Mr Michael Simon Hooper

ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

MICHAEL SIMON HOOPER (054797B)

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Held via video conference on:

27 January to 5 February 2025

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Present:
Neil Dalton (Legally Qualified Chair)
Stuart Carr (PCC Architect Member)
Peter Baker (PCC Lay Member)

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The Architects Registration Board (“the ARB”) was represented by Mr Alexis Dite (“the Presenter”) of Red Lion Chambers, instructed by Kingsley Napley LLP.
Mr Michael Hooper (“the Registered Person”) did not attend the hearing and was not represented.

 

Allegations

1. The Allegation made against the Registered Person is that he is guilty of Unacceptable Professional Conduct.

2. The ARB relies upon the following particulars in support of the Allegation:

1) In respect of Project A:

a. The Registered Person did not provide adequate written terms of engagement, contrary to Standard 4.4 of the Architects Code;
b. The Registered Person did not complete work without undue delay and/or keep the client updated on progress, contrary to Standard 6.2 and/or 6.3 of the Architects Code;
c. The Registered Person did not act competently and/or with due skill and care in relation to the planning application and/or site drainage;
d. The Registered Person did not safeguard and manage client money
appropriately in that they:
i. did not pay the planning application fee despite receiving funds from the client to do so;
ii. asked the client to deposit money and/or received money into a personal bank account and/or in cash;
e. The Registered Person’s actions at 1(d) above were dishonest and/or lacked integrity;
f. The Registered Person did not notify his Professional Indemnity Insurers that he had received a claim.

2. In respect of Project B:

a. The Registered Person did not provide adequate written terms of
engagement, contrary to Standard 4.4 of the Architects Code;
b. The Registered Person did not complete work without undue delay;
c. The Registered Person did not safeguard and manage client money adequately in that he:
i. asked the client to deposit money into a personal bank account and/or pay in cash;
ii. did not refund the planning application fee;
iii. did not keep planning application fee in a designated interest-bearing bank account called “client money” separate from any personal or business account.

 

Background

3. The background circumstances, as set out below, are based on the report prepared by Kingsley Napley (‘the KN report’), which in turn was based on the witness statements of Mr Willmott (“Referrer 1”), Ms Cole (“Referrer 2”), Ms Manning, Mr Franksen and Ms Matthews-Cook, together with the reports of the independent Inquirer, architect Mr Clark.

4. The Presenter, in the opening of his case, relied on the alleged facts as set out in the KN report.

5. In light of any unequivocal indication to the contrary, the Committee proceeded on the basis that the material alleged facts were denied.

6. The Registered Person is a registered Architect at his own company, Michael Hooper Architects.

 

 

Project A – Willmott

7. The Registered Person was engaged to design an extension to Referrer 1’s home. Referrer 1 is 95 years old and a disabled war veteran receiving a military pension.

8. The Registered Person introduced himself to Referrer 1 in 2015 after overhearing a conversation he was having in his local social club about building an extension to provide additional accommodation at his property. He visited the Referrer’s property on the same day to discuss the extension plans and advised that he could complete the drawings and submit a planning application to West Devon Borough Council. On viewing the property, the Registered Person advised Referrer 1 that there was room to build a house on the land by the garage; therefore, expanding on the original plan to extend the current property into the design of an additional house on the Referrer’s plot of land.

9. It is the evidence of Referrer 1 that the Registered Person did not provide him with any Terms of Engagement, contract or details of his fees.

10. The Registered Person worked for Referrer 1 from February 2015 to February 2019, carrying out a survey and drafting plans to submit to the local planning authority. During that time, the Registered Person is said to have asked Referrer 1 to pay him in cash or into a personal bank account to keep below the VAT threshold. Referrer 1 says he did not understand the VAT requirements but complied with the request as he believed the Registered Person was doing him a favour by keeping the costs low.

11. Following agreement on the design, the Registered Person submitted an application for planning consent in January 2016. This application was refused in July 2017 on grounds associated with the provision of a suitable drainage design.

12. The Registered Person submitted an appeal against this refusal on behalf of Referrer 1 in February 2018. This appeal was dismissed in April 2018.

13. The Registered Person submitted a second application for planning consent on behalf of the Registered Person in October 2018. This application was again refused, in January 2019, on grounds again associated with the provision of a suitable drainage design.

14. It is alleged the Registered Person submitted drawings to the Council which had not addressed those issues previously identified by the Council as reasons for refusal, thereby causing more delay and expense to Referrer 1.

15. In 2019, Referrer 1 paid the Registered Person £1,000 to submit a third planning application, which was submitted sometime in, or after, November 2019. After a few months without the application having progressed, Referrer 1 contacted the planning authority directly. He discovered that the Registered Person had submitted the new application, but never paid the Council’s application fee, despite this having formed part of the £1,000 Referrer 1 had given him.

16. Referrer 1 says that, over the course of the project, he paid the Registered Person approximately £11,000 in cheques and cash, but the Registered Person had never obtained the planning permission.

17. Referrer 1 subsequently hired an alternative Architect and obtained planning permission on the same land in less than a year.

18. Referrer 1 believes that the Registered Person viewed him as an easy target because of his age and disabilities. Requests for invoices detailing the payments and expenditure were said to have been ignored.

19. Referrer 1 submitted a formal complaint to the ARB on 6 May 2022.

 

 

Project B – Cole

20. Referrer 2 contacted the Registered Person on 15 December 2021 to advise and draw up plans for planning approval to redevelop farm buildings at her property.

21. The Registered Person emailed Referrer 2 on 22 December 2021, providing her with a breakdown of his fees. The Registered Person did not provide any further documents ahead of the commencement of the project, and it is alleged that the said email did not cover all of the items required under Standard 4.4 of the Code.

22. After her first contact with the Registered Person, Referrer 2 says that she paid the Registered Person a £3,000 deposit for full survey drawings. An outstanding amount of £2,475 was paid on 7 February 2022 to allow the Registered Person to carry out the first stage of the work. Despite payment, Referrer 2 did not hear from the Registered Person again from February until July 2022 when he apologised for the delays.

23. The Registered Person further stated there was some urgency at that time as he understood that Dartmoor National Authority (“DNPA”) was going to digitalise its systems and, therefore, was not accepting applications for a month. Despite this, the Registered Person still did not submit the application.

24. Referrer 2 received multiple emails from the Registered Person throughout trying to excuse his delays.

25. On 22 July 2022, the Registered Person sent an email to Referrer 2 requesting that a fee for the Planning Application of £180 be paid into a personal bank account. Referrer 2 confirms that she paid the £180 fee to the Registered Person’s personal account on 27 July 2022, although she said it made her uncomfortable. It is alleged the Registered Person failed to pay this application fee on her behalf and did not return the money to her.

26. Requests from Referrer 2 for him to explain his costs and how they were arrived at were ignored.

27. Referrer 2 states that she paid the Registered Person in excess of £9000 but the application was never submitted. She feels that she has very little to show for the money she has paid to the Registered Person.

28. Referrer 2 complained to ARB on 20 April 2023.

 

 

Registered Person’s response

29. The Registered person responded to ARB in September 2022 and March 2023 in relation to Project A, and in May 2023 in relation to Project B. His responses are also captured elsewhere in evidence, as discussed below in the Decision on Facts.

Preliminary Matters – Proceeding in absence

30. Two working days prior to the hearing, the Registered Person had sought an adjournment. His application was refused by the Chair. The background to this is at Annex A (handed down in private as it related to health issues).

31. The Registered Person then failed to attend the hearing itself. In consequence, the Presenter made an application for the hearing to proceed in the absence of the Registered Person under Rule 14(a) of the 2019 Rules.

 

 

Service

32. The Committee was provided with a service bundle. The service bundle provided confirmation that ARB had sought the Registered Person’s ‘dates to avoid’ and then had then sent a Notice of Hearing to his registered address, together with ARB’s report and the Professional Conduct Committee Rules (“the Rules”). The Notice of Hearing confirmed the date, time, and venue of the hearing.

33. The Committee noted an extract from ARB’s register which confirmed the Registered Person’s registered address. This corresponded to the address to which the service bundle had been sent. The Committee was also provided with proof of posting.

34. In those circumstances, the Committee was satisfied that the Notice of Hearing had been properly served in accordance with Section 14(4)(a) Architects Act 1997, Rule 6 (49 days’ notice), and Rule 14(c) (postal service) of the 2019 Rules.

35. The Committee was advised by the Chair and accepted that advice. The Committee also took into account ARB’s guidance, “Proceeding in the Architect’s Absence.”

36. The Committee determined that it was fair and reasonable to proceed with the hearing in the absence of the Registered Person.

