Delegating Ex Gratia Decisions: Guidance For Charity Trustees

Sections 15 and 16 of the Charities Act 2022 came into force on 27 November 2025 and will likely be welcomed by those working in the charity sector who deal with ex gratia requests.

Section 15 amends the Charities Act 2011 by introducing new powers to make small ex gratia payments without the need to obtain Charity Commission consent (see our guidance to find out more).

More significantly, under sections 15 and 16, decisions on whether ex gratia payments should be made are now capable of being delegated by trustees. The introduction of these sections therefore provides a good opportunity to review who should be making these decisions and to review existing schemes of delegation.

Prior to amendment by sections 15 and 16 Charities Act 2022, s106 Charities Act 2011 required ex gratia decisions to be made personally by the trustees. The test was: did they, the trustees, 'in all the circumstances regard themselves as being under a moral obligation' to make the payment?

The decision was subjective and could not be delegated. That inability to delegate sat in contrast to other decisions made in respect of legacy income which, for practical and commercial reasons, are usually delegated (as appropriate) to legacy officers – who have significant expertise and deal with legacy matters on a day-to-day basis.

The new test asks whether 'in all the circumstances the charity trustees could reasonably be regarded as being under a moral obligation'. Therefore, whilst responsibility for ex gratia payments still lies with charity trustees, because the test is now objective, the decision itself can be delegated.

That delegation is not automatic: trustees still need to ensure that delegating the power to make decisions on ex gratia requests is permitted by (and done in accordance with) the charity's governing documents. Who can make ex gratia decisions, and in what circumstances, should also be clearly set out in the scheme of delegation (or other document authorising the delegation).

But the availability of delegation is good news, allowing charities to free up valuable trustee time and handle cases in a more efficient and proportionate way.

For more detail on ex gratia, please see our ex gratia overview and guidance on making small payments.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.