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Miss Avril Silva

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

Miss Avril Silva (067024C)

Held as a video conference

On 

7 – 10 December 2020 and 27 – 28 January 2021

———-

Present 

Sean Hammond (Chair)

David Kann (PCC Architect Member)

Martin Pike (PCC Lay Member)

———–

In this case, ARB is represented by Mr Greg Foxsmith of Kingsley Napley LLP.

Miss Avril Silva has attended this hearing and is legally represented by Mr Michael Cowlin. 

 

            

 

The PCC found Miss Silva guilty of unacceptable professional conduct (“UPC”) in that:

  1. The Respondent did not appropriately manage and/or declare a conflict of interest.
  1. On or around 2 March 2019 the Respondent published and/or allowed to be published a photograph of the Complainants’ home with location details on Instagram and that photograph was:

(a) Published without the knowledge and/or consent of the Complainants.

  1. On an unknown date the Respondent published and/or allowed to be published a photograph of the Complainants’ house with location details on www.houzz.co.uk and did so without the knowledge and/or consent of the Complainants.
  2. The Respondent did not ensure that work was carried out in accordance with the
    relevant technical and/or professional and/or legal standards.

and that by doing so, she acted in breach of Standards 1.3, 2.1, 4.3 and 6.1 of the Architects Code: Standards of Conduct and Practice 2017 (“the Code”).

The sanction imposed is a reprimand. 

Charge and Allegations

  1. Miss Silva (“the Respondent”) faces a charge of Unacceptable Professional Conduct (“UPC”) based on four allegations:1. The Respondent did not appropriately manage and/or declare a conflict of interest;2. On or around 2 March 2018 the Respondent published and/or allowed to be published a photograph of the Complainants’ home with location details on Instagram and that photograph was:
    (a) Published without the knowledge and/or consent of the Complainants; and
    (b) Not removed immediately upon reasonable request.3. On an unknown date the Respondent published and/or allowed to be published a photograph of the Complainants’ house with location details on www.houzz.co.uk and did so without the knowledge and/or consent of the Complainants.4.The Respondent did not ensure that work was carried out in accordance with the relevant technical and/or professional and/or legal standards.
  1. The Architects Act 1997 (“the Act”) and the Architects Code: Standards of Conduct and Practice 2017 (“the Code”) apply. ARB relies on standards 1.3, 2.1, 4.3 and 6.1.
  1. Standard 1 of the Code is headed “Honesty and Integrity”. In particular, Standard 1.3 of the Code expects any conflict of interest to be disclosed in writing and managed to the satisfaction of all parties. An architect is expected to obtain written informed consent to continuing to act.
  1. Standard 2 of the Code is headed “Competence”. In particular Standard 2.1 expects an architect to be competent to carry out their professional work and if they engage others they should be competent and adequately supervised.
  1. Standard 4 of the Code is headed “Competent management of your business”. In particular Standard 4.3 expects an architect to ensure that they have adequate security in place to safeguard client’s confidential information, taking account of data protection legislation.
  1. Standard 6 of the Code is headed “Carry out your work faithfully and conscientiously”. In particular, Standard 6.1 of the Code expects an architect to carry out their work with skill and care, in accordance with their terms of engagement.

Preliminary Matters

Application to amend allegation 2

  1. Mr Foxsmith, on behalf of ARB, made an application to amend the factual particulars of allegation 2. He submitted that allegation 2 contains a typographical error and therefore applied to delete “2018” and replace it with “2019”. Mr Foxsmith submitted that this amendment would cause no unfairness to the Respondent as it was clear from the served evidence that the year referred to was “2019” and not “2018”.
  1. Mr Cowlin, on behalf of the Respondent, did not object to the application.
  1. The Committee heard and accepted the advice of the Legally Qualified Chair who referred it to rule 16(b) of the Professional Conduct Committee Rules 2019 (“the Rules”), which provides:

“The Hearing Panel may permit the amendment of a Charge, but if such an

amendment is permitted and the Respondent has been materially prejudiced he or she shall be entitled to an adjournment.”