37. In reaching that decision, it bore in mind the following factors:
i. The Registered Person had deliberately absented himself from the hearing.
ii. [REMOVED due to topic relating to private matters]
iii. [REMOVED due to topic relating to private matters]

iv. There was no indication from the Registered Person about the length sought of any adjournment, nor any indication that an adjournment might result in him attending the proceedings at a later date.
v. There remained the general public interest and, in particular, the interest of any victims or witnesses, that a hearing should take place within a reasonable time of the events to which it relates.
vi. The Committee was also aware of the effect of delay on the memories of witnesses; noting that the matters forming the subject of the Allegation commenced in 2015.
vii. Therefore, while the Committee noted that there may be some disadvantage to the Registered Person in not being able to orally challenge ARB’s case or give evidence at the hearing (albeit the Committee had his written responses to the Allegation); it concluded that any potential disadvantage to the Registered Person was significantly outweighed by the strong public interest in ensuring that the witnesses scheduled to give evidence are not unnecessarily inconvenienced and that the hearing commences and proceeds as expeditiously as possible.

 

 

Evidence

38. The Committee was provided with a hearing bundle which included:
i. Report to ARB prepared by Kingsley Napley;
ii. Witness Statements of Referrer 1 (dated 11 August 2023), Referrer 2 (dated 9 April 2024), Ms Manning (dated 31 August 2023), Mr F (dated 23 October 2023), and Ms M-C (dated 5 June 2024);
iii. Reports from expert witness, Mr Clark (‘the Inquirer)’, dated 8 May 2024 and 18 July 2024);
iv. Various plans, drawings, and planning application paperwork;
v. Various emails and other correspondence; and
vi. The Registered Person’s representations to ARB in September 2022 and March 2023 in relation to Project A and, in May 2023, in relation to Project B, together with other papers produced by him in relation to the matters alleged.

39. Referrer 1 and Referrer 2, together with Ms Manning and the Inquirer, all gave oral evidence to the Committee.

 

 

Decision on Facts

The Committee’s Approach

40. In reaching its decision on facts, the Committee has borne in mind the burden of proof rests solely on the ARB. The Registered Person does not need to prove anything. The standard of proof is that applicable to civil proceedings, namely the balance of probabilities.

41. In reaching its determination, the Committee took into account all the written and oral submissions from the parties.

42. The Committee also took into account the advice provided by the Legally Qualified Chair – which was provided in public session and upon which the parties were invited to comment. The Committee accepted fully that advice.

The Committee’s Analysis of the Evidence and Findings

43. The Committee has considered each outstanding paragraph and subparagraph of the Allegation separately and has evaluated the evidence in order to make its findings on the facts.

Findings of Fact

In respect of Project A

Particular 1 (a) – Found proved

44. Section 13 of the Architects Act 1997 (“the Act”) requires the Architects Registration Board (“ARB”) to issue a Code (laying down the standards of professional conduct and practice expected of persons registered as architects under the Act.

45. In the particular iteration of that Code (the Architects Code) in place at the relevant time, architects were informed, ‘you are expected to be guided in your professional conduct and professional work by the spirit of the Code as well as by its express terms.’

46. Standard 4 of that Code (addressing ‘Competent management of your business’), states at 4.4:
‘You are expected to ensure that before you undertake any professional work you have entered into a written agreement with the client which adequately covers:
i. the contracting parties;
ii. the scope of the work:
iii. the fee or method of calculating it;
iv. who will be responsible for what;
v. any constraints or limitations on the responsibilities of the parties;
vi. the provisions for suspension or termination of the agreement;
vii. a statement that you have adequate and appropriate insurance cover as specified by the Board;
viii. your complaints-handling procedure (see Standard 10), including details of any special arrangements for resolving disputes (e.g. arbitration).’

47. The evidence of the Referrer 1 was that, at the time he agreed to employ the Registered Person on Project A, there was no written agreement between them, nor was one introduced subsequently (“he told me he was very experienced and I trusted him”). Referrer 1’s evidence was that he had a general sense of the services the Registered Person would provide, but they “did not make any agreements as to the total cost or timeframe of the project”.

48. As indicated, the Registered Person did not attend the hearing and neither did he submit a substantive statement responding to this Particular.

49. Although in correspondence to ARB he states he ‘totally refutes’ the overall Allegation, he does not produce evidence of any written agreement.

50. The Committee noted correspondence from the Registered Person’s solicitors suggesting the terms of agreement were sufficiently particularised in emails between Referrer 1 and the Registered Person; however, that correspondence does not identify which emails are relied upon to support the assertion.

51. For its part, the Committee was unable to identify anything within the totality of papers supplied by the Registered Person, or in the bundle of evidence as a whole, that could remotely be perceived as ‘adequate written terms of engagement’. Consequently, it finds Particular 1a proved.

 

Particular 1 (b) – Found proved

The Code

52. In accordance with Standard 6 of the Code, the Registered Person was required to,
‘[…] 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.
and
‘[…] keep your client informed of the progress of work you undertake on their behalf and of any issue which may significantly affect its quality or cost.’

 

Timeline

53. In considering Particular 1b, the Committee has had regard to the written and oral evidence of Referrer 1 and his daughter Ms Manning (coupled, where available, by documentary evidence in support), as well as bearing in mind such written evidence as the Registered Person has produced to bear upon this. It has also considered the report from the Inquirer. Taken together, the Committee determined Project A’s timeline to have been thus:

i. February 2015: Referrer 1 meets the Registered Person socially and agrees to engage him for architectural services in connection with extension to his home.
ii. February 2015: Referrer 1 makes first advance payment of £1,000 in cash to Registered Person.
iii. Around 18 February 2015: Payment terms agreed for total fee of £7,500 (payable in three instalments).
iv. November 2015: Measured survey of property undertaken by Registered Person.
v. December 2015: Registered Person presents first “detailed” proposal to Referrer 1.
vi. Around 6 January 2016: First Planning Application submitted.
vii. 29 March 2016: Requirement for drainage survey identified and ‘Nijhuis’ appointed.
viii. Around 14 April 2016: Nijhuis drainage survey report received by Referrer 1.
ix. Around 18 May 2016: The local planning authorities (‘LPA’) advise that, following drainage consultation process, there would be a recommendation to refuse the application.
x. Around 6 July 2017: First Application refused due to drainage issues.
xi. Around 7 February 2018: Registered Person submits an appeal in respect of refusal of First Application.
xii. 11 April 2018: Appeal refused.
xiii. July 2018: Nijhuis undertake Critical Drainage Assessment.
xiv. Around July 2018: Registered Person advises Referrer 1 that Ground Contamination survey was required. Referrer 1 pays Registered Person £100 cash in advance. No record of survey having been undertaken nor by whom.
xv. Around 19 October 2018: Registered Person submits Second Planning Application.
xvi. 3 January 2019: Second Application refused due to drainage issues.
xvii. 5 November 2019: Registered Person requests Referrer 1 to pay £1,000 in cash in order to submit a third planning application. The Referrer 1 understood this to include the application fee of £465.
xviii. Between 25 December 2019 and 26 February 2020: Registered Person submits Third Planning Application.
xix. 27 February 2020: LPA responds in writing to third application request by writing to Registered Person seeking additional information and payment of fees.
xx. 25 August 2020: In the absence of any updates from Registered Person (despite these being sought), Referrer 1 contacts LPA directly to establish the status of the third planning application. LPA replies by forwarding to Referrer 1 its correspondence to Registered Person of 27 February 2020 (per above).
xxi. September 2020: Referrer 1 appoints another firm of architects. That firm submits a planning application on Referrer 1’s behalf on 3 November 2020 and planning permission is obtained on 1 December 2020.

54. Reflecting upon the timeline, the Committee determined there had been undue delay in this case.

55. It noted that a period of more than five years passed (February 2015 – August 2020) without resolution of these matters. While plainly there can be occasions where the particularities of an individual project can reasonably result in its extended duration, the Committee could find nothing reasonably to justify that extended duration in this case; neither could it identify any extenuating circumstances which might explain the undue delay. The Committee found the following features particularly troubling:

i. After the first planning application had been refused, the reasons for refusal were made plain to the Registered Person. Despite this, his appeal on the Referrer 1’s behalf, together with the second planning application, each failed to address the reasons for refusal which had been provided. By failing to do so, and thereby diminishing the likelihood of either the appeal or the second planning application succeeding, the Registered Person introduced significant delay into the overall timeline, as well as creating unnecessary costs for Referrer 1 (i.e., Referrer 1 had been asked to fund an appeal and a second planning application where each was misconceived in their formulation).
ii. The Registered Person made a third planning application sometime before 27 February 2020. Yet despite being informed in writing by LPA on that day that the application would not be processed until he paid the fee on Referrer 1’s behalf, he neither challenged that assertion nor paid the fee (despite having been put in funds by Referrer 1). Instead, matters simply sat in abeyance for six months until Referrer 1 uncovered the position, having sought clarity from LPA following a lack of responsiveness to enquiries by Registered Person.

