Local Authority Staff: Questions on assuming the ‘Design Certifier’ role | Eoin O’Cofaigh

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“Building Control (Amendment) Regulations, Public Sector and Local Authorities and their staff”.

Role and responsibilities of the “Design Certifier” under S.I.9 of 2014 and S.I.365 of 2015

E. O Cofaigh FRIAI, 27 January 2016

S.I.365 of 2015 extended application of the building control regulations to works by building control authorities in their own functional areas. Before that, many architects in local authority employment understandably paid little attention to the implications of BC(A)R, the Design and Assigned Certifier roles under the regulations, and the certificates to be signed. Public sector salaried architects, to my dismay the more junior ones, say they are being pressurised to undertake the Design Certifier role in this new situation. Some junior public sector salaried architects are being told that the liability is now off-loaded onto the third party Assigned Certifier; that in any event, their employer’s Professional Indemnity Insurance policy will “cover them”; and that they must now “certify up” or else be responsible for holding up projects. From many questions put by Local Authority colleagues in this situation, it seemed useful to write a general briefing on the above subject.

The main question arising is:- “Given the separation of the Design Certifier and the Assigned Certifier roles, where these are now undertaken by two different people, what liability, if any, attaches to the role of the Design Certifier?” This first question suggests a series of further questions (below) that, in my opinion, staff members who are asked to undertake Certifier roles need to ask their employers before assuming any Certifier role. These are:

  • Who has the overall responsibility for the design of this project?
  • Who will be named on the Commencement Notice as the designer?
  • What responsibility has the County/City Architect/Engineer?
  • Is my work ever supervised and checked by others? Why is this done? That being so, how can I be considered competent to check and take full responsibility for compliance of the design with building regulations?
  • Would the County/City Architect/Engineer audit the full design documentation for compliance with the building regulations, and act as Design Certifier?
  • In asking me to act as Design Certifier you are putting me personally at risk of future legal proceedings. Who else in the Council will be accepting such risks?
  • I am employed as an architect. Where in my contract am I required to assume the statutory role of BC(A)R Design Certifier?
  • By saying that if I do not act as Design Certifier on this project, it will be held up and I may be blamed, sounds like workplace harassment. Would you agree?
  • Have you read the Opinions of Denis McDonald SC and Mark Sanfey SC on the risks to the person signing the Design Certificate?
  • Do you accept that those persons are eminent legal practitioners and do you accept their bona fides on this subject?
  • Why would lawyers advising their client alleging non-compliance of a building with the building regulations, not issue proceedings against everybody they can think of, including the Council as building owner, the Design Certifier and Assigned Certifier as identifiable professionals, the builder and the subcontractors, and let the Court decide who, in fact, is the guilty party or parties?
  • Who is to act as Assigned Certifier on the project?
  • Will the Assigned Certifier be listing the Design Certificate as one of their Ancillary Certificates in their Completion Certificate, and be relying on the Design Certificate as the proof that the design complies with the building regulations?
  • Will you as my employer give me a written undertaking that you and your successors in title will indemnify me against all liability, loss, claims and proceedings arising out of my signing the Design Certificate?

In order to carefully consider an employer’s response, staff should read the following ten headings and legal opinions carefully before making any decision.

1 Role of the “Design Certifier”

The regulations don’t in fact identify any person with the title “Design Certifier”. On the Commencement Notice served before work starts, the building owner must name the “Designer”. Along with the Commencement Notice and a batch of accompanying documents, is to be sent the statutory “Design Certificate – Form of Certificate of Compliance – Design”.

It’s by no means clear as to who exactly from within the local authority should be identified as the Designer. In the past, it was always the County or City Architect or Engineer who was identified as the principal designer of building or engineering works. Consistency would indicate that that person would be named as Designer on the Commencement Notice.