  1. The Committee was satisfied that the proposed amendment would cause no unfairness or prejudice to the Respondent. It therefore granted the application to amend allegation 2 in the terms sought, namely:(2) On or around 2 March 2019 the Respondent published and/or allowed to be published a photograph of the Complainant’s home with location details on Instagram and that photograph was:
    (a) Published without the knowledge and/or consent of the Complainants; and
    (b) Not removed immediately upon reasonable request.

Background to the allegations

  1. The Respondent is a registered architect. At the time of her instruction in 2018 by Mr AM and Mrs SM (“the Complainants”), she was practising at Silva Architecture Limited trading as Silva Architects (“Silva Architects”). In addition, the Respondent was a co-director of a construction company called Trace Design and Build Limited (“Trace”).
  1. The Respondent had previously worked for the Complainants in 2011 in respect of a proposed redevelopment project at their family home in Cobham, Surrey (“the Property”). The Respondent prepared plans and planning permission was obtained. However, the Complainants decided not to proceed with the project at that time.
  1. In 2018, the Complainants again considered carrying out work at the Property. On this occasion, they wanted to build two rear extensions. One was a new family room/snug to the northwest of the existing kitchen. The second extension was a gym/games room to the southeast of the existing kitchen. This was to incorporate a WC and shower room. In June 2018, Mr AM contacted the Respondent with a view to her preparing architectural drawings and assisting with obtaining planning permission. 
  1. On 2 July 2018, Mrs SM met with the Respondent at the property to discuss the planned works. During this meeting, the Respondent explained that she had set up a Design and Build company that could carry out the building work for them. The company was called Trace. The Respondent was a director and shareholder of Trace.
  1. On 12 July 2018, the Respondent sent an email to the Complainants containing a fee proposal and a presentation about Trace. She also included brochure of Trace’s services which noted her as Design and Creative Director of the company. The presentation proposed that Silva Architects would carry out the Concept Design and Planning stages as set out in the RIBA plan of work. Those are the first 3 stages. Silva Architects would then be novated to Trace if the Complainants wished to continue with the Respondent. She stated that Trace could provide a “seamless, one stop service whilst retaining your original architect”. The Respondent also stated “Alternatively, you can continue with Silva Architects and adapt the traditional tender procurement with several contractors. Whilst this is more costly and time-consuming, you may prefer this option. There is no rush to make a decision at this stage but it is important that you know what your options are.” 
  1. The Respondent prepared a planning application for the proposed extension through her company Silva Architects. This was submitted to the Council in September 2018 and planning permission was received on 18 November 2018.
  1. After planning permission was obtained, the Complainants carried out a tender process and obtained quotations from three contractors to carry out the work, including one from Trace who they decided to appoint.
  1. Trace provided the Complainants with a Federation of Master Builders Contract. Mr AM negotiated additional clauses in the contract which was ultimately signed on 22 January 2019. This was not a design and build contract although there was a design element, namely “the provision of technical drawings/Building regulations compliance drawings, production information, window schedules, door schedule and construction detail drawings”. Payments were to be made every two weeks in line with the schedule of costs provided. A proposed timetable of works confirmed a scheduled completion date of 17 May 2019. No contract administrator was appointed by the Complainants.
  1. The works commenced at the Property on 23 January 2019. 
  1. From early February, the Complainants started to raise concerns about the works. The first issue related to the use and installation of incorrectly coloured bricks. This was resolved by the Complainants agreeing to the walls being rendered. However, this was not in accordance with the planning permission and therefore would have required a minor amendment application to the local authority.
