, acting in good faith, does not prejudice a charity’s ability to further its purposes now and in the future.

The total return approach is not just about spending resources which under the standard rules would be capital gains. It can also be about retaining resources as unapplied total return for the protection of the interests of future beneficiaries.

The particular circumstances of a charity will be relevant when the trustees are considering their policy on what to spend and what to retain. For example, a charity set up to benefit the people injured in a particular conflict might fairly expect that demands for its support will reduce over time, whereas a charity that benefits elderly people can reasonably expect an increasing demand for its services.

7. Accounting and reporting for total return

Here we describe what trustees using the Regulations need to know about accounting and reporting.

7.1 Trustees’ Annual Report

Regulation 6(4) requires the trustees’ annual report to contain certain information about how the total return approach to investment has been applied by the trustees.

In particular, the trustees’ annual report must explain how the value of the investment fund has been established and give the date from which income and gains have been allocated to the unapplied total return.

The trustees must also explain the considerations and policies that were relevant to their determination of the amounts allocated to the trust for application (in this guidance referred to as the income fund) and trust for investment (in this guidance referred to as the investment fund) during the financial year. Similarly, an explanation must be provided about the considerations and policies that were relevant to any decision by the trustees to allocate part of any permanent endowment to the income fund using the power in Regulation 4.

Where the trustees have received advice about how to allocate the unapplied total return or in relation to their decision to allocate part of the investment fund to a trust to the income fund, the person providing this advice must be named.

In the event that the charity is not required to produce an annual report, the above information must be provided in a note to the charity’s accounts.

These requirements are in addition to existing requirements under the Charities SORP that require trustees to explain their investment policies and objectives and the investment performance achieved against those objectives.

7.2 Accounting requirements

Although these Regulations do not place specific accounting disclosures requirements on charities adopting a total return approach to investment, charities preparing their accounts on an accruals basis must follow the recommendations set out in in Module 20 of the Charities SORP FRS 102. However, charities where a more specific SORP applies, for example Common Investment Funds, Registered Social Housing Providers or Higher and Further Education establishments must follow the recommendation of the more specific SORP instead.

The trustees of smaller charities which are not established as charitable companies under company law can opt to prepare their accounts on a receipts and payments basis if gross income is £250,000 or less for the reporting period. However, we would strongly recommend that all charities adopting a total return approach to investment prepare their accounts in accordance with the Charities’ SORP FRS 102 to ensure appropriate accounting principles and methods are adopted.

8. Changing from total return investment back to the standard rules

There may be circumstances in which trustees wish to return to investing using the standard rules. Although this will be difficult and not to be undertaken lightly, we have provided a formula in our Regulations which will allow the charity to return to a reasonable position regarding the value of its permanent endowment and the use of any unapplied total return.

Charities may also want to revoke any further resolution - under section 10A4AA(2) - allowing them to make social investments with negative or uncertain financial returns. This resolution can be revoked in the usual manner and will then cease to have effect. Once revoked, any relevant social investment funds which had been subject to that resolution would form part of the relevant fund, which would continue to be subject to a section 104A(2) total return investment resolution and the Total Return Regulations.

8.1 Changing back to the standard rules

Once trustees have started to use the total return power given by the Act they cannot use any other method of allocating the investment return of the charity. However, there may be special circumstances in which it would be appropriate for trustees who have begun to use the total return power to revert to an approach to investment based on the standard rules. Because of this, the Regulations give trustees the power to revert to the standard rules.

It will be difficult for trustees to go back to analysing the investment return on the basis of the standard rules. During the period when the total return approach was used, investment returns would have been received and allocated to the income fund without drawing any distinction between income and capital. It would therefore be difficult to say, at the date the trustees choose to return to the standard rules, which part of the unapplied total return held at that time was retained income and which part was capital.

The Regulations contain a formula which aims to put a charity reverting to the standard rules in a reasonable position as regards the value of its permanent endowment and the treatment of its unapplied total return.

