Construction disciplinary trends analysis #4: inadequate professional services

This is the fourth article in our series analysing trends in disciplinary decisions involving construction professionals, with insight from our specialist disciplinary team. This time we consider failures to act with skill & care which amount to unacceptable professional conduct and lead to regulatory consequences.

How have the trends we identified developed?

In our first article, we examined the regulators' stated priorities: building safety, sustainability and diversity and inclusion. These continue to be key focusses for the Architects Registration Board (ARB), Royal Institute of British Architects (RIBA) and Royal Institute of Chartered Surveyors (RICS). The first trend we identified was continuing professional development (CPD) failures, which lead to a surprising number of expulsions from the professions. This trend has continued, with a further 22 surveyors expelled in the last 9 months due to failure to comply with their CBD obligations. A further surveyor was refused re-admittance, and another was fined.

Our second article focussed on the second trend that we had identified: failure to provide a compliant engagement letter; something which is not only viewed critically by regulators (especially ARB), but which can compromise a firm's ability to defend itself in the event of a negligence claim.  Again, this trend continues to feature heavily in published decisions, with 6 architects and a surveyor sanctioned for engagement letter failures.

Our third article dealt with the third trend that we had identified, and the most serious type of misconduct: fraud, dishonesty and lack of integrity. A further 13 individuals and firms were sanctioned by ARB and RICS in the past 9 months for dishonesty or conduct lacking in integrity, including 4 architects (3 of whom were expelled) and 9 surveyors (6 of whom were expelled). We also identified two new trends: competency failings (addressed below) and criminal conduct. A further 3 surveyors have been expelled or cautioned due to criminal conduct since that article was published.

New themes

Our analysis has revealed further themes from disciplinary cases dealt with in the past 2 years or so: delay (14 cases), failure to keep clients updated (9 cases), complaint-handling failures (20 cases) and a failure to cooperate with the regulator (9 cases). We will address each of these themes, with practical tips and risk management strategies in future articles. A number of decisions also deal with inspection failures, which are worth reviewing in detail given that inspection of works is often a key responsibility of architects or surveyors during the course of a project – subscribe to ensure that our next update is delivered directly to your inbox.

Competency under the Building Safety Act 2022

Traditionally, negligent delivery of professional services would be grounds for a negligence claim, but not something that a regulator would be interested in, unless the negligence gives rise to a concern around competency, is particularly serious or represents a pattern of failings. However, given the focus in the industry on safety and the new emphasis on competency in the Building Safety Act 2022 (BSA), the increase in regulatory decisions concerning failures to exercise skill and care is unsurprising.

The BSA empowers the ARB to monitor architects' competence, set relevant criteria, and remove architects from the register if they fail to meet those criteria or are guilty of professional misconduct or serious professional incompetence. These provisions came into force on 28 June 2022 and led to the ARB's new Code of Conduct and Practice (discussed in our article here), which came into force on 1 September 2025. The ARB is also working on a suite of guidance documents, beginning with the topics of complaints-handling, professional indemnity insurance and engagement letters – all topics that featured heavily in the disciplinary data we have obtained from ARB, RIBA and RICS.

For surveyors, the BSA requires that everyone involved in design or building work must be competent and demonstrate their competence in compliance with building regulations. The competency requirements for individuals relate to their skills, knowledge, experience, and behaviours, while for organisations they relate to organisational capability, including appropriate management systems and processes. These requirements are part of the broader dutyholder regime under the BSA, which mandates that those appointing individuals for design or building work must ensure they meet these competence requirements, taking into account the project's nature, complexity, and associated risks.

Disciplinary decisions featuring delivery of inadequate professional services

Of the 8 architects and 3 surveyors sanctioned for providing inadequate professional services in the past 9 months:

• 4 were expelled.
• 4 received fines of between £1,000 and £2,000.
• 3 Were publicly reprimanded.

Case studies

At the lower end of the seriousness spectrum, the architect (LA) fined £1,000 by ARB did so after agreeing a regulatory consent order. For more minor breaches, a regulatory consent order may represent an option and an acceptable outcome for the professional, as cooperation, making admissions and insight at an early stage are looked upon favourably by the regulators. In LA's case, they admitted failing to carry out adequate inspections before issuing a Professional Consultant's Certificate and their handling of the client's complaint was inadequate as they failed to:

• Provide a copy of their written complaints policy.
• Communicate effectively with the complainant.
• Respond to the complaint.

The seriousness of the initial inspection failure is likely to have been exacerbated by the inadequate complaint handling, and one has to wonder whether the involvement of the regulator would have been necessary at all had the complaint been dealt with quickly and effectively. In particular, the consent order suggests that LA's firm initially insisted that the complainant have legal representation before they responded to the complaint – with hindsight and the objectivity of an unconnected observer, it can be seen that this was not the best way to proceed, as involving lawyers was only likely to escalate the complaint.

