Guidance

Terms of reference for the Independent Review Panel

Published 3 May 2022

Introduction and purpose

The Department for Transport’s (DfT’s) Independent Review Panel (‘review panel’) is designed to complement other existing review mechanisms to ensure a person who has a legitimate complaint has an accessible and effective avenue to have it heard and remedied. The review panel is designed to improve transparency around decision-making and support best practice regulatory processes at the Civil Aviation Authority (CAA).

The overall aim of the review panel process is to identify any procedural injustice or irregularities made by CAA when arriving at certain decisions. Where there is an irregularity, the panel will provide recommendations to CAA on remedying the case. Where an injustice has not occurred, the review panel will provide reassurance that proper procedures have been followed.

The review panel provides independent procedural reviews of substantive decisions made by CAA, as detailed in the List of decisions in scope.

This guidance sets out expectations of the review panel which will, subject to annual review, apply throughout the current terms of appointment of review panel members. Any changes will be subject to agreement between DfT, CAA and the review panel.

The review panel is an expert committee established by and within DfT, but operates independently of DfT’s ministers and officials. The advice they provide is impartial and apolitical.

The review panel will consist of individuals with expertise in process and legal matters and not in aviation or safety matters as their role is not to provide opinions about aviation safety matters.

Terms of reference (as of May 2022)

Role and remit

1. The review panel will consider eligible procedural-based complaints regarding a decision taken by CAA at the exhaustion of CAA’s internal review process. Eligible decisions must have been made on a date after the establishment of the review panel – the review panel cannot look at decisions that pre-date the panel’s existence.

2. Procedural complaints are those relating to the processes and procedures that CAA followed to arrive at their decision. Procedural justice will include such matters as:

• ensuring that the person affected knows in advance how the process will operate so that they can adequately prepare and participate
• providing an opportunity for both sides to make representations and for there to be an oral hearing where appropriate
• ensuring a decision is reached in a procedurally fair way and follows due process to achieve a fair result
• ensuring that a power is exercised only for the purposes for which it was provided
• ensuring the decision-maker has no financial or other improper interest in the outcome of a complaint
• ensuring impartiality and therefore no actual bias or appearance of bias to the fair-minded and impartial observer
• ensuring that the decision-maker is not subject to any improper external pressure or influence
• ensuring that the decision-maker declares a conflict of interest where one exists and recuses themselves when appropriate to do so
• recognising the inherent interests and dignity of the participants
• ensuring there is evidence to support findings with relevant factors being taken into account but not irrelevant ones
• ensuring the decision-maker acts reasonably, but recognising that there may be different ways of reaching the same conclusion
• providing written reasons for a decision
• ensuring that any measure taken is rationally connected to the objective and no more than necessary to accomplish it
• considering whether all relevant evidence has been considered to determine whether less intrusive measures could have been used

Examples of a poor procedural justice could include:

• CAA decision-makers failed to take account of relevant information
• CAA decisions-makers did not follow published timelines to reach a decision
• CAA decision-makers did not give individuals an opportunity to provide information that could have impacted a decision
• CAA decision-makers were biased
• CAA’s policies and procedures were not followed in a fair and proportionate manner

3. As CAA is the independent aviation safety regulator staffed with technical experts, the review panel will not make recommendations on the merits of a case, nor on CAA or government policy. The review panel will though be able to make non-binding to CAA on their procedures and processes, based on insights from specific cases referred to them.

4. In cases where the review panel identifies severe procedural injustice and considers that the substantive decision might have been different had the correct procedure been followed, the review panel will be able to recommend that CAA takes a fresh look at the case, including whether the substantive decision remains sustainable. The panel will not, however, have the relevant expertise to make a comment or judgement on the correctness of any substantive decision.

5. The review panel will not consider cases relating to live or ongoing criminal or civil proceedings.

6. If CAA disagrees with a recommendation of the review panel, they must write to the review panel, the complainant and the Minister for Aviation outlining their reasons for disagreeing.

7. The review panel will only hear complaints by individuals relating to certain licensing decisions as detailed in List of decisions in scope. The types of decisions eligible for review will be considered annually to ensure the review panel remains fit for purpose and is meeting the needs of those who may need to use their services.

8. There is no automatic right to review and a complaint can only be made on the basis of alleged failure in relation to procedural justice or similar. The complainant must exhaust other routes of review (the initial decision and the secondary review, if available) before their case can be referred to the review panel.

