Decision-making, appeals and interview procedures
- 1.1We make a wide range of regulatory decisions both in relation to applicants, such as those wanting to be enrolled as a student, admitted to the Roll or authorised as a recognised body and in relation to persons we regulate following, for example, investigations about breaches of the Handbook.
- 1.2Our decision-making is undertaken in a fair, transparent and proportionate manner in accordance with our published decision-making guidance. This procedures document sets out how we make a first instance decision (FID) or deal with a request for an internal review or appeal.
- 1.3FIDs may be made by operational unit staff with the delegated authority, skills and expertise to make the decision, or by a single adjudicator or in some instances by an adjudication panel. The term "adjudicators" includes employees of the SRA and external members. "Decision makers" includes adjudicators and also any person making formal decisions for the SRA. In making decisions, adjudicators and other decision makers are part of the internal decision-making structure of the SRA. All requests for an internal review or appeal are dealt with by the adjudication function.
SRA appeals or reviews
- 1.4The relevant Rules and Regulations in the Handbook refer to both a request for a "review" and an "appeal" of an FID. For the purposes of these procedures, the term "appeal" is used and the person or entity requesting an appeal are referred to as the "appellant". Specific internal and external rights of appeal and relevant time limits are set out in our Rules and Regulations. Where they are not set out, we usually give 28 days for an appellant to appeal a decision.
- 1.5Our general approach is to consider an internal appeal against decisions we make that are final and determinative of rights or professional standing. Examples of the types of decisions we allow a right of appeal on include: imposing conditions on a practising certificate or a recognised body, the making of a section 43 order, rebuking or fining an individual or a firm, refusing admission to the Roll and refusal of an application for “Equivalent Means”. There are some decisions that we will not consider on appeal and we will state this in our decisions. Examples include:
- a decision to intervene into a practice as the right of appeal is to apply to the High Court to withdraw the intervention notice
- to publish a decision to refer a regulated person’s conduct to the SDT.
- a decision to refuse to grant a waiver.
- 1.6In most cases, the appellant is required, under our Rules and Regulations, to first exhaust an internal appeal route before exercising any external right to appeal that may be available. Some decisions we make can be automatically appealed to an external body, such as to the High Court or the Solicitors Disciplinary Tribunal. Other decisions may be amenable to Judicial review.
- 1.7Depending upon the type of decision made and who has made it, an appeal may be heard by either a single adjudicator or by an adjudication panel. Our Schedule of Delegations identifies who can make a decision. In certain circumstances, appeals from decisions made by operational unit staff may be referred directly to an adjudication panel. The criteria for determining if matter will be heard by an adjudication panel include:
- the case is particularly high profile, sensitive or complex
- the person under investigation is or was an employee of, or consultant for, the SRA
- lay input is desirable
- it is otherwise in the public interest for the case to be considered by a panel.
- 1.8The SRA (Cost of Investigation) Regulations set out the charges we may make for dealing with unsuccessful appeals.
Interviews or attendance - general
- 1.9Most of our FIDs and appeal decisions are made on a paper basis. In some cases, we may ask an individual to attend for interview prior to determining an application or an individual may request attendance before the decision maker(s). The decision to invite an individual for interview, or to agree to their attendance to make oral representations rests with the decision maker(s). They will decide whether, to ensure a fair disposal of the matter, it is necessary or desirable to interview a person or hear representations before a final determination is made. For certain types of application, we may require an individual to attend for an interview. For example, Regulation 8.5 of the SRA Qualified Lawyers Transfer Scheme Regulations 2011 contains this power.
- 1.10In order to decide whether an interview is necessary, or whether oral representations should be invited or allowed, the decision maker(s) will first request any documentation and evidence they consider necessary to enable a decision to be made on the papers. So that cases are dealt with expeditiously, we encourage applicants and individuals to provide all relevant evidence, representations and information in advance so that the decision maker(s) can give full consideration to the issues to be determined.
2. Decisions - general
- 2.1First instance decision (FID) are made in accordance with the Schedule of Delegation in operation at the time of the decision being made.
- 2.2FIDs may be made by operational unit staff or an adjudicator. Adjudicators are part of our internal decision-making structure and exercise certain regulatory powers on our behalf.
- 2.3In certain circumstances FIDs may be made by an adjudication panel.
- 2.4FID decision maker(s) will not be involved in the consideration and/or determination of any subsequent appeal.
- 2.5FIDs will be recorded in writing, signed, dated and disclosed by the allocated case officer within 5 working days of the date of the decision.
- 2.6Decision-making takes place in private.
- 2.7FIDs are published in accordance with our guidance on publishing regulatory and disciplinary decisions.
3. The first instance decision making process – general
- 3.1After the conclusion of the investigation, and subject to our Rules and Regulations, the case officer will prepare a paginated bundle of documents containing:
- an index to the bundle
- a chronology
- a case report
- relevant correspondence and other documents
- details of the regulatory framework
- the regulatory history of the regulated person/applicant, where appropriate.
