Jahangir Saleem Malik
THE ARCHITECTS REGISTRATION BOARD
PROFESSIONAL CONDUCT COMMITTEE
In the matter of
Jahangir Saleem Malik 083983C
Held as a video conference
On 23 and 26- 27 October 2020
Emma Boothroyd (PCC Chair)
David Kann (PCC Architect Member)
Martin Pike (PCC Lay Member)
In this case, ARB is represented by Ms Kathryn Sheridan of Kingsley Napley LLP.
Mr Malik has attended this hearing but is not legally represented.
|The Professional Conduct Committee (“PCC”) found Mr Malik guilty of unacceptable professional conduct (“UPC”) in that he:
(1) Did not deliver a professional service to his client without undue delay;
and that by doing so, he acted in breach of Standards 6.2, 10.2 and 11.1 of the Architects Code: Standards of Conduct and Practice 2017 (“the Code”).
The sanction imposed is a penalty order of £1250.
Decision on facts and UPC
1. In this case, ARB is represented by Ms Sheridan. Mr Malik (“the Respondent”) has attended this hearing. The Respondent faces a charge of unacceptable professional conduct (“UPC”) based on three allegations in that he:
1) Did not deliver a professional service to his client without undue delay;
2) Did not deal with a complaint about his professional work appropriately;
3) Did not co-operate fully and/or promptly with the Regulator.
and that by doing so, the Respondent acted in breach of Standards 6.2, 10.2 and 11.1 of the Standards of Professional Conduct and Practice 2017 (“the Code”).
2. This case arises out of a complaint made by Mr A (“the Complainant”) in respect of the professional services carried out by the Respondent. The Respondent runs his own company Architecture and Design Practice Limited.
3. The background to this case is that the Complainant states he approached the Respondent in around July 2018 to assist him with designing a first-floor extension to his bungalow. The Respondent had been recommended to the Complainant via a mutual acquaintance Mr AS. On 11 July 2018 the Respondent sent the Complainant his terms of business and a quote for the pre-planning application and a further full planning application. On 13 July 2018 the Respondent attended at the property to carry out a measured survey and discuss the Complainant’s requirements in more detail.
4. The Complainant was then away on holiday but upon his return on 21 August 2018 he emailed the Respondent to confirm he would like to proceed with his quote and he also requested some further information about the Respondent’s practising arrangements. In that email the Complainant set out his understanding of the brief which included, in addition to the first-floor extension, the building of an outdoor gym. On 25 August 2018 the Respondent replied to those queries and confirmed the Complainant’s understanding of the brief was correct. The Respondent attached an invoice for £550 to cover the measured survey. The Complainant paid this invoice on 10 September 2018. Following this the Respondent sent the Complainant the existing layout drawings on 14 September. On the same day the Complainant queried with the Respondent why the drawings for the outdoor gym connected to the outbuildings were not included.
5. On 27 September 2018 there was a meeting at the Complainant’s home to discuss design proposals. The Respondent had prepared some outline drawings but there were no hard copy drawings given to the Complainant at this stage. Further design proposals were discussed and on 15 October 2018 the Respondent emailed the Complainant asking for payment of £350 before the drawings were “released” and asking for additional fees to cover the outbuilding extension. The Complainant responded on the same day that he didn’t consider the next stage payment was due and he did not agree that he should pay extra for the outbuilding drawings as this was part of the original agreement. The Complainant requested a meeting on his return from holiday to discuss how to proceed.
6. A meeting took place on 31 October 2018 and present at the meeting was Mr AS to mediate between the Respondent and the Complainant. The Respondent agreed not to charge any additional fees for the outbuilding and changes were discussed. The drawings of the proposals for the house were forwarded to the Complainant via email on the 15 December 2018. On 17 December the Complainant replied that he would review the drawings and he pointed out that the outbuilding drawing was missing. On 8 January 2019 the Complainant chased the Respondent for the outbuilding drawing and it was forwarded to him on 14 January 2019.
7. The Complainant didn’t get in touch with the Respondent again until 6 March 2019 and on that date he set out a number of changes he proposed to the drawings. A meeting was arranged via Skype for 13 March. Following that meeting the Complainant sent the Respondent a number of pictures with design ideas that he said were discussed. The Complainant chased the Respondent for updated drawings on 1 April and 15 April 2019. The Complainant called the Respondent on two occasions on the 24 and 25 April and again on a further three occasions on 2, 13 and 15 May 2019. The Complainant left voicemail messages and on one occasion the Complainant says the Respondent answered the call but said he was with a client and would call him back.
