The Drafting of Minutes of Trustees’ Meetings

The Requirements For The Keeping Of Minutes

The legal requirements for the keeping of Minutes
The Pensions Act 1995, s49 (1) (a) requires trustees to keep records of their meetings and this includes ensuring that Minutes are kept of all formally constituted meetings of the trustees. 

The Occupational Pension Schemes (Scheme Administration) Regulations 1996, SI 1996/1715, Reg 3, confirms that the records of trustee meetings must be in writing and state:
(a) the date, time and place of the meeting
(b) the names of all the trustees invited to the meeting
(c) the name of the trustees who attended and those who did not attend
(d) the names of any professional advisers and any other person who attended the meeting
(e) any decisions made at the meeting; and
(f) whether, since the previous meeting, there has been any occasion when a decision has been made by the trustees and if so, the time, place and date of such a decision, and the names of the trustees who participated in the decision.

Excluded from the above regulations are: (i) schemes that are not Registered Schemes (ii) schemes that are not relevant statutory schemes (iii) occupational pension schemes having less than two members and (iv) certain overseas schemes. (Reg 13 (2)).

In the case of a corporate trustee (a company formed whose purpose is to act as trustee) the requirement is for the company to keep minutes of all its directors’ meetings and, if held separately, all its general meetings. 


Minutes are trust documentation 
Minutes of the proceedings of trustees’ formal meetings must be written down and signed at the next meeting by the Chairman of that meeting [(or his (or) her] nominee, to confirm that they are an accurate record of what happened. 

Signed minutes then form part of a scheme’s ‘trust documentation’. The requirement on trustees to maintain a Minute Book is a statutory one. The Minute Book may be a ‘bound book’ (with signed minutes bound within it), or, as more usually, a ‘loose-leaf book’, enabling signed minutes to be inserted as and when meetings have taken place. There are several ways of ensuring that pages cannot be removed from the Minute Book, i.e., numbering pages or numbering items throughout the year. 


Roles involved in the drafting and safe-keeping of Minutes
There will need to be at least two specific, appointed, offices within the trusteeship having direct responsibilities related to the drafting and safekeeping of Minutes: the chairman of the trustees and the secretary to the trustees. First, the trustees will be expected to vote on the approval of the Minutes and the chairman will be expected to sign the minutes when so approved. The secretary, (normally the author of the Minutes), will generally be expected to ensure that the minutes adhere to the scheme’s governing documentation and legal requirements. 


Requirement to have to ‘file’ minutes 
There is no requirement on individuals appointed to be trustees to have to ‘file’ the minutes of their meetings with any statutory body. 


Corporate Trustee - statutory requirement to have to notify Companies House
In the case of a corporate trustee, there is a statutory obligation on the directors of the company (the trustees) to have to notify Companies House of any changes in the company’s directors, secretary or auditor, or any changes to the company’s structure (including any changes to its registered address, issued share capital and allotment of shares). In addition, the company is required to submit a signed annual return to Companies House. Failure to comply with this requirement is an offence under company law. 


About The Drafting, Approval And Signing Of Minutes

Who should take Minutes?
There is no obligation on trustees’ to have to nominate one of their number to take or to prepare the minutes of their meetings. This function would normally be expected to be delegated by the trustees, either to the Secretary to the Trustees or to the Scheme’s Minute Secretary or, in other instances, to some other co-opted person (such as a member of the company secretariat or the pensions manager or a member of the pensions department, etc.) appointed in accordance with the scheme’s Rules or the trustees’ minuted practices. 


About the drafting of Minutes
Minutes must record the wording of formal motions, resolutions and amendments together with voting outcomes. In their content, Minutes should follow a set pattern along the following lines:
(a) provide a description of the meeting (title, date, time, place, etc)
(b) list those present
(c) confirm any apologies for absence
(d) record any corrections to the Minutes of the last meeting 
(e) confirm that the Minutes of the previous meeting were approved
(f) contain any Matters Arising from the previous meeting (i.e. decisions/actions     taken arising from the last meeting)
(g) record the proceedings of the meeting 
(h) give the date of the next meeting

Copies of draft Minutes must be sent to all trustees (including absentees) ahead of signing for their comments and approvals. Ideally this should be as soon as possible after the meeting (preferably within two weeks of the meeting, i.e.10 working days). Generally speaking though, the minutes are often not formally approved (i.e. signed by the chairman) until the beginning of the next meeting.


About the approval and signing of Minutes 
Minutes do not become formal Minutes until they have been approved by all the trustees who were present at the meeting to which the minutes relate. Following such approval, the minutes may then be signed (usually at the beginning of the trustees’ next meeting) by the chairman of the trustees (failing whom, by the person elected by the trustees to be the chairman of the meeting). Having been approved and signed, the minutes then become the formal evidence of the proceedings of that meeting. 

Once signed, Minutes should not subsequently be amended in any way. Should a minor alteration or addition to the minutes be required before the minutes are signed by the chairman, the alteration made should be initialled by the Chairman, with the approval of all the trustees present. After that, the minutes would be signed, for and on behalf of the trustees, by the chairman as being a true and fair view of the proceedings of that meeting. 

It is recommended practice that the chairman should also sign or initial the top of each page of the minutes to confirm that the page initialled was the page approved by the trustees on the date that the minutes were approved and signed on behalf of the trustees. 


