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TRANSCRIPT
Disciplinary Panel Hearing
Case of
Mr Andrew Kitching FRICS
On Monday 22 and Tuesday 23 October 2018
At 55 Colmore Row,
Birmingham.
Panel John Anderson (Chair) Christopher Pittman (Surveyor Member) Jonathan Green (Lay Member)
Legal Assessor
Alastair McFarlane
RICS Presenting Officer James Lynch
Hearing Officer
Jae Berry
The formal charge is:
1. When signing a final certificate in respect of building works at Christmas/Two Cocks
Farm and Brewery, you failed to act with due skill, care and diligence, contrary to
Rule 4 of the Rules of Conduct For Members 2007
Particulars
a. On 9 December 2013 you signed a final certificate to confirm that the works
undertaken the Christmas Farm has been undertaken in accordance with the
Building Regulations 2010
b. You signed the final certificate on behalf of your then employer ADC, who was
then the Approved Inspector in relation to the works
c. By signing that final certificate, you were confirming, inter-alia, that the
building works has been undertaken in accordance with Regulation J2 to the Building
Regulations 2010, namely that the flue to the fire had been installed so as to have
adequate provision for the discharge of products to the outside air.
d. You failed to carry out appropriate checks to ensure that the building works
had been carried out in accordance with Regulation J2 to the Building Regulations
before signing that final certificate.
You are therefore liable to disciplinary action under Bye-law 5.2.2 (a) and/or (c)
Representation
1. RICS was represented by Mr Lynch and Mr Kitching was present and
represented himself.
Bias Determination
2. At the outset of the hearing, Mr Pittman made a declaration that he had
been appointed to CICAIR’s policy committee and Complaints, Disciplinary
and Appeals committees in October 2017 and noted the reference to
CICAIR in the papers. It noted that neither Mr Lynch for RICS nor Mr
Kitching had any objection to Mr Pittman continuing to sit on this because
of this. The Panel accepted the advice of the Legal Assessor.
3. The Panel was satisfied that a fair-minded and informed observer knowing
the facts, would not conclude that there was a real possibility of bias in Mr
Pittman continuing to sit.
Preliminary Application
4. Mr Lynch invited the Panel to disregard all the references in the bundle
relating to CICAIR’s findings in relation to its case at first instance and on
appeal in relation to Mr Kitching’s employer (ADC) as he accepted it should
not be relied upon by the Panel in relation to RICS’ case. Mr Kitching
supported this application. The Panel accepted the advice of the Legal
Assessor.
5. The Panel was mindful of the decision of Holman J in Enemuwe v Nursing
and Midwifery Council [2015] EWHC 2081 (Admin) and was satisfied that
the evidence relating to CICAIR’s findings was not admissible, and, as
judges of law, directed itself as judges of fact to disregard this material.
DETERMINATION
Background
6. Mr Kitching is a Fellow of RICS, admitted on 1 January 2001. At all
material times Mr Kitching was employed by Approved Design Control
("ADC”) as a senior surveyor.
7. ADC was instructed by Mr B and Mr P ("the clients") to undertake building
control services on a new property that they were building at Christmas
Farm/Two Cocks Farm and Brewery (the “property”). Some of the building
work involved the construction of a new fireplace and flue to in the living
room. As the owners of the property the clients were responsible for
ensuring that all building works were carried out in compliance with the
Building Regulations 2010 "(the Regulations").
8. The Clients instructed ADC to oversee and review the project and to
ensure that the work undertaken was compliant with the Regulations. ADC
did so under the Building (Approved Inspector) Regulations 2010. ("The
Approved Inspector Regulations"). ADC was the Approved Inspector for
the purpose of the Approved Inspector Regulations and was therefore
required to "take such steps as are reasonable to the case to be satisfied
within the limits of professional skill and care that…the Principal
Regulations are met." In respect of the installation of the fireplace/flue, the
Principal Regulations are Part J of the Building Regulations – in particular,
J2 which states:
"Combustion appliances shall have adequate provision in the discharge of
products of combustion to the outside air".
9. The flue was fitted by a non-HETAS qualified engineer J, a blacksmith,
chosen by the clients. He did not issue a safety certificate confirming that
the fireplace/flue was compliant with Part J of the Building Regulations.
RICS Submissions
10. RICS submitted that Mr Kitching did not undertake his own tests to ensure
that the fireplace/flue was compliant and that in those circumstances it was
inappropriate for Mr Kitching to sign the final certificate confirming that the
works had been undertaken in accordance with the Building Regulations.
Mr Kitching signed the project completion certificate on 9 December 2013.
11. Shortly before completion the fire at the property was lit, and the clients
reported smoke billowing back into the living room instead of passing
safely through the flue into the outside air.