8. On 19 August 2019 the Complainant emailed the Respondent with a complaint and asked for a refund of money paid to date. On 22 August the Complainant emailed the Respondent again and asked for a response to his complaint or he would refer the matter to ARB. On 4 September 2019 the Complainant complained to ARB.
9. ARB wrote to the Respondent on 21 October 2019 at his registered postal address and also sent a copy via email to notify him of the complaint. The letter requested a response to the complaint by 4 November. On 5 November a further letter was sent via email and post chasing a response. No reply was received and on 19 November a further letter was sent requiring a response as a matter of urgency and no later than 26 November.
10. On 26 November 2019 the Investigations Manager at ARB spoke to the Respondent on the telephone. The Respondent said he had not been at his property and had not received any emails or letters. Later that same day the Respondent emailed ARB to confirm he had located the emails in his junk folder and he would respond “as priority this week.”
11. On 2 December 2019 the Respondent called ARB to state that he needed more time to respond as he had been unwell. It was agreed over the telephone that the Respondent needed to respond by 10 December. On 11 December ARB wrote to the Respondent via email and post to confirm that as the Respondent had not replied within the deadline the matter would proceed to the Investigations Panel and an additional allegation that he had failed to co-operate with the regulator would also be considered.
12. On 11 December 2019 the Respondent emailed the Complainant requesting a meeting to settle matters and copied in ARB. The Complainant wanted to have the meeting over the telephone and the Respondent wanted to meet in person. The meeting did not take place and the Respondent provided his response to ARB on 12 December.
13. The Respondent denies that he was responsible for any delay and it is his position that the delays were because the Complainant kept changing the scope of services, did not pay fees when they were due and was indecisive about his requirements. The Respondent states that although there were some gaps in responding to the Complainant this was because he was trying to contact the mediator. The Respondent’s position is that he does not recall receiving any telephone calls from the Complainant following the meeting in March 2019. The Respondent outlined that he never received the Complainant’s emails or correspondence from ARB until December 2019 and when it was brought to his attention he did respond. Further, he says that he had personal difficulties that impacted on his ability to provide his service and respond to the Complainant and ARB. He denies that his conduct amounts to UPC.
14. 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 the parties.
15. 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.
16. The Committee considered the evidence of the Complainant to be fair and balanced. The Committee considered that his evidence was consistent with his complaint and the documentary evidence in the bundle. The Committee considered he was a helpful and credible witness.
17. The Committee considered that aspects of the Respondent’s evidence were contradictory. His explanations in oral evidence contradicted his earlier written statements and were inconsistent with documentary evidence in the bundle. The Committee considered some of his explanations to be unlikely and self-serving. The Respondent did agree when matters were pointed out to him in cross-examination that he had not been consistent.
18. The Committee makes the following findings of facts:
Particular 1 (Found Proved)
19. It is disputed when the Respondent was actually formally instructed and what stage of his terms of business the parties reached. It is suggested that the first meeting at the Complainant’s property in July 2018 was a design consultation meeting and the measured survey was conducted by the Respondent’s assistants as part of that process. It isn’t disputed that in late September there was a further meeting at the Complainant’s property to discuss the preliminary sketches that the Respondent produced. It is agreed that no drawings were given to the Complainant in hard copy at that meeting.
20. On 15 October 2018 there was a dispute between the Complainant and the Respondent about fees. The Respondent’s position was that he would not release the drawings until the fees had been paid and he wanted an additional amount for the outbuilding. The Complainant was of the view that no fees were due at this point as the Respondent hadn’t finalised the drawings and the outbuilding drawings were included in the brief. The Complainant requested a further meeting to discuss the way forward.
21. At that meeting on 31 October 2018 it isn’t disputed that further design changes were discussed. It is disputed whether the Complainant agreed to pay the next stage of the fees but in any event the parties were clear that the Respondent was preparing additional drawings. The Respondent stated that he did agree at this meeting not to charge for the outbuilding drawings. Although no timescales were discussed the Complainant stated in his oral evidence that he expected them within a reasonable time frame. The drawings for the house were sent to the Complainant on 14 December 2018.