  1. There was then an issue relating to drainage following the redirection of the existing drainage line from the washing machine and adjacent sink. No drainage survey had been undertaken prior to the commencement of the works and it transpired that the drainage line had been redirected from the existing underground foul drain to surface water drainage. This caused the discharged foul water to pool by the back door. There was a question as to whether the existing foul water drain was defective. Ultimately, the Complainants had to pay for a new foul water drain to be installed along a new route, but this was not an element of work included in the contract works.
  1. In early March 2019, the Complainants reported problems with the flat roof over the snug as water was leaking through the roof and wall.  
  1. The Complainants also raised concerns about the adequacy of the health and safety measures put in place at the Property. In particular they raised concerns about tools and materials being left in the garden with no fencing in place. In addition, they complained about problems with dust and the lack of preventative measures taken. The Complainants raised these concerns with the Respondent.
  1. By late April, there was a dispute about whether sufficient progress was being made in line with the schedule of works. However, Trace continued to submit invoices for payment. On 29 April 2019, Trace provided an updated completion plan but by 10 May 2019 none of the works set out in that plan had been completed. Mr AM contacted both Trace and the Respondent and raised his concerns about the lack of progress. Trace agreed that the next invoice, which was due for payment on 16 May 2019, would be paused until the outstanding work had been completed. The Complainants requested a site meeting to review the outstanding works.
  1. A site meeting was held on 24 May 2019 with the Complainants, the Respondent and Mr HM, the Commercial Director of Trace in attendance. The Complainants showed the Respondent and Mr HM the elements of the work that they claimed were incomplete and remained outstanding and for which Trace had requested payment. It was agreed that a new payment schedule should be devised and an updated work schedule prepared to show the remaining works to completion. Later that day, a large group of workers attended the Property and further work was carried out in an attempt to complete works. 
  1. Following the 24 May 2019 site meeting, Mr HM provided minutes of the meeting and an updated schedule of works. However, the Complainants did not agree with the contents of these documents and sent revised versions back to Trace. There then followed numerous email exchanges between Mr AM and Mr HM regarding whether or not works were completed to the stage necessary for payment to be made. Trace advised that the Complainants were in breach of contract for refusing to pay the outstanding invoice in full.
  1. On 29 May 2019, Building Control conducted an inspection at the Property. The Building Control Officer noted that there was insufficient drainage for taking water off the two new flat roofs and advised that a new soakaway would need to be installed. Concerns were also raised in relation to what materials had been used in the construction of the fascia as it appeared to be weather damaged. The following day, Building Control sent an email to the Complainants listing the outstanding items that had been discussed during their inspection. 
  1. Following this, the Complainants decided that they could no longer work with Trace as they felt matters were spiralling out of control in terms of costs, quality and safety of the works. Therefore, on the evening of 29 May 2019, Mr AM emailed Trace and the Respondent, to terminate the contract with immediate effect and required Trace to leave the site. Mr HM notified the Complainants that they were in breach of contract as a result of their actions.
  1. In early June 2019, Mrs SM discovered a photograph of the property on Trace’s Instagram account. The Complainants had not given their consent for photographs to be taken and/or published. 
  1. Mr AM emailed Trace and the Respondent at 23:50 on 3 June 2019 asking for the photograph to be removed immediately. He sent a further email at 10:55 on 4 June 2019 noting that the image remained online. Having received no response, he telephoned Mr HM. The image was then removed.
  1. Mr AM subsequently did a Google search of Trace and found a link to a website called “Houzz”. When Mr AM visited the Houzz website he discovered a photograph of the Property with their exact postcode and the name of the estate in which the property is located. Once again, the Complainants had not given their consent for photographs to be taken and/or published. 
  1. The Complainants made a complaint to ARB on 18 November 2019
  1. ARB has instructed an Independent Inquirer, Ms Carol Norton, to provide a report in relation to allegation 4. Ms Norton was asked to comment on the works carried out, what standards the works should have been carried out in accordance with and whether the works were in accordance with those standards.

