Dr Alaa Al-Sohaini
THE ARCHITECTS REGISTRATION BOARD
PROFESSIONAL CONDUCT COMMITTEE
In the matter of
Dr Alaa Al-Sohaini (074464F)
Held as a video conference
15 -17 March 2021
Emma Boothroyd (Chair)
Robert Dearman (PCC Architect Member)
Rachel Childs (PCC Lay Member)
In this case, ARB is represented by Ms Kathryn Sheridan of Kingsley Napley LLP.
Dr Al-Sohaini only attended the second and third day of the hearing and was not legally represented.
|The Professional Conduct Committee (“PCC”) found Dr Al-Sohaini guilty of unacceptable professional conduct (“UPC”) and in that he:
(1) did not provide adequate terms of engagement to the Complainant, contrary to standard 4.4 of the Architects Code;
and that by doing so, he acted in breach of Standards 4.4, 6.1, 10.2 of the Architects Code: Standards of Conduct and Practice 2017 (“the Code”).
The sanction imposed is a 12 month suspension.
- In this case, the Board is represented by Ms K Sheridan. Dr Al-Sohaini has not attended this hearing and is not represented. Dr Al-Sohaini faces one allegation of unacceptable professional conduct based on three particulars in that:
1. He did not provide adequate terms of engagement to the Complainant contrary to Standard 4.4 of the Architects Code;
2. He did not adequately advise the Complainant in relation to the development of a dormer in their property in that he:
(a) Did not confirm with the Local Authority whether Planning Permission was required and/or whether the design would be acceptable under permitted development; and/or
(b) Prepared a design that was not in keeping with the design, character and appearance of the existing house and street scene.
3. He did not provide an adequate and/or appropriate response to a complaint in compliance with Standard 10 of the Architects Code.
- Dr Al-Sohaini (“the Respondent”) not having attended the hearing, the Committee considered whether notice of the hearing had been served in accordance with Rule 6 of the Professional Conduct Committee Rules (“the Rules”). The Committee heard from Ms Swanston, Hearings Officer at ARB that served notice, containing the required information, had been served on the Respondent by a letter dated 22 January 2021 by post to his address on the Register, more than the 42 days in advance as prescribed by the Rules. Having heard and accepted the advice of the Legally Qualified Chair, the Committee is satisfied that notice had been served in accordance with the Rules.
- Ms Sheridan applied for the Committee to proceed in the absence of the Respondent. She submitted that it was fair to proceed in all the circumstances having regard to the chronology of the Respondent’s engagement with the process to date. She submitted that the matters were serious and there was a clear public interest in the timely disposal of matters. This was a project dating back to 2018 and there was one witness due to give live evidence. Ms Sheridan submitted that the Respondent has not provided the Committee with any explanation for his absence today and has not asked for the hearing to be adjourned and it could be inferred that he would be unlikely to attend on any future occasion. Ms Sheridan submitted that the Committee could conclude that the Respondent had decided to voluntarily absent himself from this hearing.
- The Committee then considered whether to proceed in his absence. The Committee has applied Rule 11 of the Rules, the principles set out by the Court of Appeal in R v Hayward  EWCA 168, R v Jones (Anthony William)  1 AC 1 and approved in the House of Lords  1 AC HL and of GMC v Adeogba and Visvardis  EWCA Civ 162.
- The Committee has paid particular attention to the following factors in deciding whether it is in the interests of justice to proceed:
i. The nature and circumstances of the absence of the Respondent and in particular whether the behaviour may be deliberate and voluntary;
ii. Whether, despite the absence, the Respondent has expressed a wish to attend and be represented at the hearing;
iii. The extent of the disadvantage to the Respondent in not being able to give evidence having regard to the nature of the case;
iv. The seriousness of the allegations;
v. The general public interest and in particular the interests of any victims or witnesses, that a hearing should take place within a reasonable period of time to which it relates.
- The Committee has exercised the utmost care and caution in reaching its decision, and has carefully considered the overall fairness of the proceedings. It has balanced the potential impact on the Respondent’s livelihood and reputation in hearing the matter today in his absence, as against the public interest in proceeding with the hearing in a timely manner.
