Underground movement
Gaining access to public sewers that are causing potential subsidence damage has traditionally been beset by red tape, but a new protocol could clean up the process, writes Jane Bernstein
If good things come to those who wait, then a new protocol - which has been six years in the making - should be very good indeed. The initiative addresses some crucial problems relating to public sewers and subsidence and has been agreed between Severn Trent Water and the insurance industry's own Subsidence Forum. Due to be launched next week on 21 October, the agreement aims to overcome challenges faced by loss adjusters investigating subsidence near public sewers (Post, 2 October, p10).
Defective sewers continue to cause subsidence problems for properties in the UK but attempting to investigate them has been a difficult and frustrating process. Where public sewers are maintained by the water companies, there has historically been no clear process for loss adjusters to follow in order to gain access or carry out repairs. The result has often been a stand-off that has delayed claims and frustrated customers.
Graeme Phipps, director of SP Property Services, has been a driving force behind the new protocol since work began on it in 2002. He explains: "The most significant problem was a lack of effective communication when it came to sewers that were implicated in a subsidence claim. Attempting to address the problems would normally involve numerous letters between the water companies and those working on behalf of the insurers in order to carry out investigations or repairs. Because there has been no defined point of contact or communication process, it has often been a case of waiting months rather than weeks to resolve the issue." Mr Phipps adds that there are also fundamental differences in the way the water companies and insurance industry classify damage and defects.
Long-awaited resolution
The new protocol, which has been agreed by Severn Trent Water and key members of the insurance industry, aims to provide some crucial solutions. The formation of the working party in 2002 to address the issues was widely welcomed and has had the full support of key bodies such as the Subsidence Forum and Drainage Forum. So why has it taken so long to come to fruition?
Richard Rollet, technical director of building services for Crawford & Company and a Subsidence Forum member, points to the inherent difficulties in galvanising all the diverse parties. "It's been about building bridges and trust between people who don't regularly talk to each other."
Nigel Barham, director of building services at GAB Robins UK and deputy chairman of the Subsidence Forum, adds: "This is the first formal agreement of its kind, involving a topic that has traditionally generated a degree of mistrust and misunderstanding between the parties concerned. It was important to overcome this and develop trust and co-operation."
Independent consultant Tony Boobier has been involved with the industry's discussion groups for subsidence and drainage since their outset and still sits on the latter. He observes: "The amount of effort it takes for organisations to work together, rather than against each other, shouldn't be underestimated. People are often defensive and suspicious. It is partly about building an environment of trust, then how best to translate that trust into practical benefit."
John Parvin, head of subsidence claims at Zurich and former chairman of the Subsidence Forum, however, does not believe it has been a question of the two parties failing to agree until now. He describes a more gradual process, in which informal arrangements were agreed in the interim, and says the current protocol formalises those agreements.
The question is - does the end result provide satisfactory solutions? Mr Phipps is enthusiastic: "We have agreed how we're going to talk to each other and the timescales within which we need to respond. We have also agreed on the quality of reporting - and, in particular, the information that should be sent to the water companies from day one." (see box, p25).
The consensus suggests this agreement is just the first step. Frazer Fletcher, chief engineer at Merlin Claims, explains: "It's a very good blueprint for the way forward, although it's obviously only between Severn Trent and the insurance industry for the moment. The protocol will need to be rolled out and other water companies will inevitably have different points of view."
Mr Parvin adds: "It should not be set in stone; this needs to be reviewed and the effectiveness measured. Fundamentally, what we've outlined works well but it's important there is a mechanism for reviewing it."
Flexible friends
Most certainly seem to agree a degree of flexibility will be vital and all parties must be prepared to review the protocol in the future. Iain MacLean, director of subsidence and surveying services at Davies Group, explains: "What we have is a reality check that reaches some middle ground between the issues of water authorities and loss adjusters. It should improve matters and be capable of being developed and expanded so that, in 10 years time, we've got a far better controlled and standardised system than we've had to date."
Gary Strong, director of practice standards and technical guidance at the Royal Institution of Chartered Surveyors, has been involved from the outset and was formerly subsidence and surveying services director at GAB Robins. He emphasises: "I would like to see other water authorities pilot this as soon as possible." Indeed, securing buy-in from other water authorities will be a key test of the protocol's success. And there is much optimism that this will be achieved. "Why wouldn't they get involved?" asks Mr Phipps. "It's all about simplifying the process and making it more efficient."
Inviting feedback
Severn Trent is also confident the pilot will be welcomed by other water companies. A spokesman confirms: "We have invited other water companies across the UK to the launch later this month and their feedback has been positive and enthusiastic."
It is equally important, of course, to secure the involvement of the wider loss adjusting and drainage communities. Julia Wilkinson, a partner at Plexus Law, points out that as with the recently launched Joint Mitigation Protocol for tree root removal (see p26), this latest agreement will not be legally binding. But it is hoped the benefits will speak for themselves. Ms Wilkinson points out that any protocol designed to implement co-operative working practices is likely - if embraced by the relevant parties - to reduce the costs associated with claims that could otherwise arise and become litigious.
Mr Boobier emphasises the tangible benefits to be gained from this particular protocol: "The key is to recognise the vast amount of energy spent in confrontation, and how process improvement translates into cost efficiencies and improvements in customer service. As organisations increasingly recognise the cost benefit, then they will be prepared to take the next step."
