Legal blog: Missing the point

Within days of the government’s announcement of a review of the building regulations in the wake of the Grenfell fire tragedy, the Construction Industry Council Approved Inspectors Register (CICAIR) revealed plans to strengthen the robustness of the regulatory activities it is responsible for overseeing. 

It is perhaps not surprising that the body that oversees the register of private-sector approved inspectors (AIs) is undertaking some introspection. Over the past few years it has already introduced annual monitoring, a formal audit process and a new code of conduct for AIs. A review of its sanctions framework began in March, and the sanctions working party is now consulting with industry on its proposals. 

The code of conduct sets out the fundamental principles of behaviour for AIs, who are also required to follow the Building Control Performance Standards. Disciplinary action may be pursued against an AI for non-compliance with the code. The sanctions available to CICAIR range from a caution or formal reprimand recorded on file, to withdrawal of approval and removal from the AI register. (They do not, however, provide for financial penalties against AIs or the awarding of costs or financial redress to complainants. I beg to ask why?)

The new proposals go far further, but in a ominous way; they are fundamentally flawed and will not deliver positive outcomes for the industry. The proposed framework is based on systems designed to regulate the individual rather than address any general malaise, and fails to accommodate larger AI businesses that increasingly include substantial companies (a trend likely to accelerate given the likely growth in regulation following Grenfell).

If adopted in its current draft form, the framework will create an unbalanced sanction system delivering unsatisfactory and unintended outcomes. It reads as if drafted by some Kafkaesque autocrat wanting to cure some ill others do not see at AI level and take over people’s businesses in the name of public good.

The draft sanctions proposal seems to be trying to adopt a DVLA driver penalty-points type of system. Problems arise where systems designed to be applied to the individual are used on corporate organisations of all sizes. 

Under the new proposals, accumulation of six to eight points from minor cautions over any five-year period will attract a sanction of the highest level, entitling CICAIR to suspend the AI’s notice of approval. For many AIs, a suspension allowing no new work, and hence no new income, would quickly result in the business going bust. It is naive to believe applying such a sanction will achieve CICAIR’s aim of generating improvement.

The proposed framework reads as if drafted by a Kafkaesque autocrat wanting to cure some ill others do not see and take over people’s businesses in the name of public good

An organisation of about 120 surveyors accruing five minor cautions, potentially by five different surveyors, in the course of carrying out, say, 100,000 inspections at a failure rate of 0.005%, could be regarded as exemplary. This proposed system would result in such an organisation losing its licence and perhaps 200 people becoming unemployed. 

Having caused the closure of an AI business, the individuals at fault would, however, be free to join another building control business or even to apply to become an AI in their own right, and in many instances, CICAIR would be powerless to prevent this under its proposed system.  

At the other end of the spectrum, a sole-trader AI may individually accumulate nine points in five years in four sanctions in the course of carrying out only 750 projects, at a failure rate of 0.53%, and be free to carry on practising. 

An effective penalty regime should be assessed by its ability to discourage undesirable conduct while also ensuring that the sanction imposed in any individual case is just. Applying the same aggregated penalty points system to the largest and smallest AI organisations is neither fair nor proportionate.  

The sanctions framework is fundamentally misguided if based on the premise that closing down a corporate AI predicated upon the actions of its employees or consultants will improve the provision of building control services and the protection of its consumers. 

The Building Control Performance Standards Advisory Group (BCPSAG) indicators are always judged proportionally to volume of work or number of surveyors. Any sanctions system should, I suggest, follow the same values of proportionality if it is to be equitable and fulfil the declared CIC objectives. 

I advocate a system capable of imposing sanctions on the individual in respect of restricting their work as an employee or consultant for an AI. This is what occurs in Australia, where every building control surveyor has to be “accredited”. This provides a better focus on any individual who fails to meet an appropriate standard, rather than affecting an organisation as a whole – save in case of gross negligence or complicity, obviously.

It makes no sense for an AI to be able to simply “take the points”.  If there is a problem with the actions of either an individual or a corporate body, then those actions must be addressed if the objectives of the sanctions guide – to protect consumers and improve the quality of the service provided – are to be achieved. Remedial measures should be put in place.

This proposal seems overkill. There is no evidence of widespread abuses of the code of conduct, so why require the introduction of these draconian sanctions? A system of punishment must not overlook the requirements of fairness in securing effective regulation.