Grounds for complaints

Irina Vanags, Investigator for the Occupational Regulation Team at MBIE, covers why an LBP may be subject to a complaint and what to do if you are

The Licensed Building Practitioners scheme (LBP) was introduced in 2012 to improve the construction sector’s performance and hold practitioners to account. While the LBP licence comes with a formal recognition of the builder’s competence and grants the holder a right to carry out or supervise Restricted Building Work (RBW), it also sets up high expectations of the LBP’s performance and behaviour. 

The RBW and other work must be completed to a certain standard and be compliant with the Building Code. If standards aren’t met, clients can take their grievances to the Building Practitioners Board (the Board).

Deviation from the expected standards or the building consent, negligent work and failure to provide a Record of Work (RoW) are a few examples of grounds for complaints the Board has received from the affected parties.

Grounds for discipline

There are 11 grounds for discipline as stated in section 317 of the Building Act 2004. Those include:

• Being convicted by any court in New Zealand or elsewhere of any offence punishable by imprisonment for a term of six months or more.
• Carrying out or supervising negligent or incompetent building work.
• Carrying out or supervising building work of a type that the practitioner is not licensed to carry out or supervise.
• Carrying out or supervising building work that does not comply with a building consent.
• Failure to provide a Certificate of Work about any plans and specifications required to accompany the building consent application (Designers) or a RoW on completion of the RBW (Building Practitioners).
• Holding oneself as being licensed to carry out or supervise building work or building inspection work of a type that you are not licensed to carry out.
• Making a false declaration or representation, knowing it to be false or misleading.
• Breaching the code of ethics for Licensed Building Practitioners.
• Conducting oneself in a manner that brings, or is likely to bring, the LBP regime into disrepute.

The most common ground for discipline is negligent work or poor workmanship. This may include anything from using incorrect fixings to any deviation from good trade practice or the Building Code. 

It is important to remember that the term ‘negligent work’ covers not only the RBW but any type of building work where the LBP did not demonstrate due diligence in completing the work. 

If an LBP does not provide a RoW following the completion of RBW, they may also face a penalty. Remember, if you did not complete the project, or your contract was terminated, you are still required to provide the RoW for work you completed.

It is worthwhile mentioning that the Board does not yet enforce Code of Ethics breaches, simply because the Code of Ethics was only recently developed. There is a one-year transition period until 26 October 2022 for LBPs to familiarise themselves with the expected standards of behaviour in the industry.

Complaints process

What happens if your client/contractor/council makes a complaint against you to the Board under one of the above grounds? An investigator from the Ministry of Business, Innovation and Employment (MBIE) will contact you and provide you with a full set of complaint documentation. You will have 20 working days to study the documentation, consult with your lawyer (if necessary), obtain expert opinion (if required) and produce a response. 

While the situation may be extremely stressful for you, it is a good idea to provide your response to the investigator, as this is your chance to present your side of the story, explain your actions, and provide evidence to support your statements. Upon receiving your response, the investigator will write a report to the Board summarising the information received from both parties. Consent-related documentation may be requested from the Council as well. 

The Board makes a decision on whether to proceed with the hearing. The hearing can be held on papers in some cases, which means that the Board will decide based on written submissions from both parties. The purpose of the hearing is to further investigate and determine if a disciplinary offence has been committed by the LBP. If the Board decides it has, then they will also consider the appropriate penalty, if costs should be imposed, and whether the matters should be published.

Penalties

The penalties may include one or more of the following:

• Suspension or cancellation of the LBP licence.
• Restrictions on the kind of work LBP can do.
• A fine of up to $10,000.
• Order the LBP to complete certain training.
• A formal reprimand of the person.
• Order the LBP to pay costs.

Knowing your rights and responsibilities, fine-tuning your client interaction practices and increasing your level of competence would help you achieve a high level of compliance with the current legislation and avoid going through the stressful disciplinary process.  

 

This article is an excerpt from Codewords Issue 105 . Reading Codewords articles that are relevant to your licence class is a mandatory requirement for Licensed Building Practitioners. These questions can be answered through the LBP portal, online on the Under Construction website or recorded on the magazine, then provided at the time of renewal.