RICS disciplinary process: guidance for surveyors on the hearing process (3 of 4)

In our previous two articles we set out an overview of the RICS disciplinary process and the investigations stage. This article sets out the RICS hearing process. 

If the RICS is satisfied that "there is a realistic prospect of establishing that the Regulated Member is liable to disciplinary action" it has two options available to it. It is able to either list the matter for consideration by a single member of the Regulatory Tribunal, or by a full panel constituted of three members of the Regulatory Tribunal. The Regulatory Tribunal is independent from RICS. A "Regulated Member" can be a RICS-Regulated firm or an individual professional. 

Single member

Complaints may be referred to a Single Member of the Regulatory Tribunal in specific limited circumstances. These are as follows:

• A Regulated Member fails to meet their Continuing Professional Development (CPD) requirements three or more times within a ten-year period;
• A Regulated Member has been convicted of a criminal conviction which could result in a custodial sentence; or
• There is not a substantial dispute of the facts, the public interest does not require a hearing and the case is not likely to result in expulsion or removal of registration (other than for CPD breaches).

Referrals to a Single Member of the Regulatory Tribunal will be dealt with within 14 days of receipt of the referral and case files. These cases will always be heard in private. A Single Member can also choose to refer the complaint to a Panel if they deem it is in the interest of justice to do so.

The Single Member will provide a written decision to the Regulated Member which will be published 14 days after service. We will look at the various sanctions which can be imposed by Single Members in Article 4 of this series.

Disciplinary Panel 

All other referrals will be dealt with by a Regulatory Tribunal Panel (the Panel). The Panel will be constituted of 3 members including at least 1 chartered surveyor and 1 lay member and will be advised by an independent legal adviser on matters of law.

The Panel will give the Regulated Member notice of an oral hearing, 56 days before the hearing, or 28 days for a hearing to be heard on paper. The notice of hearing will formally set out the charge(s) against the Regulated Member. 

At the same time the RICS presenting officer will also send the Regulated Member the documents upon which they intend to rely when presenting the case, including any witness statements, as well as a listing questionnaire which would allow the Regulated Member to indicate whether they admit or deny the charge. 

Regulated Members would be well advised to seek legal advice at an early stage of the proceedings to ensure that they are in a position to respond within these timescales.  As we have suggested previously, Regulated Members should also check if they have insurance in place that will cover the cost of this legal advice.

Disciplinary hearings are usually heard orally in public but a Regulated Member can make a written application for the hearing to be heard in private on the basis that there are exceptional circumstances which justify this. The RICS guidance does not provide examples of what constitutes exceptional circumstances but one such example where we would expect the hearing to be conducted partly or wholly in private would include the discussion of sensitive medical evidence. 

At the hearing, the Regulated Member will be given the opportunity to be heard and they may be represented by a solicitor if they choose. It is important to attend the hearing as the Panel will proceed without the Regulated Member unless they have a good reason for being absent. A Regulated Member would be well advised to instruct a solicitor or barrister to represent them given the potential ramifications for a Chartered Surveyor's career and business of an adverse decision by the Panel, it is important to present the best possible case.

At the hearing the panel will build up a picture of what happened with the assistance of all the evidence put before it. First, the RICS's presenting officer will present their case on behalf of RICS. This may involve witnesses or experts being called which you (or your representative) will have the chance to cross-examine. The 'burden of proof' lies with the RICS presenting officer.  They will be required to prove the RICS' case on the civil standard of proof – the balance of probabilities. 

After this, you will have the opportunity to present your defence to the charges and call any witnesses or experts.  You can do this, or your representative can do this on your behalf.  If you intend to rely on witness evidence, it is preferable that they attend the hearing as less weight will be given to their testimony if they are not able to attend.  

Following the hearing, the Panel’s decision will be sent to the RICS and the Regulated Member within 14 days. The Panel may make a costs order against the RICS or the Regulated Member depending on the outcome. The decision will be recorded on the Regulated Member’s record and may also be published on the RICS website.

Please look out for our next article which discusses the different sanctions that can be imposed on a Regulated Member.  If, in the meantime, you receive any indication of a complaint or notice that you may be subject to an investigation by the RICS, please do not hesitate to contact one of the RPC team.