- In reaching its decision, the Committee has had regard to the chronology of the Respondent’s engagement with the hearing process. It had regard to a number of emails from the Respondent to ARB and took into account its previous decision to adjourn the last hearing to enable the Respondent to attend. When asked about dates to avoid in an email dated 21 January 2021, the Respondent stated “the 15 March will be okay for the hearing.”
- The Respondent emailed the hearings officer on the 11 February 2021 and attached his response form. That form indicated that the Respondent would be attending the hearing. He was encouraged to provide documents in support of his defence and the hearings officer forwarded the proceeding in absence bundle via email on 12 March 2021.
- Ms Swanston also telephoned the Respondent on the morning of the hearing. No response was received and a voicemail was left confirming that the hearing was in progress and requesting contact.
- It appeared to the Committee that taking all of the above matters into account the Respondent had chosen to voluntarily absent himself from these proceedings. He had provided no explanation for his non-attendance and had not requested an adjournment. This was the second occasion that the matter had been listed for hearing and the date was confirmed with the Respondent as convenient. The Committee considered that given the lack of attendance it could not be confident that the Respondent would attend on any future occasion.
- The Committee noted that there could be a disadvantage to the Respondent in proceeding in his absence today, particularly in circumstances where he has indicated that he does not accept the charge. However, despite being given a reasonable opportunity to provide documents and submissions the Respondent has not submitted any additional defence documents or representations to the Committee aside from the letter provided in June 2020 and has provided no explanation about why he has been unable to do so.
- In all the circumstances the Committee considered that on balance any prejudice to the Respondent was outweighed by the public interest in ensuring that proceedings were concluded expeditiously. These are serious allegations. There is one witness scheduled to give evidence and it appeared to the Committee that any further delay would not be productive. As a professional, the Respondent has a duty to engage with his regulator and it appeared to the Committee that he had decided to waive his right to participate in these proceedings.
- This case arises out of a complaint made by Ms H (“the Complainant”) in respect of the professional services carried out by the Respondent. The Respondent runs his own company, Designex.
- The background to this case is that the Complainant states she approached the Respondent in around November 2018 to assist her with designing a loft conversion to create either one large bedroom or two smaller bedrooms and a bathroom. Initially the Complainant had approached a contractor who had stated that she could build a dormer but she would need an architect to draw the plans. The Complainant stated that she had done some research and followed ARB’s guidance on the website regarding choosing an architect. The Complainant stated that she chose the Respondent because he was registered with ARB and lived in her postcode area so he would be familiar with local planning rules.
- The Complainant states that the Respondent attended for a very brief meeting at her home and confirmed that a dormer would be a good idea. The Complainant stated that she specifically asked whether she would need planning permission and the Respondent told her it was not required. On 3 November 2018 the Respondent sent the Complainant a text message following their meeting at the Complainants home which set out a quote for a survey and plans for building regulations, a beam calculation quote and an estimate of building regulations fees. The Complainant states that this was the only information she received from the Respondent about his terms of business.
- In January 2019 the Complainant contacted the Respondent via text and confirmed she would like to proceed. A few days later the Respondent attended at the property to carry out a measured survey in order to prepare the drawings. The Complainant paid a deposit of £100.
- The Complainant states that in February 2019 she requested some further information about the Respondent’s fees and what was owing. The Respondent had explained that the drawings were ready to submit but she needed to pay the remaining amount. The Respondent explained via email that £350 was owing and the Complainant paid this amount on 16 February 2019. The Complainant states that she then received a bill from a building control company which she also paid.
- The Complainant then instructed her contractor to proceed. The contractor asked if the Complainant had obtained planning permission and building control approval. The Complainant stated that she forwarded the contractor’s email to the Respondent. There was also a telephone call and the Respondent advised that planning permission was not required. The contractor had concerns about the design as he considered it was too large and suggested that the Complainant submit a household enquiry to the Local Authority to confirm the design did not need planning permission.