22. The Committee has considered that these drawings, which were for a pre-planning application, were not especially complex or detailed. The Committee concluded that the time taken from 31 October to 14 December 2018 for the Respondent to produce these drawings was unreasonable and amounted to undue delay. The Respondent had been involved in this project since July and the Committee could identify no reason why the drawings would have taken six weeks. The Respondent did not advise the Complainant that there was any issue with his workload or offer any timescale for production of the drawings. In these circumstances the Committee considered that it was reasonable for the Complainant to have expected the drawings within a short period of time and there was an undue delay in producing these drawings to the Complainant.
23. It isn’t disputed that the outbuilding drawing wasn’t included within these drawings. The Respondent stated there was a meeting on 7 November 2018 to discuss the outbuilding although the Complainant was unable to recall this meeting. Whatever the true position, it is likely that the outbuilding design was finalised by 7 November. This drawing was even more straightforward than the house and amounted to one page. It wasn’t sent to the Complainant until 14 January 2019 after he had chased for it on 17 December 2018 and 8 January 2019. In the Committee’s view this amounted to undue delay.
24. The Committee has taken into account the Respondent’s explanations for what happened during this time period. It does not doubt that the Respondent was experiencing difficult personal circumstances. However, these could, and should, have been managed directly with the Complainant. The Respondent should have given an explanation about timescales for the drawings being produced if he was unable to complete them within a reasonable time frame. During this period there was no dispute about fees, as this had been resolved at the meeting on 31 October 2018.
25. Following the Skype meeting on 13 March 2019 it isn’t disputed that there was no contact between the Respondent and the Complainant. The Respondent accepted in his oral evidence that he did not tell the Complainant at the meeting on 13 March that he would not incorporate the changes discussed or that he thought the Complainant was being unreasonable. The Respondent accepted that he did not tell the Complainant that he wanted further fees for the work proposed. The Respondent stated in his oral evidence that following that meeting he intended to get in touch with the mediator and the delay was caused by the failure of the mediator to get back to him.
26. The Committee does not accept the Respondent’s explanations for this failure. It is clear from the emails sent by the Complainant that he was expecting a set of drawings to be produced which incorporated the design changes as discussed at the Skype meeting in March. At no stage did the Respondent engage with the Complainant again until December 2019 following the complaint to ARB.
27. The Committee considers that the Respondent decided not to engage further with the Complainant or his project and in essence ignored the Complainant. The Respondent admitted that he was working for other clients during this period. The Committee did not accept that the Respondent’s personal difficulties were such that he was unable to send an email to the Complainant explaining he was no longer able to work on his project.
28. The Committee did not accept that the Respondent was delayed by his attempts to contact Mr AS to mediate. This was not a mediator that was formally appointed as part of a dispute process. The Respondent did not tell the Complainant he wouldn’t be able to proceed until he had contacted Mr AS. The Respondent essentially kept the Complainant completely in the dark about his reluctance to continue with the project and offered him no explanation about why he had not produced the drawings as agreed.
29. The Committee considers that there was no fee dispute at this stage. The Respondent confirmed that he had not sent an invoice and so no fees were outstanding. The Respondent said he deliberately did not mention fees as there had previously been a delay and a dispute. The Committee considers that this is inconsistent with the evidence. An invoice was produced on 25 August 2018 and paid on 10 September 2018. No further invoice has ever been issued and no request for fees was ever put in writing to the Complainant after 15 October 2018.
30. The Committee considered that the Respondent failed to produce drawings as instructed on 13 March 2019 and has offered no reasonable explanation for this failure. In the circumstances the Committee is satisfied that the Respondent did not deliver a professional service to his client without undue delay.
Particular 2 (Found Proved)
31. The Committee finds the facts proved for the following reasons. It is not disputed that the Complainant sent two emails to the Respondent in August 2019 raising a complaint about his failure to produce the drawings as agreed. The Respondent also does not dispute that he did not respond to those emails until December 2019 after they were brought to his attention by ARB.
32. The Respondent explained to the Committee that his laptop was stolen in May 2019 and after he replaced his laptop he had difficulty with emails going into a junk folder. The Respondent said he was aware of this problem shortly after getting his laptop when new clients would alert him. The Respondent said the he wasn’t regularly checking his junk folder and when he did check, he would only look at the top emails.