Annex 1 gives an example of how such a calculation might be made.

8.2 The calculations

If the trustees have decided that it is in the interests of the charity to cease to use a total return approach to investment and return to the standard rules, the Regulations make provision for two situations:

• if there is a negative unapplied total return, before reverting to the standard rules, the trustees will need to make arrangements to replace the value of the negative unapplied total return. They may also add an amount that they think is appropriate to counter the erosive effect of inflation on the investment fund since the total return approach was adopted (this amount must not exceed the relevant percentage of the relevant value). The relevant percentage is defined in section 2 and applies to the financial year that the trustees are reverting to the standard rules. The relevant value means the value of the investment fund at the time of reverting to the standard rules

This amount is to be repaid to the available endowment fund at a rate and over a time period that the trustees consider reasonable provided that the period does not exceed 10 years.

• if there is no negative unapplied total return at such time, the trustees should consider what part of any positive unapplied total return should be added to the investment fund. They will need to take into account the value of the investment fund at the time of originally adopting a total return approach to investment. Any unapplied total return added to the investment fund should not increase that value by more than the relevant percentage in the financial year that the trustees are reverting to the standard rules

After this step has been taken, any remaining unapplied total return must be treated as expendable endowment. Generally, a charity’s expendable endowment represents assets which it invests to produce income but which may be spent on its purposes if the trustees decide to do so. The terms on which it was given to the charity may contain conditions for expenditure, but in this case, it can be spent if the trustees decide that it is in the interests of the charity to do so.

Annex 1 gives an example of how such a calculation might be made.

Annex 1

Illustration of a hypothetical fund performance

In this Annex we have provided an illustration of a hypothetical fund performance over a 14 year span, Year 1 being the year in which a total return approach was adopted. The aim of this illustration is solely to provide figures to explain the calculations that are required by our Regulations if trustees:

• decide to return to the standard rules for investment (Regulation 8, Example 1)
• wish to add part of the unapplied total return to the investment fund (Regulation 5, Example 3)

Example 2 looks at the effect of a nil total return in a particular year

When using the powers relating to a total return approach to investment trustees must comply with the duties set out in the Regulations.

In £000s

(UTR = unapplied total return)

	Core value of investment fund	Core value of investment fund	Allocation to the income fund in year	UTR accrued in relevant year	UTR to carry forward/carried forward from previous year	Total value of relevant fund	Allocation to capital	Relevant percentage allocated to capital for reg. 5 (subject to maximum)	RPI index value for January each year	income accrued in relevant year
Year 1	100	20	20	0	0	100	0		100	20
Year 2	80	20	0	0	0	100	0		103	20
Year 3	100	10	0	10	10	110	0		105	10
Year 4	100	5	5	0	10	110	0		105	5
Year 5	100	5	0	5	15	115	0		107	5
Year 6	60	-40	0	-40	-25	75	0		108	0
Year 7	75	5	0	5	-20	80	0		107	5
Year 8	80	45	0	45	25	125	0		107	45
Year 9	100	0	25	0	0	100	0		107	0
Year 10	100	35	10	25	18	125	7	Max 7%	107	35
Year 11	107	35	15	20	38	145	0	0	106	35
Year 12	107	25	25	0	38	145	0	0	106	25
Year 13	107	43	30	13	51	158	0	0	106	43
Year 14	107	50	10	40	91	198	0	0	105	50

Example 1 - negative unapplied total return and returning to the standard rules

The illustration above relates to an investment property which was initially worth £100,000 and the rental income was £20,000 in Year 1 (the year in which a total return approach was adopted).

In Year 6, the capital value of the property falls to £60,000 and, because the property has become vacant, the rental income has also fallen to £0 and inflation has risen to 8% per year.

As the overall investment is worth £40,000 less than in Year 1 when the total return approach was adopted by the charity, the total return on its investments for Year 6 is -£40,000.