- On 18 September 2018 the enquiry response from the Local Authority was that the design would need planning permission “as the proposed dormer exceeds the volume allowance of 50 cubic metres.” The Complainant informed the Respondent of this outcome via email and she states that the Respondent telephoned her to explain that he could reduce the volume in the plans to 50 cubic metres.
- On 18 October the Complainant applied for planning permission using the Respondent’s drawings. This was refused in December 2019 on the basis that it did not comply with the guidelines for extending properties in the local area.
- On 3 February 2020 the Complainant emailed the Respondent with a complaint and asked for a refund of money paid to date. The Respondent replied with a brief response on 6 February 2020 and stated that using threats was not acceptable. On 13 February 2020 the Complainant emailed the Respondent again and explained her dissatisfaction and stated she would refer the matter to ARB. On 9 March 2020 the Complainant complained to ARB.
Decision on Facts and UPC
- In reaching its decisions, the Committee has carefully considered the live evidence of the Complainant, and the Respondent, together with the documentary evidence presented to it in the Report of ARB’s Solicitor, the documents exhibited to that report, and the bundles of documents supplied by the Respondent. It has taken into account the submissions made by Ms Sheridan on behalf of ARB.
- The Committee has accepted the legal advice given by the legally qualified chair. It has had regard to the fact that the burden of proof is on ARB and that the civil standard applies, namely proof on the balance of probabilities. Whether the conduct alleged amounts to UPC is a matter for the Committee’s independent judgment to which no burden of proof applies.
- The Committee considered the evidence of the Complainant to be fair and balanced. The Committee considered that her evidence was consistent with her complaint and the documentary evidence in the bundle. The Committee considered she was a helpful and credible witness.
- The Committee makes the following findings of facts:
Particular 1 – Found Proved
- The Committee is satisfied from the documents before it and the oral evidence of the Complainant that the only information provided by the Respondent about his terms of engagement was contained within the text message of 3 November 2018. The Respondent in his response to the allegations sent on 7 June 2020 suggested that this is sufficient to explain the relevant work proposed and included “all T&C of work.”
- The Committee considers that it is plain that this very brief text message does not cover all the requirements of Standard 4.4 of the Code. There is no information regarding the nature and scope of the work, who will be responsible for what, or any adequate details of fees and the method of calculating them. There is no information about the Respondents complaint handling process or insurance arrangements.
- The Committee considered this text message does not form a written agreement as required by the Code and fell short of providing the information required to the Complainant. The Committee was satisfied that the Respondent did not provide adequate terms of engagement to the client as required by the Code.
Particular 2 (a) Found Proved
- The Committee finds the facts of this particular proved in part. The Committee notes from all of the correspondence and the oral evidence of the Complainant that the Respondent repeatedly told the Complainant that planning permission was not required. At no stage did he adequately explain to the Complainant why, in his view, planning permission was not required. There is no explanation within the information provided to the Committee of permitted development and how the design fitted within that scheme.
- The Committee noted the email sent by the Complainant on 3 February 2020 to the Respondent in which she talks about “permitting building regulations.” The Committee considered that the Respondent did not adequately explain to the Complainant, at any stage, his view that he had designed the dormer to be acceptable under Permitted Development rights only. He did not explain to her that the design would not achieve planning permission and he did not explain the difference between those processes and the impact for her as the client.
- It is not disputed that the Respondent was not consulted about the decision by the Complainant to apply for planning permission. In addition, it is clear that the Respondent’s firm view was that planning permission was not required. The Committee does not consider that the Respondent’s failure to check with the Local Authority whether planning permission was required was a failure to adequately advise the Complainant in these circumstances. However, the Respondent failed to properly advise the Complainant about why, in his view, planning permission was not required and that it would not be granted for this design.
- In addition, the Committee has concluded that the drawings prepared by the Respondent did not in fact comply with the rules for Permitted Development and this was not explained to the Complainant. It is the view of the Committee that the Respondent failed to properly advise the Complainant that the dormer could not exceed 50 cubic metres and that the drawings as prepared exceeded this volume. The Committee noted that the Local Authority confirmed that on the basis of the drawings the dormer exceeded the volume and in her oral evidence the Complainant stated that it was 70 cubic metres. In these circumstances the Committee was satisfied that the Respondent had failed to adequately advise the Complainant about whether this aspect of his design would be acceptable under Permitted Development.