Referral and review process

9. CAA will receive a request for a case to be considered by the review panel when a complainant completes an online form, which is available on CAA’s website. Upon receipt, CAA will identify whether there are any other linked complaints and whether the complainant has undergone an internal review relevant to the decision. If the case has not completed an internal review, or is better suited to a complaint rather than a challenge to a regulatory decision, CAA will advise the complainant as such.

10. CAA will provide information on the various review options that may be available so that a complainant can make a decision that best suits their circumstances.

11. A complainant cannot have their case looked at by both the independent complaints assessor (ICA) and the review panel. However, if a complainant is unable to have their case heard by the review panel, they may take their complaint to the ICA, but the ICA cannot look at the nature of the regulatory decision. Alternatively, the Regulation 6 process remains available at each stage of the process.

12. CAA must complete and submit a standard review panel referral note. The individual requesting a review panel case must complete a form that will be made available on CAA’s website.

13. CAA must always refer a complaint to the review panel if asked to do so, so long as internal review procedures have been completed (excluding Regulation 6).

14. In some circumstances CAA may decide to refer a complaint to the review panel before any secondary review is completed, provided the complainant and the review panel agree.

15. The review panel cannot accept referrals direct from individuals – the individual must have exhausted CAA’s decision review process, unless exceptionally the complainant, CAA and the review panel agree that it can be referred earlier.

16. CAA will aim to pass a completed referral form, timeline and relevant papers to the review panel as soon as possible and no later than 7 working days of being asked to refer a case to the review panel. CAA will inform the complainant if they require an extension of time at this stage. CAA will also ensure the review panel knows if the complainant has any disability, communication preference or communication requirement.

17. The review panel will acknowledge receipt of a referral from CAA within 7 working days.

18. Upon receiving a referral, the review panel will decide whether they will hear the case, based on information provided by these parties and these terms of reference. The review panel will determine whether the complaint has merit. They will indicate if they intend to review the complaint and the timeframe in which this is to be done or state clearly where they consider the complaint is totally without merit either because it is not arguable or is otherwise bound to fail. The review panel can also provide reasons on the grounds of exceptional public interest which make it appropriate to allow a complaint to be considered. Where it is not possible to reach any of these views, the default position will be to allow the complaint to proceed to a review.

19. The review panel will decide whether and how much of a decision is in scope for the purposes of a review. They will do this after considering the information and documents provided by both parties.

Relevant factors leading to a decision to proceed to a review at this stage could include, but are not limited to, cases where:

• the complainant has, or might have, suffered significant injustice, loss or hardship as a result of a procedural injustice that significantly impacted upon CAA’s handling of a decision
• CAA’s handling of the decision has been deficient in some way or has not met the standards set out in the relevant regulatory guidance documents
• CAA has asked the review panel to review the case
• a review may assist in the wider process of organisational learning or of promoting consistency and fairness

Relevant factors leading to a decision to not proceed to a review could include, but are not limited to, cases where:

• CAA has investigated the complaint properly and has found no administrative or procedural failure or mistake
• the individual is in fact objecting to the substance of CAA’s policy or legislation (as opposed to its application)
• the matter is one for a court or tribunal to ultimately decide
• a review would be disproportionate
• an individual has failed to demonstrate reasonable and appropriate grounds for having their complaint reviewed

20. Having considered the factors set out above, the review panel may decide that subjecting the complaint to a detailed review would not meet the overall aims of the process set out in the introduction to these terms of reference.

21. In the course of their review the review panel may raise questions about the complaint history or the policy or legal background and CAA will endeavour to answer these. CAA will ensure the review panel has complete access to the relevant documents and will seek appropriate consent from the complainant and any third parties before disclosing documents to the review panel, who will handle them with the appropriate level of confidentiality.

22. The review panel will review the complaint and set out their conclusion about whether CAA has followed procedures properly and fairly. The review panel is free to decide how to do this but might want to consider further documents and answers to written questions. Exceptionally, the review panel may interview interested parties in the course of their determination, but will inform CAA, complainant (and DfT review panel sponsor, if appropriate) beforehand.

23. The review panel will send a draft report to CAA and the complainant to check for factual accuracy. Where CAA considers it will not be possible to accept or implement the review panel’s draft recommendations, they may comment at this stage.