- 3.2The case report may recommend an outcome or advocate a particular position. This recommendation is not binding on the decision maker(s). The case report and the bundle including any additional documents not previously disclosed to the applicant, which are placed before the decision maker(s) will be provided to the regulated person/applicant for comment prior to the matter being determined.
- 3.3The case report may also be disclosed by the case officer to any other person involved with or affected by the matter to enable that person to comment upon it. Any such comments will be disclosed to the regulated person/applicant if they are to be included in the documents to be considered by the decision maker(s).
- 3.4The bundle will be submitted to the decision maker(s) within a reasonable time of finalisation of the report or in accordance with time limits set out in the relevant Rules or Regulations.
- 3.5The decision maker(s) will make their determination by considering the facts and submissions set out in the papers presented to them and on any submissions and representations made where there has been an interview or attendance by the relevant person.
- 3.6Stand over decisions. Where the decision maker(s) cannot make a final decision, they will provide the written reasons for this in the form of a preliminary decision. Such decisions should clearly set out the reasons why a final decision cannot be made. Directions may be given.
- 3.7The signed and dated decision will be provided to the case officer within 10 days of allocation to the decision maker(s). The case officer will send it to the relevant person within 5 working days of receipt.
4. The appeal process – general
- 4.1An appeal may be determined by either a single adjudicator or by an adjudication panel depending on the nature of the decision being appealed and the role of the FID decision maker.
- 4.2Subject to any provision contained in the Handbook, the matter will be considered afresh. All documentation considered by the FID decision maker will be referred to the adjudicator/panel together with the FID and any further representations or information. The adjudicator/panel is not bound by the findings made or outcome of the FID.
- 4.3The appellant is required to submit an appeal in accordance with statutory or notified timescales and in the form prescribed by us (if any) together with supporting evidence and documentation. It is in the interests of the appellant to ensure the appeal grounds are set out comprehensively as this will enable the matter to be dealt with expeditiously. The appeal notice and documentation should be sent by the appellant to the allocated case officer.
- 4.4After receipt of the appeal, the case officer will update the index and bundle of documents prepared for the FID to include:
- an updated report with a brief summary of the matter and any response to the appeal grounds
- the decision being appealed
- the notice and ground(s) of appeal
- any other documents, correspondence or representations.
- 4.5The appeal report may recommend an outcome or advocate a particular position. This recommendation is not binding on the adjudicator/panel. The appeal report and the bundle or any additional documents not previously disclosed will be provided to the appellant prior to the appeal being determined.
- 4.6The appeal report may be disclosed by the case officer to any other person involved with or affected by the matter to enable that person to comment upon it. Any such comments will be disclosed to the appellant if they are to be included in the documents to be considered by the adjudicator/panel.
- 4.7The appeal bundle will be submitted to the adjudicator/panel within a reasonable time of finalisation of the appeal report or in accordance with time limits set out in the relevant Rules or Regulations.
- 4.8The appellant will be provided with at least 14 days’ notice of the appeal hearing date and may make representations in writing on all the evidence and information to be considered by the adjudicator/panel prior to the final determination.
- 4.9If the adjudicator/panel decide it is relevant to the consideration of the appeal, they may stand it over. The decision should clearly set out the reasons why a final decision cannot be made. Directions may be given.
- 4.10The adjudicator/panel will make their determination by considering the facts and submissions set out in the papers presented to them and on any submissions and representations made where there has been an interview or attendance by the appellant.
- 4.11The signed and dated appeal decision will be provided to the case officer within 10 days of the date of allocation to the adjudicator/panel chair. The case officer will send it to the appellant within 5 working days of receipt.
5. The operation of the adjudication panel
- 5.1The adjudication panel will meet as often as necessary to discharge its functions. It may do so in person, in writing, by telephone, video link, email or other electronic means.
- 5.2The adjudication panel will comprise of:
- (i) a Chair and
- (ii)at least 1 other member.
- 5.3The adjudication panel is quorate with 2 members.
- 5.4The adjudication panel will include a combination of legally qualified and lay members. There will be at least one lay member on each panel.
- 5.5The adjudication panel will follow the procedure described above, but subject to that, will conduct itself in a manner that the Chair considers suitable to enable a fair and expeditious determination of the case being considered.
- 5.6Each member of the adjudication panel may vote on the matter under consideration. The Chair will have a vote as a panel member and will have the casting vote in the event of a tie-break situation.
- 5.7Adjudication panels will usually be supported by a panel adviser whose role is to:
- ensure all relevant papers are before the panel
- provide any technical or procedural advice on the application or interpretation of the relevant legislation and rules and/or relevant policy, guidance or criteria
- ensure administrative arrangements are effective
- ensure the Chair completes and signs the decision in an efficient and timely manner.
6. Conflicts of interest
- 6.1If a decision maker has or considers that they may have a conflict or a potential conflict of interest in any matter in which they are asked to participate they will disclose it as soon as reasonably practicable to their manager. The manager may seek assistance in considering the potential conflict.