Particular 2(b) – Not Proved
- The Committee notes that the design did not meet the requirements for planning permission as it was not in keeping with the design, character and appearance of the existing house and street scene. However, it would only have had to meet these requirements if planning permission was required. The Committee had regard to the householder enquiry form and noted that planning permission was required because of the size of the proposed dormer. It was not stated that this design could not be built under Permitted Development because it was not in keeping with the design and character of the house and street. Further, in an email dated 14 January 2020 from the planning officer he does not state that the design could not be erected under Permitted Development because it is out of character with the house and street scene.
- The Respondent maintained from the outset of the project that planning permission was not required and he was not consulted by the Complainant on the decision to apply for planning permission using his plans. His design was not intended to be used to apply for planning permission and was not prepared in order to achieve that permission. There is no evidence that the Complainant was unhappy with the design when it was shown to her, or that she instructed the Respondent to design the dormer in a way that was in keeping with the house and street scene.
- The Committee noted that the “Extending your Home” guidelines are intended to assist people to ensure “your proposals meet the Council’s standards for planning permission.” This is a separate process to permitted development and the rules and policies relating to the processes appear to have been conflated in paragraphs 55 and 58 of the Solicitor’s report. The Committee has already determined that the Respondent did not make these processes clear to the Complainant in its findings in relation to charge 2a but although he prepared a design that was not in keeping with the street scene there is no evidence that it could not have been approved under Permitted Development if it met the other requirements of that scheme.
Particular 3 -Found Proved
- The Committee considers that the Complainant’s email to the Respondent on 3 February 2020 raising her complaint was appropriate and in no way threatening. The Respondent’s very brief response did not engage with the issues raised and unjustifiably accused the Complainant of threatening him. The Complainant’s follow up email of 13 February was similarly appropriate and the Respondent failed to respond at all. In his response to ARB dated 7 June 2020 the Respondent states he responded in a timely way and offered to re-submit the plans after speaking with the planning department. He labels the Complainant at the conclusion of his response as “unreasonable and unfair.”
- The Committee was satisfied that the Respondent was aware of the correspondence and had chosen to respond in a dismissive and inadequate way.
- In all of the circumstances the Committee considers that the Respondent has not dealt with the complaint adequately or appropriately as required by Standard 10 of the Code.
- Having found the facts of Particulars 1, 2a and 3 proved the Committee went on to consider whether this amounted to UPC. UPC is defined as conduct which falls short of the standard required of a registered person. The Committee had regard to the relevant standards within the Code.
Standard 4.4 of the Code states:
“You are expected to ensure that before you undertake any professional work you have entered into a written agreement with your client which adequately covers:
- The contracting parties;
- The scope of the work
- The fee or method of calculating it;
- Who will be responsible for what
- Any constraints or limitations on the responsibilities of the parties
- The provisions for suspension or termination of the agreement, including any legal rights of cancellation;
- A statement that you have adequate and appropriate insurance cover as specified by ARB;
- The existence of any Alternative Dispute Resolution schemes that the contract is subject to and how they might be accessed;
- That you have a complaints-handling procedure available on request;
- That you are registered with the Architects Registration Board and that you are subject to this Code.
Standard 6.1 of the Code states:
“You are expected to carry out your work with skill and care and in accordance with the terms of your engagement.”
Standard 10.2 states,
“Complaints should be handled courteously and promptly at every stage, and as far as practicable in accordance with the following time scales:
a) an acknowledgement within 10 working days from the receipt of a complaint; and
b) a response addressing the issues raised in the initial letter of complaint within 30 working days from its receipt.”
- By reason of the facts found proved, the Committee finds that the Respondent acted in breach of Standards 4.4, 6.1 and 10.2 of the Code for the following reasons. The Committee finds that the initial text message did not comply with the requirements of Standard 4.4 and the Respondent failed to enter into a written agreement with the Complainant. The Respondent failed to adequately explain the scope of the work he was carrying out and the limits on his responsibilities. The Respondent failed to adequately advise his client about the nature and scope of the work and the impact on his design of Permitted development.