Accordingly, the charity will have no funds to spend on its purposes from that year’s return on its investment. However, it has £15,000 accrued as unapplied total return from Years 3 and 5 which it has carried forward. If it does not spend this total accrued £15,000 unapplied total return on its purposes in Year 6, the negative unapplied total return remaining in Year 6 to carry forward will be reduced by this amount, making the carried forward negative unapplied total return -£25,000.

If the charity then successfully rents out the property again in Year 7 for £5,000 per year, it will have still have a negative total return for that year and still no income to spend on its purposes but the £5,000 rental income will reduce its negative unapplied total return to carry forward to -£20,000.

If in the light of this negative investment performance, the trustees decide to revoke their resolution to use a total return approach in Year 7 and return to the standard rules for investment, this would mean applying the recoupment formula in Regulation 8(2). This states that the trustees shall, where there is a negative unapplied total return, pay to the relevant fund over a period not exceeding 10 years:

• an amount equivalent to the negative unapplied total return (namely -£20,000 since total return was adopted); and
• an amount not exceeding the relevant percentage of the relevant value

The calculations using the figures in the illustration

The relevant percentage (assuming the trustees adopted RPI as the applicable inflation index) would be:

RPI(2)/RPI(1) where:

RPI(2) is the figure in the index at the date the trustees revoke the total return approach; and

RPI(1) is the figure in the index at the date the total return approach was adopted and the relevant s104A resolution passed and:

‘Relevant value’ is the value of the investment fund having deducted the value of any unapplied total return included in it

So, taking the negative return in year 7:

The provision would be £20,000 together with

107/100 x (80,000- -20,000) = £7,000

That is, 7% of (£80,000 (the trust for investment value ) + £20,000 (the negative total return, two minuses becoming a plus)).

This means that the maximum allocation which could be made would be £20,000+ £7,000 = £27,000 taking the value of the relevant fund up to £107,000 (that is, back to £100,000 in real terms allowing for inflation).

Example 2 - what happens in Year 9 when there is a nil total return in a year

Assuming there is no return to the standard investment rules in Year 7 but that the trustees instead continue to use the total return approach, in Year 8 the investment fund produces a total return of £45,000.

As the trustees decide not to spend any of this return as income, £20,000 is used to clear the accumulated negative total return of -£20,000 carried forward from Year 7, leaving a net unapplied total return of £25,000. This means that, despite a nil total return in Year 9, the trustees are still able to spend the carried forward £25,000.

Example 3 - applying unapplied total return to the investment fund

In Year 10, the fund produces a total return of £35,000. Having spent £10,000 of this as income, the charity is left with an unapplied total return of £25,000 and decides to apply part of this to capital.

The maximum percentage of the relevant fund the charity is entitled to accumulate in the investment fund is equal to the percentage equivalent to the rise in the index since either the date the total return approach was adopted or the date of the last accumulation (as applicable in the circumstances). Using our illustration, because there have been no prior accumulations, the maximum permissible accumulation will be 7% of the core value of the fund. This is because the RPI from Year 1 to Year 10 has risen from 100 to 107.

Because the trustees apply this maximum percentage equivalent to £7,000 (being 7% of the core value of £100,000 in Year 1) to the investment fund, the remaining unapplied total return to carry forward is £18,000. This means that at the start of Year 11, the core value of the investment fund will be £107,000.

Turning to Year 13, the fund then produces a total return of £43,000 that year and the trustees apply £30,000 to income, this leaves a net unapplied total return of £13,000.

However, because the trustees have already made a prior accumulation in Year 10 of the maximum amount (7%) they are not able to make any further accumulation in Year 13. This is because there has been a fall not a rise in the index, meaning that in real terms, no further accumulation to safeguard the value of the fund for the future would be necessary - the value of the fund would already have increased in real terms because of this fall in the index. However, if no previous allocation had been made, they would have been free to accumulate up to a maximum of 6% (given that the RPI index figure for Year 13 was 106).