56. There is no explanation for these failures of delay. They are unconscionable and bring discredit upon the profession.

57. Turning to whether the Registered Person kept the Referrer 1 updated on progress; the Committee finds he did not.

58. It noted that, for all the emails between the parties over the entirety of the timeline, there is little or nothing that could be characterised as amounting to a clear, cogent provision of timely information by the Registered Person to Referrer 1 in relation to progress, ongoing work or staging timeframes.

59. For much of the timeframe, Referrer 1 appears to have assumed the drainage issue explained the protracted timeframe (‘I trusted him’). In the latter stages, though, the Registered Person’s lack of communication became increasingly concerning for Referrer 1. His daughter puts it in this way:
“The Registered Person did not provide many updates regarding the status of the planning permission application. I emailed him and called him on several occasions, but I rarely got a response. [Referrer 1] also attempted to call him for updates. When he did respond, he would always have an excuse as to why no progress has been made. For example, on 17 December 2019, he said it was extremely busy before Christmas, so he had planned to submit the application between Christmas and New Year. Additionally, on 10 January 2020, he said he was still waiting for a receipt on this application and many of his other applications, which suggested he was blaming the Council. […]
It was always me and [Referrer 1] chasing the Registered Person for an update; he never initiated contact with me or my dad. He would only contact us when he wanted to be paid.”

 

Particular 1 (c) – Found proved

60. The Committee had regard to the analysis provided by the Inquirer.

61. Reflecting upon the timeline of events, and all the case papers relating to those matters, the Inquirer (a highly experienced architect and professional expert witness) prepared a detailed analysis of the Registered Person’s conduct. His 91-page report culminated in the conclusion that the Registered Person did not act competently and/or with due skill and care.

62. He explained:

i) […] the RP did not provide written confirmation of the actions being taken to progress with the appeal, second and third applications such that the Referrer understood the issues, options and risks associated with proceeding with these statutory processes;
ii) The RP did not undertake, or seek instructions to undertake, a detailed survey of the existing drainage structures on the site;
iii) The RP did not establish, or seek instructions for others to establish, the function and effectiveness of the existing drainage structures;
iv) The RP did not advise the Referrer in writing to obtain and provide legal advice on the rights and obligations associated with the existing drainage structure;
v) The RP lodged an appeal against the refusal of the first application that did not address the specified reasons for refusal;
vi) The RP lodged a second application that did not fully address the reasons for refusal of the first application and the dismissal of the appeal;
(In his Report, at 3.1.5, he expands upon this that, in these regards, ‘[…] having obtained feedback from SAD on the First Nijhuis report, the RP did not advise the Referrer of these issues and then seek his approval to work with Nijhuis and the LPA to develop a SuDS solution. Such a solution should have been provided on a drawing and with a technical specification to demonstrate that the following had been addressed:
i) A SuDS proposal that did not impact upon the existing drainage structures on the site;
ii) A SuDS proposal that discharged to a location that was either within the Referrers control or for which it could be demonstrated the Referrer would be granted legal consent; and
iii) A full survey and assessment of the existing drainage structure and its purpose and an investigation to establish the rights and obligations of the Referrer and any public bodies in respect of these structures. Thereafter provide proposals (if such proposals were necessary) to ensure its effective continued use. Such an assessment would have involved consultation with the Referrer and his lawyers to review the conditions of any title. […]’
vii) The RP did not address the queries raised by the LPA in respect of the drawings submitted for the third application; and
viii) Some 9 months or so after the RP lodged the third application, he had not paid the planning application fee, the money for which had been transferred to him by the Referrer.’

63. On the basis of his report, coupled with his oral evidence, the Committee was persuaded the Inquirer’s conclusions have been fairly and objectively reached and that they were formulated taking into account all available evidence. The Committee could find nothing of substance in the Registered Person’s written response, or his bundle of attachments, sufficient to counter the Inquirer’s conclusions.

 

64. In consequence, the Committee found particular 1c proved in its entirety.

Particulars 1 d(i) and 1 d(ii) – both found proved

1 d(i)

65. Among the evidence is an email (5 November 2019) from the Registered Person asking for £1000 from Referrer 1. This included £465 to cover the application fee, thereby enabling a third planning permission application to be made.

66. Referrer 1 confirms that on 11 November 2019 he paid that sum to the Registered Person, exhibiting a cheque stub in support of this.

67. In correspondence to the Registered Person dated 27 February 2020, LPA confirm receipt of that third planning application. However, LPA indicates it cannot process the application as the Registered Person has not paid the £462 fee.

68. There is no evidence the Registered Person ever sent that money to LPA. Neither is there evidence he returned the money to Referrer 1.

69. In those circumstances, the Committee finds proved that the Registered Person did not pay the planning application fee, despite receiving funds from Referrer 1 to do so. As such, it has determined that the Registered Person has not safeguarded and managed client money appropriately.

1 d(ii)

70. The evidence of Referrer 1 is that the Registered Person repeatedly asked to be paid in cash and was paid in cash.

71. Referrer 1 asserts the Registered Person had said he wanted cash payments as ‘this meant the payments would be below the threshold requiring him to pay VAT’. The assertion is not supported by any contemporaneous documentary evidence (i.e., it is not captured in any email between them). This is a serious allegation and, at its height, might amount to tax evasion.

72. However, while Referrer 1’s evidence is that he paid the Registered Person in cash on a number of occasions, the scope of ARB’s investigation did not extend to establishing what the Registered Person then did with that cash. In other words, there is no evidence before the Committee to establish whether he put the cash in a ‘personal’ account, or a ‘business client’ account, or neither. Nor is there evidence that he failed to declare relevant parts of it as earned income (i.e. the fees element, as distinct from disbursements).

73. What Referrer 1’s evidence does establish, though (in the absence of anything from the Registered Person to the contrary), is that in relation to the bulk of those cash payments, the Registered Person did not provide him with a receipted account of the payments, nor a clear indication what some of those cash sums were for. On that basis, the Committee has determined that the Registered Person has not safeguarded and managed client money appropriately.

74. Likewise, the Committee notes that on 5 November 2019, the Registered Person asked Referrer 1 to deposit money into his personal bank account. This is confirmed by an email to Referrer 1 from the Registered Person of that date, wherein the Registered Person (providing his BACS to facilitate the deposit) justifies this proposal on the basis that it “means I do not get taxed on unearned income”. Referrer 1 sent him a personal cheque for this purpose.

75. In the Architects’ Code of Conduct 2017, Standard 7 (‘Trustworthiness and safeguarding clients’ money’), it stipulates:

‘7.1 You are expected to keep proper records of all money held by you which belongs to a client or other third party, and to account for it at all times.
7.2 You should keep such money in a designated interest-bearing bank account, called a “client account” which is separate from any personal or business account.’

76. The available evidence is inconclusive regarding which particular account the Registered Person actually deposited the cheque. However, it is clear that he certainly asked for the money to go into a private account, contrary to 7.2, and as such, in the Committee’s determination, this was not an appropriate way to safeguard and manage client money.

77. Overall, therefore, the committee finds Particular d(ii) proved on those bases.

 

 

Particular 1 (e) – Found proved

78. The Committee first considered whether the Registered Person’s actions had been dishonest.

79. In Ivey -v- Genting Casinos (UK) Ltd [2017] UK SC 67, the Supreme Court confirmed that when considering dishonesty, the Committee must first establish, subjectively, the state of the Registered Person’s knowledge or belief as to the facts and once established, whether his conduct was honest or dishonest by the objective standards of reasonable and honest people.

80. The Committee noted, in relation to Particular 1d(i), that following enquiry from Referrer 1, the Registered Person indicated on 10 January 2020 that he was ‘waiting for receipt’. The Committee considered the most obvious construction of those words was that the Registered Person was confirming to Referrer 1 he had submitted the planning application (and, by extension, that he had paid the fee).

81. As indicated above, though, in correspondence dated 27 February 2020, LPA had notified the Registered Person that although it had received the application, it could not process it as the fee had not been paid.

82. It was against this background that, when the February correspondence came to the attention of Referrer 1 and his daughter in August 2020, they believed that the Registered Person’s letter of 10 January 2020 must necessarily have been dishonest. They asserted that on unspecified occasions during the first ‘half’ of 2020 they had contacted the Registered Person, and he had indicated he still awaited progress from LPA.

