My candid thoughts on the response I received from IFoA Disciplinary Board

It is now time to share my candid thoughts on receiving the Disciplinary Board’s response to my letter of 25 February. For ease of reference I show my letter below in full, with the Board’s response put below each of the 10 concerns I raised (in sections starting “Board’s”, in blue and enclosed within brackets), followed by my reaction (in sections starting “My Reaction”, in red and enclosed within brackets) exactly I as I would give it and share it with other Council members had I received it in a Council meeting:

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Letter of 25 February 2021, with Disciplinary Board’s response of 29 April 2021:

Public and non confidential

Dear Institute and Faculty of Actuaries (IFoA) Disciplinary Board

I am writing in a personal capacity to inform you of some significant concerns I have about the recent operation of the Disciplinary Scheme. I will be grateful to receive an acknowledgement that you have received this letter please.

Disclosure and Introduction

I should declare an interest at this point: I am currently a respondent in a pending complaint under the Scheme.  I make clear at the outset that this letter does not concern my case but recent changes in Disciplinary Board policy and IFoA practice. I have studied all the published disciplinary cases currently available on the IFoA website, going back to 2018. I hope that it adds some credibility to this letter that I am a former IFoA Council member (elected 3 times) and former Management Board member.  I am currently no longer an IFoA member, having decided not to renew my membership at the end of September last year. 

I ask the Board to focus on whether the information I provide is accurate, and if so to use this information to help it in discharging its duty to oversee the operation of the Disciplinary Scheme in a manner which is fair to both members and the public which the IFoA serves.

The concerns I mention relate to some areas of operation of the Scheme in recent years, but also to significant changes in policy by the Disciplinary Board which seem to have been made without consulting, or even notifying, either the IFoA’s governing Council or its members.

(Board’s introductory remarks in their response letter

Thank you for your email dated 25 February 2021 raising concerns with the disciplinary process. The Disciplinary Board discussed your comments in detail at a recent meeting.
The Board would like to pass on its gratitude to you for taking the time to raise your concerns about the IFoA’s disciplinary process.
The Board noted that some of the concerns relate to a matter that is still “live.” It would not be appropriate for the Board to comment further on a matter which will be subject to an independent decision making process. Also, it is not appropriate for the Board to comment on other cases you refer to on the basis that these matters are confidential and have also been independently determined.
The Board is able to provide a more general response in relation to the concerns raised as follows.)

(My Reaction

The concerns I raised are all about general principles from cases which have already happened so are not live. The Board is saying at the same time that it can’t comment on cases which haven’t concluded yet because they are still “live”, but that it also can’t comment on other cases because they are confidential and have been independently determined. This is the Board saying: “our hands are tied. We can’t comment on any case”. Not particularly helpful. Doesn’t make things clearer for any IFoA members who share my concerns.)

Concern 1

Policy change: very significantly widening the scope of costs claimed by the IFoA against Respondents where misconduct is found proved. 

The Disciplinary Board introduced new guidance (published in May 2020) which states (in 5.2):

The following costs may be included in a statement of costs: 

All costs incurred by the IFoA in the investigation of an Allegation or by a Respondent in responding to an Allegation being investigated by the IFoA.

All costs incurred by the IFoA or by a Respondent in preparing for and attending any Panel hearing, including the cost of legal representation, expert witnesses and all associated costs such as travel and accommodation.

The IFoA may also include all costs related to setting up a Panel such as venue hire, attendance fees for Panel members, stenographer fees and legal adviser fees.

The previous guidance (published on 3 April 2018 according to the IFoA website, search url: https://www.actuaries.org.uk/search/site/Costs%20Guidance, document link: https://www.actuaries.org.uk/documents/guidance-note-costs) included (the bold emphasis is mine):

“An award in favour of the IFoA should not include the costs of investigation, being the costs incurred by IFoA prior to the date when:

(a) an Adjudication Panel referred the matter,
(b) the Respondent elected under rule 3.18 to proceed to a Disciplinary Tribunal Panel
or
(c) the matter was referred directly to a Disciplinary Tribunal Panel under rule 3.13.”

