New disciplinary framework: challenging disciplinary decisions

For the ICAEW Regulatory Board (IRB), the rationale behind refreshing the disciplinary framework was never to make substantive changes to the main cornerstones of the scheme. Instead, the aim was to make it more efficient and effective and more responsive to the evolving regulatory environment.

"We wanted to make our disciplinary scheme more transparent, simpler to understand, and more efficient for everyone involved," explains Duncan.

Part of this meant removing overly complicated or legalistic language and improving clarity. However, there have also been changes made to ensure ICAEW's processes remain in step with equivalent regulatory bodies.

In previous articles, Duncan explained the decision to reduce the number of Disciplinary Bye-laws, and separate duties from processes, as well as some of the changes to procedures, sanctions and terminology. Here, he explains the changes to the processes for challenging disciplinary decisions.

The current process

The current Disciplinary Bye-laws (DBLs) provide that anyone can appeal against any order made against them by a Disciplinary Tribunal on one or more of the grounds of appeal in the DBLs.

Currently, however, there is no process to determine whether an appeal fits within any of the specified grounds for appeal until the start of the full hearing. It can then be several months later, after further costs are incurred by the member or firm, and by ICAEW before the hearing takes place.

From 1 June 2023

Under the new regulations, members and firms will first have to seek permission to appeal.

"We're not doing introducing anything innovative here," explains Duncan. "When we looked around at other professional body regulators, they already have a permission to appeal procedure in place," he adds.

"Now we have inserted that extra requirement which should reduce delays in the completion of disciplinary proceedings by preventing frivolous or unsustainable appeals. The new process provides for a review of the grounds of appeal on the papers by the Appeal Committee Chair or, if they're unavailable, by the Vice Chair."

"The Chair has to determine whether permission should be granted," he explains. "And the test for this is that the appeal has a 'reasonable' prospect of success on one or more of the grounds of appeal set out in the regulations."

If permission is refused, the tribunal order comes into full effect. Conversely, if the application is granted, the case goes to a substantive appeal hearing before an Appeal Panel.

The process has also changed for appeals by the Conduct Department against decisions made by Disciplinary Tribunals.

The current process

Currently the 'prosecuting body' for complaints referred by the Investigation Committee to the Disciplinary Committee is the Investigation Committee itself. Therefore, if the PSD Chief Officer believes that a disciplinary order should be appealed, consent must first be obtained from the Investigation Committee and then permission obtained from the Appeal Committee Chair.

From 1 June 2023

The 'prosecuting body' will change to the Conduct Department itself. Therefore, there is no need for the Investigation Committee (the Conduct Committee after 1 June) to be involved.

So the process has been amended so that an application for permission to appeal may be made where "in the opinion of the PSD Chief Officer, there is a clear public interest in an appeal being brought". Permission will still need to be given by the Appeal Committee Chair (or Vice Chair).

The ambit of appeals which might be made by the Conduct Department has also widened so that, instead of only being able to appeal against orders, the Conduct Department in the future will be able to lodge an appeal if it considers that the sanction imposed by a Tribunal was insufficient or inappropriate and the Conduct Department can also appeal findings as well as orders.

The current process

Under the current system, if the Investigation Committee (under the new framework, known as the Conduct Committee) does not consider there to be a prima facie case of liability to disciplinary action on its review of an investigation report, a complainant can request an independent review of the Investigation Committee's decision to reject a complaint by a Reviewer of Complaints. (Reviewers are independent people with investigation experience who are not members of staff or members of the Disciplinary Committee).

This process was incorporated into the disciplinary scheme at a time when all, or most, of the members of the Investigation Committee were chartered accountants and was designed to give additional assurance to the public that no meritorious complaints would be dismissed.

The role of a Reviewer of Complaints is to look at the entire investigation file and to take representations as to why the complainant believes that the Investigation Committee was wrong to reject the complaint(s) in dispute. A Reviewer will ultimately determine whether there is any reason why the Investigation Committee should re-consider its decision.

Consideration was given by the IRB as to whether this safeguard was still necessary, given the current constitution of the Investigation Committee which has a parity of lay and chartered accountant members, and a lay chair. It was decided ultimately that this safeguard would be preserved but that the issues to be reviewed will be more focused, enabling reviews to be completed more quickly.

From 1 June 2023

The Reviewers of Complaints will be referred to as Case File Reviewers who will be asked to consider three specific aspects of an investigation:

• Has the investigation case manager investigated all of the issues raised by the complainant and any other obvious lines of enquiry?
• Did the investigation report include all documents gathered during the investigation which are relevant to the determination of the complaint?; and
• Did the investigation follow the correct processes as set down in the new Investigation & Disciplinary Regulations?

If the Case File Reviewer concludes that there are issues in one or more of these areas, they will report those concerns to the Conduct Committee Chair. The chair will have the power to request the Head of Investigation remedies the identified issue and provides the Conduct Committee with a supplemental conduct report.

The Conduct Committee will then consider whether anything in the supplemental conduct report changes its original decision to reject the complaint(s) in dispute. If the Conduct Committee determines to stay with its original decision, this will bring the matter to an end. If it decides it needs to change its decision, it will then determine whether a consent order should be offered to the subject of the allegation, or if the matter should be heard at a Disciplinary Tribunal.

If you have questions about the upcoming changes, please contact our Technical Advisory Team or your case manager.

• Find out how to contact us.
• Read how cases begun before 1 June 2023 will be dealt with.
• See changes to departments and committees.
• Access the updated regulations that will form the disciplinary framework.
• Read about other key changes to the framework.
• Read our previous article setting out the background to the project.
• Find out more about the consultation on the changes.