83. The Committee has considered this fully, but it is not persuaded that the Registered Person can be established as dishonest in this regard.

84. This is because it cannot be gainsaid that the Registered person had indeed made the third planning application sometime between Christmas 2019 and 27 February 2020 (hence LPA’s correspondence in reply). Moreover, there is no evidence to establish that he had not made the application by 10 January, as he clearly implied in his letter.

85. Although, from 27 February, the Registered Person knew he had failed to enclose the fee payment with the application; there is nothing to establish the failure arose other than through inadvertence. (A characteristic of the wider case is the Registered Person’s shambolic working practices.)

86. Neither was there sufficient reliable evidence that the Registered Person ever claimed to Referrer 1, or his daughter, after 27 February that the fee had been paid and that the application was progressing.

87. Accordingly, while the Committee considers that the issue of integrity is engaged as a result of the Registered Person’s inaction following LPA’s 27 February correspondence (per below), it does not find dishonesty established to the civil standard of proof in relation to the planning application fee.

88. Turning to dishonesty in the context of Particular 1d(ii): simply seeking payment in cash does not necessarily impute dishonesty; it depends upon what then happens to the money. As indicated above, there is no evidence available in that regard.
89. In relation to asking for money to be deposited into a personal bank account, the Committee notes this relates to a disbursement not a fee. The Registered Person appears genuinely to believe that it is an appropriate way simultaneously to help a client while avoiding an inappropriate tax consequence himself. The Committee is clear that he is wholly wrong in this belief and, in making the request to Referrer 1, an integrity issue arises. However, it is not persuaded that his conduct (given his belief) would be viewed dishonest by the objective standards of reasonable and honest people.

90. The Committee than went to determine whether the Registered Person’s actions lacked integrity.

91. In Wingate and Evans v SRA and SRA -v- Malins [2018] EWCA Civ 366, the Court of Appeal described integrity in terms of the higher standards that society expects from professional persons and which professionals expect from their own members. In broad terms, integrity denotes adherence to the ethical standards of one’s own profession, and professional integrity is linked to the manner in which that particular profession professes to serve the public.

92. The Registered Person’s actions after 27 February – having neither forwarded the planning fee to LPA nor updated Referrer 1 regarding the position – was determined by the Committee to have been entirely lacking in integrity. In having simply retained the fee for himself for at least six months, the Registered Person’s conduct displayed a lack of ethical standards unacceptable to the profession.

93. Likewise, Standard 7 of the Code is unambiguous about how client money should be safeguarded and managed. The Registered Person’s non-compliance with that Standard is troubling and clearly fails to meet the higher standards that society expects from professional persons and which professionals expect from their own members.

 

Particular 1 (f) – Found proved.

94. On 28 January 2022, The Registered Person received correspondence headed ‘letter of claim’ from Referrer 1’s solicitors.

95. The Registered Person’s solicitors confirm receipt of that letter on 7 March 2022. Therein, his solicitor states, “at this stage our client does not wish to involve his insurers. Details will therefore be if/when this changes”.

96. On 27 January 2023, ARB Investigations’ Officer Mr F emailed the Registered Person to ask whether he had by that stage (i.e., a year later) advised his insurers of Referrer 1’s claim. The Registered Person responded that same day, stating “I have not so far as I totally refute the allegation […]”

97. Taking the above facts together, and in the absence of any evidence to suggest the position has since changed, the Committee finds Particular 1f proved.

 

In respect of Project B

Particular 2 (a) – Found proved.

98. As indicated above, Section 13 of the Act requires ARB to issue a Code laying down the standards of professional conduct and practice expected of persons registered as architects under the Act.

99. In the 2017 iteration of the Code (the one in place at the relevant time), it states,
‘…you are expected to be guided in your professional conduct and professional work by the spirit of the Code as well as by its express terms.’

100. Paragraph 4.4 of the Code (which comes within the general standard of ‘Competent management of your business’) states:
‘You are expected to ensure that before you undertake any professional work you have entered into a written agreement with the 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.’

101. The evidence of Referrer 2 was that although, five days after she had first contacted him, she had received an email from the Registered Person with a breakdown of his £10,250 fee; there was no written agreement between them, nor was one introduced subsequently (“I was never provided with a formal contract to sign’ and ‘[…] we did not discuss timeframes in detail”).

102. Although the Registered Person did not attend the hearing, in correspondence with the ARB, he responded to this Particular in the following terms:
“[…] Failed to provide adequate written terms of engagement, contrary to Standard 4.4 of the Architects Code
Firstly, I would like to note for the record that I have known Referrer 2 for many many years and we have worked together before during her many years on the local Parish Council.
When we met on site in December 2021, we discussed the project and the way forward. The Client was looking for advise as to the way forward and asked at the first site meeting for approximate costings. Having viewed both properties I did indeed advise her that we were involved in a similar project, inc Listed status and that I would recommend the same fee. I advised her the fee was around £10,500 and she seemed happy with this to get it to Listed/planning application stage and submission. Apologies if I was wrong for trying to be frank and honest, and if Referrer 2 now states that she does not feel I should have disclosed another Clients costings, then she should have made it clear – I was merely trying to be of assistance and honest.
With regards to the project referred to, Referrer 2 is incorrect as we were in the middle of the project at the time and the application that was made was also a Pre-Application, which generally do not appear as planning applications
I advised her that the principle bulk of the fee would be the survey works as they were important buildings and would take time to survey. All of our Clients are asked to pay the survey fee in full generally prior to commencement on site but in Referrer 2s case we merely asked for a deposit. She was given a breakdown of the fees inc consultants that need to be appointed for Ecology and Structural works
We also gave her a verbal date when we could commence on site with the surveys which would be around 6 weeks’ time when hopefully the New Year weather would be suitable”

103. The Committee notes there is nothing in this explanation to suggest that the Registered Person has ever prepared and agreed written terms of engagement in accordance with Standard 4.4. Neither has he supplied any such written terms of engagement for this committee’s consideration.

104. Consequently, the Committee finds Particular 2a proved.

 

Particular 2 (b) – found proved

105. Referrer 2 complains that the Registered Person did not complete the work without undue delay.
106. She says that after her initial substantive contact with him in December 2021, once fees had been paid and the Registered Person had contacted her with a view to the survey being done on 26 February 2022, thereafter,
“Between February 2022 and July 2022, the Registered Person’s contact was very minimal. He never said how long it would take to provide the drawings following the survey. He did not provide me with any updates during this time.”

107. Indeed, she characterises her engagement with him for much of the rest of 2022 as a process of having to pursue him for progress: “I had to chase him for everything.”

108. Eventually, she ceased using him and made a complaint to ARB. She now employs a different architect. She told the Committee the difference between the two architects was like the difference between ‘darkness and light’.

109. For his part, the Registered Person responded in writing to ARB thus:
‘[…] 2 Failed to complete work without undue delay
I have already addressed the issue of the payment of the survey fee before commencement on site and the deposit
Referrer 2 appears to be avoiding the fact that the survey took a considerable time to complete and then to commence the drawing procedure. She also appears to not refer to the work undertaken by myself in organising and meeting on site the Ecologist, as well as finding an engineer and liaising with them both regarding the project, all of this being done out of goodwill. Details were prepared by the engineer for the replacement floor structure which had collapsed in one area of the longhouse and would require Listed Building Consent if not able to be reinstated as original, which was not possible. Referrer 2 was fully involved in the negotiations with the engineer and was aware that this and the Ecology reports which were very in-depth would be required to accompany application to DNPA
I accept that there was an unintentional email copied from my assistant to Referrer 2 when I was chasing the progress of the drawings. However, I must make it clear that at our initial meeting on site, the Client referred to and attached barn, partially joined to the main barn and her thoughts on making it a locals workshop, which at the time I thought was an interesting and philanthropic idea. The initial confusion from the email to my assistant was generated because there is also an attached garage to the longhouse. The situation was immediately remedied
I would also wish to note that I am not in habit of telling mis-truths and that my new puppy had indeed broken my new mobile phone. Referrer 2 also states that I arranged a meeting on site on 22/7 to have a general discussion about where we were with the project and when she arrived the ecologist was there. This is correct but unfortunately I was unaware that the ecologist was there and having turned up early I then started a conversation with her. We then had a discussion about progress and Referrer 2 wished to discuss in more detail the ecology works and so not being required at this juncture I then bid my farewells. It is not a case that we did not discuss anything
I did advise on 23/9/22 that DNPA had put a hold on all new applications and subsequently that they had then stopped doing any Pre-Apps so we will need to prepare a full application to take the project forward […]’