The effect of the change in May 2020 is thus to add costs incurred before the Disciplinary Tribunal Panel (DTP), which could include the investigation and Adjudication Panel. In theory this could (and from recent cases, see Concern 9 below, seems to have happened in practice, with one respondent shocked to receive a possible demand for £52,000) multiply by a factor of ten or more the level of costs typically previously demanded by the IFoA. By comparison, the Board’s Annual Reports show that the average amount of costs awarded against Respondents in each of the years 2017 to 2019 were £2500, £2000 (£4000 after ignoring two very low cost awards of £100 for respondents with very limited means) and £5800 respectively.

It introduces an element of considerable uncertainty and risk to any respondent. It alters the membership contract members have with the IFoA in a material way. It is a risk that all members are exposed to (to greater or lesser degree), given that under the current Scheme any member could face a complaint, perhaps because of a single comment that a third party takes offence at.

In several past cases, Panels have commented that they only awarded significant costs in situations where a respondent had failed to cooperate with the investigation or had increased costs significantly by his/her conduct. The new guidance seems to be steering Panels towards awarding the IFoA’s full costs (including the costs of investigation) as the default position. While that might make sense from the point of view of avoiding the costs falling on the wider membership, it is nevertheless a very significant change that in my opinion warrants disclosure and consultation with members. Besides, as one panel commented, the costs of investigating and prosecuting disciplinary cases are part and parcel of being a regulator in order to preserve the reputation of a profession’s members. The IFoA has a very significant team of legal and regulatory staff, and members have been told that part of their membership subscriptions goes to finance that.

It may well be that the changes made in May 2020 are within the powers of the Disciplinary Board but this is a major change affecting the Member Value Proposition (by significantly increasing the risk to members) and should (in my opinion as a Council member at the time) have been discussed with Council beforehand.  Had it been so discussed, I would have asked in Council for members to be consulted before introduction.  In fact, to the best of my knowledge, neither Council nor members’ attention was drawn to this change. In my view that was wrong: it was a big change which should have been well signposted. 

Given that these changes have not been signposted, is it right for the policy to continue without being suspended? Has the new policy applied in all the DTP determinations since May 2020, even though in some (possibly all) of these the alleged misconduct probably happened before the policy was changed?

(Board’s Response to Concern 1

The Board’s Annual Reports for 2018 and 2019/2020 (which were presented to Council before publication), referred to measures to improve cost recovery so as to mitigate the exposure of the wider membership to costs incurred where misconduct has taken place. In light of your comments the Board does intend to consider, at its next meeting, whether further steps need to be taken to communicate these changes to relevant stakeholders. It is important to note that the decision to award costs, and
the amount, is a matter for the Tribunal’s discretion having regard to the circumstances of individual cases and the interests of justice. It is not bound by the Board’s guidance. Costs awards are made subject to the relevant case law, having regard to proportionality and the ability of the Respondent to pay.)

(My Reaction

Any actuary who introduced a five to ten fold increase in charges/costs, or allowed an insurance or investment company they worked for to introduce such a massive increase, without signposting it, instead introducing it via the small print, would be at very significant risk of successful disciplinary charges, and their employer of regulatory penalties under not treating customers fairly. The Board then going on to say “well a Tribunal does not have to follow the guidance” seems a very poor, unconvincing argument to me, verging on the patronising/disingenuous: what is the point of the Board changing the guidance unless Tribunals are likely to pay significant attention to it? At minimum, this is very poor communication by the Board.

Note that the Board evaded replying to my question as to whether it was fair to apply the new policy retrospectively to cases which started before it was introduced. This does not inspire confidence in their respect for natural justice.

Concern 2

Policy change: removing a category of complaints from the Scheme (sending them instead to the Putting Things Right scheme).

From the April 2020 Disciplinary Board meeting minutes (see https://www.actuaries.org.uk/system/files/field/document/Apr%202020%20DB%20Minutes.pdf)

“Complaints which are properly related to the outcome of an IFoA function, rather than to any specific conduct by an individual member, should be referred to the IFoA’s Putting Things Right process, upon the basis that they are appropriately characterised as complaints about the IFoA, rather than a disciplinary Allegation.