Whosoever is named as Designer, the person who signs this Design Certificate has come to be called the “Design Certifier”. Only registered architects, engineers or building surveyors may sign. Their role is recited at clause 3 of the Certificate:- “I confirm that I have been commissioned by the building owner to design, in conjunction with others, the building or works … and to certify such design”.

2 What the signing the Design Certificate warrants or represents

There are several confirmations and certifications involved.

Clause 3:- “I confirm … that I am competent to carry out my design and to coordinate the design of others for the building or works involved.”

Clause 4:- “I confirm that the plans, calculations, specifications, ancillary certificates and particulars … prepared exercising reasonable skill, care and diligence by me, and by other members of the design team and specialist designers whose activities I have coordinated, have been prepared to demonstrate compliance with the …. Building Regulations”.

And clause 5:- “I certify, having exercised reasonable skill, care and diligence, that having regard to the calculations, specifications, and particulars which have been prepared by me and others and having relied on ancillary certificates and particulars referred to at 4 above, the proposed design … is in compliance with the… Building Regulations.”

3 How is the Design Certificate signed?

The Certifier signs the Certificate personally, giving their name and registration number. This is then “on behalf of” … “company name, where relevant”.

And so, one proposition might be that if the Design Certifier inserts “on behalf of xxx County Council”, this removes the liability from the Certifier back onto the Council. Such a proposition would be false. See below.

4 Liability attaching to signing the Design Certificate

I looked at this briefly in “Building Control (Amendment) Regulations, and Local Authorities and their staff”.

I am a practicing architect, no lawyer. My views on the liability involved rely extensively on the published Opinions of three Senior Counsel who work extensively in construction sector law: Denis McDonald SC, Mark Sanfey SC and John Trainor SC. Each of these has considered aspects of “Design Certifier liability” arising under S.I.9 of 2014.

5 Views of Mr. Denis McDonald SC 

Mr. Denis McDonald SC considered the question of Design Certifier liability in his Opinion of 3 March 2014. He was writing immediately after S.I.9 came into Law, without the benefit of subsequent expert discussion and views. In the quoted text following, he uses the words “assigned certifier”, but is in fact speaking of the person who signs the Design Certificate. He writes (bold text is my emphasis):-

It seems to me that Clause 4 is providing confirmation not only that the certifier has exercised reasonable skill, care and diligence, but that the other members of the design team and specialist designers have likewise exercised reasonable skill, care and diligence. That seems to me to follow from the language of Clause 4 which refers to the fact that the plans, specifications etc. have been prepared exercising “reasonable skill, care and diligence by me, and by other members of the design team and specialist designers ….”. Those words “have been prepared exercising reasonable skill, care and diligence” appear to me to apply equally to the certifier and to the other members of the design team and specialist designers. The certifier is therefore confirming that the latter have exercised reasonable skill, care and diligence. This clause does not appear to me to limit the confirmation solely to the exercise of reasonable skill, care and diligence by the certifier himself or herself.

… if an architect is to give confirmation that the other members of the design team and the specialist designers have exercised reasonable skill, care and diligence, then the architect is taking responsibility for the work of others, and is exposing himself or herself to liability in respect of the works of others where it subsequently transpires that reasonable skill, care and diligence was not, in fact, exercised by other members of the design team. The failure of the certifier to identify that there was a lack of reasonable skill, care and diligence exercised by another member of the design team could be used in the future as a hook to impose liability on the architect as certifier.

… under Clause 5, the certifier is still certifying that having regard to the plans, calculations, specifications and particulars which have been prepared not only by the certifier but also “and others” the design for the building or works is in compliance with the requirements of the Second Schedule to the Building Regulations. 

While Clause 5 somewhat helpfully states that the certifier has relied on ancillary certificates and to particulars referred to in Clause 4, I am not convinced that this represents any significant protection for the certifier (insofar as the work of others is concerned). When the certificate is read as a whole (and that is the way in which a court would read it), the certificate given in Clause 5 must be read in conjunction with the confirmation given in Clause 4. 