- 6.2If the manager considers it appropriate, the decision maker may be required to stand down from consideration of the matter. A replacement decision maker will be identified as soon as possible.
- 6.3If the potential conflict does not require the decision maker to stand down, the reasons for this will be recorded in the decision.
7. Interviews and attendance
- 7.1The decision maker will decide whether an interview or attendance is necessary or desirable to reach a fair determination of a matter at the FID stage or on appeal.
- 7.2A relevant person or case officer may request or recommend an interview is held or attendance is permitted or required.
- 7.3In such circumstances, the decision maker will follow the process set out in section 10 of this document.
8. Decision making
- 8.1The standard of proof required will be on a balance of probabilities.
- 8.2Decisions are made in private and are published in accordance with our guidance on publishing regulatory and disciplinary decisions.
- 8.3Written reasons will be provided for all decisions within 10 days of the date of the decision being allocated to the decision maker(s). All decisions will be signed and dated by the decision maker or Chair of the adjudication panel. The decision will be sent to the case officer who will disclose it within 5 working days of receipt.
- 8.4The case officer will confirm whether any internal or external rights of appeal exist and any relevant time limits.
- 9.1The decision whether to direct a reconsideration or not is made solely at the discretion of the SRA. The Schedule of Delegation contains details of who is authorised to reconsider a decision. The eight grounds upon which a request to reconsider a decision may be made are that the decision maker(s) making the original decision:
- was not provided with material evidence that was available to the SRA
- was materially misled by the regulated person or any other person
- failed to take proper account of the material facts or evidence
- took into account immaterial facts or evidence
- made a material error of law
- made a decision which was otherwise irrational and or procedurally unfair
- made a decision which was ultra vires
- failed to give sufficient reasons.
- 9.2The authorised officer will not substitute what they think is the 'correct' decision. They simply decide whether the decision should be reconsidered and if so, may direct that further investigations are undertaken and who should deal with the case. It is possible that the decision maker looking at the matter afresh will reach the same conclusion as the previous decision maker(s). This is perfectly proper if the decision has been made following the correct process and taking into account the appropriate evidence
- 9.3Where disputes have been determined by the decision maker(s) and a regulated individual does not agree with the outcome, the proper route for challenge is by way of an appeal.
- 9.4Administrative errors or mistakes in any decision or errors arising in a document from an accidental slip or omission may be corrected by the decision maker without the need for a formal reconsideration.
10. Interviews and attendance process
- 10.1Most of our decisions are paper based. In some circumstances, the decision maker(s) may decide that it is necessary or desirable to request the attendance of the relevant person(s) to be interviewed or to make oral representations. The decision maker(s) will consider any request to attend and make representations.
- 10.2When considering whether there shall be an interview or attendance, the decision maker(s) will undertake an appraisal of the material already available. They will have regard to all the circumstances of the case, which may include but are not limited to matters where:
- (i) the honesty of the relevant person is being questioned;
- (ii) there are important material facts in dispute which, in the opinion of the decision maker, could not fairly be determined on documentation alone; or
- (iii)when a significant explanation or mitigation is advanced which needs to be heard orally in order fairly to determine its credibility; or
- (iv)the decision maker considers it appropriate and necessary to assist them in making a proper determination; or
- (v) a reasonable adjustment is required; or
- (vi)there may be the possibility of a substantial fine being imposed; or
- (vii)there may be the possibility of disqualification or revocation under relevant Rules or Regulations.
- 10.3If a request to attend and make representations is refused, the reasons for refusal will be contained in the decision.
- 10.4Where it is decided to hold an interview, an interim written decision will be prepared setting out the reasons why it is necessary and any areas of questioning or clarification to be covered during the interview.
- 10.5The relevant person will be given at least 14 days written notice of the date, time and place of the proposed interview. This notice period may be shortened by agreement with the relevant person. A supporter or representative may accompany the relevant person, but this is not a requirement.
- 10.6The interview will be conducted in such manner as considered appropriate by the decision maker(s) having regard to the issues to be determined.
- 10.7The interview will take place in private and the decision maker(s) will be accompanied either by a note taker or the hearing will be recorded.
- 10.8The decision maker(s) will explain the procedure to be adopted and may ask questions of the relevant person. They may also ask the relevant person to limit their representations or response in length or to particular issues.
- 10.9If the relevant person does not attend the interview, or if a satisfactory explanation for non-attendance is not provided, the decision maker(s) may proceed to make the decision on the basis of the documentation available to them.
- 10.10In appropriate cases, the decision maker(s) may ask either the relevant person or the case officer to provide additional information in writing after the interview. If this happens, the decision maker will give directions specifying the information required and the time within which it is to be provided.
- 10.11The decision reached will take account of everything that is in the papers and the oral representations or responses provided during the interview. A signed written decision will be made within 10 days of the conclusion of the interview or receipt of additional documentation, whichever is later.
- 10.12The decision will be sent to the case officer who will disclose it to the relevant person within 5 working days of receipt.
11. Changes to procedures
- 11.1The SRA will review these procedures from time to time as appropriate.