To protect the public interest, such complaints will additionally be considered under the Executive Referral process, with the Chair of the Investigation Actuary pool providing independent (from the Executive) oversight. If the matter is identified as giving rise to a relevant question of individual professional conduct, properly so called, it will be referred for consideration under the Disciplinary Scheme.”

As with Concern 1, as a Council member at the time, I would have expected a significant change like this to be discussed with Council (and possibly members) beforehand. Again, to the best of my knowledge, neither Council nor members’ attention was drawn to the change.  In my view that was wrong.

(Board’s Response to Concern 2

The Board does not consider that any significant change has taken place. The extract from the published minute you included in your letter simply clarifies that complaints that are not in the nature of disciplinary allegations should not be investigated under the Disciplinary Scheme, unless the Executive Referral process identifies that the complaint may involve individual professional misconduct.)

(My Reaction

If this was simply a clarification, why did the Board introduce this change so quickly, urgently, and without consulting Council? Another unconvincing and evasive reply.)

Concern 3

IFoA increasing the costs it incurs in prosecuting cases by increasingly using external lawyers, including QCs, in apparent contradiction of Disciplinary Board policy (see the extract below from the Board’s report published in February 2018), and with little noticeable benefit (in fact the opposite, with the 2 most recent DTP cases lost, despite using a QC). 

The Disciplinary Board report for 2017 (published Feb 2018) said that the Board approved of in-house staff being used for DTP stages, to keep costs at a more proportionate level:

“2017 has also seen increased use of in-house capability in the prosecution of cases with those internal costs being recouped from Respondents (in the same way as if external legal advisers had been used) where the Disciplinary Tribunal Panel considers it appropriate. The Board welcomes this development as a proportionate way of managing the costs of the disciplinary process for the profession.”

The IFoA has significant legal expertise in house, and surely ought to be able to successfully prosecute disciplinary cases against members who (from the history of cases available over the past 3-4 years) are very often unrepresented, or represent themselves?

(Board’s Response to Concern 3

As with other professional bodies and regulators, the IFoA takes a blended approach in using in-house legal resource combined with, where appropriate, its external legal panel. The use of external legal support is always a deliberate decision, balancing capacity, cost, efficiency, risk mitigation and conflict management.)

(My Reaction

This is a non reply which doesn’t explain the change in policy from one which the Board had “welcomed” in 2017, nor why expensive external resources were needed for unrepresented respondents with regard to what I understand were a single or handful of emails objected to. It basically says “trust the IFoA, it will do the right thing”, an appeal that I will comment on further below.)

Concern 4

IFoA on multiple occasions alleging a lack of integrity in Respondents despite any evidence of dishonesty/untrustworthiness, allegations which Panels have consistently rejected. In my view, this was behaviour that was out of step with the high standards the IFoA expects of others, in that it unnecessarily increased stress on those facing complaints, and wasted time (and increased costs) for members, staff and Adjudication and Disciplinary Tribunal Panels and their advisers. The IFoA should have known in these cases that these allegations were unsupported by the evidence that the Panel would require.

The IFoA alleged a lack of integrity (and this was rejected by Panels) on 13 Jun 2019 (DTP v W), 12 Mar 2019 (DTP v F),  8 Oct 2018 (Adj. Panel v S),  21 Sep 2018 (DTP v Z), 13 Aug 2018 (Adj. Panel v D) and 24 Jan 2018 (Adj. Panel v R).

In the cases where a lack of integrity was found by a Panel, there was some element of dishonesty or untrustworthiness involved.

From the DTP of 13 June 2019 (the bold emphasis is mine):

The IFoA asserts that this failure included a lack of integrity. Integrity is to show steady adherence to a moral or ethical code. The Respondent did not adhere to the professional code of the IFoA by failing to comply with the CPD schemes for 2 successive years, having also failed to do the year before, and he did not respond to the IFoA as he was obliged to do by the rules of the IFoA by which he was, as a member, bound. However these were rule breaches of omission not commission. Not every rule breach involves lack of integrity. A lack of integrity requires there to be something untrustworthy about the professional. Further, not every breach of a rule is misconduct: it must be a serious falling short or attract moral opprobrium. If every breach of a rule is lack of integrity all rule breaches are misconduct, and that is not the case. More, if every rule breach is a lack of integrity then every sanction would have to be serious, and that is not the case. These failures were Misconduct as defined in the rules, but there is not the something more required to elevate them into a matter of lack of integrity.