Mr Kitching’s Submissions
12. Mr Kitching submitted that he had acted with diligence care and skill. He
emphasised the unique nature of this project that he had exercised his
professional judgment, built on many years of experience, when dealing
with this project and submitted that he had taken all reasonable steps, in
the circumstances, when he signed the certificate to ensure that the clients
fulfilled their responsibility in meeting the requirements of the regulations.
Findings of fact
13. The Panel carefully considered all the evidence it received. This consisted
of the Council’s bundle consisting of 204 pages and the expert evidence of
Mr Walker, the expert called on behalf of RICS. In addition, it received a
bundle of documents from Mr Kitching, which included a detailed document
headed "Answers to charges", as well as receiving his oral evidence and
viewing the video evidence he presented.
14. The Panel reminded itself that the burden of proving the charge was on
RICS alone and that the standard of proof was the ordinary civil standard,
namely the balance of probabilities. The Panel accepted the advice of the
Legal Assessor.
15. The Panel had to make an assessment of the expert witness, Mr Walker.
He had only practised as a building control surveyor for one year, as long
ago as 1978. Further, it noted from his letter of 6 January 2017, that he
had canvassed the view of two other senior building inspectors "to see
what they would do before accepting completion". One inspector indicated
that he would not require a smoke or pressure test of any sort and was of
the view that "even the best installed solid fuel fires do blowback smoke
into the room under adverse weather conditions…so a one-off test would
be pointless". The other inspector took a contrary view. The Panel noted
that Mr Walker did suggest that if the installer was not HETAS registered,
the inspector is faced with someone who has to prove his competence. Mr
Walker stated that a reasonably competent surveyor would not have
signed the certificate based on an “assumption” that the installer had
undertaken a smoke test but then stated that “if he knew the guy had done
a good job 20 times”, the surveyor could have signed the certificate. The
Panel was not impressed with Mr Walker's lack of relevant and recent
building control experience and found his oral evidence to be inconsistent
on occasion and of little assistance to the Panel.
16. The Panel accepted that Mr Kitching was a surveyor of many years
experience in this field. It found him to be a credible witness. It noted that
he accepted that he was under a requirement to have take reasonable
steps to be satisfied that this fire and flue had adequate provision for the
discharge of products of combustion to the outside air (Part J2). The Panel
noted the steps that Mr Kitching detailed that he had taken to comply with
the obligations on him. It noted that he had contacted the installer (the
blacksmith, J) on two separate occasions. He had discovered that he was
not HETAS registered and had researched his website as to his
competence. Blacksmith J had assured him that he did this work “all the
time” and that the reason that the clients wanted him was for the
construction of two specific features – a feature cowl on the top of the flue
together with a grate at the bottom of the fire. The second phone call was
made during the construction phase and Mr Kitching detailed a discussion
with Blacksmith J regarding the flue passing through the roof space and Mr
Kitching’s suggestions as to the use of lined plasterboard to ensure
separation of the flue from any combustible material in the roof. Mr Kitching
told Panel that he was satisfied as to Blacksmith J’s competence and was
also confident in the abilities of his colleague (Mr A) who had also been
involved in the project, to ensure that the requirements of the building
regulations were met.
Charge 1
17. The Panel noted that there was no dispute between the parties in relation
to the facts alleged in particulars a., b., and c., which the Panel was
satisfied were background facts. Accordingly, it found these particulars
proved.
18. The gravemen of RICS’ case was set out in particular d. The central
question for the Panel was whether RICS had proved that the steps,
(which it accepted that Mr Kitching had taken) were not sufficient, in the
particular circumstances of this case, to discharge his duty to take
reasonable steps to satisfy himself that the fire and flue had adequate
provision for the discharge of products of combustion to the outside air.
19. The Panel considered it significant that before the signing of the
certificate, Mr Kitching was aware that there was an issue with the
ventilation of the fire. Having identified the problem he arranged for the
architect to change the design. In those specific circumstances, (in
particular, after the change of the design) the Panel was satisfied that Mr
Kitching's duty to take reasonable steps included satisfying himself that the
fire functioned properly before signing the certificate. In other words,
ensuring that the particular risk he had identified had been satisfactorily
addressed. This could have been done by Mr Kitching inspecting the fire
himself or simply by a phone call to the installer, Blacksmith J. The Panel
was not persuaded that Mr Kitching's obligation extended to ensuring that
a formal smoke test was carried out, but it accepted that he did need to
satisfy himself that the combustion products were being removed safely.
This he did not do and ought to have done. Accordingly, the Panel was
satisfied that particular d. was proved and that this amounted to a breach
of the duty upon him to act with due skill, care and diligence.
