Guidance for Members
Introduction
A guide for members of the Chartered Institute of Taxation, Association of Taxation Technicians and Institute of Indirect Taxation.
Introduction
One of the important factors in preserving public confidence in a profession is the establishment and maintenance of appropriate professional standards of conduct for its members and the exercise of professional discipline over those who do not comply with those standards.
The Chartered Institute of Taxation (‘the Institute’) and The Association of Taxation Technicians (‘the Association’) both have powers to issue professional rules and practice guidelines for their members and both have done so. Copies of these should have been issued to you when you became a member, but if they have not they are available from the Secretary of the relevant body and on its website.
The two bodies also have power to enforce these practice standards through the exercise of disciplinary procedures. To undertake this they jointly established The Taxation Disciplinary Board Ltd (‘the Board’) in 2001. The function of the Board is to undertake the fair and expeditious handling, investigation and adjudication of complaints on an impartial and independent basis and, where a complaint is proven, to impose appropriate penalties or sanctions within the powers granted to the Board by the Councils of the Institute and the Association. The Board is empowered to deal with complaints alleging breaches of professional standards and guidance, the provision of inadequate professional service, and conduct unbefitting a professional person.
All members of those bodies have subscribed to this regime as a condition of their membership and as a reflection of the advantages which accrue to them as members of that professional body. Students of the two bodies are also included within the disciplinary process, as are firms that come within the jurisdiction of the two participating bodies.
This Guide outlines the disciplinary process and gives guidance to members of the Institute and the Association in the event that they become the subject of a complaint. It is not intended to provide definitive legal advice. In the event of any conflict between this leaflet and the Regulations, the latter take precedence. The Scheme and Regulations can be found on the Board’s website at www.tax-board.org.uk.
Complainants are advised by the Board that making a complaint against a member is not a substitute for seeking damages or other redress through the courts. The Board’s jurisdiction over members of the Institute and the Association is regulatory and disciplinary in nature. The Board is not in a position to offer legal advice or intervene in fee disputes, as it considers that the courts are the proper forum for such matters. Nor can the Board advise on what is a reasonable sum for work done. The Institute or the Association can, however, advise on whether its members have complied with professional conduct regulations relating to fees.
The position of members
As a member of the Institute or the Association you are covered by the relevant published practice rules and guidelines and are expected to be familiar with these. As a member you are required to maintain standards in your work and conduct which are compatible with the high standards of the tax profession and which meet the expectations of the public, your professional colleagues and the professional body of which you are a member.
You may be subject to disciplinary action and the imposition of penalties and costs if you breach the relevant standards. These could involve a reprimand, a fine and, in serious cases, suspension of, or exclusion from, membership of the Institute or the Association.
Role of the Board
The Taxation Disciplinary Board operates independently of the Institute and the Association. It has established the following process for dealing with complaints that it receives.
- The Review stage
A complaint about the professional conduct of a member or student of either body is normally made to the Executive Director of the Board. Upon receiving a complaint, he or his representative will send the complainant a standard complaint form (also available on the website at www.tax-board.org.uk), in the light of which the complaint will be examined by an officer of the Board known as the Reviewer. That individual will consider whether the complaint falls within the jurisdiction of the Board, and whether the complaint has been submitted within twenty-four months of the events which form the subject matter of the complaint. Provided that these basic criteria are met, the Reviewer will forward the complaint to you together with all the correspondence that has been submitted by the complainant and give you an opportunity to make any observations you wish to make on the complaint. Your response will be forwarded to the complainant, and you will have an opportunity to comment on any further comments made by the complainant. (for TDB Privacy Policy see website at www.tax-board.org.uk). If the Reviewer considers that the matter is trivial or vexatious he will inform the complainant accordingly. If the complainant objects to that decision, he is entitled to request that the matter be considered by an Investigatory Assessor, who is an independent person appointed by the Board. In most cases, however, the Reviewer is likely to refer the complaint for examination by the Investigation Committee. In the majority of cases it is likely to take some three or four months before the complaint reaches the Investigation Committee.
- The Investigation Committee
The role of this Committee is to investigate all matters referred for examination in order to determine whether or not a prima facie case has been made out against you. (A prima facie case means that there is an arguable case to answer.) The Committee comprises between three and five members drawn from a panel composed of members of the Institute and the Association and lay members of the public. All the members of the panel are appointed by the Board and operate independently of the Institute and the Association. At each meeting of the Committee, there will be a majority of lay members. The Committee meets in private. Neither you nor the complainant is invited to attend and all the consideration is based on the documentary evidence submitted.
The Committee will have before it a report prepared by the Reviewer and include the correspondence which has previously been conducted in relation to the complaint. The Committee will examine the material submitted to it and, if appropriate, will request the Reviewer to undertake any further enquiries which it considers necessary to ascertain the full facts of the complaint and the evidence available to support the allegation. After full investigation and examination of the available information, the Committee may dismiss the complaint or find that there is a prima facie case to answer. If there is found to be a prima facie case to answer, the Committee may decide either to take no action, if it is not serious enough to merit any sanction available to the Disciplinary Tribunal, or to refer the complaint to the next stage. Both you and the complainant will be advised of the Committee’s decision and the reasons which led to that decision and will have a right of appeal to an Investigatory Assessor if either of you objects to the Committee’s decision. The Assessor, whose decision is final, may uphold the Committee’s decision or refer the matter back to a new Investigation Committee, which will consider the matter afresh.