110. The Inquirer, having assessed the available evidence, prepared a 49-page report based upon the following timeline of events:

i. 15 December 2021: Referrer 2 contacts Registered Person regarding potential appointment as architect for listed building for farmhouse and barn conversion.
ii. 22 December 2021: Registered Person provides details of fees to be charged for Listed, Planning and Change of Use applications to DNPA. Registered Person indicates that services will commence in February 2022.
iii. 29 December 2021: Referrer 2 makes payment of £3000 to Registered Person.
iv. 18 January 2022: Referrer 2 authorises the acquisition of a bat and nesting bird visual survey.
v. 26 February 2022: Registered Person undertakes site survey.
vi. 18 July 2022: Registered Person contacts Referrer 2, apologising for the delay (‘we have been up to our ears in it’) and producing survey drawing of Farmhouse. Registered Person indicates the barn plans will follow ‘in the next few days’.
vii. 18 July 2022: Registered Person advises Referrer 2 of proposed pre-application consultation with DNPA.
viii. 21 July 2022: Registered Person advises Referrer 2 of urgency in progressing application because DNPA will not be accepting applications for one month (‘16 August to 12 September’).
ix. 22 July 2022: Registered Person requests further payment of £2,500 plus £180 for application fee. Referrer 2 says, “He confirmed he would send me a draft pre-application for approval before submitting it to the Council, however I never received any draft. At the time, I understood the £2,500 he requested to be part of the total amount that was agreed at the outset. No indication was given on what this payment was for”
x. 25 July 2022: Registered Person requests that Referrer 2 confirms land in ownership.
xi. 14 August 2022: Registered Person issues Referrer 2 with drawings detailing existing buildings (but with incorrect address). Referrer 2 comments that ‘despite the urgency needed in order to submit the application before the council closed for a month, the Registered Person did not provide the plans for the house and barn until 14 August 2022’ (i.e. 2 days before the DNPA were closed for a month).
xii. 19 August 2022: Registered Person advises Referrer 2 that DNPA is no longer accepting pre-applications due to system upgrade.
xiii. 21 August 2022: Registered Person issues corrected drawings detailing existing buildings to Referrer 2.
xiv. 24 August 2022: Referrer 2 pays Registered Person £2,500 and asks for a receipt (Despite send a reminder note, she says that “To this day, I have not received a receipt”).
xv. 15 September 2022: Finalised bat survey issued by Referrer 2.
xvi. 27 September 2022: Referrer 2 requests meeting with Registered Person to discuss next steps.
xvii. 25 October 2022: Following request on 27 September 2022, meeting held between Registered Person and Referrer 2. Registered Person advises of requirement for structural engineer.
xviii. 28 October 2022: Registered Person requests payment of £1,000 for submission of listed building application including design and access and heritage reports.
xix. 29 November 2022: Referrer 2 makes request for update on progress from Registered Person. Registered Person responds that he would get his plans to Referrer 2 over the weekend “ready for an app next week”.
xx. 9 December, 13 December and 19 December 2022: The plans remain outstanding and so Referrer 2 makes further requests for an update on progress from Registered Person.
xxi. 10 January 2023: Referrer 2 again requests update on progress from Registered Person and expresses concern that only drawings received to date are drawings of existing buildings. She says, “by this point, I had paid him £9155, but he had only provided some initial outline drawings of the existing site. I had not received any draft plans for the proposed project. I asked him to explain why he had not carried out any further work on my project”)
xxii. January 2023: Drawings of proposed alterations to Farmhouse issued; Drawings dated ‘January 2023’, no revision.
xxiii. 31 January 2023: Drawings of proposed alterations to Farmhouse and Barn issued; Drawings dated ‘January 2023’, no revision.
xxiv. 31 January – 6 February 2023: Exchanges between Registered Person and Referrer 2 to finalise proposals.
xxv. 6 February-13 February 2023: Exchanges between Registered Person and Referrer 2 to clarify fees and application charges.

111. Reflecting upon the events set out above, and the Registered Person’s activity across that timeline, the Inquirer says:
“I am of the opinion that in taking 4 months (February 2022 to July 2022) from the time of the survey to the preparation of drawings of the existing building and a further 5 months (from July 2022 to December 2022) to prepare very rudimentary plans of the proposed works, the RP caused undue delay to the Project”
And,
“From the evidence provided to me I am of the opinion that there were no justifiable reasons for the delays to the project.”

112. Having noted the reasons offered by the Registered Person to explain the delay, the Inquirer characterises them thus:
‘[…]
i) The period of time to undertake the survey;
ii) The appointment of an ecologist;
iii) The appointment of a structural engineer; and
iv) A misunderstanding relating to the Referrer’s requirements for a community facility.’

113. However, he asserts that “none of the 4 reasons for delay stated by the RP had a material impact or are valid reasons for the delays to the project.” (In oral evidence he reinforced this, describing the Registered Person’s reasons as “spurious”)

114. In relation to whether the ‘listed building’ status of the property would impact on the expected timeframes, the Inquirer wrote,
“[…] Applications for listed building consent take longer than applications for planning consent because of the additional consultations required following consideration by the local authority.
Furthermore, I am of the opinion that a greater level of detail is required in listed building application requiring greater care and a longer period of time in their preparation. This time would likely include consulting with any heritage office or body to determine the critical issues.
I would expect an architect to advise their client of the likely timescales of such applications in order to manage expectations.
I have not seen any evidence in this matter to indicate that consultations with heritage bodies impacted upon the expected timeframes.”

115. In his report, the Inquirer suggests that reasonable timescales for the project would instead have been:
‘[…]
i. Preparation of survey drawing following measured survey: 2-4 weeks
ii. Iterative development of proposal with client: 2-6 weeks
iii. Design development with structural engineer where required: 2-4 weeks
iv. Detailed proposal for planning/listed building application 1-2 weeks
v. Determination of Planning Application: 3-5 months
vi. Determination of Listed Building Application: 4-6 months […]’

116. Set against this, he therefore concludes that the Registered Person did not work within reasonable timeframes:
“I am of the opinion that, without any justifiable reason or notification to the client, a period of four months from the time of the measured survey for the preparation of survey drawings to fall far below the standard to be expected of a reasonably competent architect for a project of this type and scale.
I am of the opinion that, without any justifiable reason or notification to the client, a period of five months from the availability of survey drawings to the preparation of a rudimentary design proposal to fall far below the standard to be expected of a reasonably competent architect for a project of this type and scale.”

117. For its part, reflecting upon the sequence of events across the timeline, and the accounts of both Referrer 2 and the Registered Person; the Committee entirely shares the Inquirer’s conclusion, and for the reasons he gives. It has therefore determined that the Registered Person did not complete this work without undue delay.

118. Accordingly, the Committee finds Particular 2b proved.

Particular 2 (c)

119. Responding to this Particular in the round, the Registered Person wrote:
“[…]
I explained quite clearly to my Client, as I have to many others since the Planning Portal came into effect, that unless you wish to manoeuvre yourself through the portal site, you cannot pay by cheque, cash or any other means other than bank transfer to the planning authority. I also explained, that just like solicitors do, I do not wish to be taxed as ‘unearned income’ for receiving any planning fees. The fee is paid directly through the Planning Portal at the time of making the application and therefore unless they wish to pay this direct themselves then she should forward this to my private bank account and then payment will be made from there. I gain no income from this and in fact am doing Clients a favour by assisting them. If they wish to do it themselves then they are perfectly within their remit to do so but it will cause a delay as all LPA’s take a period to go through the admin period, only then to ask for payment. Referrer 2 has taken exception to this and has not taken into account the reason for this request. I have already stated that I am perfectly happy to return her fee but as she did not respond to my request and then ‘alluded’ to some tax avoidance, she paid it into my business account which I have since been taxed upon
We have been paid for the survey as agreed although we split the invoice on a goodwill basis.
We arranged ecology and structural engineers to assist the client and made a nominal request for payment upon account although this was out of our remit but within the whole fee structure
The Client came into my office to discuss the scheme, in particular the barn conversion. I was surprised by this matter as the emphasis had always been on the Longhouse. She asked for the detailed designs for both, but in the office she asked for the Longhouse/Farmhouse to have the removal of the rear additions, replacement floor structure and the replacement porch to be the most urgent. I attach the copies of the changes she requested when she was in the office and I showed them to her, which she agreed to, and after the meeting I then added the notes in the top right-hand corner of the plan for my assistant about the structural report and the ecology report to be added to the drawings. She had left amicably and I immediately sent these to my assistant who in due course made the amendments.
Once received, we forwarded these to the Client who then immediately replied saying this is not what she wanted.
She has subsequently made the accusation that I have provided drawings that were not required as all she wished to do was replace the porch under ‘Maintenance and Repair’. This is entirely incorrect as she had originally agreed that the rear extension and the collapsed floor were to be done and engaged the engineer to design accordingly. These items required Listed Building Consent. Then she has changed her mind and accused us of providing drawings that she did not want and should not have paid for. We had by then provided her with revised drawings for what she says she required.”
He adds,
“I am happy to refund the Client the fee which she did not pay into the correct account but am disappointed that she has taken the course of action to take this matter to this level.”