Findings of Fact

  1. In reaching its decision, the Committee considered the following documentary evidence:i. The Report of ARB’s solicitor dated 10 September 2020;
    ii. The 460 pages of documents exhibited by ARB’s solicitor;
    iii. The Inquirer’s Report dated 9 September 2020;
    iv.The Respondents representations dated 14 February 2020 and 27 May 2020;
    v. The Defence Submissions provided by Mr Cowlin dated 13 November 2020;
    vi. The Respondent’s witness statement with attached documents, dated 16 November 2020;
    vii. The witness statement of Mr HM with attached documents, director of Trace, dated 8 November 2020; and
    viii. The witness statement of Mr MH with attached documents, director of Trace, dated 8 November 2020.
  1. The Committee heard oral evidence from the following witnesses called by ARB: Mrs SM, Mr AM (the Complainants) and Ms Norton (the Inquirer).
  1. The Committee found Mrs SM to be a credible, truthful and reliable witness. The Committee noted that at times her evidence was tinged with frustration, but at no stage were there any signs of exaggeration. Her oral evidence to the Committee was consistent with the documentary and photographic exhibits and was also consistent with her witness statement.
  1. The Committee found Mr AM to be a credible and reliable witness. He was knowledgeable and provided meticulous and detailed evidence. The Committee noted that he appeared to be more frustrated than his wife but was satisfied that he did not exaggerate when giving oral evidence.
  1. Turning to the Inquirer, Ms Norton, the Committee noted that she had not visited the Property and that her report and opinion were based on the witness statements, documents and photographs she had been provided with. The Committee noted that her oral evidence was consistent with her report and opinion and found her to be an impressive witness. 
  1. The Committee also heard oral evidence from the Respondent and from Mr HM and Mr MH, the Construction Director of Trace.
  1. The Committee noted that when questioned the Respondent was willing to make concessions. The Committee therefore found her in general to be a credible witness. The Committee noted that on some occasions she declined to answer questions and suggested that they be put to Mr MH or Mr HM. 
  1. The Committee considered Mr HM to be very knowledgeable. The Committee therefore found him to be a steady, credible and reliable witness, although he could only provide limited evidence in relation to the matters in issue. 
  1. The Committee also found Mr MH to be a very knowledgeable and generally credible witness. However, the Committee noted that at times he came across as self-justifying in that he appeared to be putting the best possible interpretation on the evidence.
  1. The Committee accepted the legal advice given by the Legally Qualified Chair which is a matter of record. It had regard to the fact that the burden of proving the facts was on ARB and that the civil standard applied, namely the balance of probabilities. The Committee was mindful that the more serious the allegation, the more cogent the evidence should be to find it proved.
  1. The Committee heard submissions from Mr Foxsmith on behalf of ARB and from Mr Cowlin on behalf of the Respondent.
  1. The Committee had regard to the guidance published by ARB and to the content of the Architects Code: Standards of Conduct and Practice 2017 (“the Code”).

Allegation 1 (Proved)

