Disciplinary Panel Hearing

Case of

Mr Andrew Kitching FRICS

On Monday 22 and Tuesday 23 October 2018

At 55 Colmore Row,

Birmingham.

Panel John Anderson (Chair) Christopher Pittman (Surveyor Member) Jonathan Green (Lay Member)

Legal Assessor

Alastair McFarlane

RICS Presenting Officer James Lynch

Hearing Officer

Jae Berry

The formal charge is:

1. When signing a final certificate in respect of building works at Christmas/Two Cocks

Farm and Brewery, you failed to act with due skill, care and diligence, contrary to

Rule 4 of the Rules of Conduct For Members 2007

Particulars

a. On 9 December 2013 you signed a final certificate to confirm that the works

undertaken the Christmas Farm has been undertaken in accordance with the

Building Regulations 2010

b. You signed the final certificate on behalf of your then employer ADC, who was

then the Approved Inspector in relation to the works

c. By signing that final certificate, you were confirming, inter-alia, that the

building works has been undertaken in accordance with Regulation J2 to the Building

Regulations 2010, namely that the flue to the fire had been installed so as to have

adequate provision for the discharge of products to the outside air.

d. You failed to carry out appropriate checks to ensure that the building works

had been carried out in accordance with Regulation J2 to the Building Regulations

before signing that final certificate.

You are therefore liable to disciplinary action under Bye-law 5.2.2 (a) and/or (c)

Representation

1. RICS was represented by Mr Lynch and Mr Kitching was present and

represented himself.

Bias Determination

2. At the outset of the hearing, Mr Pittman made a declaration that he had

been appointed to CICAIR’s policy committee and Complaints, Disciplinary

and Appeals committees in October 2017 and noted the reference to

CICAIR in the papers. It noted that neither Mr Lynch for RICS nor Mr

Kitching had any objection to Mr Pittman continuing to sit on this because

of this. The Panel accepted the advice of the Legal Assessor.

3. The Panel was satisfied that a fair-minded and informed observer knowing

the facts, would not conclude that there was a real possibility of bias in Mr

Pittman continuing to sit.

Preliminary Application

4. Mr Lynch invited the Panel to disregard all the references in the bundle

relating to CICAIR’s findings in relation to its case at first instance and on

appeal in relation to Mr Kitching’s employer (ADC) as he accepted it should

not be relied upon by the Panel in relation to RICS’ case. Mr Kitching

supported this application. The Panel accepted the advice of the Legal

Assessor.

5. The Panel was mindful of the decision of Holman J in Enemuwe v Nursing

and Midwifery Council [2015] EWHC 2081 (Admin) and was satisfied that

the evidence relating to CICAIR’s findings was not admissible, and, as

judges of law, directed itself as judges of fact to disregard this material.

DETERMINATION

Background

6. Mr Kitching is a Fellow of RICS, admitted on 1 January 2001. At all

material times Mr Kitching was employed by Approved Design Control

("ADC”) as a senior surveyor.

7. ADC was instructed by Mr B and Mr P ("the clients") to undertake building

control services on a new property that they were building at Christmas

Farm/Two Cocks Farm and Brewery (the “property”). Some of the building

work involved the construction of a new fireplace and flue to in the living

room. As the owners of the property the clients were responsible for

ensuring that all building works were carried out in compliance with the

Building Regulations 2010 "(the Regulations").

8. The Clients instructed ADC to oversee and review the project and to

ensure that the work undertaken was compliant with the Regulations. ADC

did so under the Building (Approved Inspector) Regulations 2010. ("The

Approved Inspector Regulations"). ADC was the Approved Inspector for

the purpose of the Approved Inspector Regulations and was therefore

required to "take such steps as are reasonable to the case to be satisfied

within the limits of professional skill and care that…the Principal

Regulations are met." In respect of the installation of the fireplace/flue, the

Principal Regulations are Part J of the Building Regulations – in particular,

J2 which states:

"Combustion appliances shall have adequate provision in the discharge of

products of combustion to the outside air".

9. The flue was fitted by a non-HETAS qualified engineer J, a blacksmith,

chosen by the clients. He did not issue a safety certificate confirming that

the fireplace/flue was compliant with Part J of the Building Regulations.

RICS Submissions

10. RICS submitted that Mr Kitching did not undertake his own tests to ensure

that the fireplace/flue was compliant and that in those circumstances it was

inappropriate for Mr Kitching to sign the final certificate confirming that the

works had been undertaken in accordance with the Building Regulations.

Mr Kitching signed the project completion certificate on 9 December 2013.

11. Shortly before completion the fire at the property was lit, and the clients

reported smoke billowing back into the living room instead of passing

safely through the flue into the outside air.