 

Particular 2 c(i) – found proved

Instance 1:

120. Referrer 2 indicates that the Registered Person asked her to pay a £180 planning application fee directly into his private account. This is supported by emails to her from the Registered Person dated 22 July 2022.

121. Referrer 2 says that on 27 July 2022 she paid that money into his personal account, and she produces her bank statement as evidence of this.

122. For his part, the Registered Person fully accepts that he had asked her to do so, but maintains he did nothing improper.

Instance 2:

123. On 13 February 2023, the Registered Person sent an email to Referrer 2 indicating that a fee of £465 was payable to the local authority. Again, he indicated that, if she wanted him to process this, she should send that sum to his private account (‘so I don’t get taxed on it’). Referrer 2 indicates she never made this payment.

124. The Committee is satisfied that Particular 2c(i) is established on the basis of these two instances.

 

Particular 2 c(ii) – found proved

125. Referrer 2’s evidence is that the £180 planning application fee (‘instance 1’, above) has never been refunded to her.

126. She says,
“I note the Registered Person’s position was that he offered to refund this fee to me, but that I did not respond. I disagree with this. I never requested the refund and he has never offered a refund. However, had he offered a refund then I would have accepted it.”

127. The Committee has seen no evidence that the money has since been refunded – and, in her oral evidence, Referrer 2 did not indicate the position had changed.

128. Accordingly, the Committee finds this proved.

 

 

Particular 2 c(iii) – found proved

129. The Architects’ Code of Conduct 2017, Standard 7 (‘Trustworthiness and safeguarding clients’ money’), stipulates:
‘7.1 You are expected to keep proper records of all money held by you which belongs to a client or other third party, and to account for it at all times.
7.2 You should keep such money in a designated interest-bearing bank account, called a “client account” which is separate from any personal or business account.’

130. In ‘instance one’ of Particular 2c(i) above, Referrer 2’s asserts she paid that planning application fee into the Registered Person’s personal account. She exhibits her bank statement as evidence of this.

131. The Committee has considered this. However, while that bank statement contains bank referencing details, the Committee cannot marry these up with the Registered Person’s personal account, as the means by which it might have done (i.e., the Registered Person’s correspondence of 22 July 2022, where he provides details of his personal account) has been redacted of the relevant detail. Meanwhile, the Registered Person insists that Referrer 2 actually paid the money into the ‘wrong’ account, resulting in him being taxed upon it.

132. Notwithstanding this, the Committee’s determination is that whichever account the fee was paid into, it would not have been paid (as it should have been paid) into a designated interest-bearing bank account called ‘client money’; since, if it had, then perforce it would not have attracted a tax consequence for the Registered Person.

133. Consequently, the Committee finds this proved.

134. Finally, the Committee has taken Particulars 2c(i), 2c(ii) and 2c(iii) together. Having found that the Registered Person asked for the £180 planning application fee to be sent somewhere other than into a Standard 7-compliant account, and that he then neither paid the intended recipient nor refunded the money to Referrer 2, the Committee considers the Registered Person did not adequately safeguard and manage client money.

 

 

Decision on Unacceptable Professional Conduct (‘UPC’)

The Committee’s Approach

135. The Chair advised that whether the conduct alleged amounts to UPC is a matter for the Committee’s independent judgment and there is no burden or standard of proof.

136. UPC is defined as conduct which falls short of the standard required of a Registered Person. In reaching its findings on UPC, the Committee recognised that not every shortcoming on the part of an architect, nor failure by him or her to comply with the provisions of the Code, will necessarily give rise to disciplinary proceedings or a finding of UPC. Architects are expected to be guided by the spirit of the Code as well as its express terms.
137. In deciding whether the proven facts amounted to UPC, the Committee had regard to Spencer v General Osteopathic Council [2012] EWHC 3147 (Admin). It bore in mind that for a finding of UPC to be made, it required “a degree of moral blameworthiness on the part of the registrant likely to convey a degree of opprobrium to the ordinary intelligent citizen”. The committee also took into account the observation made by Mr Justice Kerr in Shaw v The General Osteopathic Council [2015] EWHC 2721 (Admin); namely, that although the conduct in question must be sufficiently serious, it does not need to be of such gravity that imposing an admonishment would be too lenient.

 

 

Findings of UPC

138. The Committee determined at the fact-finding stage that the Registered Person had not provided Referrers with adequate written terms of engagement, had not completed their work without undue delay, and had not safeguarded and managed their money as required. In addition, regarding Referrer 1, the Registered Person had not kept his client updated on progress, nor had he acted competently and with due skill and care in relation to different aspects of his professional work. His conduct had lacked integrity in relation to the safeguarding and managing of Referrer 1’s money and, withal, he had not notified his professional indemnity insurers when he received a claim from Referrer 1.

139. The Committee regarded these as serious matters.

140. As an architect, the Registered Person was ‘expected at all times to act with honesty and integrity and to avoid any actions or situations which are inconsistent with your professional obligations’ (Code, Standard 1.1). However, there were troubling integrity issues regarding his conduct with Referrer 1, as set out in its Decision on Facts at paragraphs 89-93 above of [hereafter ‘DOF, §89-93’).

141. More, those integrity issues were specifically linked to his handling of Referrer 1’s money.

142. The Committee reminded itself that Code Standard 7.2 was directly engaged by Registered Person’s conduct in respect of both Referrers (DOF, §65-77, 120-134):
‘You should keep such money in a designated interest-bearing bank account, called a “client account” which is separate from any personal or business account.’

143. In tandem with those matters, it was also incumbent upon the Registered Person ‘to be competent to carry out the professional work [he undertook] to do’ (Code, Standard 2.1). The Committee found, though, a paucity of evidence that the Registered person had acted competently in his dealings with Referrer 1, both regarding the planning application and the site drainage (DOF, §60-64). This was not without consequence either: it resulted in Referrer 1 incurring unnecessary expenses.

144. The Registered Person’s incompetence also built undue delay into Project A (DOF, §53-56); a delay which largely went unexplained to Referrer 1 and his daughter, both of whom trusted him as a registered and regulated professional. Referrer 1 was at a stage in his life when he, entirely reasonably, required the work to be undertaken with due expedition in order to enable its use by his wider family.

145. Not merely, though, did the Registered Person fail to work on the project without undue delay; neither did he keep his client updated on its progress (DOF, §57-59) – and that was notably the case over a significant period of time.

146. The Committee noted that his undue delay in relation to Referrer 1’s project finds its echo in the Registered Person’s conduct regarding Referrer 2 and Project B (DOF § 105-118).

147. In her case, too, the Committee noted (albeit it had not been particularised in the Allegation) that the Registered Person had not kept his client updated on progress; often seeking to explain such delays by reference to matters in his personal life, rather than making appropriate arrangements to ensure his professional responsibilities were properly discharged at such times.
148. Reflecting upon these features of his conduct, the Committee considered the following parts of the Code were germane and directly engaged in this case:

‘Standard 2: Competence
2.1 You are expected to be competent to carry out the professional work you undertake to do, and if you engage others to do that work they should be competent and adequately supervised.
2.2 You are expected to make appropriate arrangements for your professional work in the event of incapacity, death, absence from, or inability to, work.

Standard 4: Competent management of your business
4.1 You are expected to have effective systems in place to ensure that your practice is run professionally and that projects are regularly monitored and reviewed.

Standard 6: You should carry out your professional work conscientiously and with due regard to relevant technical and professional standards
6.1 You are expected to carry out your work with skill and care and in accordance with the terms of your engagement.
6.2 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.
6.3 You are expected to keep your client informed of the progress of work you undertake on their behalf and of any issue which may significantly affect its quality or cost.’

149. The Committee was clear that at the core of a number of the Registered Person’s deficiencies of performance, in relation to his work for both Referrers, was his failure to have entered into a written agreement with each of them in accordance with the terms and the spirit of Standard 4.4 of the Code (DOF §44-51, 98-102). This failure created an information vacuum for his clients, such that too often each was unclear what the Registered Person was doing, when he would be doing it, and precisely what they were being asked to pay for. Notably, they were not involved in key decisions about their projects. The Committee considered his conduct in this regard to have been woeful.