  1. In reaching this decision, the Committee accepted that the Respondent was initially appointed by the Complainants as their architect through Silva Architects. The Respondent’s role was to prepare a planning application including drawings for the proposed rear extension to the Property for submission to the local authority. The Committee further accepted that from the outset the Respondent informed the Complainants about her involvement as a Director of Trace. The Committee also noted the content of the Respondent’s email to the Complainants dated 12 July 2018. This email contained a fee proposal and a presentation about Trace which noted her as Design and Creative Director of the company. 
  1. The Committee accepted the Respondent’s evidence that she had put forward two options to the Complainants. The first option was that Silva Architects would carry out the Concept Design and Planning stages as set out in the RIBA plan of work. Silva Architects would then be novated to Trace if the Complainants wished to continue with the Respondent. The Committee noted that the Respondent had stated that if the Complainants chose this option, Trace could provide a “seamless, one stop service whilst retaining your original architect”. The other option put forward by the Respondent was to continue with Silva Architects and adapt the traditional tender procurement with several contractors. The Committee was satisfied that these two options were not properly explained to the Complainants by the Respondent. The explanation given was weighted towards choosing Trace on the basis that it would be more cost-effective and quicker.
  1. The Committee noted that in her oral evidence the Respondent accepted that the involvement of Trace as main contractor had been sold to the Complainants on the basis of her continued involvement. The Committee also noted that the Respondent stated that she had not informed the Complainants that her co-director Mr HM (who had a different surname) was her husband as she did not believe this to be relevant given that the Complainants knew that she was a director of the company.
  1. The Committee accepted the evidence of the Complainants that it was their clear expectation and understanding that the Respondent would continue to act as their architect if they appointed Trace. In their oral evidence, both Complainants stated that they understood the Respondent would continue to work with them as their architect and that she would be overseeing the project and providing architectural advice as necessary. The Committee also had regard to the written statement of Mr AM in which he stated that they had appointed Trace on the understanding that the Respondent, as Design and Creative Director, would continue to provide architectural services. He stated that they expected the Respondent to be the architect on a “combined and integrated service delivery which was how she had introduced and marketed her involvement”.
  1. The Committee was satisfied that the Complainants’ understanding that the Respondent would continue to be their architect was a significant factor which influenced the Complainants’ decision to appoint Trace.
  1. The Committee also noted that the drawings prepared and provided by the Respondent under the FMB contract made between Trace and the Complainants dated 22 January 2019, contained the title block for Silva Architects. The Committee accepted the Respondent’s evidence that this was due to an oversight but the Committee was satisfied that this would have reinforced the Complainants’ belief that the Respondent was still acting as their architect.
  1. In all of the circumstances, the Committee was satisfied that the Respondent had failed to adequately explain the change in her role to the Complainants. In the Committee’s view, there was a clear conflict between her interests as a director of Trace and the interests of the Complainants and this should have been explained to the Complainants by the Respondent. 
  1. The Committee considered the Respondent’s failure to inform the Complainants that Mr HM was her husband to be unfortunate, particularly as the way the Complainants found out further undermined their trust in the Respondent. 
  1. The Committee next considered Standard 1.3 of the Code. The Committee noted that Standard 1 of the Code is headed:“Honesty and Integrity”.
  1. Standard 1.3 of the Code states:“Where a conflict of interest arises, you are expected to disclose it in writing and manage it to the satisfaction of all affected parties. You should seek written confirmation that all parties involved give their informed consent to your continuing to act. Where this consent is not received you should cease acting for one or more of the parties.”
  1. In the Committee’s view, this Standard of the Code required the Respondent to set out her change of role in writing, fully explaining the conflict of interest so that the Complainants could make an informed decision whether or not to appoint Trace. The Complainants were entitled to know that the Respondent would no longer be acting as their impartial architect and that she may be influenced by her commercial interests as a director of Trace. Such disclosure is essential so that the client can make an informed decision as to how such a conflict might impact on their project so they can make a decision as to how they want to proceed. The Committee was satisfied that the Respondent’s failure to obtain informed consent from the Complainants was a serious failing on her part.
  1. The Committee therefore found the facts of allegation 1 proved and that the Respondent acted in breach of Standard 1.3 of the Code.

Allegation 2(a)(Proved)

