Assigned Certifiers facing jail? BC(A)R SI.9

by Bregs Blog admin team

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The following opinion piece was submitted on 21st May 2014 by a registered architect. Issues mentioned in this opinion piece may affect any one of the registered professions qualified to undertake the role of Assigned Certifier. As this is an opinion piece, we do not endorse or recommend any practices, interpretations or duties in this post.

ASSIGNED CERTIFIERS FACING JAIL

Discussion around the new duties on those architects and others acting as “Assigned Certifier” under BC(A)R 2014 has focussed on civil liability to clients, tenants, purchasers etc.. This paper draws attention to the criminal liability involved in not providing the building control authority with documentation they require to validate a Certificate of Completion.

S.I.9 – Part IIIC – Certificate of Compliance on Completion, article 20F(5) says:-

“Where the building control authority considers that a Certificate of Compliance on Completion may not be valid … they may within 21 days of receipt of the certificate, write to the person who submitted the certificate and … (ii) require the person submitting the certificate to submit such revised certificate or such additional documentation as may be deemed necessary by the building control authority to accompany the certificate for the purposes of paragraphs (3) and (4).”

Article 6A of S.I. 9 of 2014 says:-

Failure to comply with any requirement under Parts II, III, IIIA, IIIB or IIIC shall be an offence to which section 17(2) of the Act of 1990 applies.”

So if the BCA require additional documentation, and if the Assigned Certifier does not comply, the Certifier commits an offence to which s.17(2) of the Act applies.

Section 17(2) of the Building Control Act of 1990 says:-

17 (2) A person guilty of an offence …. shall be liable—

(a) on summary conviction, to a fine not exceeding £800, or, at the discretion of the court, to imprisonment for a term not exceeding six months, or to both the fine and the imprisonment and, if the offence is carried on after conviction, such person shall be guilty of a further offence and shall be liable on summary conviction to a fine not exceeding £150 per day in respect of each day on which the offence is continued, or

(b) on conviction on indictment, to a fine not exceeding £10,000 or, at the discretion of the court, to imprisonment for a term not exceeding two years or to both the fine and the imprisonment.

RIAI advice in relation to the criminal liability of the Assigned Certifier

The RIAI has advised that “Insurers have confirmed PII cover will be available for Assigned Certifiers”.

PII policies cover the insured person in respect of civil liability. It is not possible to obtain insurance cover in respect of a criminal act. It follows that PII cover will be no help if the BCA require you to provide documents and you will not or cannot do so.

The RIAI circulated the detailed “Opinion of Counsel” dated 4 September 2013, where Mr. Gavin Ralston SC considers the question of liability under the headings of:- liability in contract, liability in tort, and liability for others. He does not mention criminal liability. He also says “As I have observed at the outset, the onus of complying with the amended Building Regulations falls upon the “owner”.”

From this, he appears not to have considered that the failure of an Assigned Certifier to comply with a requirement of the BCA to provide information in connection with a Certificate of Completion would be a criminal offence.

Criminal liability of an employee acting as Assigned Certifier

It has been said that an Employer’s PII covers an employee signing a Certificate of Completion or otherwise acting as Assigned Certifier. The problem is that PII does not cover criminal liability. At this moment, it is unclear whether the employer would have a vicarious criminal liability in respect of an employee who failed to comply with a BCA requirement for information with a Completion certificate.

It is difficult to see how an employee who signs a Certificate of Completion can avoid personal criminal liability if she or he is unable to provide information required by a BCA.

Was this criminalization of the Assigned Certifier deliberate?

Presumably. Introducing the new regulations, the Minister said:- “If anyone signs a statutory certificate for a building which subsequently proves to be non-compliant, they can be held legally liable for the consequences”.

So let’s all hope together as follows:-

Let’s all hope the BCA never requires Completion Certificate documents which the AC cannot provide. What documents might those be?

  • Test reports for impact glazing, and the glass came from …. where, and no test reports are available?
  • CE papers to show fitness for purpose of the OSB in the floor, which came from … where? (They make a lot of inexpensive OSB in China)
  • Test reports on the aggregate, from an excavation subcontractor who might have gone into liquidation (There is no pyrite in the aggregate, is there?)
  • Documents from the main contractor, but who busy preparing a disruption claim, arising out of the architect’s failure to certify Practical Completion because the BCA won’t validate the Completion Certificate, and because the contractor needs or just wants to make a few bob

And let’s all hope that when you explain to the BCA that you tried really really hard, but cannot get the documents, they tell you That’s All Right Then. We don’t need them. We were only joking. And the fact that you promised when you signed the Assignment Form to give them to us – that doesn’t matter either.

Relax! These things never happen in Real Life!

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