150. It was plain that both Referrers were deeply unhappy with the Registered Person’s working practices, and with good reason. The Committee earlier set out some of Referrer 2’s observations (DOF, §106-108). For his part, Referrer 1 indicates that he too was significantly impacted by the Registered Person’s behaviour. He says,
“I am currently retired. I am a disabled war veteran who previously served in the military. […]
I paid the Registered Person approximately £11,000 in total. Due to the passage of time, and the medication that I take, I cannot recall the exact details of the payments I made. […]
I asked the Registered Person for invoices and receipts on several occasions, but he was reluctant to provide them. […]
I believe the Registered Person thought that I was an easy target due to my age and disabilities. I feel he has taken advantage of me. It felt like he tried to pocket as much money as possible, whilst doing as little work as possible […]”

151. Overall, the evidence presents a picture of a Registered Person who, in performing professional services for Referrer 1 and Referrer 2, paid scant regard to the Code which should have been guiding his professional conduct and professional work.

152. This is seen, too, in his attitude to his professional indemnity insurers (DOF, §94-97), where his decision-making runs directly contrary to ARB’s published guidance, thereby creating precisely the risk to which the guidance refers, viz:

153. ‘To avoid the danger of your insurers refusing to cover a claim, it is vital that you notify them – at the earliest opportunity – of any circumstance that may lead to a claim. For example, as soon as a client makes any form of allegation or complaint, […] you should contact your […] insurance provider straightaway. Insurers need to know of any potential claim at the earliest opportunity […]. Failure to notify your insurers in good time may result in a late claim being rejected.’ (ARB ‘Professional Indemnity Insurance Guidance Note’, 2020)

154. Accordingly, for the reasons set out above, the Committee has concluded that the particular findings of fact, and the corresponding breaches of the Code, were sufficiently serious to impact adversely both on the reputation of the Registered Person and upon the profession generally.

155. The Committee therefore finds that the Registered Person’s conduct amounts to Unacceptable Professional Conduct.

 

Decision on Sanction

The Committee’s Approach

156. In considering the issue of sanctions, the Committee took into account the advice provided by the Legally Qualified Chair – which was provided in public session and upon which the parties were invited to comment. The Committee accepted fully that advice.

157. The Committee also took into account its previous findings, together with the submissions made by the Presenter.

158. The Presenter did not recommend any particular sanction as appropriate in this case and acknowledged there is no requirement to impose a sanction in every case. He drew the Committee’s attention to the list of possible aggravating and mitigating factors, as outlined in the Sanctions Guidance 2022. He also introduced evidence of the Registered Person’s disciplinary history. This comprised:

i. A caution accepted by the Registered Person on 14 November 2007.
The caution was issued in relation to the Registered Person not having responded to correspondence from a client on a number of occasions. In its decision, the ARB investigations committee had said ‘it is not acceptable to just ignore correspondence. Standard 12 of the Code does require action within a certain timescale and the architect could have acknowledged the correspondence and, if not able to respond promptly, given a timescale to his clients as to when he hoped to do so’.
The caution was framed thus: ‘The architect must have in place a system that will ensure that he can respond to his clients in a timely fashion when a complaint arises in line with the requirements of Standard 12 of the Code’
In accepting the caution, the Registered Person confirmed (email, 14 November 2007) that he would put such a system in place.
ii. A Consent Order (22 August 2022)
This was issued in relation to an Allegation of Unacceptable Professional Conduct. The ARB particularised the Allegation thus:
(1) The Registered Person did not provide adequate written terms of engagement contrary to Standard 4.4 of the Architects Code;
(2) The Registered Person:
a) did not complete work for his client without undue delay;
b) did not keep his client informed about the progress of the work contrary to Standard 6.3;
(3) The Registered Person did not:
a) provide adequate specification notes and/or technical information in line with the client’s requirements when issuing these documents on 7 March 2021;
b) did not adequately revise the specification notes and/or technical information on more than one occasion when issues were identified by the client.
(4) The Registered Person did not deal with a complaint appropriately, contrary to Standard 10 of the Architects Code.
The conduct relates to a period from December 2020 to October 2021. The allegation was admitted by the Registered Person.
In disposing of the case, the PCC recorded that ‘The Registered Person has engaged in the regulatory process and [had] admitted the factual allegations. He [had] also admitted that this amounts to Unacceptable Professional Conduct.’ Accordingly, ‘In light of the admissions and mitigation advanced by the Registered Person in his representations […] the parties [agreed] that a financial penalty of £1,000 [was] an appropriate and proportionate disciplinary order to impose.’

159. The Committee also took into account the Sanctions Guidance. The Committee was mindful that the purpose of any sanction is not to punish the Registered Person but to protect the public and the wider public interest. The public interest includes upholding public confidence in the profession and declaring and upholding proper standards of conduct and competence.

160. Throughout its deliberations, the Committee applied the principle of proportionality by taking into account the aggravating and mitigating factors,and weighing the Registered Person’s interests with the public interest. It considered the available sanctions in ascending order of severity.

 

 

Committee composition and recusal

161. Upon retiring to consider the question of sanction, the Committee had access, for the first time, to the Consent Order (22 August 2022).

162. It was immediately evident that the architect member who sat on that committee two and a half years ago was the architect member on this Committee, Mr Carr.

163. Mr Carr explained that until he saw that 2022 Order, it had not been remotely within his purview, and that at no stage before or during this hearing had he realised it was the same Registered Person in both cases. In consequence it played no part in his thought processes.

164. The Committee returned to public session and explained the position on record.

165. Due to the Registered Person’s absence, it then adjourned the case overnight to give him, along with the Presenter, the opportunity to make submissions and (should they wish to do so) to ask questions of Mr Carr.
166. The ARB wrote to the Registered Person explaining the position and inviting any submissions or comments he would like to make in relation to Mr Carr’s involvement.

167. The Registered Person responded in writing, simply to say, ‘I don’t believe I know this gentleman’. He did not object to Mr Carr’s continued involvement; neither did he renew his application for an adjournment.

168. For his part, the Presenter submitted that, in the particular circumstances there would be no procedural impropriety in the Committee continuing to hear this case, as constituted. In support of this submission, the Presenter relied upon the caselaw referred to below, together with the Registered Person’s written response to this issue.

169. Reflecting upon all these matters, and taking into account the advice from the Legally Qualified Chair, the Committee bore in mind relevant law in this area:
i. The test for apparent bias was expressed clearly in Porter v Magill [2001] UKHL 67; [2002] 2 AC 357:

“The question is whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”

ii. That test was endorsed in Helow v Secretary of State for the Home Department [2008] 1 WLR 2416, framed thus:

“Would a fair minded and informed observer, not unduly sensitive or suspicious, on considering the facts, conclude that there was a real possibility of bias?”

iii. In Rasool v General Pharmaceutical Council [2015] EWHC 217 (Admin) the test was articulated as:

“Would a fair-minded observer, having considered the relevant facts, consider there was a real possibility that the Tribunal was consciously or unconsciously biased?”

iv. In that latter case, Justice Carr noted the reference to the case of Castillo Algar v Spain [1988] 30 EHRR 827 to support ‘the proposition […] that any judge in respect of whom there was a legitimate reason to fear a lack of impartiality must withdraw’. However, Justice Carr went on,

“In assessing whether there was such a legitimate reason, the standpoint of the accused was important but not decisive. The decisive test was an objective one. The mere fact that a judge had already taken decisions before the trial could not in itself be regarded as justifying anxieties as to his impartiality. The issue of bias was highly fact-sensitive.”

v. In Datta v General Medical Council (Privy Council Appeal No 34 of 1985) the issue concerned a chairman who had presided over earlier proceedings in which the appellant had been found guilty of serious professional misconduct. The complaint was not so much one of bias or that justice was not done, but that it was manifestly not seen to be done. However, in dismissing the appeal, Lord Griffiths said:

“…Those entrusted with judicial or quasi-judicial functions must and can be trusted to try the case on the evidence before them and to put out of their minds knowledge arising out of any earlier appearance before them by the same accused person.”