Mr Kitching’s Submissions

12. Mr Kitching submitted that he had acted with diligence care and skill. He

emphasised the unique nature of this project that he had exercised his

professional judgment, built on many years of experience, when dealing

with this project and submitted that he had taken all reasonable steps, in

the circumstances, when he signed the certificate to ensure that the clients

fulfilled their responsibility in meeting the requirements of the regulations.

Findings of fact

13. The Panel carefully considered all the evidence it received. This consisted

of the Council’s bundle consisting of 204 pages and the expert evidence of

Mr Walker, the expert called on behalf of RICS. In addition, it received a

bundle of documents from Mr Kitching, which included a detailed document

headed "Answers to charges", as well as receiving his oral evidence and

viewing the video evidence he presented.

14. The Panel reminded itself that the burden of proving the charge was on

RICS alone and that the standard of proof was the ordinary civil standard,

namely the balance of probabilities. The Panel accepted the advice of the

Legal Assessor.

15. The Panel had to make an assessment of the expert witness, Mr Walker.

He had only practised as a building control surveyor for one year, as long

ago as 1978. Further, it noted from his letter of 6 January 2017, that he

had canvassed the view of two other senior building inspectors "to see

what they would do before accepting completion". One inspector indicated

that he would not require a smoke or pressure test of any sort and was of

the view that "even the best installed solid fuel fires do blowback smoke

into the room under adverse weather conditions…so a one-off test would

be pointless". The other inspector took a contrary view. The Panel noted

that Mr Walker did suggest that if the installer was not HETAS registered,

the inspector is faced with someone who has to prove his competence. Mr

Walker stated that a reasonably competent surveyor would not have

signed the certificate based on an “assumption” that the installer had

undertaken a smoke test but then stated that “if he knew the guy had done

a good job 20 times”, the surveyor could have signed the certificate. The

Panel was not impressed with Mr Walker's lack of relevant and recent

building control experience and found his oral evidence to be inconsistent

on occasion and of little assistance to the Panel.

16. The Panel accepted that Mr Kitching was a surveyor of many years

experience in this field. It found him to be a credible witness. It noted that

he accepted that he was under a requirement to have take reasonable

steps to be satisfied that this fire and flue had adequate provision for the

discharge of products of combustion to the outside air (Part J2). The Panel

noted the steps that Mr Kitching detailed that he had taken to comply with

the obligations on him. It noted that he had contacted the installer (the

blacksmith, J) on two separate occasions. He had discovered that he was

not HETAS registered and had researched his website as to his

competence. Blacksmith J had assured him that he did this work “all the

time” and that the reason that the clients wanted him was for the

construction of two specific features – a feature cowl on the top of the flue

together with a grate at the bottom of the fire. The second phone call was

made during the construction phase and Mr Kitching detailed a discussion

with Blacksmith J regarding the flue passing through the roof space and Mr

Kitching’s suggestions as to the use of lined plasterboard to ensure

separation of the flue from any combustible material in the roof. Mr Kitching

told Panel that he was satisfied as to Blacksmith J’s competence and was

also confident in the abilities of his colleague (Mr A) who had also been

involved in the project, to ensure that the requirements of the building

regulations were met.

Charge 1

17. The Panel noted that there was no dispute between the parties in relation

to the facts alleged in particulars a., b., and c., which the Panel was

satisfied were background facts. Accordingly, it found these particulars

proved.

18. The gravemen of RICS’ case was set out in particular d. The central

question for the Panel was whether RICS had proved that the steps,

(which it accepted that Mr Kitching had taken) were not sufficient, in the

particular circumstances of this case, to discharge his duty to take

reasonable steps to satisfy himself that the fire and flue had adequate

provision for the discharge of products of combustion to the outside air.

19. The Panel considered it significant that before the signing of the

certificate, Mr Kitching was aware that there was an issue with the

ventilation of the fire. Having identified the problem he arranged for the

architect to change the design. In those specific circumstances, (in

particular, after the change of the design) the Panel was satisfied that Mr

Kitching's duty to take reasonable steps included satisfying himself that the

fire functioned properly before signing the certificate. In other words,

ensuring that the particular risk he had identified had been satisfactorily

addressed. This could have been done by Mr Kitching inspecting the fire

himself or simply by a phone call to the installer, Blacksmith J. The Panel

was not persuaded that Mr Kitching's obligation extended to ensuring that

a formal smoke test was carried out, but it accepted that he did need to

satisfy himself that the combustion products were being removed safely.

This he did not do and ought to have done. Accordingly, the Panel was

satisfied that particular d. was proved and that this amounted to a breach

of the duty upon him to act with due skill, care and diligence.