24. The written review will include the review panel’s findings and conclusions (with reasons) as to:

• the material facts relevant to the procedural dispute
• the extent to which the complaint was justified by reference to the relevant points of procedural fairness under challenge
• any recommendations to be made to CAA following their determination of the complaint, including those made for the purposes of improving CAA processes and procedure

25. Exceptionally, the review panel may decide to issue a full (or partial) written draft report to the complainant, as well as to CAA, in circumstances where additional information may be required. This will allow all parties to provide input before the review panel finalises their written report.

26. The review panel will aim to complete their review of the case within 6 weeks of the complaint being accepted for consideration. Reasons will be provided to the complainant and CAA if this timeframe cannot be met.

Remedies

27. The review panel may make one or more of the following recommendations to the CAA to remedy any complaint they uphold:

• making an appropriate apology
• giving more information or explanation as to how the decision was arrived at
• amend CAA procedures and practices that could help prevent a recurrence of the circumstances giving rise to the complaint
• in cases of severe maladministration, entirely reconsider a matter

28. The review panel may not recommend disciplinary action against CAA staff but may bring to attention issues which they consider are inappropriate and warrant further investigation by CAA or others.

29. When suggesting any remedy, the review panel will consider the impact on the complainant and the appropriate steps, if practicable, to restore the complainant to the position they would have been in had the procedural justice not occurred, such as refunding license applications fees. The review panel will also consider whether anything the complainant did caused or contributed to the matter(s) about which they complained and any difference this might make.

30. Once the report is finalised, the panel must provide it to CAA and the complainant. CAA must then consider whether they will follow the recommendation of the panel, and if so, must do so in good time. Where CAA disagrees with the finding of the panel and will not implement the recommendations, they must write to the panel, the complainant and the Minister for Aviation explaining the reasons why.

31. Following the review panel review, the individual must be reminded of CAA’s Regulation 6 review procedure, if applicable. The Regulation 6 panel (which would include a CAA non-executive director, who is a public appointment by the Secretary of State for Transport, would look at the case on its merits and make a final decision. Following this, the individual’s final recourse would be to bring a claim for judicial review.

32. A complainant will also have the option to ask their MP to refer their case to the Parliamentary and Health Service Ombudsman (PHSO). Where a complainant asks for their complaint to be referred to PHSO, they will in most cases have to go through the Department for Transport (DfT) independent complaints assessors first.

33. DfT or CAA must tell the review panel as soon as they are aware when a complaint considered by the review panel has been accepted for investigation by PHSO.

CAA responsibilities

34. CAA will provide:

• access to relevant complaints and feedback systems and records
• subject to the complainant’s consent, unrestricted access to such information as the review panel requests for the purpose of conducting a review, confidentiality of which is to be appropriately maintained by the review panel

35. CAA will ensure that the referral process for the review panel is clear and accessible for complainants. Fact-checking of draft review panel reports will be undertaken within agreed timescales. Where CAA is unable to meet a deadline, they will inform the review panel immediately.

36. CAA will formally acknowledge review panel reports and recommendations and will also provide confirmation by letter once any recommendations have been implemented.

Reporting by review panel

37. The review panel will write annually to the Minister for Aviation and the DfT Director for Civil Aviation and the CEO of CAA with a summary of the reviews they’ve carried out together with the recommendations they made, and whether these recommendations have been accepted by CAA or not.

38. The review panel will report every year to DfT regarding the complaints they have handled in the previous year ending 31 March.

The report will include:

• how many complaints were referred to them
• how many complaints were upheld, partially or fully
• what recommendations and suggestions, if any, they made to CAA
• what recommendations and suggestions, if any, the review panel made for the improvement and better performance of CAA procedures and their regulatory role
• a selection of anonymised complaints the review panel determined during the year, to:
  • highlight any issues with service delivery
  • encourage others similarly affected to come forward
  • demonstrate where best practice was followed or efforts to improve were made
  • demonstrate the independence of the review panel’s work
• any other matter the review panel considers CAA should be made aware of

39. DfT will publish the annual report of the review panel.

40. The review panel will also produce quarterly summary reports to an agreed format. These will also be provided to DfT in draft form before submission to DfT’s review panel sponsor. These will not be made publicly available but will inform the annual report.