Furthermore, Sarah Dodd, associate at Eversheds and chair of the legal and recovery sub-committee of the Subsidence Forum, points out that while the protocol is not binding in law, compliance with it may serve as evidence of the reasonableness of a party's conduct in the event of a dispute.
Mr Rollet adds that loss adjusters will need to provide guidance and advice to their personnel on adhering to the protocol. Mr Fletcher agrees: "The people that attend the launch will need to take the issues back to their own companies, carry out some internal training and change their own processes. And the water authorities will have to do likewise."
According to Mr MacLean, the Davies Group has initiated relevant training in anticipation of the launch. It has also planned another two-day training seminar for the relevant staff at the beginning of December.
As far as raising awareness among loss adjusters is concerned, Mr Barham points out that the initiative is being spearheaded by the Subsidence Forum of which most loss adjusters involved with subsidence are members. "The forum also works closely with the Chartered Institute of Loss Adjusters' specialist interest group for subsidence. Details and protocols for usage are being briefed out via these two organisations. In fact, there was a briefing at the CILA SIG conference on 24 September and the Subsidence Forum is working jointly with Severn Trent on the official launch, which is taking place on 21 October."
It will also be vital to raise awareness among insurers. Mr Strong observes: "We need as many insurers as possible to endorse this, as they will in turn be the drivers for insisting their suppliers abide by it - that includes loss adjusters and drainage companies."
The advantages to be gained from the new initiative go beyond the stipulations of the protocol itself and there is a view that the process of achieving the agreement has helped create a greater understanding and better relationship between the parties involved.
Indeed, Mr Rollet identifies this dialogue as one of the initiative's key successes to date. The communications process set out in the protocol should do much to repair what has been a tense relationship between two very different industries. "It has been an issue that people have been passionate about," emphasises Mr Phipps, adding: "Where claims have been delayed, people have naturally been frustrated. What we are doing now is trying to take the agitation out of the equation."
Growing understanding
Severn Trent's spokesman emphasises that the protocol itself is evidence of a greater understanding, adding: "We hope that the launch of a new protocol will ensure this level of understanding is maintained."
As well as being welcomed by both the insurance industry and the water bodies, this protocol is also good news for claimants. "It's important to remember that we are dealing with people who are customers of both Severn Trent and the insurance company," explains Mr Phipps.
Teething troubles are bound to arise and require review once the pilot is up and running and Mr Boobier asserts: "The biggest issue will be that of interpretation of the protocol, but at the end of the day it is all about the spirit of working together." But those who began work on this project in 2002 feel their patience has been rewarded.
What has emerged is not just a list of agreed actions but a better working relationship between two diverse industries. Speed will now, however, be of the essence in securing the involvement of the wider water and insurance industries. As the spokesman for Severn Trent concludes: "We'd like both industries to adopt the protocol as soon as possible."
WHAT IS THE LEGAL STATUS OF DRAINS AND SEWERS?
According to Julia Wilkinson, partner at Plexus Law: "The law relating to drains and sewers is complex and distinctions need to be drawn between the two. Broadly speaking drains are not within public ownership whereas sewers may be. Under the Public Health Act 1936, most sewers then existing - those built before 1937 - became public sewers with effect from 1 October 1937 and the responsibility of the sewerage companies. These sewers are often located on private land and associated with subsidence claims but water companies are able to deny access to them by loss adjusters."
Sarah Dodd, associate at Eversheds law firm and chair of the legal and recovery sub-committee of the Subsidence Forum, adds: "Special provisions apply to public sewers under highways. The government has consulted on a proposal that sewerage undertakers adopt all private sewers connecting to a public sewer as a means of a resolving the many disputes that currently arise as to the legal status of sewers on private land."
SUBSIDENCE CLAIMS HANDLING PROTOCOL WITH SEVERN TRENT WATER
Graeme Phipps, director of SP Property Services, outlines key features of the new protocol:
"It's estimated that 10% to 15% of subsidence drainage claims involve dialogue with a water company (based on the number of Severn Trent enquiries and Association of British Insurers statistics). The protocol ensures agreed points of contact, timescales and working practices are followed, introduces accreditation guidelines for contractors and a generic framework for reporting.
The protocol will apply where subsidence has occurred within three metres of a public sewer and is subject to investigation by a loss adjuster or insurer. Its purpose is to:
- Ease communication between water companies, insurers and their representatives - via one contact point, for initial claims and supporting documents and a dedicated helpline, which can be used to check the potential presence of public sewers within a property.
- Speed up the claims process - via services standards. For example, Severn Trent will confirm the extent of any public sewers within a property by 10 working days, and confirm the extent of repair work to be undertaken 10 days after that. Repairs, where accepted, will be undertaken within 35 days, following confirmation that the affected pipe is a public sewer.
- Improve the information flow - via an agreed checklist, giving guidelines for the level of information required from the loss adjuster or engineer.
- Reduce health and safety risks - via acceptance that drainage investigations can only be undertaken by Water Research Centre accredited contractors and drainage surveys will be carried out using water industry classification scorings, grades one to five (one being negligible damage, five being the most severe).
- Remove claim disputes - via an agreement that in certain situations repairs can be undertaken and funded by the insurer (dependent on classification scoring).
The protocol is being launched at Severn Trent's Cropston Visitor Centre in Leicestershire on Tuesday 21 October."