About The Suggested Layout Of Minutes

Ground rules
The drafting of Minutes should:
(a) be concise and to the point
(b) not normally record details of actual discussions although they should indicate the main areas of discussion
(c) not be a rambling narrative of ‘who said what to whom’
(d) be written in the past tense 
(e) be written in a way to enable persons not present to have a clear summary of what took place and what was resolved 
(f) be retained indefinitely as they are the scheme’s historical record of its events and proceedings. 


Layout of Minutes
In their layout, Minutes should include the name of the scheme, description of the meeting, list of those present and apologies for absence. For example: 

The [name] Retirement Benefits Scheme 

Minutes of the meeting of the trustees held at [address] on [date], commencing [time].

Present: [name] Chairman
[name] Trustee
[name] Trustee
[name] Trustee
[name] (Independent Trustee) 


Apologies [name] Trustee


In attendance: [name] (secretary to the trustees) 
[name] (group pensions department)
For Minute Nos. [x & y] [name] consultant (firm)
For Minute No. [z] [name] (investment manager)

Without a layout such as the one above, there would be no clear record to show (i) who was in attendance (ii) whether the quorum was met (iii) who was unable to make the meeting and (iv) who was present to vote. Persons not in attendance would not normally vote but, if there is power in the scheme’s deed and rules, it may be possible for an absent trustee to authorise an attending colleague trustee to vote at the meeting on the absent trustee’s behalf i.e. to exercise a proxy vote. 


Minute numbering
Minute No. Subject heading Action

Individual minutes should be numbered sequentially, one after another. For example, the number of the opening minute of a meeting should follow, in succession, the number of the closing minute of the previous meeting, i.e., minute No. 53 of the current meeting follows minute No. 52 being the last minute of the previous meeting. What is not sensible is to have the numbers of each meeting serve just that meeting i.e., the last meeting contained 8 minutes (numbered one to eight); this meeting contains ten minutes (numbered one to ten). The reason for this is that scope wrongly exists for a meeting/record/decision to be backdated.

Each Minute should be given a sub-heading, for ease of reading and subject search. Plus, as appropriate, it should also have a name (or names) allocated in an ‘Action’ column to confirm the person (or persons) who accepted responsibility for carrying out the action minuted.


Appendices to Minutes
Appendices are a means of keeping necessary detail out of minutes, e.g., for summarising the results of an actuarial valuation, or reporting a presentation from an investment manager, or other visitor. The contents of an appendix might also be a copy letter or other such evidence or supporting information relevant to, or referred to, by the minute in question. Occasionally it may be found to be physically difficult (or impracticable) to incorporate in an appendix a full report or other such bound document e.g., a valuation report or set of rules, since such documents do not always fit readily into minute books. In such cases, the minute would refer to the reference document as being “filed with the minutes”.


About The Disclosure Of Minutes

The requirement to disclose information to members
Under the Occupational Pension Schemes (Disclosure of Information) Regulations 1996, trustees are required to make available certain information to all scheme members, beneficiaries and certain third parties (including prospective members and prospective beneficiaries). Collectively such information also falls within the definition of the scheme’s ‘trust documentation’. Included within the scheme’s ‘trust documentation’ are all or any documents giving title to benefits (rules, booklets, announcements, etc.) and also the signed minutes of trustees’ meetings.


No direct obligation exists to have to disclose discretionary decisions taken
Trust law and its supporting regulations does not, however, include the automatic disclosure of all minutes of trustees’ meetings and all related documents. Nor does it impose any direct obligation on trustees to have to disclose the detail of decisions taken by the trustees, or on their behalf, relating to the exercise of their discretion, or the reason behind any discretionary decision made, unless the reason for the decision is recorded in the minutes. 

Whilst acknowledging the statutory position regarding the disclosure of minutes, trustees should approach the drafting of their minutes on the basis that they may be obliged to disclose the contents of any specific minute (possibly by the Pensions Ombudsman or by a Court Order). [But see Pension Ombudsman’s opinion below].

Whilst the trusteeship as a whole is responsible for the decisions taken at its meetings, any individual trustee (or director in the case of a corporate trustee) may request to have [his (or) her] dissent recorded in the minutes, if they so wish. 


The Pension Ombudsman’s opinion about disclosure
“Subject to the need to preserve the privacy of individuals, where the Trustees have made a decision, they should allow the minutes of their meeting to be seen if scheme members so request. Certainly, a member who is particularly affected by a decision ought to be able to read the particular minute.” Source: Pensions Ombudsman.

Taking the above comment into account, the Pensions Ombudsman may well be inclined to view the absence of any documented reasons to support a decision as indicating that there were, in fact, no supportable reasons for the decision. 

“Documented reasons need not themselves be lengthy, but should be sufficient to convey to the reader an understanding of the factors which have been given some weight and record why some factors have been discounted.” Source: Pensions Ombudsman.


About Discretionary Decisions Taken

Considerations when taking discretionary decisions
In respect of any discretionary decisions taken, particularly those affecting members’ benefits or entitlements or benefit treatment, the content of certain minutes should ideally be restricted to:
(i) listing the factors taken into account by the trustees in coming to their decision and 
(ii) summarising briefly the advice received by the trustees and 
(iii) recording the decision taken without any particular or specific reason being given for the decision taken. 

Then, if later faced with a formal complaint or challenge by any member or members, the trustees could consider on a case-by-case basis what approach to adopt in respect of disclosure and, specifically, if at all any reasons and documents available in respect of the discretionary decision taken should be disclosed. 


The recording of discretionary decisions 
If the decision taken is a discretionary decision affecting individual members, it should ideally be noted on the member’s file and the member, and any other interested parties, should be informed of the decision, with reasons given.