  1. The Committee accepted the evidence of Mr MH who stated that he had taken the photograph of the Complainants’ property and that he had posted it on to Trace’s Instagram account in early to mid-May. He told the Committee that he was the person responsible for all social media posts at Trace and that he had the password to the Instagram account. Mr MH informed the Committee that he had not asked the Complainants’ permission to take or publish the photograph on Instagram and accepted that he should have done. He stated that “most clients are chomping at the bit to have pictures of their project on our social media. My mistake.” He was asked about his knowledge of GDPR and he stated that he “did a data protection course a few years back”. Mr MH confirmed that he had not told the Respondent or Mr HM that he had posted the photograph of the Complainants’ property on Trace’s Instagram account. He stated that he would only do so “if he was excited about a picture.”
  1. The Committee also accepted the Respondent’s evidence that she did not take the photograph of the Complainants’ property and that she was not responsible for posting it on Trace’s Instagram account. 
  1. In these circumstances, the Committee was satisfied that the Respondent did not publish the photograph of the Complainants’ property with location details on Trace’s Instagram account. 
  1. The Committee next considered whether the Respondent had allowed the publication of the photograph on Trace’s Instagram account.
  1. The Committee was mindful that as a registered architect, the Code applies to all aspects of the Respondent’s professional and personal life.
  1. The Committee noted that the Respondent was the only registered architect at Trace. In addition, Trace was marketed as a RIBA chartered practice and that the RIBA crest was displayed on the company’s brochure. The Committee noted that in the brochure, the Respondent was described as “Avril Silva (RIBA): Design and Creative Director”. The Committee further noted that in correspondence on behalf of Trace, the Respondent also used the initials ARB.
  1. The Committee had regard to the evidence of the Inquirer, Ms Norton who stated that the Respondent, “had the responsibility of being the only registered architect and a co-director of Trace Design and Build who are an RIBA Chartered Practice. This means she should have complied with both ARB and RIBA codes of conduct in carrying out her work as a director of Trace Design and Build.” The Committee was therefore satisfied that ARB Code applied to the Respondent in her role as a director of Trace.
  1. In the Committee’s view, the Respondent, as a director of Trace had a general shared responsibility together with her co-directors for the actions of the company, its directors and its employees. In these circumstances, the Committee was satisfied that the Respondent had a responsibility to ensure that the company had the necessary procedures in place to comply with relevant data protection legislation and to safeguard client’s confidential information. On the evidence available to the Committee, there were no such procedures in place at the time in relation to the photographs and information posted on to social media by Mr MH or for that matter any other member of the company.
  1. The Committee was therefore satisfied that the Respondent had allowed the photograph of the Complainants’ property with location details to be published on Trace’s Instagram account.
  1. The Committee next considered Standard 4.3 of the Code. The Committee noted that Standard 4 of the Code is headed:“Competent management of your business”.
  1. Standard 4.3 of the Code states:“You should ensure that adequate security is in place to safeguard both paper and electronic records for your clients, taking full account of data protection legislation, and that clients’ confidential information is safeguarded.”
  1. The Committee was satisfied that the Respondent had breached this Standard of the Code.
  1. The Committee therefore found the facts of allegation 2(a) proved and that the

Respondent acted in breach of Standard 4.3 of the Code.

Allegation 2(b)(Not Proved)

  1. In reaching this decision, the Committee accepted the evidence of Mr MH who stated that he had removed the photograph of the Complainants’ property from Instagram as soon as he had been made aware by Mr HM that the Complainants wanted it removed.
  1. For this reason, the Committee found the facts of allegation 2(b) not proved.

Allegation 3 (Proved)

  1. The Committee accepted the evidence of Mr MH who confirmed that he had posted a photograph of the Complainants’ property on web-site called Houzz. He stated that he rarely posted material on there and it was only when this actual photograph was shown in the bundle of correspondence in relation to the complaint to ARB that he remembered he had made this post. He then deleted it.
  1. The Committee applied the same reasoning in relation to this allegation as it did in relation to allegation 2(a). The Committee therefore found that the Respondent had allowed a photograph of the Complainants’ house with location details to be published on www.houzz.co.uk and did so without the knowledge and/or consent of the Complainants.
  1. The Committee next considered Standard 4.3 of the Code (supra). The Committee again applied the applied the same reasoning in relation to this allegation as it did in relation to allegation 2(a).
  1. The Committee therefore found the facts of allegation 3 proved and that the Respondent acted in breach of Standard 4.3 of the Code.

Allegation 4 (Proved)

  1. The Committee noted that in support of this allegation, ARB relied in particular on alleged defects in the flat roof and on issues relating to drainage. Other issues were identified by the Inquirer, Ms Norton.
  1. The Committee first considered to what extent the Respondent was responsible for ensuring that work was carried out in accordance with the relevant technical and/or professional and/or legal standards.
  1. As set out above, the Respondent’s role in the project once the building works under the contract started were two-fold. For the purposes of the building contract, the Respondent had no direct contractual link with the Complainants but was personally named in the contract as the person who provided the architectural drawings and specification/schedule of work for the project. The Respondent’s second responsibility was as a director of Trace, who are an RIBA Chartered Practice. The Committee was satisfied that as a director of Trace, the Respondent then assumed a shared responsibility for Trace, as main contractor, to provide building works to the standards agreed in the contract documents and current relevant legislation. The Committee was also satisfied that ARB Code applied to the Respondent in her capacity as a director of Trace. 
  1. The Committee next considered the various issues that had been raised in support of allegation 4.