and

The Respondent admitted all the facts, but had no option but to defend the allegations in respect of lack of integrity. The Adjudication Panel had also required the Respondent to accept a lack of integrity, and so the Respondent is not to be criticised for declining the offer of a reprimand and a fine of £2,000. He had no option but to attend in respect of the second CPD year as he was referred to the Panel by the Adjudication Panel. The allegation of lack of integrity was not one that could have been made out, for the reasons given above. The appellant has always accepted all the material facts, and accepted culpability for at least some of the matters put before the Panel.

From the DTP of 12 Mar 2019:

This is not a matter of lack of integrity. It is a breach of the rules. Integrity connotes adherence to the ethical standards of one’s own profession (Wingate and Evans -v- SRA [2018] EWCA Civ 366 para 100). There was nothing unethical about what Mr F did, or rather did not, do. When he applied for the pc it was issued without difficulty. Not everyone who breaches a rule lacks integrity. Lack of integrity requires there to be something more showing that the person is someone not entirely to be trusted

Here are some examples of Panel comments where a lack of integrity was proved: in all cases there was an element of dishonesty or untrustworthiness.

20 Feb 2020 DTP

intentionally to tender documents about academic achievements which have not been achieved can only be dishonesty. It necessarily follows that there was also a lack of integrity.

27 May 2020 DTP

It is inevitable that someone found to be dishonest will also lack integrity, and the DTP finds this allegation proved also.

11 Nov 2020 DTP

The Code requires members to act with integrity. It is self evident that to falsify documents to claim exemptions from examinations is Misconduct and lacks integrity.

(Board’s Response to Concern 4

As stated, it is not appropriate for the Board to comment on decisions in other cases reached by the independent Tribunal. In general terms, how a case is pled is a matter of prosecutorial discretion having regard to the circumstances in each individual case. However, please be assured that feedback from previous cases is often taken into account when exercising this prosecutorial discretion.)

(My Reaction

This fails to explain why “prosecutorial discretion” failed to take obvious “feedback from previous cases” in these cases. And why is feedback from previous cases only taken into account often: shouldn’t this always happen? The Board is effectively admitting that Panels are sometimes ignorant of similar previous cases. If so the Board has failed to impose quality control, and the Panels have failed to conduct obvious research that it is easy for them to do from the small number of published Determinations. Very unimpressive.)

Concern 5

(lesser, because only a smaller sample, but mentioned for completeness)

IFoA alleging a breach of communications principle by Respondents for communications outside work when Panels have repeatedly said that the communications principle is intended primarily for work related matters.

The IFoA alleged a breach of the communication principle (rejected by Panels) on 13 Jun 2019 (DTP v W) and 8 Oct 2018 (Adj. Panel v S).

In the cases where a breach of communication principle was found by a Panel, there was some element of inaccurate or misleading communication in professional work.

From the DTP of 13 June 2019 (the bold emphasis is mine):

The Panel finds that there was no breach of the Communication principle, by reason of failure to communicate with IFoA when it wrote to him. The Panel noted that the Respondent admitted this allegation, but the Communication principle primarily relates to communication about professional work. The mischief in this case is failure to correspond with the regulator, which is fully covered by the Compliance principle

From the Adjudication Panel of 8 Oct 2018 (the bold emphasis is mine):

The Panel considered the communication principle of the Actuaries Code was not relevant as it appeared primarily to focus on the method, content and manner of communication which was not the main issue in this case. In the circumstances the Panel was not satisfied that this amounted to a prima facie breach of the communication principle of the Actuaries Code.

Examples of cases where Panels found a breach of the Communications principle proved include: issuing incomplete and misleading information to an incoming Scheme Actuary, misleading communications in a technical model, not clearly explaining a timescale to clients, not informing clients of a delay.

(Board’s Response to Concern 5

Similarly, it is not appropriate for the Board to comment on the cases referred to in concern five however it has long been the case with the Actuaries’ Code (as set out in the scope section), as with professional regulation more widely, that conduct outside work may be relevant if it reflects upon the reputation of the profession.)