Liability for Disciplinary Action
20. RICS submitted that the charge was sufficiently serious to render Mr Kitchen liable to
disciplinary action under bylaw 5.2.2 (c) alone.
21. Mr Kitching disputed the failure was sufficiently serious to render him liable for
disciplinary action.
22. The Panel accepted the advice of the Legal Assessor. It reminded itself that liability
to disciplinary action was a matter for the judgment of the Panel. It was satisfied that
Mr Kitching’s failure, albeit one error, had the potential to cause harm to the
occupants and was sufficiently serious to render him liable to disciplinary action.
Sanction
23. The Panel next considered sanction. It noted the submissions of RICS and
Mr Kitching. It accepted the advice of the Legal Assessor. It had regard to
RICS Sanctions Policy and bore in mind the overriding principle of
proportionality.
24. The Panel bore in mind that the purpose of sanctions is not to be punitive, though
that may be their effect. The purpose of sanctions is to declare and uphold the
standards of the profession, to safeguard the reputation of the profession and of
RICS as its regulator and to protect the public. Sanctions must be proportionate to
the matters found proved.
25. The Panel considered carefully the mitigating and aggravating factors of this case as
well as the issue of proportionality in weighing up the most appropriate response.
26. The Panel considered that the following mitigating factors were present:
• Mr Kitching had no previous disciplinary record, and had had a long and
otherwise unblemished professional career
• The failure was one isolated error of professional judgment
• Mr Kitching had undertaken some steps to comply with his duty, and the
failure was on the specific basis that having identified an issue with the
discharge of the products of combustion and having sought to address this by
having the architect change the design of the fireplace, he ought to have taken
one further step to close the loop by satisfying himself that the fire was
working safely
• He had fully co-operated with the regulator
• There was some limited indication of Mr Kitching having health issues and
workload issues at the time, but Mr Kitching did not seek to advance these
matters
27. The Panel considered that the following aggravating factor was present:
• Mr Kitching has not demonstrated insight into the failure
• There was a potential risk of harm to members of the public.
Decision
28. The Panel considered the matters are too serious for no sanction at all to be
imposed. They considered the sanctions in ascending order.
29. The Panel considered that a Caution was insufficient to mark the seriousness of the
behaviour (the failings could not be described as "minor") or to adequately maintain
the reputation of the profession. Further, given Mr Kitching’s lack of insight, the
Panel was satisfied that there was a risk of repetition.
30. Bearing in mind the mitigating factors, the isolated nature of this one error of
judgment as well as the potential for the risk of harm from the failing, the Panel was
satisfied that a Reprimand was an appropriate and proportionate sanction in all the
circumstances.
31. The Panel did consider whether to impose a Fine in addition to the Reprimand. It had
regard to Supplement 2 to the Sanctions Policy in relation to Fines. It reminded itself
that the purpose of any sanction is not to be punitive and noted that the submissions
made about Mr Kitching’s limited means. Considering all the circumstances,
including Mr Kitching’s ability to pay, it did not consider that it was appropriate to
impose a financial penalty in addition.
32. The Panel was satisfied any higher sanction would be disproportionate in the
circumstances of this case.
Publication
33. The Panel noted the competing submissions of the parties on the issue of publication.
It did not consider that Mr Kitching’s arguments that publication would send the wrong
message to the profession as valid. It considered that there was no basis for departing
from the presumption of publication. The Panel considered the policy on publication of
decisions, The Sanctions Policy Supplement 3 - Publication of Regulatory Disciplinary
Matters. This decision will be published on the RICS website and in the RICS
magazine Modus.
Costs
34. RICS made application for costs in the sum of £15,222. Mr Lynch conceded that there
should be some reduction owing to the shorter time that the case has taken to
adjudicate. Mr Kitching explained his limited means.
35. The Panel noted that the case had taken less time than anticipated and accordingly
reduced the Hearing costs to 1.5 days (£3975) and Mr Lynch’s attendance to £1400
as conceded by Mr Lynch. It also considered the amount claimed for perusing
documents to be excessive and reduced this to £600. The Panel disallowed the
expert’s costs as it considered the expert to have been an inappropriate instruction
and did not assist the Panel. In the circumstances, it concluded that it was fair and
reasonable to direct that Mr Kitching pay RICS’ costs in the sum of £7,775.
Appeal Period
36. Mr Kitching has 28 days, from the service of the notification of the decision, to appeal
this decision in accordance with Rule 59 of the Rules.
37. In accordance with Rule 60 of the Disciplinary, Registration and Appeal
Panel Rules, the Honorary Secretary of RICS has 28 days, from the