- The Committee considers the Respondent’s failure to reply substantively or appropriately to the Complainant’s complaint in February 2020 within the required timescales is a breach of Standard 10.2.
- In reaching its findings on UPC, the Committee has carefully considered all the evidence presented to it, all submissions made and has accepted the advice from the chair. The Committee recognises that not every shortcoming on the part of an architect, nor failure to comply with the provisions of the Code, will necessarily result in a finding of UPC. However, a failure to follow the guidance of the Code, whether in one’s professional or private life, is a factor that will be taken into account should it be necessary to examine the conduct or competence of an architect.
- The Committee has considered the authority of Spencer v General Osteopathic Council  EWHC 3147 (Admin). It has borne in mind in reaching its decision that for a finding of unacceptable professional conduct to be made, “a degree of moral blameworthiness on the part of the registrant likely to convey a degree of opprobrium to the ordinary intelligent citizen” was required. Any failing should be serious. The Committee accepts that “mere negligence does not constitute misconduct” and that “a single negligent act or omission is less likely to cross the threshold of misconduct than multiple acts or omissions…. a single instance of negligent treatment unless very serious indeed, would be unlikely to constitute deficient professional performance”.
- The consequences for the Complainant were extremely frustrating as it was not made clear to her that the design was for Permitted Development and would not achieve planning permission. The Respondent didn’t properly explain the limitations of his design and did not make clear the requirements for permitted development. The Complainant ultimately made an application for planning permission that had no hope of success costing time and money. Alternatively she could have built the design as drawn which would have exceeded the volume permitted and been left with a non-compliant extension.
- The Committee considered that the Respondent’s actions in failing to properly explain to the Complainant his role at the outset and to properly address the Complainants queries in relation to the requirement for planning permission together with his failure to substantively engage with and respond to her complaint and concerns were serious failings that was likely to convey a degree of opprobrium.
- The Committee finds that both individually and collectively, the Respondent’s failings are serious and adversely impact both on the reputation of the architect and the profession generally. The Respondent’s failings across this project and in dealing with his client and her complaint represents conduct falling substantially below the standard expected of a registered architect. Such failings can quite properly be categorised as UPC.
- The Committee therefore finds that the Respondent’s conduct does amount to unacceptable professional conduct.
- Ms Sheridan set out ARB’s submissions in relation to the appropriate sanction and drew the Committee’s attention to ARB’s Sanctions Guidance. Ms Sheridan submitted that the Committee should have regard to the relevant aggravating and mitigating factors when assessing the level of sanction. Ms Sheridan confirmed that the Respondent had no previous regulatory history with ARB. She submitted that the Committee might be minded to consider the following aggravating factors:
i. This conduct had a significant impact on the Complainant and resulted in an abortive planning application and a subsequent loss of time and money;
ii. The Respondent has demonstrated limited insight and remediation in relation to his conduct and there has been a reluctance to acknowledge failings.
- Following the submissions of the Respondent Ms Sheridan submitted that the Committee may be concerned that there was still a risk of repetition given that the Respondent’s position was that the Complainant was only interested in money.
- The Respondent addressed the Committee in mitigation and stated that his prices were very low and this was why the Complainant had instructed him. He submitted that he had done exactly what was asked of him and it was the builder who had ultimately caused all of the problems by submitting a planning application using his drawings and not consulting him. The Respondent said he had offered to help the Complainant obtain permission and he would have assisted with a planning application if required. He stated that the Complainant got what she paid for in terms of the measured survey and the drawings and he was not responsible for the actions of the builder. The Respondent said he has worked for many clients in different countries during his 33 year career as an architect and he has never had any complaints like this.
- The Respondent set out that he barely makes enough money to cover his bills and only undertakes drawing and design work. He stated he was not in a position to pay back the money he had received for the drawings.
- The Respondent said he was proud to be an architect and he hoped to be able to provide a service to his clients in the future.
