Head of Investigations 21 September 2018 Assessing Complaints Michelle Lawton Head of Investigations 21 September 2018 06/10/2017 Regulatory Governance

Assessment of complaints Assessing complaints Complaint form Initial review of a complaint Rejection of a complaint Appeal process Vexatious complaints Anonymous complainants

Assessing complaints Review and assess complaints received about the conduct of members, students, affiliates and firms Identifies areas of investigation Assesses the evidence provided on receipt of a complaint

Complaint form Mandatory to have completed a complaint form before a complaint is considered Key pieces of information requested at the outset of considering a complaint

Initial Review of a complaint Does the complaint relate to a relevant member/student? Are you the appropriate regulator to investigate the complaint? Member of another body/certificates with another body? Does the complaint relate to a former member?

Initial Review of a complaint Has the Member been the subject of previous complaints? If so what types of complaints have been made against them in the past? If they are similar to the issues raised by this complaint does it indicate a repeated deficiency in member’s practice? How long ago were these issues raised. If the previous complaint is recent were any regulatory warnings or penalties given?

Initial Review of a complaint A complaint can be rejected under Complaints and Disciplinary Regulation 4(1) which states:- (a) The investigating officer shall consider any complaint that may come to his attention and decide whether it is appropriate for the Association to refer the complaint for conciliation or investigation.

Grounds to reject a complaint (1) The grounds for complaint arose a long time ago (set period) It is not the correct forum to consider the complaint (e.g. employment, commercial disputes) Complaint that member has committed a crime Complaints which do not engage the relevant regulations Complaint not yet raised with the member Member/student is no longer on the register

Grounds to reject a complaint (2) Complaints about members of other accountancy bodies Multiple complaints and complaints lodged in stages Lack of evidence Anonymous complaints when no evidence provided and preliminary review reveals no basis for complaint

Rejection of a complaint Consideration of public facing policy on Complaints We Will Investigate Public interest grounds Reasons for rejection clearly detailed in writing to the complainant The complainant can provide further representations to the reasons for rejecting the complaint

Appeal process The complainant is provided with an opportunity to appeal the decision by providing further representations in writing Consideration of further representations by someone who is independent to the original complaint Outcome of the appeal to be set out in writing to the complainant

Possible outcomes following appeal The complaint is referred for investigation The case is closed This decision is final

Summary of initial review process Consider all evidence provided Include in a public facing document complaints that can be investigated and those that can’t Set out detailed reasons in writing for decision Provide a deadline for submitting further evidence Carry out a further review of the complaint in light of the further representations. If possible the further representations should be considered by someone different Set out further detailed reasons in writing and explain that this decision is final

Vexatious complaints A vexatious complainant is a complaint which lacks foundation, merit or justification which is intended to cause inconvenience, harassment, embarrassment or expense for the subject or A complaint which involves the inappropriate or improper use of a formal process

How do we recognise a vexatious complaint? The principal element which defines a vexatious complaint is reasonableness Two parts:- Whether the initiation of the complaint is itself unreasonable The manner in which the complaint is pursued which raises concerns

Process for dealing with vexatious complaints Ensure that the complainant has been provided with details of the complaints process Take particular care to examine the supporting evidence provided by the complainant Speak with the complainant to clarify any issues. Where necessary, introduce a policy on dealing with abusive or threatening calls and refer the complainant to that policy

Anonymous complainants Two types of anonymous complainants:- The truly anonymous complainant where the identity of the complainant is not disclosed ; and The complainant who discloses their identity but does not want that identity disclosed to the member

What is a complainant? A complainant is defined in ACCA’s Complaints and Disciplinary Regulations 2(1) :- Complainant means any person or persons who bring a complaint to the attention of the Association, excluding any person or persons who have withdrawn a complaint or withheld their identity from the Association or from the relevant person.

Rights of a complainant When an individual falls outside the definition of ‘complainant’:- They have no right to be kept informed of the complaint; and They have no right to request a review of ACCA’s decision following conclusion of a case

Summary of assessing a complaint Manage the complainants expectations at the outset Use of a complaint form Consider all evidence that has been provided by the complainant, held internally and in the public domain when initially reviewing a complaint. Provide detailed reasons in writing to the complainant if not referring the matter for investigation. Appeal process

Head of Investigations 21 September 2018 Michelle Lawton Head of Investigations 21 September 2018 06/10/2017 Regulatory Governance

Investigations department How cases are assigned Conflict checks Gathering evidence The heads of complaint Handling confidential information Witness statements

Investigations department Failure to cooperate with an investigation Quarterly reviews External deferrals Outcome of an investigation

Investigations department ACCA operates a formal process of investigation stipulated by regulations contained in ACCA’s Rulebook Both members and students are taken through the same rigorous process All members and students are required to adhere to ACCA’s Rulebook On going duty for members and students to bring any matters to ACCA’s attention

How cases are assigned All cases allocated to the investigations department are reviewed by an Investigations Manager Complete an initial review checklist Note key information on the file to draw to the attention of the investigator and show managerial oversight Cases are allocated to a suitably skilled investigator depending on the case type

