Construction disciplinary trends analysis #1: continuing professional development
This article is the first in our mini-series analysing trends in disciplinary decisions involving construction professionals, with insight from our specialist disciplinary team.
The regulatory landscape
Understandably in light of the Grenfell tragedy and ensuing legislation as well as the worsening climate crisis, the regulators' focus is turning to sustainability and climate issues, building safety and diversity and inclusion, with the Architect's Registration Board (ARB) citing these as areas of increasing importance in their 2022 5-year plan. Meanwhile, the Government has issued a call for evidence on the regulation of architects in light of the Covid-19 pandemic, the Government's net-zero targets and developments in building safety regulation.
This comes at a time where construction professionals are seeing a steep increase in the number of disciplinary investigations proceeding to professional conduct committee stage and when a raft of new rules and guidance has been released concerning those processes.
While the number of complaints to the Royal Institute of Chartered Surveyors (RICS), the Royal Institute of British Architects (RIBA) and the Architect's Registration Board (ARB) has remained relatively stable over the past 5 years, the number of ARB complaints which have proceeded to professional conduct committee (PCC) has increased 11-fold between 2018 and 2022 from 4 to 44.
In terms of new conduct rules, the ARB released revised 'Investigations and Professional Conduct Committee Rules' in February 2022; the RIBA Code and Disciplinary Rules were updated in 2021, with honesty, integrity, competence and concern for others and the environment embedded as foundations of RIBA's principles; and the RICS new rules of conduct came into effect in February 2022.
As such, now more than ever, construction professionals should ensure that they have adequate cover for disciplinary issues that provides defence costs funding to the PCC stage.
Our analysis of recent disciplinary decisions has revealed 3 key trends, the first of which is disciplinary decisions concerning continuing professional development (CPD).
Continuing Professional Development
Architects registered with RIBA are required to carry out at least 35 hours' of CPD every year, 20 hours of which must be on the 10 mandatory core curriculum topics, which include sustainable architecture, health and safety and regulatory compliance. Chartered surveyors are required to carry out 20 hours' of CPD every year. In both cases, half of the time spent on CPD must be structured learning. In addition, chartered surveyors must complete learning on the RICS Global Professional and Ethical Standards once every 3 years.
The ARB has been given new powers in the Building Safety Act 2022 to monitor the training and development of all architects and is working on a new mandatory CPD scheme which is currently undergoing a pilot, expected to be rolled out more widely in 2024 and become mandatory in January 2025. Under the new scheme, architects will need to carry out CPD on mandatory core topics likely to include sustainability and safety, record their activities on ARB's platform and write a reflective statement. The ARB will then review a selection of architect's CPD records.
Many busy professionals may regard CPD as being a peripheral requirement with minimal sanctions if not completed; however, recent disciplinary decisions underline how seriously RICS takes this issue. In particular, there is a presumption of expulsion for the third breach within 10 years. Since March 2023, 5 surveyors were sanctioned for failure to complete the required 20 hours' of CPD, with 3 of the 5 expelled as a result. A further surveyor was re-admitted after having been expelled for failure to meet CPD requirements.
In all but one case, the disciplinary cases progressed to a PCC hearing.
DL (member since 2008) – fine imposed June 2023
DL admitted failing to fulfil the CPD requirements and a fine of £300 was imposed, together with £100 costs and publication of the decision for 12 months. No further details are available, but the outcome unsurprisingly suggests that a "one-off" breach where the member engages with the process results in a much lighter sanction.
PH (member since 2002) – fine and reprimand imposed August 2023
PH failed to meet the CPD requirements, even after an extension was granted, so was reprimanded and fined. No further details are available.
SM (member since 1995) – fine and reprimand imposed March 2023
SM had been sanctioned by a Single Member of the Regulatory Tribunal, but asked the Disciplinary Panel to consider the matter afresh.
SM had previously been cautioned (in 2013 and 2015) for failure to comply with CPD requirements and, as such, there was a presumption of expulsion for his third breach. In mitigation, SM explained that during 2020, he had an exceptional workload and was experiencing extreme personal and financial pressure as he had recently set up a new business during a volatile property market due to a number of factors, including Brexit. His business was almost forced to close in 2020 due to the Covid-19 lockdown, but that he had managed to save it at the expense of his CPD. He reported feeling overwhelmed, having "buried his head in the sand" and that his failure to meet CPD requirements was a "personal failing".
However, he had failed to respond to RICS' requests for information in a timely manner and, in light of this and his previously disciplinary record, the panel determined that a caution or reprimand would not adequately reflect the seriousness of his breaches. Instead, he received a fine of £2,500 and imposed a condition on his continuing membership of RICS that he fulfil his CPD requirements or be automatically expelled from membership. The mitigating circumstances (particularly the Covid-19 pandemic's effect on the property market and the financial pressures on SM) justified departure from the presumption of expulsion. SM was also ordered to pay RICS' costs of £5,340.
RH (member since 2013) – expelled but readmitted August 2023
RH failed to complete her CPD in 2015, 2016 and 2020. She was cautioned and fined for the 2015 and 2016 breaches, but expelled for the 2020 breach as this was the third breach within 10 years and she had failed to engage in the disciplinary process. She applied for readmission in 2023, explaining that the Covid-19 pandemic had resulted in fewer CPD events for her to attend, but she accepted fault and had already completed the required CPD for the year. She understood the importance of CPD and assured the tribunal that there would be no future breaches. As such, the tribunal determined that she was a fit and proper person and allowed her readmission. Crucially, she had demonstrated the level of insight and cooperation that had been lacking at the time of her expulsion. The tribunal noted that any repeat offending would be regarded very seriously by RICS.
CN (member since 2013) – expelled June 2023
CN failed to keep adequate CPD records for 2019, 2020 and 2021 and had previously been cautioned and fined for CPD breaches. He had engaged to a limited degree with RICS, who offered to upload his records for him, but ultimately failed to respond. As no mitigation was offered, CN was expelled.
DW (member since 1998) – expelled April 2023
DW accepted the decision of a Single Member to expel him from the profession following his fourth failure to meet CPD requirements and his failure to engage in the disciplinary process. The tribunal calculated that he would have received 8 unanswered written communications from RICS reminding him to complete his CPD; nor did he respond to the letter advising him of the disciplinary proceedings. As this was DW's fourth breach and no mitigating circumstances were offered, the only suitable sanction was expulsion.
Conclusion
These cases demonstrate the crucial importance of engaging with the regulator by answering their routine communication, as well as engaging with the disciplinary process. Further, they highlight the effectiveness of well drafted mitigation arguments. Construction professionals who have representation (ideally funded by insurance cover for disciplinary investigations and proceedings) are likely to achieve a better outcome, provided they cooperate with their representatives and the regulator. We would be delighted to discuss any queries or comments arising out of this article, which should be addressed to our specialist construction regulatory lawyers Emma Wherry or Ben Goodier.