- Interim Orders
Such an order would be considered at an interim stage between consideration of a case by the Investigation Committee and the substantive hearing at a Disciplinary Tribunal. It would aim to deal with a member who poses a particular threat to the public such that it is considered to be in the public interest or necessary for the protection of the public that his membership should be suspended pending the full hearing of disciplinary charges by a Disciplinary Tribunal. The Taxation Disciplinary Scheme (www.tax-board.org.uk) has been amended accordingly and details of the specific arrangements are contained within the Taxation Disciplinary Scheme Regulations 2014 (www.tax-board.org.uk)
- The Disciplinary Tribunal
If the Investigation Committee considers that there is a prima facie case to answer, it may refer the case to a Disciplinary Tribunal. The Disciplinary Tribunal is composed of three members, two of whom are lay members and one a member of either the Association or the Institute; the Chairman of the Tribunal is legally qualified. The Tribunal sits in public, and you are given an opportunity to attend, even if you choose not to give evidence. The role of the tribunal is to hear the evidence presented to it by a lawyer acting on behalf of the Board in order to determine whether or not the alleged conduct is proven and to make a finding accordingly. Prior to the hearing you will be required to set out your response to the charges submitted by the presenter appointed by the Board and to indicate what, if any, evidence you intend to rely upon for your defence and the names of any witnesses you propose to call. The complainant is also entitled to attend the tribunal hearing, even if he/she does not wish to give evidence.
If a breach of discipline has been found, the Disciplinary Tribunal may impose such penalty as it considers appropriate in the light of the powers given to it, the gravity of the breach and the facts and arguments presented. The Disciplinary Tribunal has a wide range of sanctions available to it. These include the imposition of a requirement to apologise, a fine or an admonishment through to the more severe sanctions of suspension or expulsion from the Institute or the Association. There is also a power to award compensation where the Tribunal has made a finding of Inadequate Professional Service. If a finding is made against you, the Tribunal will normally make an award of costs against you. The Tribunal’s decisions will be sent in writing to both you and the complainant, with reasons given for its decisions. They will also normally be published, and there are rights of appeal to the Appeal Tribunal (described at section 5 below).
- The Appeal Tribunal
There is a final stage available to you, following a decision by the Disciplinary Tribunal. Either you and/or the Board may apply for a hearing before the Appeal Tribunal. You may do so only on the grounds that there has been a misapplication of the relevant rules and/or the relevant law, that the finding or sanction was unreasonable or that new evidence has become available which, had it been available earlier, would materially have affected the finding of the previous Tribunal. The request to make an appeal will first be considered by a Disciplinary Assessor in order to ensure that the appeal comes within the specified grounds. If permission to appeal is granted, the case will be heard by an Appeal Tribunal. This body normally sits in panels of three, including two lay members and a member of either the Institute or the Association; the Chairman of the Appeal Tribunal is legally qualified. The Appeal Tribunal may uphold, modify or overturn any finding of the Disciplinary Tribunal. Its decision is final within the process.
Your Rights and Actions
In the event that a complaint is laid against you, the first formal notification to you will be the communication from the Board’s Executive Director or his representative. You should acknowledge this without delay and, if you do not already have one, request from your professional body a copy of the relevant Professional Rules and Practice Guidelines under which the complaint is being made. If you cannot give an immediate substantive response you should indicate when it will be given. You should respond to all communications from the Board within the timescale requested in the correspondence. Failure to respond to an official communication may itself be considered a breach of professional discipline.
If you are employed, you must consider advising your employer of the complaint as this may have an impact on the conduct of the practice. You must also consider other factors such as the need for legal advice and any requirement to advise professional indemnity insurers together with any conditions they may have regarding the provision of legal services.
You will be advised if the matter is referred to a Disciplinary Tribunal and receive details of a proposed date, time and location for the hearing. Again, this should be acknowledged without delay and if there are valid reasons why you cannot attend on the proposed date seek an alternative immediately. You should also consider the extent to which you may need external advice and counsel. At the hearing you may present your case personally or be represented. An explanation of the procedure, your rights to be heard and to call witnesses, if required, are explained in the material that will be sent to you by the Clerk to the Disciplinary Tribunal.
You may be informed immediately of the decision of the Disciplinary Tribunal, but it is more likely that it will reserve its judgement and that you will receive a written communication with its findings. In the event it finds the case proven it will deliver a detailed report of its findings and the reasons for its decision. You will also receive details of your right of appeal.
The TDB aims to ensure that all complainants are treated fairly. If you are unhappy with the way your case has been handled you may complain to the Board who will review the case. Such a review is limited to the conduct of the TDB staff and is not a way of appealing against a decision.