New ARB investigation rules: implications for architects

The Architects Registration Board (ARB) has published its proposed new Investigations and PCC Rules. Architects should familiarise themselves with the proposed new rules and look out for further news on this from the ARB following its consultation last month.

Background

The ARB is the statutory regulator of architects in the UK, responsible for protecting the title 'architect', maintaining the register of suitably competent architects and setting conduct and continuing professional development standards. Other membership bodies such as the Royal Institute of British Architects (RIBA) also set professional standards and have separate disciplinary rules. Where alleged conduct issues come under the jurisdiction of another membership body as well as the ARB, clients can in theory report the breach to both bodies, although RIBA has power under its Disciplinary Rules to refer complaints to the ARB for investigation if appropriate.

Currently, the ARB's investigations regime is set out in two documents, in addition to the Standards of Conduct and Practice itself:

1. The Acceptance Criteria 2022, which sets out what criteria ARB applies when screening new complaints; and
2. Investigations and Professional Conduct Committee (PCC) Rules 2022 (Rules).

These documents were last updated in 2022 and apply to cases where a report was made to the PCC on or after 1 April 2022.

ARB also provide a handy checklist for architects to use when responding to ARB, a process flowchart, and a suite of guidance notes. The process is also explained, with practical tips, in our series of articles.

What's changing?

The ARB has consulted on changes to its Rules which aim to improve the quality of decision-making manage expectations, and reduce turnaround time for complex and technical complaints. The proposed new rules, which are set out in a consultation can be viewed online here.

The proposal involves splitting the Rules into two documents: one set of rules governing investigations, and one governing the PCC phase. The proposed new PCC rules are largely the same as the existing ones, but the proposed new Investigations Rules contain substantial changes. In particular, they introduce two new decision points where the Case Examiner (previously called an Investigations Officer) can decide to take no further action, but also curtails an architect's rights to have the outcome reviewed by a third party independent to the ARB.

Investigations rules

The key proposed changes to the investigation process are as follows:

1. The investigatory process will triggered by "an allegation of unacceptable professional conduct or serious professional incompetence of a Registered Person" (RP), rather than "concerns as to unacceptable professional conduct or serious professional incompetence…" In most cases nothing will turn on this, but it does narrow the circumstances in which the ARB can investigate, encouraging complainants to actually set out an allegation rather than vaguer "concerns".

2. The RP will have opportunity to make "written representations", rather than simply to "comment" (as under the existing rules). This signals the seriousness and formality of the process and may encourage RPs to take legal advice earlier, which may give them a better chance of their desired outcome.

3. The Case Examiner (currently called Investigations Pool Member) can decide to take no further action upon receipt of an allegation, or after receipt of the RP's written representations.

4. Allegations will be considered by 2 Case Examiners: one lay and one registered, who will decide whether there is a case to answer. If the Case Examiners disagree, then a third Case Examiner will be appointed and the decision will be made by majority. Currently 3 investigators will be appointed: 2 lay and 1 registered. This proposed change is probably fairer to RPs as it means that their conduct will be judged by a balanced panel of lay person and peer.

5. The Case Examiners' entitlement to request information and documents from the RP are slightly widened from a request "for information and evidence (including for an inspection of such at the Registered Person’s business premises)" to "supply[ing] any information or document which appears relevant, including facilitating inspection of such at the Registered Person's business premises." This could increase the burden on the RP in supplying documents which appear to be relevant but, in fact, are not - although the distinction is not likely to be material in most cases.

6. There will be a new factual element of the test whether there is a case to answer. While it remains the case that there must be a realistic prospect that a finding of unacceptable professional conduct or serious professional incompetence, the Case Examiners must also be satisfied that there is a realistic prospect of the material facts being proven on the balance of probabilities. Again, this will be good news for RPs if enacted as it fleshes out the considerations relevant to Case Examiners applying the threshold test.

7. The RP's or complainant's entitlement to a review of the Case Examiner's initial decision will be restricted to cases where the person seeking a review "consider[s] there have been deficiencies in the process", rather than simply if they are "dissatisfied" (as under the current rules). This is a double-edged sword as both the RP's and the complainant's grounds for review are curtailed here, but is more likely to be relevant where a lay complainant's unjustified view that unacceptable professional conduct has taken place is entrenched meaning they are unwilling to accept the decision. We therefore anticipate that this change will act to save the ARB's and RP's time and costs in this instance.

8. Crucially, though, the only review available if there are procedural deficiencies is an internal review by the ARB. Complainants and RPs will no longer have the benefit of a review by a "person or firm independent of the ARB instructed by the Registrar".While this will presumably be a significant cost and time-saving measure, it raises concerns around independence and that the ARB will be "marking its own homework" and removes third party oversight short of the PCC stage. In its press release, the ARB says that it is particularly interested in in "views on the fairness, clarity and practical impact of the new model". This is a key change potentially impacting fairness, so may be the most contentious proposal.

9. There is also a change in the deadline for requesting an internal review from 30 days to 28.

10. Another key aspect of the internal review process which is not substantially changed by the new rules, but which stands out as potentially unfair is that an internal review will only be ordered if the deficiencies would lead the Case Examiners to refer the matter to the PCC. What if the deficiencies lead them to dismiss the complaint and take no further action? This imbalance appears to give complainants a second bite at the apple but affords RPs no similar opportunity. Architects may wish to take the opportunity presented by the consultation to raise this issue; particularly as it impacts procedural fairness. New rule 6.5 allows Case Examiners to conclude that there is no case to answer, but this concerns the possible outcome, not the threshold test for accessing an internal review.

11. A further review by the Registrar (again, not by an independent third party) is now only possible where the Registrar considers that it is necessary in the public interest (a high bar) and:
    • The decision may be materially flawed wholly or partly; or
    • There is new information which may have led, wholly or partly, to a different decision.

12. Finally, the requirement for the PCC report to include a summary of what each witness is expected to say will be removed.

Conclusion

The proposed changes are important to architects, their insurance brokers and their professional indemnity insurers and lawyers specialising in representing architects in disciplinary cases as they govern a high stakes process which must be underpinned by procedural fairness. Clear procedures are helpful, but some of the proposed changes should give architects cause for concern as they curtail some protections currently available to professionals under investigation.

Stakeholders should look out for the ARB's response to the consultation and ensure that they familiarise themselves with the proposed new rules.

Emma Wherry, Sarah O'Callaghan or Ben Goodier would be delighted to discuss any queries or comments arising from this article, or indeed to support any architects currently undergoing the stressful experience of a referral to the ARB or other professional body.