(My Reaction

This seems to say both “nothing has changed in the guidance” (I agree) and “panels are free to come to very different/inconsistent conclusions so the IFoA is entitled to put a charge hoping that a panel will take a very different view from previous ones”. I find the latter point unconvincing and not in keeping with the high ethical standards that the IFoA demands of its members. It again puts members at the mercy of poor quality control/training by panel members. The job of the Board is to oversee and improve the operation of the Disciplinary Scheme – it is manifestly failing here to see ways in which it can do so.)

Concern 6

The IFoA appears to have breached its own Disciplinary Board’s Guidance on Publication of Determinations in a recent case which it lost.

The latest Guidance (dated May 2019) seems to be at https://www.actuaries.org.uk/system/files/field/document/2019_05_01%20FINAL%20Publication%20Guidance%20Policy%20%28May%202019%29.pdf.  This includes (the bold emphasis is mine):

“It is the role of the relevant Panel to consider and direct what form publication should take. If there is a departure from the usual approach set out in this guidance, clear reasons should be provided by the Panel.”

When considering the form of publication, the Panel should balance the desirability of keeping the public informed against the consequences for the affected member.

Publication of Determinations and Interim Orders

3. It is a matter for the relevant Panel to consider and direct the form of publication.

4. Publication should occur as soon as reasonably practicable after the decision is made. 

5. If, at any time before publishing a final determination, a Panel makes a pronouncement orally at a public hearing, the Panel will provide a brief summary of the position for immediate posting on the IFoA’s website.

6. The following decisions and determinations are usually published in full on the IFoA’s website (including a link to the determination in the “Find an Actuary” and Actuarial Directory search engine) and a summary is usually published in The Actuary magazine: –

• All determinations of an Adjudication Panel where it has been found that there is a prima facie case of Misconduct and the Respondent has accepted the finding.

• All Interim Orders made by the Interim Orders Panel and the rescission or variation of these orders.

• All determinations of the Disciplinary Tribunal Panel.

• All determinations of the Appeals Tribunal Panel.

The IFoA usually publishes all final determinations of a Disciplinary Tribunal Panel and an Appeal Tribunal Panel, decisions relating to applications for readmission to membership and the making, rescission or variation of an interim order by an Interim Orders Panel.

The above makes clear that it is for the Disciplinary Tribunal Panel (DTP) and not the IFoA to direct the form of publication, that all final DTP determinations are normally published (with no exception mentioned for situations where none of the IFoA’s allegations were found proven), that the public interest overrides that of any respondent, that publication is as soon as reasonably practicable, and that clear reasons should be provided if there is any departure from this guidance.

Given that I understand the DTP of 18 January 2021 (against a Mr T) concluded with a determination that all the charges were dismissed, why has nothing been published on the IFoA’s website so far today (25 February 2021), over a month later? Something has clearly gone wrong in this case, and I submit that the public (including IFoA members, and particularly those facing allegations) have a right to know, even if (as I have been informed) the respondent had agreed with the IFoA that it should not be published. It seems clearly wrong if the reason for the non publication/non compliance with the Disciplinary Board’s guidance were to be that the IFoA wishes to avoid embarrassment. If the respondent doesn’t wish his name to be included despite being exonerated, it could be redacted in a published version.

(Board’s Response to Concern 6 (and 7)

In so far as it relates to publication, the guidance makes clear that it is a matter for the relevant Panel, not the IFoA, to consider and direct the form of publication. In cases where there is no finding of misconduct and a Respondent does not wish the determination to be published then a Tribunal will have regard to this in deciding on whether or not the determination should be published. For the avoidance of doubt, the decision with regard to publication is always made by the Tribunal.)

(My Reaction

I’m glad that the Board has clarified that the decision as to publication is made by the Tribunal and not by the IFoA. However, this does not explain why neither the Scheme rules nor the guidance on publication mention even the possibility that a DTP Determination will not be published. The Board have also ducked my question as to why, contrary to the public interest goal of generally publishing determinations, no details at all have been published, even on an anonymised basis. There is also a clear violation of “clear reasons should be provided if there is any departure from this guidance.”)