Target timescales

41. Target timescales for the DfT review panel scheme are set out below.

Action	Timescale
CAA to provide review panel with completed referral and relevant supporting documents	Within 5 working days of receipt of request
Review panel to acknowledge referral to complainant and CAA and state whether the panel is able to consider the complaint, and if so, provide proposed timetable for the review	Within 5 working days from receipt of completed referral
CAA and complainant to answer any questions raised by review panel	Within 3 working days of receipt of query
Review panel to issue written draft report to CAA and complainant for fact-checking	No later than 15 workings days from confirmation that the complaint is to be considered by the review panel
CAA and complainant to provide fact-check of review panel’s draft written report	Within 5 working days of receipt of draft
Review panel to issue final written report to the complainant and CAA	Within 3 working days of response by CAA and complainant to the draft report
CAA response to the review panel findings	CAA will aim to respond within 20 working days

42. If the review panel, CAA or complainant is unable to meet any time limits they will inform DfT as early as possible and explain their reason(s).

Review period

43. The review panel terms of reference will be reviewed annually.

The review panel

44. The review panel is an expert committee within DfT. Although they are established by and seated within DfT, they are independent of DfT’s ministers and officials. The advice they provide is impartial and apolitical.

45. The review panel’s members will be public appointments made by the Secretary of State for Transport.

46. The review panel will act with complete impartiality, and independently of CAA, DfT and the wider aviation sector.

47. The review panel will not be guided by personal interest, or any outside influences of whatever kind, including political pressure or influences.

48. The review panel will not handle matters which involve their own interests, or those of their families, relatives, friends and acquaintances.

Review panel protocol

The information below should be read by individuals before they decide to request a case review by the review panel.

1. Several avenues exist for complaining about, or challenging, a decision made by CAA. If:

• your case relates to a decision in scope of the review panel (see List of decisions in scope, you are challenging the outcome of the decision on procedural grounds and you are able to demonstrate to the review panel that there are grounds to suggest that CAA did not follow their own processes to reach that decision or otherwise acted unfairly, the review panel may be available to you – you must have first had an internal case review completed or agree that such a case should be assessed by the review panel
• you wish to challenge the outcome of the decision based on the substantive judgements (merits) of a decision, you may prefer to pursue the Regulation 6 process which looks at whether the correct decision was made
• you wish to complain about how you were treated by CAA, but not about the outcome of a decision, you may prefer to pursue the independent complaints assessor route as they can look at how you were treated

2. You can ask CAA to refer your request for a review to the Independent Review Panel (the ‘review panel’) if you’ve been through the final stage of CAA’s internal review stages (excluding the Regulation 6 review process) and remain dissatisfied with the outcome. The review panel cannot accept referrals direct from applicants – the issues raised must have exhausted CAA’s own internal review process, unless exceptionally the applicant, CAA and the review panel agree that it can be referred earlier.

3. The review panel is:

• independent of DfT and CAA
• made up of a public appointment, not a civil servant
• separate from an independent complaints assessor who is part of DfT’s Independent Complaints Assessor Scheme.

4. The review panel looks at whether CAA handled your case in accordance with our published policy and procedures, and where they have not, whether this significantly impacted on the decision reached. Where it is judged that this significantly impacted the decision reached, the review panel can ask CAA to reconsider their decision.

5. Although it does not cost you anything for the review panel to assess your case, it is not an automatic right. You must be able to demonstrate where you think CAA did not follow their own processes to reach a fair decision. The review panel will do an initial review before determining whether they will consider a complaint. Apart from exceptional cases, the Independent Review Panel will not agree to consider a case until the individual has exhausted CAA’s decision review process.

6. The review panel will need to see all the relevant letters and emails passing between the complainant and CAA if they decide to review your case.

7. The review panel will decide how they are going to deal with your complaint and will then contact you.

If you and CAA both believe referral to the review panel will not resolve the issue raised, for example, where a complaint challenges the judgements used to reach a decision rather than the process followed, the review panel is unlikely to be able to consider it. In such a case, the Regulation 6 review process may be appropriate.

8. The review panel will aim to review your case within 28 working days of confirmation that a complaint is to be considered.

9. When the review panel has reviewed a complaint, they will inform the complainant and CAA of the outcome and if any recommendation is to be made. This will end the review panel’s involvement in a case. CAA will then review the recommendations and decide whether to follow them, such as looking at the decision again or making an apology.