170. Against that background, the facts in this case can be fairly characterised as follows:

i. The consent order was a ‘papers-only’ determination in 2022. Mr Carr did not encounter the Registered Person for the purpose of that exercise. Therefore, he never had an opportunity to form any previous impression of him. The facts of the Consent Order do not relate to the current case.
ii. More than two years on, the 2022 case had been entirely outside Mr Carr’s consideration when addressing his mind to all aspects of the present case. Instead, he was one of a panel of professionals assessing the present Allegation purely upon the evidence presented during the hearing. As soon as he noticed his name on the 2022 decision document, he alerted his committee colleagues. The Committee then immediately disclosed the development in public hearing; adjourning the case to give both the Registered Person and the Presenter an opportunity to consider this issue and to make submissions.
iii. As indicated, the Presenter’s submission was as above.
iv. The Registered Person, meanwhile, responded in writing, simply to say, ‘I don’t believe I know this gentleman’. He did not object to Mr Carr’s continued involvement; neither did he seek an adjournment.

171. The Committee recognised that the appearance of independence and impartiality is just as important as the question of whether these qualities exist in fact. Justice must not only be done, but must be seen to be done. Fairness should be at the heart of its decision-making.

172. Set against those facts, the Committee determined that a fair minded and informed observer, not unduly sensitive or suspicious, on considering the facts, would not conclude in the particular circumstances that there was a real possibility of bias.

173. Consequently, having considered the law and having heard such submissions as the parties chose to make, the Committee has determined it can fairly and properly continue to hear this case and that there is no procedural impropriety or irregularity in doing so.

 

 

Sanction decision

174. In determining what sanction, if any, to impose the Committee identified the following aggravating factors:
i. The particulars of fact establish a pattern of poor conduct, multivarious in its presentation, repeated over a significant timeframe, and involving more than one complainant (viz Referrer 1 and Referrer 2)
ii. The Registered Person’s conduct caused harm to his clients: financial harm in relation to Referrer 1 (in terms of unnecessary expenditure), but also ‘harm’ in the sense of a significant loss of time in relation to both Referrers’ projects.
iii. His conduct also plainly effected Referrer 1, who depicts himself as vulnerable, and who believed he was being taken advantage of due to his age and disabilities.
iv. Some of the conduct is similar to that for which the Registered Person had been brought to ARB’s attention in the past; first in 2007 when he received a caution, and again in 2022 when he received a Consent Order with a financial penalty. In both instances, there were themes embedded in his previous conduct (per §158, above), which overlap with those for which the Committee is currently considering the issue of sanction.
v. The Registered Person’s conduct in relation to Referrer 2 occurred during a period in which he was responding to ARB conduct proceedings for the matter for which he received the Consent Order (per above), after admitting the Allegation.
vi. In his written responses to ARB in advance of the hearing, there was no acknowledgement of any failings on his part, no evidence of insight or remorse, nor any evidence to indicate he had taken any remedial action (for example, he did not refund unpaid fees to either of the Referrers). Neither was there evidence that he appreciated the anxiety his conduct had caused to Referrer 1 and Referrer 2. Although the Committee recognised these were denied particulars, it did not preclude the Registered Person making evident that he understood in principle why the conduct alleged was inappropriate and how, if true, it might have the impact the two Referrers have suggested.
vii. Finally, there has been a failure by the Registered Person to engage with the disciplinary process constructively. While he made some initial written comments regarding the Allegations, his contact with his regulator has been ineffectual for many months.

175. Turning to mitigating factors, the Committee could only identify the following:
i. The Registered Person had some initial engagement in the process, as captured in the correspondence referred to earlier in this document (§38)
ii. [REMOVED due to topic relating to private matters] However, the committee had no further information in these regards and so was only able to give them limited weight.

176. Set against these aggravating and mitigating factors, and bearing in mind the purpose of sanctions, the Committee then went on to consider which sanction, if any, it should impose

 

 

 

No Sanction

177. The Committee first considered whether to conclude the case by taking no action on the Registered Person’s registration. In doing so, the Committee considered paragraph 6.1.2 of the Sanctions Guidance which states: “In rare cases the PCC may conclude, having had regard to all the circumstances, that the level of seriousness of the architect’s conduct or incompetence is so low that it would be unfair or disproportionate to impose a sanction. Where the PCC has determined a sanction is not required, it is particularly important that it is clear in its written reasons as to the exceptional circumstances that justified imposing no sanction.”

178. Exceptional circumstances are unusual, special, or uncommon. The Committee determined that neither the background to this case nor the specific circumstances that arose could be properly characterised as exceptional. Furthermore, the Committee concluded that the finding of UPC alone would not be sufficient, proportionate, or in the public interest. In reaching this conclusion the Committee was mindful that the Registered Person’s failings diminished both his reputation and that of the profession generally. The Committee therefore concluded that the Registered Person’s conduct was sufficiently serious for it to require the imposition of a sanction.

 

 

Reprimand

179. The Committee next considered whether to impose a reprimand. The Committee took into account the non-exhaustive factors as set out in paragraph 6.2.2 which indicate when a reprimand may be the appropriate and proportionate sanction.

180. The Committee noted, however, the harm and the risk of harm caused to the Referrers; both in terms of significant amounts of wasted time, and (in the case of Referrer 1) unnecessary expense. Given the absence of insight, remorse, or remediation, the Committee was unable to exclude the possibility of further harm to the wider public.

181. Furthermore,
i. There was no evidence he has taken any corrective steps;
ii. He had received a caution and a Consent Order in relation to his previous professional conduct; and
iii. It could not be said that the conduct and/or incompetence represented an isolated incident.

182. In those circumstances, the Committee concluded that rather than uphold the committee’s regulatory duty to protect the public, maintain public confidence in the profession, and uphold proper professional standards and conduct for members of the profession, a reprimand would undermine these objectives.

183. Therefore, the Committee concluded that a reprimand would be neither appropriate nor proportionate.

 

 

 

Penalty Order

184. The Committee then considered whether the imposition of a penalty order would be sufficient and effective in reinforcing the importance of complying with the Code and acting with integrity at all times. The Committee concluded it would not.
185. Given the particular circumstances of the case, coupled with the Registered Person’s previous disciplinary history (which had included a financial penalty for conduct similar in nature, in some respects, to that before this committee), it concluded a financial penalty would add nothing of materiality to the significance of public censure in the form of a reprimand. Moreover, a penalty order would be insufficient to protect the public and meet the wider public interest, given the nature and gravity of the Registered Person’s conduct and behaviour.

 

 

Suspension Order

186. The Committee next considered a suspension order. A suspension order would re-affirm to the Registered Person, the profession, and the public the standards expected of a registered architect. The Committee noted that a suspension order would prevent the Registered Person from using the title of ‘Architect’ during its period of operation, which would therefore provide a degree of protection to the public.

187. However, the Committee determined that – taking together the nature and seriousness of the Registered Person’s conduct, the integrity issues, the repetition of his deficient performance, and the absence of insight or remorse – a suspension order would not be sufficient to maintain public confidence in the profession and the regulatory process. It would also not have a deterrent effect on other Registered Persons.

188. Furthermore, the persistent and wide-ranging nature of the Registered Person’s behaviour indicates an attitudinal problem that may be entrenched. While his conduct is of a kind capable of being rectified, there was no evidence before the Committee to facilitate the belief that, were the Registered Person to be suspended, the conduct would be so rectified such that, upon his return from a suspension, it would not re-occur.

189. Moreover, in reaching the conclusion that a suspension order would be insufficient to protect the public and the wider public interest, the Committee took into account the Registered Person’s non-engagement during the hearing. The Ccommittee concluded that, in the absence of constructive engagement from the Registered Person, there was no information available that alleviated the Committee’s concerns about his future conduct.

190. Having determined that a suspension order does not meet the objectives of public protection and upholding the wider public interest, the Committee determined that the Registered Person’s name should be removed from the Register.

 

 

 

Erasure

191. The Committee acknowledged that erasure is a sanction of last resort and should be reserved for those cases where there is no other means of protecting the public or the wider public interest. The Committee decided that this was such a case, due to its nature coupled with the high risk of repetition. The committee concluded that any lesser sanction would undermine public trust and confidence. At present, the Registered Person’s behaviour is fundamentally incompatible with continued registration as an architect.

192. The Committee had regard to the impact erasure may have on the Registered Person but concluded that his interests were significantly outweighed by the Committee’s duty to give priority to the significant public interest concerns raised by this case.

193. In these circumstances, the Committee decided that the only appropriate and proportionate order is erasure.

194. The Committee recommends that the Registered Person is not permitted to apply to re-join the Register for a period of two years. It has determined this period to reflect the seriousness with which it views his behaviour and his seeming attitude towards it. The Committee considers the period will give him time to reflect upon how to conduct himself in accordance with the Code, and thereby to be able to demonstrate that understanding in any application for re-instatement he might subsequently choose to make.

195. That concludes this determination.