Concern 7

I understand that the IFoA not only lost the DTP case of 18 January, but the DTP awarded costs against them.  The Guidance on Costs includes in 8.2

Costs may be awarded by a Panel where it is satisfied that the IFoA has acted negligently and/or improperly in its conduct of disciplinary proceedings against the Respondent. In these circumstances, when deciding on the amount of a costs award the Panel will consider the extent to which inappropriate or unnecessary actions by the IFoA have increased the Respondent’s costs relative to their costs had the IFoA conducted the disciplinary proceedings in a proper manner.

If so, the DTP clearly felt that the IFoA acted negligently and/or improperly in this case.  As with concern 6, surely the public interest (including that of IFoA members, and particularly any facing allegations) requires the DTP’s reasons to be published?

(Board’s Response to Concern 7 (and 6)

In so far as it relates to publication, the guidance makes clear that it is a matter for the relevant Panel, not the IFoA, to consider and direct the form of publication. In cases where there is no finding of misconduct and a Respondent does not wish the determination to be published then a Tribunal will have regard to this in deciding on whether or not the determination should be published. For the avoidance of doubt, the decision with regard to publication is always made by the Tribunal.)

(My Reaction

The Board has ducked the question as to why in the public interest members and the public should not have details of why the DTP felt that the IFoA had acted “negligently and/or improperly”. This smacks of “one rule for members, another for the IFoA”. It does not inspire confidence that the Board wants the operation of the Disciplinary Scheme to be fair and seen to be fair.)

Concern 8

I understand that a different case from the one of 18 January (but initiated around the same time, some 18 months ago) against someone else who had (like Mr T) criticised the IFoA was withdrawn very shortly before it was due to be held in early February 2021. I understand that in that case the IFoA has refused a request from the respondent for reimbursement of costs.

Under what rule of the Disciplinary Scheme was the case withdrawn? If, as I have been told is the situation, there were strong similarities with the 18 January case, and the reason for the withdrawal was the likelihood of a similar result as on 18 January, then in fairness shouldn’t the IFoA pay the respondent’s reasonable costs?

(Board’s Response to Concern 8

It is not appropriate for the Board to comment on Concern 8, as this relates to a matter that has been independently determined.)

(My Reaction

The Board has ducked the question as to “under what rule of the Disciplinary Scheme was the case withdrawn?”. There does not seem to be any such rule – this effectively means that the IFoA can change the rules as and when it wishes, without consultation or notice. With regard to the award of costs, the answer by the Board that they cannot comment on an individual case I have some sympathy with, but the outcome does not enhance the IFoA’s reputation for operating the disciplinary scheme with regard to fairness or natural justice. It also leaves several questions unanswered: if the case was abandoned, then it was not “independently determined” as stated by the Board. The Board could in any case, without undermining a Panel, ask the IFoA from a public perception point of view to consider reimbursing the respondent’s costs, in order to maintain the reputation of the IFoA’s Disciplinary Scheme as being operated fairly and in line with natural justice.)

Concern 9

I understand that both the 18 January and early February DTP cases were scheduled to be held for several days (3 in the first case), despite apparently being no more complex than typical cases which ordinarily are dealt with by a DTP within one (or perhaps even a half) day. This led both respondents to be presented by the IFoA with statements of costs, a few weeks before the DTP was due to be held, which were far in excess of those probably requested in most previous cases.  That must have been a considerable shock and stress for them, which does not seem fair treatment by the IFoA given the very much lower cost statements they would have been expecting from past practice. 

The fact that the IFoA seems to have sole control/wide discretion over the following factors means that respondents currently face great uncertainty in the level of costs that might be awarded against them, which could dwarf any fine imposed by a panel (I understand in the February DTP case, the IFoA was asking for over £52,000):

• The number of days requested for the DTP to sit
• Whether the IFoA uses internal staff (it employs many lawyers and other legally trained staff), or external solicitors, or barristers, or even (as I understand in the 18 January and early February cases) a QC
• How many different allegations the IFoA chooses to make. See Concerns 4 and 5 above: on several occasions the IFoA has included some allegations which it seems it ought to have known (from previous determinations) that a Panel was likely to find unproven.

Did the DTP of 18 January, in awarding costs against the IFoA, consider any of these factors to be part of the reason it found that the IFoA acted negligently or improperly? Until the determination of 18 January is published, it is impossible to tell.