As already indicated, it seems to me that Clause 4 contains a confirmation by the certifier that the others involved in the design of the works have all exercised reasonable skill, care and diligence. When read as a whole, it therefore does not seem to me that the words “and having relied on ancillary certificates and particulars referred to at 4 above” adds any significant protection for the certifier in circumstances where the certifier has already confirmed that those certificates and particulars have been prepared with reasonable skill, care and diligence. 

In summary, Mr. McDonald says the Design Certifier takes responsibility for the work of others, exposes themselves to liability in respect of the works of others where it subsequently transpires that reasonable skill, care and diligence was not, in fact, exercised by other members of the design team; and Mr. McDonald is not convinced that the “crutch of the ancillary certificates” represents any significant protection.

6 Views of Mr. Mark Sanfey SC 

Mr. Mark Sanfey SC published his paper in July 2015, in connection with the review of the regulations conducted around then. He doesn’t set out to give a comprehensive view of the issues involved but does consider the question of Design Certifier liability. He says:-

The Regulations may take effect as imposing on, in particular, the Designer an obligation to carefully review all drawings, plans, etc. for the works in advance of the filing of the Commencement Notice for compliance with the Building Regulations.

As an architect I am not in a position to assess the strictness of this obligation. However, if my obligation is to review, not only my own drawings and plans but also those of the structural engineer, mechanical engineer, window specialist and others, so as to form my own view on the adequacy of the information – this seems to me to be a heavy burden indeed. This seems to be Mr. Sanfey’s view also. He continues:-

Paragraph 4, on its own, may be taken as a confirmation and a warranty by the (Design) certifier of the ‘reasonable skill, care and diligence” of the specialist designers. 

Again as an architect I may be told that the engineers’ reasonable skill and care derives from their professional standing, ISO procedures and so on. But it seems to me that I might be very foolish to rely on past performance. What architect would say that the level of skill and care the same firm will give to every job is equal?

And Mr. Sanfey continues further:-

Read as a whole, it seems that there is a significant risk that the certificates would be interpreted as the designer assuming responsibility for the reasonable skill, care and diligence exercised by the design term.

Reading this as an ordinary architect, it seems to me that if I act as Design Certifier, “there is a significant risk” that I am “assuming responsibility for the reasonable skill, care and diligence of” … the window specialist (Part C resistance to moisture, Part L thermal insulation; roofing specialist (Part C) mechanical contractor (Part F ventilation) and so on and so on.

7 My own views

The views of two eminent Senior Counsel who specialise in construction law are enough to convince me. There is huge risk attaching to signing this Design Certificate. No bland reassurances from any Institute or any employer will convince me otherwise. And I have never yet seen an Opinion by a competent lawyer which argues the opposite, namely, that there would be no significant risk of my assuming responsibility for other peoples’ designs, if I ever were to sign a Design Certificate.

But was not the Government’s intention precisely to fix responsibility for the design onto one person? After all, Phil Hogan talked about a “clear chain of liability”? And for all the verbiage out of some of the stakeholders, this chain was never done away with.

8 The Assigned Certifier’s reliance on the Design Certificate

It seems that some junior architects being asked to sign the Design Certificate are told that the liability for the finished building now rests with the Assigned Certifier, and that this encompasses the liability for the design. They are being told that this means the Design Certifier can “get off”.

It looks like this simplistic and optimistic view is wrong.

Mr. John Trainor S.C. writes:-

In the statutory scheme, the design certificate deals with design as a separate entity. But as has been pointed out …, the completion certificate refers to compliance with the Building Regulations as a whole, and the Building Regulations address both design and construction.

I have been asked to advise as to whether it would be prudent for the design certificate to be included in the schedule of the ancillary certificates to the completion certificates as a matter of course. I strongly endorse this proposal. The scheduling of the design certificate as an ancillary certificate to the completion certificate is unnecessary under the statutory scheme, but it would be advisable in closing off the misuse of the completion certificate as a ground for the potential liability of the assigned certifier in respect of design matters certified in the design certificate.