At the more serious end of the spectrum, surveyor DG failed to exercise reasonable care and skill by missing the deadline for applying for a determination of a lease renewal dispute, which meant that the lease could not be renewed. He also failed to inform his client of the deadline, that had been missed, and failed to advise of the consequences of this, or of the landlord's application for costs. He also failed to respond to an email from his client. DG was not present at the Disciplinary Panel hearing, nor was he represented or made any representations. Since he had not admitted or denied the allegations, the PCC proceeded on the basis that they were denied, but clearly had no details of DG's version of events.

It appears that DG denied that he owed a duty to the client, since there were no written terms of engagement and he had not charged his client, having agreed to waive his fees. However, the Disciplinary Panel found that the evidence demonstrated that DG had agreed to act for the client in respect of the lease extension and agreed fees in consideration for his work.

The Disciplinary Panel went on to find that DG was "guilty of a culpable failing" in missing the deadline, which was "all the more profound" since DG's client was ignorant of the deadline. The other allegations were also found proven, with the Disciplinary Panel noting that RICS had written to DG's firm on 5 occasions, with each request being ignored by DG.

Crucially, the Disciplinary Panel found that:

"Whilst a single failing might not be sufficiently serious to render him liable to disciplinary action the Panel was clear that the cumulative effect of his failings in Allegations 1 and 2 were so serious that regulatory intervention was necessary."

DG's conduct represented a serious abrogation of his duty to his client and the risk to the public was high. As such, and in light of the lack of cooperation and evidence of insight, the appropriate sanction was expulsion. The order would be published and costs of £13,925 were imposed.

Insights for future cases

The following principles can be derived from the case studies:

• A single failing is less likely to result in regulatory action without other aggravating features.
• By contrast, multiple failures, particularly over a long period, are more likely to attract regulatory scrutiny.
• Complaint-handling failures can exacerbate what is a relatively straightforward problem.
• Cooperation with the regulator and engaging with the process may significantly increase the prospects of a better outcome. This is one of the reasons why it is important to seek specialist legal advice, ideally funded by a disciplinary extension to your professional indemnity policy, at the earliest possible stage. We have successfully resolved regulatory issues on behalf of professionals simply by preparing a robust and detailed letter responding to the substance of the allegations.
• Making admissions where appropriate, demonstrating insight and seeking an agreed resolution with your regulator can result in a better outcome in suitable cases. Clearly where dishonesty is alleged, for example, many professionals will not be prepared to make admissions due to the consequential impact upon their career and private lives.
• In circumstances where the panel has costs jurisdiction, adverse costs can be significant for individuals.

Our top 5 risk management tips

In our experience, the vast majority of professionals want to give the client the best possible service and produce the best quality advice that they can. However, practical considerations tend to interfere with these good intentions, such as unmanageable caseloads, delays by third parties such as local authorities and the Building Safety Regulator, and unrealistic client expectations.  With this in mind, our top tips for managing the risk of mistakes are as follows:

1. Be realistic about how long tasks are likely to take, and be honest with yourself about whether you have the capacity and skills to take on a new instruction. Learn how to say no with tact. The pressure of unmanageable workloads creates an environment where mistakes are more likely to be made.
2. Diarise to chase third parties regularly. Delegate if you can but ensure that records of your efforts are made and that the client is kept up-to-date. We have a tendency to think that no news is bad news to clients, but many clients would prefer to hear that you have not heard from a local authority, but that you have chased them, rather than hearing nothing until the application is granted. Ideally find out what your client's preference is when you are managing their expectations around timing.
3. Ensure that you challenge any unrealistic client expectations as soon as they are revealed. Although this can be awkward, particularly with valued clients, your professional relationship will benefit from your transparency.
4. Work out a diary system for important deadlines such as tribunal application deadlines that works for you and your business; if possible, enlist others such as secretaries or administrative support. Make it a habit to check important deadlines at the beginning of each week until you do it without thinking on a Monday morning.
5. Try to encourage a culture of information sharing, transparency and support when mistakes are made. Ideally, the most senior people in an organisation will model this behaviour and train juniors accordingly so that mistakes can be addressed as soon as they arise. Recognise that we are all human and mistakes do not necessarily need to spell the end of a client relationship if dealt with quickly and effectively. In the words of Sedley J in Pritchard Joyce & Hinds (A Firm) v Batcup [2009] P.N.L.R 28:

"The law does not… demand either omniscience or infallibility in lawyers any more than it does in doctors or architects."

Our recently promoted Of Counsel Emma Wherry (+44 20 3060 6995 or Emma.Wherry@rpclegal.com) would be delighted to discuss any comments or instructions arising out of this article – or any in the series.