The Roof 

  1. In the Committee’s view, there were faults to the roof that should have been evident to the Respondent. The Committee was further satisfied that the Complainants raised their concerns about the roof directly with the Respondent. However, the Committee was not provided with any expert evidence in relation to the construction of the roof or in relation to the use and application of materials. The Complainants terminated the contract in circumstances where Trace was required to immediately leave the site. Trace was therefore not afforded the opportunity to rectify the faults during the contract works or during the defects liability period. 
  1. The Committee was therefore not satisfied that allegation 4 was found proved in respect of this matter.

The Fascia

  1. In emails dated 30 May 2019 and 3 July 2019, the Building Control Officer identified a number of issues including that the “Fascia material has not been confirmed to Building Control and has since failed (blown) due to water ingress.” During her evidence, Ms Norton provided her opinion that in order for it to have blown, the fascia would have to been made from internal quality plywood or MDF. The Committee noted, however, that Ms Norton had not visited the property and inspected the fascia. 
  1. Mr MH gave evidence to the Committee about the fascia. He stated that it was made from WBP Plywood. He stated that the water ingress may have been caused because the fascia required painting and that this would have been done had Trace not been required to leave the site following the termination of the contract by the Complainants.
  1. The Committee was therefore not satisfied that allegation 4 was found proved in respect of this matter.

The Steels

  1. Following a site inspection, on 20 March 2019 the Building Control Officer requested justification for the welded joint in the SHS and the welded face plates to ST1 and ST2. The Building Control Officer subsequently requested welding certificates for those joints.
  1. The Committee noted the Respondent’s evidence that Trace had pre-ordered the steels and something had gone wrong with the dimensions. She accepted responsibility for this and stated that it was possible that they may have been ordered from a different set of drawings. The Committee was therefore satisfied that the Respondent was fully aware of this issue. 
  1. The Committee also had regard to the evidence of Mr MH who explained the justification for the welded joint. Mr MH told the Committee that he had never previously seen or been aware of the existence of welding certificates. He stated that when the issue had been raised by Building Control he took steps to obtain one from the sub-contractor who had done the welding. Mr MH told the Committee that he had received a handwritten letter from the welder which he did not think was sufficient. He subsequently received another document from the welder but it needed translating into English. Neither of these documents were provided to the Committee. Mr MH stated that as a result of the contract being terminated by the Complainants, he had been prevented from discussing the matter further with Building Control.
  1. In these circumstances, the Committee was of the view that this was an ongoing construction issue at the time the contract was terminated. The Committee was therefore not satisfied that allegation 4 was found proved in respect of this matter.

Drainage

  1. The Committee accepted that following the redirection of the drainage line from the washing machine an issue arose with the drainage and that foul water began pooling adjacent to the back door of the property.
  1. The Committee noted the evidence of the Complainants that there had not previously been an issue with the pre-existing foul water drain.
  1. The Committee also noted the evidence of Mr MH who stated that on inspection, the pre-existing foul water drain was defective and that is why the drainage line was temporarily diverted whilst a permanent solution was devised. The Committee noted that ultimately a new foul water drain was installed by a different contractor.
  1. In these circumstances, on the available evidence and applying the burden and standard of proof, the Committee was unable to determine whether or not the pre-existing foul water drain was defective or whether Trace was in some way responsible for the need for a new drain. The Committee was therefore not satisfied that allegation 4 was found proved in respect of this matter.

