3rd December 2014
The entire basis of redress for consumers and building owners, that encounter a building problem under SI.9, is to seek damages from the relevant Assigned Certifier’s Professional Indemnity Insurance (PII) policy. However it is not mandatory for Assigned Certifiers to have such insurance and the entire Building Control system is coming under further strain as a result.
One of the stakeholder groups involved with SI.9, the Royal Institute of Architects of Ireland (RIAI), have attempted to address this problem by making it compulsory for their members to have PII in place in order to be on its Register of Architects. You cannot be an Assigned Certifier, as an architect, if you are not on the Register. A notice was issued by the RIAI earlier this week seeking confirmation from its members of their PII cover as a requisite to being included on the Register in 2015. This has had unintended consequences as it has raised a whole range of new challenges for architects associated with the SI.9 legislation including:
- The year for inclusion on the Register is the calendar year (1st January to 31st December) yet PII policies renewal dates vary throughout the year.
- Architect employees will need to get individual confirmation from their employers’ PII insurers in order to renew their RIAI membership. The confirmation letter must be addressed to the employee and specifically refer to undertaking the roles of Design and/or Assigned Certifier. It should also indemnify the employee against personal liability for any excess associated with a claim.
- The question has arisen whether insurers will continue to insure ‘Practices’ or firms of architects, engineers and surveyors as a group policy. There is a clear intention that PII will now evolve into individual policies to be required for each employee acting as a Design and/or Assigned Certifier.
- The excess on PII policies may now be assessed when the claim will be against an individual and not the firm.
- Employees will have to ensure cover is maintained if they leave a firm or a firm subsequently closes down. It is possible that every registered architect will soon have to take out their own PII to be maintained throughout their career.
- Alternatively Employers may be obliged to maintain PII run-off cover for ex-employees on an indefinite basis.
- Most Practices have their fee agreements with clients collectively and not with the individual employees who must take on the role of Design and/or Assigned Certifier. Building owners and employees would be wise to check the small print of any fee agreement.
- As Assigned Certifiers are appointed as individuals the introduction of SI.9 is also calling into question the concept of ‘Practices’ or firms of architects, engineers and surveyors and whether there will be any such thing in future should SI.9 remain as is.
A similar situation to that above arose for nurses in the UK when they were advised to have personal PII even if employed within the NHS. The pragmatic solution for stakeholder organisations like the RIAI could be for the architects’ Registrar and CEO, John Graby, who is also director of the RIAI’s own PII insurance company, to arrange collective cover for all architects and roll the charges into their annual registration fees. However it is unlikely that those professionals who are not undertaking the roles of Design and Assigned Certifier will wish to subsidise those who are or that sole traders will wish to subsidise members who are insuring lots of employees. Underwriting such an arrangement also presents enormous risks for the organisations involved should the level of claims increase.
PII as the panacea for solving all SI.9 problems looks as if it may not ensure the solution needed by building owners, consumers and construction professionals.
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