33. The Committee considered this explanation to be implausible and inherently unlikely. The Respondent was aware of a problem where emails from clients were being diverted to a junk folder as early as May 2019. As a professional who relies on email heavily the Committee considered that it was unlikely, in circumstances where he was aware of a problem, that the Respondent did not regularly check his junk folder for important emails. The Respondent had not replied to voicemails or returned missed calls from the Complainant in April and May 2018. The Committee considered that the failure to reply to the Complainant’s complaint was consistent with his failure to respond generally and unlikely to be because he had not seen the emails.
34. The Committee was satisfied that the Respondent had ignored the complaint from the Complainant and therefore did not deal with a complaint about his professional work appropriately.
Particular 3 (Found Proved)
35. The Committee finds the facts proved for the following reasons. It isn’t disputed that ARB sent emails and letters to the Respondent requesting a response in October, November and December 2019. The Respondent did not substantively respond to ARB until 12 December 2019.
36. The Respondent explained to the Committee that he was not living at his registered address during the time that ARB was writing to him. In his oral evidence he said that during the period October 2019 to early December 2019 there was no-one at the property. He also put forward the same explanation for the failure to respond to emails as he had set out previously with all ARB emails going into his junk folder.
37. The Committee considered the Respondent’s evidence about the works at his property to be vague and inconsistent. He was unable to recall the stage that works had reached and at various times during his evidence gave different accounts of when he moved back into the property. The Respondent was unable to state with any certainty why the work on the property had stopped between October and November or why he wasn’t attending there at all.
38. For the same reasons as outlined in relation to Particular 2 above the Committee did not consider that the Respondent’s explanation that he had not seen the emails from ARB because they had gone to his junk folder to be unlikely and implausible.
39. The Committee had regard to the witness statement of ARB Investigations Manager and the note of her telephone call with the Respondent on 2 December. The Committee noted that the Respondent did not ask what the telephone call was about or why ARB had been emailing and writing to him. The Committee was satisfied that it was likely that the Respondent had been aware of the correspondence and in the same way as he had ignored the Complainant he had chosen not to respond to ARB.
40. Following the call between the Respondent and the Investigations Manager on 26 November 2019 it was made clear to the Respondent that a response was required urgently. On 2 December an extension was agreed to 10 December at the latest. The Respondent did not advise that he would be unable to meet that deadline. Although the Committee accepts that the Respondent may have been unwell during this period he did not explain he would be unable to meet the agreed extended deadline. Further on 11 December the Respondent emailed the Complainant for the first time since the meeting in March 2019 offering to settle the complaint.
41. In all of the circumstances the Committee considers that the Respondent has not co-operated fully or promptly with the regulator as his response was significantly delayed and deadlines were ignored.
42. Having found the facts of the particulars 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 6.2 of the Code states:
“You should carry out your professional work without undue delay and, so far is reasonably practicable, in accordance with any time-scale and cost limits agreed with your client.”
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.”
Standard 11.1 states,
“You are expected to co-operate fully and promptly with ARB, and within any specified timescale, if it asks you to provide information which it needs to carry out its statutory duties, including evidence that you are complying with these Standards.”
43. By reason of the facts found proved, the Committee finds that the Respondent acted in breach of standards 6.2, 10.2 and 11.1 of the Code for the following reasons. The Committee finds that the initial drawings delivered in December 2018 were straightforward and should have been delivered sooner. There was further delay in providing the outbuilding drawing until January 2019 which was unreasonable and excessive. The Committee considers that the failure to provide the drawing agreed at the meeting in March 2019 at all is an obvious failure to deliver a professional service without undue delay.
44. The Committee considers the Respondent’s failure to reply to the Complainant’s complaint in August 2019 within the required timescales is a breach of standard 10.2.
45. The Committee further considers that Respondent’s failure to reply fully to ARB within the timescales specified in the correspondence is a breach of Standard 11.1 of the Code.
46. 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.
47. 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”.
48. The consequences for the Complainant were frustrating as he remained unaware that the Respondent was not working on his designs. He was continually chasing for a response and as a result his project was significantly delayed.
49. The Committee considered that the Respondent’s actions in failing to properly explain to the Complainant his unwillingness to continue working on the project and his failure to respond to his complaints and concerns were serious failings that were likely to convey a degree of opprobrium. In isolation, some of the delay with the provision of the initial drawings may not have been serious. However, the Committee considered that the Respondent’s failure to adequately respond to the Complainant over an extended period of time throughout the project was misconduct.