But it seems to me that recent changes in practice by the IFoA, aided by the Disciplinary Board’s change in policy towards costs in May 2020, have given the IFoA an unreasonable amount of power and discretion that has the effect (whether intentional or not) of intimidating respondents.  As a former Council member and Management Board member, I feel very uncomfortable about this: in my view it very significantly undermines the IFoA Council’s Member Value Proposition, and gives the IFoA a lot of arbitrary power. I doubt that many members or prospective members are aware of this, and suspect that when informed many will find this uncomfortable or even unacceptable.

(Board’s Response to Concern 9

The number of days for which cases are scheduled is based on experience of past cases bearing in mind the need to allow adequate time. If, in the event, a Tribunal runs for a shorter duration then the costs claimed will be reduced accordingly. It would not be appropriate for the Board to comment on the specifics of the Tribunal you refer to.)

(My Reaction

The Board has ducked the question as to the increase in uncertainty as to potential costs faced by members, and the power imbalance. It is again effectively saying “members must trust the IFoA to do the right thing and not to abuse that power.” This fails to recognise that the Board’s own actions, in introducing a massive increase in costs without consulting members, and the IFoA’s change in policy from 2017 to make frequent use of expensive external lawyers, are likely in my view to have significantly damaged members’ trust in the Board and the IFoA. Add to that the secrecy about why the DTP felt the IFoA had acted “negligently and/or improperly” and the question deserves to be asked: how can/why should members trust the IFoA?)

Concern 10

I understand that the 18 January 2021 DTP was (like all DTP hearings) billed as public (albeit online), but some members of the public, including journalists, were excluded?

Unless they tried to take an active part in the hearing, that seems to me to be a violation (by whoever excluded them) of the spirit of the Disciplinary Scheme?

(Board’s Response to Concern 10

There was no intentional exclusion of any individuals from being able to view the hearing. The majority of Tribunals are open to the public and in the case you refer to it is the Board’s understanding that the individual was unable to attend due to logistical reasons.)

(My Reaction

The Board has contradicted the information that I was told, namely that an individual was excluded due to a deliberate decision. The Board says that they have been informed that the exclusion was due to technical problems at the individual’s end. In the absence of clarification I will take the Board’s word, trusting that the information they were provided with was accurate.)

I look forward to hearing from you as to what actions the Board intends to take to address my concerns.

(My Considered Overall Reaction

I found the majority of the Board’s responses unconvincing. In several cases they completely evaded the questions I had asked them. Note that this was not a rushed response, the Board took over two months to provide it. If the Board had provided these answers to an IFoA Council meeting, I would have made it clear that I was very surprised and found this unacceptable, and wanted my views to be minuted.)

Kind regards

Patrick

PJLee

(FIA 1990 to end Sep 2020)

(Board’s concluding paragraphs

Please note that once the allegations raised against you are determined you will be provided with the opportunity to provide feedback on the overall process which will also be considered by the Disciplinary Board.

Yours sincerely

[Name]

Chair of the Disciplinary Board)

(End of letter and Board’s response)

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My immediate reaction to the Board’s response is:

I think this may have been a difficult response for the Board to formulate, because of their position that they may not comment on any individual case outcomes. They seem to recognise (at least in their response to Concern 1) that communication with Council and members could/should have been better. I’m glad they have clarified that in situations where no misconduct is found, publication of a Determination is a matter for the Disciplinary Tribunal and not the IFoA.

I raised what I viewed as very significant concerns about changes to the Member Value Proposition and to fairness, consistency, and consultation and communication about important changes in the operation of the Disciplinary Scheme. Had I still been on Council I would have asked for a full discussion on these matters, and for my concerns about the lack of Council and member consultation to be noted in Council minutes.

On the face of it, the Disciplinary Board does not seem to share those concerns (apart from a very limited concession to the need for better communication in its response to Concern 1). At least in this public response that is – as noted above, the Board may feel it is in a difficult position with regard to several of the aspects raised. I hope that privately some members of the Board (and Council members reading this) are taking steps to avoid repetition of some of the mistakes that have been made. I have written to thank the Board for their response.