Liability for Disciplinary Action

20. RICS submitted that the charge was sufficiently serious to render Mr Kitchen liable to

disciplinary action under bylaw 5.2.2 (c) alone.

21. Mr Kitching disputed the failure was sufficiently serious to render him liable for

disciplinary action.

22. The Panel accepted the advice of the Legal Assessor. It reminded itself that liability

to disciplinary action was a matter for the judgment of the Panel. It was satisfied that

Mr Kitching’s failure, albeit one error, had the potential to cause harm to the

occupants and was sufficiently serious to render him liable to disciplinary action.

Sanction

23. The Panel next considered sanction. It noted the submissions of RICS and

Mr Kitching. It accepted the advice of the Legal Assessor. It had regard to

RICS Sanctions Policy and bore in mind the overriding principle of

proportionality.

24. The Panel bore in mind that the purpose of sanctions is not to be punitive, though

that may be their effect. The purpose of sanctions is to declare and uphold the

standards of the profession, to safeguard the reputation of the profession and of

RICS as its regulator and to protect the public. Sanctions must be proportionate to

the matters found proved.

25. The Panel considered carefully the mitigating and aggravating factors of this case as

well as the issue of proportionality in weighing up the most appropriate response.

26. The Panel considered that the following mitigating factors were present:

• Mr Kitching had no previous disciplinary record, and had had a long and

otherwise unblemished professional career

• The failure was one isolated error of professional judgment

• Mr Kitching had undertaken some steps to comply with his duty, and the

failure was on the specific basis that having identified an issue with the

discharge of the products of combustion and having sought to address this by

having the architect change the design of the fireplace, he ought to have taken

one further step to close the loop by satisfying himself that the fire was

working safely

• He had fully co-operated with the regulator

• There was some limited indication of Mr Kitching having health issues and

workload issues at the time, but Mr Kitching did not seek to advance these

matters

27. The Panel considered that the following aggravating factor was present:

• Mr Kitching has not demonstrated insight into the failure

• There was a potential risk of harm to members of the public.

Decision

28. The Panel considered the matters are too serious for no sanction at all to be

imposed. They considered the sanctions in ascending order.

29. The Panel considered that a Caution was insufficient to mark the seriousness of the

behaviour (the failings could not be described as "minor") or to adequately maintain

the reputation of the profession. Further, given Mr Kitching’s lack of insight, the

Panel was satisfied that there was a risk of repetition.

30. Bearing in mind the mitigating factors, the isolated nature of this one error of

judgment as well as the potential for the risk of harm from the failing, the Panel was

satisfied that a Reprimand was an appropriate and proportionate sanction in all the

circumstances.

31. The Panel did consider whether to impose a Fine in addition to the Reprimand. It had

regard to Supplement 2 to the Sanctions Policy in relation to Fines. It reminded itself

that the purpose of any sanction is not to be punitive and noted that the submissions

made about Mr Kitching’s limited means. Considering all the circumstances,

including Mr Kitching’s ability to pay, it did not consider that it was appropriate to

impose a financial penalty in addition.

32. The Panel was satisfied any higher sanction would be disproportionate in the

circumstances of this case.

Publication

33. The Panel noted the competing submissions of the parties on the issue of publication.

It did not consider that Mr Kitching’s arguments that publication would send the wrong

message to the profession as valid. It considered that there was no basis for departing

from the presumption of publication. The Panel considered the policy on publication of

decisions, The Sanctions Policy Supplement 3 - Publication of Regulatory Disciplinary

Matters. This decision will be published on the RICS website and in the RICS

magazine Modus.

Costs

34. RICS made application for costs in the sum of £15,222. Mr Lynch conceded that there

should be some reduction owing to the shorter time that the case has taken to

adjudicate. Mr Kitching explained his limited means.

35. The Panel noted that the case had taken less time than anticipated and accordingly

reduced the Hearing costs to 1.5 days (£3975) and Mr Lynch’s attendance to £1400

as conceded by Mr Lynch. It also considered the amount claimed for perusing

documents to be excessive and reduced this to £600. The Panel disallowed the

expert’s costs as it considered the expert to have been an inappropriate instruction

and did not assist the Panel. In the circumstances, it concluded that it was fair and

reasonable to direct that Mr Kitching pay RICS’ costs in the sum of £7,775.

Appeal Period

36. Mr Kitching has 28 days, from the service of the notification of the decision, to appeal

this decision in accordance with Rule 59 of the Rules.

37. In accordance with Rule 60 of the Disciplinary, Registration and Appeal

Panel Rules, the Honorary Secretary of RICS has 28 days, from the

service of the notification of the decision, to require a review of this

Decision.