- The Committee then considered whether to impose a sanction, and if so, which one. The Committee has had regard to the public interest, which includes the need to protect the public, to maintain confidence in the profession and ARB and to declare and uphold proper standards of conduct, behaviour and competence. The Committee has carefully considered all the evidence and submissions made during the course of this hearing. It has heard and accepted the advice of the legally qualified chair. It has borne in mind that the purpose of imposing a sanction is not to be punitive although it may have a punitive effect. It has taken into account the Respondent’s interests, the sanctions guidance and the need to act proportionately. It has taken into account any aggravating and mitigating factors in this case. The Committee has exercised its own independent judgement.
- Having taken into account the submissions, the Committee has identified the following mitigating factors:
i. The Respondent has no adverse regulatory history since joining ARB’s register in 2008.
- The Committee has identified the following aggravating factors:
i. His failings in relation to advising the Complainant persisted over a period of time and in the face of repeated requests for clarification and advice;
ii. The issue could have had very serious consequences if the Complainant had gone on to build what had been designed and she has paid for drawings that are unsuitable for her project;
iii. The Respondent has not demonstrated an understanding of his failures in relation to the impact on the Complainant;
iv. The Committee considers that the Respondent has not taken effective corrective steps to demonstrate that he understands the extent of his professional responsibilities with regard to provision of terms of business and complaints handling.
- The Committee considered that the information before it suggested that the Respondent still did not fully understand the requirements of adequate terms of business, complaint handling and advice. There was no documentary evidence before the Committee of how the Respondent ensures that clients are provided with all relevant information as required by Standard 4.4 of the Code. The Committee was not confident that the Respondent had implemented any corrective steps to prevent a repetition of the UPC identified.
- The Committee notes that the matters found proved are serious to the extent that the Respondent’s failings diminish both his reputation, and that of the profession generally. The Committee therefore concluded that the Respondent’s conduct was sufficiently serious for it to require the imposition of a sanction and has considered them in ascending order of severity.
- The Committee first considered whether to impose a reprimand. The Committee considered that the Respondent did not demonstrate the factors that would make this sanction appropriate including insight into failings and early corrective steps taken. Without these the Committee considered that this behaviour was likely to be repeated. The Committee considered the Respondent’s failings too serious for such a sanction to be either appropriate or proportionate.
- The Committee then considered whether to impose a penalty order. For the same reasons as set out above it considered that this was not the appropriate and proportionate sanction to uphold proper professional standards. The Committee considered that the Respondent’s conduct was not at the lower end of the spectrum and encompassed multiple failures to provide effective information to his client and to deal with a project in an appropriate and professional way over a period of time. The Committee agreed with the submission of Ms Sheridan that the low prices charged by the Respondent did not abrogate his professional responsibility to provide a standard of service that was compliant with the Code. His failure to ensure that his client fully understood the drawings relative to the rules relating to Permitted Development and the planning process had the potential to cause significant harm to the client and the reputation of the profession. Taken together with the lack of insight and effective corrective steps and the significant risk of repetition the Committee considered that a penalty order would not reflect the seriousness of the UPC found proved.
- The Committee next considered whether to impose a suspension order. The Committee considered that this would address the seriousness of the UPC found proved. The Committee considered that the conduct is capable of being remedied and it is not incompatible with him continuing to be a registered architect. The Committee considered that with careful consideration the Respondent could develop his insight. However the Committee determined that the lack of sufficient insight at this time is such so as to call into question the Respondent’s current ability to practise appropriately. The Committee does not consider that the Respondent is unwilling to appreciate the nature of his failings such that he should be erased from the Register and it considered such an outcome would be disproportionate to the seriousness of the UPC found proved. The Committee therefore decided that a period of suspension for 12 months was the appropriate and proportionate order. This period was sufficient to protect the public and to uphold the reputation of the profession.
- The Committee acknowledged that the order was likely to have a significant impact on the Respondent and his business and took into account the circumstances. However, it considered that it was appropriate to temporarily remove the Respondent from the register for this period in order to uphold proper professional standards. The Committee considered that this would also allow the Respondent the opportunity to develop a fuller understanding of his professional obligations.
- That concludes this determination.