Conflict Checks All staff members that carry out work on a case must complete a conflict check Consideration needs to be given as to whether they have any personal interest or connection with anyone involved in the case Consideration is given to the perception of bias All conflict checks are recorded on the file If a conflict arises it should be reported immediately

Assigning the complaint When a complaint is assigned to an appropriately skilled investigator, the complaint and the evidence should be reviewed to determine what is to be investigated and the evidence that would be required in respect of the complaint Once the heads of complaint have been determined, an initial letter should be sent to the member detailing the heads of complaint and asking for their response

The heads of complaint (1) Put the complaint in writing to the member CDR 4(3)(b) states:- The investigating officer shall notify the relevant person of the matters, acts or circumstances he is minded to investigate in light of the complaint and invite the relevant person to comment in writing upon them’

The heads of complaint (2) The complaint is always set out in writing to the member. The member is provided with a deadline to respond to the letter of complaint (21 days) An extension of time may be provided on request where it is reasonable to do so

Gathering evidence (1) Correspondence in writing Use of telephone calls We do not have the same powers as a court, we cannot compel members to provide documents or carry out searches of computers

Gathering evidence (2) Information can be obtained from a variety of sources. These include The parties to the complaint and any witnesses Existing internal records (including current or former membership records and complaints files) Public sources and other third parties (such as company information databases, websites, other regulators and legal authorities)

Witness Statement - Cooperation Witness statements are taken where issues have been identified and the witness – either being the complainant or a third party can speak to those issues Check that the party is willing to cooperate with the process by attending a Disciplinary Committee to give evidence before taking the witness statement Encourage cooperation but we cannot compel complainants or third parties to give a witness statement. Explain the impact of not cooperating

Failure to cooperate (1) Members and students are required to cooperate with ACCA’s investigation. Complaints and Disciplinary Regulations 3(1) states:- Duty to co-operate (a) Every relevant person is under a duty to co-operate with any investigating officer and any assessor in relation to the consideration and investigation of any complaint.

Failure to cooperate (2) If a member or student fails to respond in full to the complaint a formal failure to cooperate process is strictly adhered to during the investigation Improves the efficiency of the investigation process

Complainant failure to cooperate Take action where the complainant fails to respond to queries and requests for evidence to substantiate the complaint No longer be considered a formal complainant in respect of the complaint This would result in the complainant losing their rights as a complainant

Quarterly reviews A review of the progress of a complaint is carried out by a manager every three months until the case is concluded This review uses a checklist to consider keys information, including looking at the heads of complaint being investigated, the evidence gathered and what progress is still to be made on the complaint This has improved the efficiency of the progress of a complaint

Deferral of investigation (1) CDR 4(5) Deferral ‘The consideration, conciliation or investigation of the complaint may, if the investigating officer so decides, be deferred if the relevant person so requests or the investigating officer otherwise decides it is appropriate to do so in the interests of justice, such as where criminal or civil proceedings concerning a relevant matter are pending to which a relevant person is a party’.

Deferral of investigation (2) External deferral is where an investigation is placed on hold to await the outcome of an investigation being carried out by a third party:- Criminal matters Civil matters Other third party proceedings (local regulator)

Outcome of the investigation process Four potential outcomes following an investigation: No case to answer/lack of evidence Rest on file some or all of the allegations for a period of five years Dispose of the complaint by way of consent order or Draft a report of disciplinary allegations

Outcome – No case to answer/lack of evidence Reasons for closing the case are set out in writing to both parties Right of appeal on the decision provided to both parties Any appeal of the decision to be put in writing within set deadline providing detailed grounds as to why they do not agree with the decision to close the case Complaint and detailed grounds for appeal to be considered by someone independent to the investigation Outcome of the appeal to be detailed in writing

Outcome – Rest on file (1) 2. Rest on file some or all of the allegations for a period of five years Prima facie case to answer but it is not in the public interest for the case to be considered by a Disciplinary Committee Reasons set out in writing to both parties Right of appeal on the decision provided to both parties Any appeal of the decision to be put in writing within 30 days setting out detailed grounds as to why they do not agree with the decision to close the case Complaint and detailed grounds for appeal to be considered by someone independent to the complaint Outcome of the appeal to be detailed in writing

Outcome – Rest on file (2) Public interest considerations: The conduct was committed as a result of a genuine mistake/misunderstanding The loss or harm is minor or the result of a single isolated incident Remedial steps have been taken by the member or the member has put right the loss or harm caused No evidence of dishonesty No evidence the conduct was premeditated

Outcome – consent order 3. Dispose of the complaint by way of consent order Complaints can be disposed of by way of consent order for any allegations that would not result in removal from membership or the student register The relevant person has to admit all the allegations, facts and any failings and/or breaches in full and agree with the proposed sanction This enables cases to be concluded more quickly and efficiently and avoids unnecessary full hearings whilst still taking robust action All consent orders are published and there is no right of appeal.

Outcome – Report of disciplinary allegations 4. Draft a report of disciplinary allegations. This is where there is a case to answer and there is a real prospect of a reasonable tribunal finding an allegation proved in light of the evidence and that it is in the public interest for the case to be heard by a Disciplinary Committee