CECCG14000 - England & Wales Misconduct Complaints: The IOPC's remit over misconduct complaints

HMRC’s definition of a Complaint

HMRC defines a complaint as:

“Any expression of dissatisfaction that is not resolved at initial contact and requires a response”.

This can be an expression of dissatisfaction with what has happened or how someone has been treated. Often, someone who wishes to complain will be explicit about their intentions. If not, the person’s wishes and expectations should be established.

Although the IOPC does not require the word ‘complaint’ to be used by someone voicing discontent, this term denotes a considered grievance needing to be resolved, not just an observation for HMRC to note or a question that the person wishes to have answered.

Remit of the IOPC

The statutory powers of the IOPC are set out in Section 28 of the Commissioners for Revenue and Customs Act 2005 (CRCA) and the Revenue and Customs (Complaints and Misconduct) Regulations 2010 (“the Regulations”).

To fall within the remit of the IOPC, the complaint must be about the conduct of an HMRC Commissioner or officer and the conduct of the officer or Commissioner (or the impact of that conduct) must have occurred in England or Wales.

The Regulations require such complaints to be recorded and considered for referral to the IOPC. The effect of this is two-fold.

  • First, the Regulations use the word ‘conduct’ and not ‘misconduct’. A complaint does not have to amount to misconduct for it to be recordable. A complaint under the Regulations includes an expression of public dissatisfaction with the service provided or with the way the person perceives an individual has treated them. This may or may not be justified or be associated with professional misconduct.
  • Second, this means that a complaint that is merely about the substance of a policy or how that service is organised, and not about conduct, should not be handled under the Regulations.

Conduct means actions and decisions or omissions to act or decide. A complaint about conduct could therefore consist of an allegation:

  • that an Officer or Commissioner has by act or omission behaved in an unjustified, unlawful or unreasonable way towards the complainant
  • of a specific failure by an officer or Commissioner to meet one or more of the standards set out in the Civil Service Code or HMRC Code of conduct
  • that identified or unidentified personnel have failed to meet published standards of service or response to which the complainant was entitled.

Note: this list is not exhaustive.

Private or off duty conduct is included within the definition of conduct for the purposes of the Regulations.

Complaints falling within the remit of the IOPC Regulations

In order to fall within the remit of the Regulations, the complaint must be made by a member of the public (or a person acting on their behalf)

  • who claims to be the person in relation to whom the conduct took place; or
  • who claims to have been adversely affected by the conduct. [Being ‘adversely affected’ includes experiencing distress, inconvenience, loss, damage, or being put in danger or at risk. For example, this might apply to other people physically present at an incident mainly involving another party]
  • have witnessed the conduct. [The Regulations define ‘witness’ narrowly as someone who “acquired knowledge of that conduct in a manner which would make that person a competent witness capable of giving admissible evidence of that conduct or possesses or controls anything which would be admissible evidence of that conduct].