In other words, the third party Assigned Certifier will schedule the Design Certificate as an ancillary cert, so as to bring back in the liability of the Design Certifier for the design.

This point might be discussed over many pages. But no sensible Assigned Certifier would not take the chance to potentially lay off some liability, and at least to muddy the legal waters. So, the Assigned Certifier will say they are relying on the Design Certifier’s warranty of compliance of the design with building regulations.

9 Professional Indemnity Insurance and the Design Certifier

Some junior architects are being told that the Council’s professional indemnity insurance policy (“PII”) will “cover them” and this should remove any hesitation they have in signing the Design Certificate.

It cannot be said often enough that PII policies are on a “claims made” basis. If the insurance isn’t kept up, there’s no cover. Nobody has yet dared to say that the insurers will continue cover at a reasonable price, or at all, if there is bad experience on BC(A)R claims. This will leave the certifier exposed.

But will not the Council, as the employer, pick up the liability?

I cannot say. I do not know enough about how Councils indemnify their staff. But it is difficult to see why a solicitor acting on the part of a plaintiff, would not sue not only the local authority but also the individual certifier. In medical negligence claims, invariably both the hospital and also the consultant are sued. The person acting as Design Certifier is acting in a statutory role and it’s hard to see that having a junior position would somehow protect them in this regard, especially if the solicitors advising the local authority formed the view that the certifier had been at fault.

10 Can the Design Certifier protect themselves against future claims?

In my view, this is impossible. You cannot prevent somebody suing you, no matter whether you are in any way implicated in the problem, or not. Signing “on behalf of xx County Council” will merely ensure the County Council is joined as a defendant in the action alongside you as the certifier. No plaintiff’s lawyer would agree to that.

Whether you personally are then “liable” is another matter. But it is certain that to get out of being “held liable” you will need to put in many worrisome hours protecting yourself.

Any skilled plaintiff will be able to find holes in any design, enough to successfully prosecute proceedings for breach of statutory duty arising out of signing these Design Certificates. And any skilled lawyer for a contractor fellow-defendant will be able to do the same. (“The specification didn’t tell me!”)

If I were a junior member of a local authority architect’s department being pressurised to sign the BC(A)R design certificate, I would carefully consider three responses.

I would review my conditions of employment to see whether I were obliged to act, in this instance not as an architect but in the new capacity of statutory certifier under the building control regulations.

The proper person to go on public record is the City or County Architect or Engineer. They are the most senior and most experienced person to undertake an in-house third-party inspection of the design drawings, plans, specifications and calculations. Experience world-wide shows that independent inspection or audit is the most effective way of achieving compliance. The County Architect would then sign the certificate.

As a precondition of signing any certificate I would obtain an indemnity from my employer, in as legally watertight a wording as I could obtain, in respect of all loss or liability which I personally might otherwise incur, arising out of any claim or proceedings connected with my signing BC()R certificates. After all, if my employer says there’s no liability attaching to signing the Design certificate, they will have no problem giving me such an indemnity.

Eoin O Cofaigh

25 January 2016

About the author: Eoin O’ Cofaigh is a Registered architect and co-owner of McHugh O’Cofaigh Architects with 33 years experience in private practice working with clients such as Central Government Departments, Local Authorities and State Agencies on a broad range of healthcare, educational and office projects, in addition to private commercial and residential clients. Appointed by the Government to Building Regulations Advisory Board and to the EU Advisory Committee on Education and Training in Architecture he is a member of the Admissions Board to the Architectural Profession under the Building Control Act and expert witness in legal proceedings arising out of non-compliance with Building Regulations and defective design. Formerly a President of both the RIAI and the Architects’ Council of Europe and an honorary member of the German, American and Russian Institutes of Architects he is the author of several publications on Building Regulations and Building Control including ‘Europe and Architecture Tomorrow’ the most widely published architectural book of the 20th century.

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