10. The review panel cannot consider:

• substantive judgements made to reach a regulatory decision or outcome
• complaints that have been escalated through CAA’s formal complaints process that could be escalated to an independent complaints assessor
• disputes where the principal focus is upon government, DfT or DfT panel policy
• judgements on level or amount of education or retraining relating to airspace infringements
• complaints arising from contractual and commercial disputes
• complaints about the law
• matters considered by Parliament
• matters where only a court, tribunal or other panel can decide the outcome
• decisions taken by, or for, the Secretary of State for Transport
• ongoing related legal cases
• ongoing investigations or enquiry
• how CAA handles requests for information made under the Freedom of Information Act 2000 or the Environmental Information Regulations 2004
• how CAA handles subject access requests made under the Data Protection Act
• personnel and disciplinary decisions or actions
• any professional judgement by a specialist, including, for example, the clinical decisions of doctors

11. Also, the review panel cannot usually look at any request for a review that:

• hasn’t completed CAA internal review stage
• is more than 14 days old from the date of the internal review decision
• has already been considered by the Regulation 6 hearing process
• has already been considered by the independent complaints assessor
• has been, or is being investigated by, PHSO

12. If your complaint falls within either of the 5 categories that the review panel cannot usually look at, please tell us why you believe the review panel should review it. We shall send your explanation with your request for a review to the review panel.

Review panel referral note

CAA must send the following details to the review panel. A timeline of all correspondence and actions should also be submitted.

1. CAA contact details.

2. Name of complainant.

3. Email address and telephone if known.

4. Date complaint made and by what means.

5. Summary of level 1 response (attached letter or email if appropriate).

6. Date of CAA’s level 2 response.

7. Summary of final response to complaint (attached letter or email if appropriate).

8. What redress, if any, has been offered to the complainant and what remedial actions have been requested of the complainant?

9. Does CAA wish to provide any additional context on this referral?

List of decisions in scope

The review panel might be able to review a case if CAA has refused to issue, or has proposed to vary, provisionally suspend, suspend or revoke licences or authorisations for individuals, that affect:

• flight crew (including licensing action taken as a result of an airspace infringement, as well as licensing decisions taken by entities CAA delegates authority to)
• maintenance engineers
• air traffic controllers
• rating and endorsements for instructors and examiners
• medical fitness decisions
• aeromedical examiners

Other decisions may be referred to the panel for consideration as a matter of discretion. The list of decisions in scope for review by the panel will be reviewed annually.

Other avenues exist for having a decision reviewed, depending on the type of decision. These may include the internal CAA complaints process, an ICA, PHSO, the Regulation 6 hearing process or a judicial review.

Confidentiality and personal information handling

49. When an individual makes a complaint to CAA, they will use the complainant’s personal information, and where appropriate share it with DfT and the Independent Review Panel, so they can handle the complaint properly.

50. CAA may publish data relating to a complaint, in anonymised form and in the review panel’s annual report to show the public how DfT and CAA deal with complaints and what work the review panel does. Reviews of cases pertaining to medical decisions should be handled with extreme care and in line with General Medical Council standards of patient confidentiality.

51. CAA will also use complainant personal data for producing anonymised statistical information.

52. DfT and DfT bodies process personal data relating to a complaint, so they can deal with it. Some DfT bodies are separate data controllers under data protection law.

53. DfT and CAA will destroy securely all data about a complaint that was referred to the review panel, including the report, generally after 2 years.

54. DfT’s privacy policy has more information about a person’s rights in relation to their personal data, how to complain and how to contact the Data Protection Officer.

55. Please note that this privacy policy covers DfT(C), its agencies and investigation branches only. Other DfT bodies have their own privacy policies.

56. To conduct a review the review panel might require access to material that is personally sensitive; for example, because it is confidential, legally privileged or commercially sensitive. Note that:

• where CAA has told the review panel some material they have asked for is sensitive, the review panel must not disclose any part of it outside CAA or DfT(C) without first getting consent of the appropriate data controller(s)
• in rare cases, CAA might not be able to confirm or deny the existence of data – CAA must inform the review panel in those circumstances

57. The review panel must handle all documents and information given to them in line CAA’s requirements for the lawful protection of information, especially personal information.

58. The review panel will pass any requests made directly to them for access to information under the Freedom of Information or Data Protection Acts directly to CAA or to DfT, together with any relevant documents or information to which the request may relate.

59. The review panel should copy their report to the complainant and to CAA (and any representative such as an MP). The review panel reports are not confidential; they will be written with the expectation they could be shared widely.

60. The review panel will only refer to the ‘preferred first name and title’ of the members of staff in CAA referred to in a complaint, not the full name unless they are members of the senior civil service.

61. Two years after a review or the issue of the review panel annual report including the case (whichever is the later), the review panel will destroy securely all relevant case documents they hold unless a good reason exists for not doing so. CAA will be responsible for the destruction of any documents stored centrally.