The Chartered Surveying profession is in the privileged position of having the authority, under the royal charter, to self-regulate. This is a good thing for many reasons and not least for the profession itself, which benefits from having a “one stop” professional body.
Delivering on this responsibility depends on effectively fulfilling our responsibility for setting, assuring and, where it becomes necessary to do so, enforcing the standards of the profession.
Understandably there is interest in our disciplinary regime and how it works, not only from members of the profession but also from other stakeholders, for example members of the public, parliamentarians and journalists. They, quite rightly, want assurance that the disciplinary system reaches the right decisions which are proportionate, efficiently delivered and effective.
Two commonly held misconceptions about regulators is that they are either:
- heavy handed, vindictive and only interested in catching out professionals for trivial misdemeanours, or (conversely)
- in cahoots with the profession and reluctant to take robust action against wrongdoing
It is precisely to avoid either of these pitfalls, that we have built a disciplinary regime similar to that operated by other professional and statutory regulators. It is supervised by an independently led board (the Regulatory Board), with independent disciplinary decision making panels which hear cases in public and publish decisions.
We continue to invest in our system to ensure it remains fit for purpose and fit for the future. Ultimately, disciplinary action is reserved for situations where there appears to be sufficient evidence that a practitioner presents a risk to the public, to clients or public confidence in the profession - this can be because of a serious failure in professionalism, competence, or the mandatory client protections required by ourselves (such as security of client money).
In any given year we receive around 1,300 complaints against individual practitioners and RICS regulated firms from total a population size of c.125,000 professionals and trainees, and nearly 11,000 firms. On top of this our assurance programme results in around 250-300 cases each year being referred to our investigations team due to serious or repeated failure to meet the profession’s standards.
Every one of these complaints is carefully considered and risk assessed by our investigations team to determine whether a) there is a potential breach of the profession’s standards and b) whether it is potentially serious enough to warrant disciplinary action. This process is critical and is undertaken by experienced investigators, with oversight from legally qualified staff.
Out of the 1300 complaints, around 300 cases need formal investigation. Most commonly, the remainder are not subject to further investigation, most commonly, because an investigation would be disproportionate, we do not have jurisdiction, or the issue which has been brought to our attention is best resolved outside a disciplinary process.
Such resolution is often achieved through the regulated firm’s formal complaint handling procedure or, failing this, through an external alternative dispute resolution process - both mandatory protection mechanisms required of all our regulated firms.
We operate a formal review process for anyone who wishes to challenge a decision we have made, and there is an external independent service complaints reviewer who can consider situations where our service has fallen below the standards which we, and those involved, expect.
When we receive a complaint, we undertake a detailed assessment of it. This initial assessment is just the first stage in a series of checks and balances that we apply to all cases we investigate. At the end of our investigation and once the views and supporting evidence from relevant individuals has been collected, the case is then assessed by the Head of Regulation to decide whether the evidence supports a referral to a disciplinary panel.
Where appropriate, a consent order is sometimes agreed. This can be an appropriate way by which we can agree with a member that, although there has been a failure to meet standards, they recognise that there has been a failure; the failure has been put right so that it is unlikely to happen again; and we can then monitor to ensure compliance - this can avoid the cost and time which is associated with a disciplinary panel. In 2015-16 we agreed 81 consent orders to bring the professionals or firms back up to standard. These are generally not published.
Referring a firm or member of the profession to a disciplinary panel is a serious step and not one which is taken lightly. In considering whether to refer a case, type of factors that are weighed up can include:
- Is there evidence of a pattern of repeated failure to meet the appropriate standard that is likely to continue?
- Is there evidence of a serious failure (even if one off) to meet a reasonable standard which has had a detrimental impact on the client or wider public?
- Did the practitioner of firm make reasonable steps to mitigate the chance of the error/misconduct occurring or being repeated?
- Is it in the public interest overall to refer the matter to a disciplinary panel?
Independent disciplinary panel
For the most serious cases, it is necessary for it to be considered by a disciplinary panel. Out of 300 complaint investigations, on average, 60 are referred to a disciplinary panel annually (once you exclude breaches of the requirements relating to Continuing Professional Development reporting).
Disciplinary panels are made up of three individuals and always include at least one independent (non-surveyor) member. The independent panel members have a wide range of skills including legal and wider regulatory expertise. They are administered by a team that is separate to the enforcement team (the RICS team which presents the case) to ensure independence in the constitution and dealings of the panel.
These panels are convened with the aim of considering evidence and the views of parties.
Having heard the arguments, including all the evidence brought forward, they then reach a decision about whether an alleged breach of standards (by an individual or firm) happened. If the panel decides that the allegations are proven, they go on to consider whether there is liability for disciplinary action and, if the panel decides there is, what the sanction should be. In doing this the panel refers to the Sanctions Policy , which is guidance issued and published by the Regulatory Board to support proportionate and consistent disciplinary outcomes.
The majority of the cases brought by RICS have resulted in disciplinary action across the range of available sanctions, but It is inevitable that from time to time a panel will take a different view to ourselves. Given the complex range of factors that are taken into account and considered on every case which need to be weighed and the difficult judgments which need to be made, In the last two years, 8% of cases were “not proven”. We consider this to be a healthy sign of independent judgment, rigorous decision making and a properly functioning impartial process. In any event a panel’s decision may be formally appealed and ultimately challenged through the courts.
Where a case is proven the panel may also order the member or firm to make a contribution towards our costs. This aims to mitigate the cost to the wider profession of RICS having to take disciplinary action against the few who seriously fail to meet the standards that this profession has set Conversely the panel has the power to award costs against RICS where it believes that the action should not have been brought. Costs have been awarded against us in a very small number of cases (2 in the last two years) - this is largely due to the careful checks and balances that exist in the disciplinary process which aims to ensure that only appropriate cases, supported by sufficient evidence, are referred to a panel for consideration.
Inevitably there is speculation about disciplinary cases, in part because it is these cases which throw a public spotlight on the small number of members who fall seriously short of the standards of the profession. It is an important feature of professional self-regulation that such matters are dealt with transparently – for this reason panel hearings are open to the public to attend. However, the only information that we can publish is that which is ordered by the panel. This ensures openness, fairness and consistency, which is all the more important in the digital communications era.
The disciplinary process is a sensitive one and, for better or worse it has become more adversarial and legalistic in nature. Although this trend is also being seen across other regulators and tribunal services, it brings additional costs into the process for both regulators and those regulated. We are making every attempt to minimise costs to the profession and continually look to identify areas where we can work more efficiently. The total cost of running regulatory operations, governance, policy and regulatory communications in 2015-16 was £6.9m, of which 21% was spent on disciplinary operations in total.
Our work to responsibly enforce and uphold the standards of the profession through our disciplinary process is widely recognised by members, clients, insurers and the public -which, in turn, helps to build demand for the profession which continues to grow. The profession’s success is, in part, thanks to the fact that we “put our money where our mouth is” as a profession and commit to upholding the standards we promise. In the rare cases where disciplinary action is required it is done so with careful attention to proportionality, fairness and with the intention of furthering the public interest.
Although vitally important, the disciplinary process is only part of what we do. Our assurance work is valued by the profession (over 90% of those we review each year tell us that the assurance audit was useful to their practice) and helps to bring hundreds of firms and members up to the right standard. Alongside this, outside the regulatory arena, our work supports the profession in raising the bar and furthering the public interest by leading, educating and promoting the value of the profession. This has never been more important as property, infrastructure and land use challenges are high in the public eye.
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