50. The Committee considers that the Respondent’s failure to co-operate fully and promptly with ARB is a serious failing. As a professional it is the Respondent’s responsibility to engage with his regulator and to address any concern about his professional conduct fully and promptly. The Committee considers that the public would expect ARB to carry out prompt and efficient investigations and that the Respondent should not seek to delay or frustrate that process.
51. 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 ARB represent conduct falling substantially below the standard expected of a registered architect. Such failings can quite properly be categorised as UPC.
52. The Committee therefore finds that the Respondent’s conduct does amount to unacceptable professional conduct as set out above.
53. Ms Sheridan set out ARB’s submissions in relation to 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. It was a deliberate and repeated pattern of poor conduct in failing to respond to the client and ARB;
II. The Respondent has demonstrated limited insight and remediation;
III. There remains a risk of repetition in light of the above.
Ms Sheridan submitted that the weight to be attached to the Respondent’s references was a matter for the Committee but a number were unsigned and from family friends. Ms Sheridan submitted that they did not demonstrate any awareness of the allegations against the Respondent. Ms Sheridan also acknowledged that there were difficult personal circumstances affecting the Respondent at the relevant time.
54. The Respondent addressed the Committee in mitigation. He took the opportunity to set out the matters he disagreed with within the Committee’s decision in relation to facts and UPC. The Respondent then set out his reflections on his learning and how he would approach matters differently in the future. The Respondent accepted he was responsible for some delay but not all delay and he continued to maintain that the Complainant had some responsibility for failing to respond and for proposing changes. The Respondent set out that he had no previous regulatory history and his references and testimonials confirmed that he had a good working relationship with his clients. He also submitted that the Committee should impose a reprimand.
55. 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.
56. Having taken into account the submissions, the Committee has identified the following mitigating factors:
I. That the Respondent has no adverse regulatory history in his 5-year career since joining ARB’s register;
II. This was an isolated incident relating to one client at a time of significant personal stress;
III. He has fully engaged in the hearing process;
IV. He has indicated at the hearing he will take some steps to remediate his failings by changing his working practices;
V. He has provided a significant number of positive testimonials attesting to his character and professionalism and setting out clients’ satisfaction with her work;
VI. He has acknowledged some of his failings.
57. The Committee has identified the following aggravating factors:
I. His failings have put the Complainant to substantial delay and inconvenience. The Committee considered that the effect on the Complainant was serious and that he has suffered frustration and upset;
II. The failure to respond persisted for a significant period and involved both the Complainant and the Regulator even after it was made clear by the Complainant and the Regulator that the matter was serious and urgent;
III. The Respondent has not fully expressed remorse and insight into his failings and continues to blame the Complainant for the difficulties.
58. 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.
59. The Committee first considered whether to impose a reprimand. The Committee considered that the Respondent did demonstrate some of the factors that would make this sanction appropriate including previous good disciplinary history and a willingness to take corrective steps. However, the Committee considered that the Respondent had not fully appreciated the significance of the seriousness of his failings and had not taken full responsibility for the findings. The Committee did not consider that this behaviour would be repeated and that the hearing process had been a salutary lesson. However, given the seriousness of the UPC found proved, and the effect on the Complainants, together with the relatively late appreciation of the seriousness of matters the Committee considered the Respondent’s failings too serious for such a sanction to be either appropriate or proportionate.
60. The Committee then considered whether to impose a penalty order. It noted that this sanction is appropriate where the offence is too serious to warrant a reprimand. It considered that this was the appropriate and proportionate sanction given the factors identified above in its consideration of a reprimand.
61. The Committee considered that a penalty order together with its findings in relation to UPC would be sufficient to mark the conduct as unacceptable and uphold the reputation of the profession.
62. Having determined that a penalty order was the appropriate and proportionate sanction the Committee considered a suspension order. The Committee does not consider the Respondent failings require a suspension and considered that preventing him from practising as an architect for a period was unduly punitive.
63. The Committee therefore imposes a penalty order in the sum of £1250 which the Committee considers to be an appropriate amount to reflect the seriousness of the Respondent’s failings.
64. That concludes this determination.