Health and Safety

  1. The Committee noted the Complainants evidence in relation to their concerns about the lack of adequate health and safety measures put in place by Trace during the works at the property. The Committee also noted that the Complainants continued to live on site during the period of the works and that they required access to the garden for the family dog which meant that the entire area could not be fenced off.
  1. The Committee noted that Mrs SM had raised health and safety concerns directly with the Respondent in respect of excessive dust at the site which the Respondent had tried to resolve. The Committee also considered the two photographs of the property said to illustrate poor health and safety practice. The first depicted machinery, tools and materials in an unfenced area of the garden. The second depicted a workman not wearing protective equipment, leaning over the roof of the property. The Committee took into account Mr AM and Mr MH’s observations about these photographs. The Committee was of the view that both photographs showed poor practice on two occasions. However, the Committee accepted Mr MH’s evidence that as Construction Director, it was his responsibility to ensure that appropriate health and safety measures were in place on site. The Committee also accepted Mr MH’s evidence that he regularly provided instructions and guidance to the site foreman and to the contractors working on site. 
  1. In the Committee’s view, even though health and safety was Mr MH’s responsibility, the Respondent as a director of Trace also shared responsibility for this, particularly as she conducted site visits and would therefore have been able to observe what measures were in place. But having regard to the limited evidence available, the Committee could not be satisfied that there were serious health and safety issues on site of which the Respondent should have been aware and should have addressed.
  1. Therefore, the Committee was not satisfied that allegation 4 was found proved in respect of this matter.

Planning Permission

  1. The Committee noted the evidence of the Complainants and the Respondent that several changes were made to the built project that were variations to the approved planning permission. These were summarised in Ms Norton’s report as follows:“(i). Rear extensions and existing kitchen – the external walls have a render finish rather than brickwork to match the existing house (this was due to the wrong bricks being ordered).
    (ii). Games room – the window next to kitchen changed to French Doors and the window on the side wall has been omitted.
    (iii). Snug/Family room two windows on side wall have been omitted.
    (iv). The external door to the Games Room has been omitted, when the shower room changed location.”
  1. The Committee accepted Ms Norton’s evidence that the Respondent should have advised the Complainants that the local authority should have been informed of these variations to the outside of the building and a non-material amendment or minor material amendment made to the existing planning permission depending on the feedback from the planning department.
  1. The Committee was satisfied that this was the Respondent’s responsibility and that she failed to advise the Complainants appropriately.
  1. The Committee noted the Respondent’s explanation that approval for these amendments could have been sought subsequently, however, the Committee was satisfied that the Complainants should have been fully informed of the position at the time, so that they could make an informed decision in relation to whether or not they wanted to expose themselves to the risk of the approval sought being refused by the local authority.
  1. The Committee noted that there was some evidence that there had also been changes to the fall of the roof and to the guttering and down pipes although these were not identified by Ms Norton in her report as changes requiring either a non-material amendment or minor material amendment made to the existing planning permission.
  1. Taking these matters into account, the Committee was satisfied that allegation 4 was proved in respect of the Respondent’s failure to ensure that the Complainants were advised about the issues relating to planning permission.
  1. Therefore, the Committee was satisfied that allegation 4 was proved, but only in relation to the limited extent set out above.
  1. The Committee next considered Standard 2.1 of the Code. The Committee noted that Standard 2 of the Code is headed:

    “Competence.”
  1. 106.Standard 2.1 of the Code states:

    “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.”
  1. Given the limited factual basis upon which the Committee has found allegation 4 proved, the Committee concluded that this Standard of the Code was not engaged.
  1. The Committee next considered Standard 6.1 of the Code. The Committee noted that Standard 6 of the Code is headed:

    “You should carry out your professional work conscientiously and with due regard to relevant technical and professional standards.”
  1. 109.Standard 6.1 of the Code states:“You are expected to carry out your work with skill and care and in accordance with the terms of your engagement.”
  1. The Committee was satisfied that this Standard of the Code did apply to the facts found proved and that by her failure to ensure that the Complainants were informed of the position regarding planning permission, the Respondent failed to carry out her work with skill and care.
  1. In these circumstances, the Committee found the facts of allegation 4 proved to the limited extent set out above and also found that the Respondent breached Standard 6.1 of the Code.

Findings in relation to UPC

  1. Having found allegations 1, 2(a), 3 and 4 proved and, having found that the Respondent has acted in breach of Standards 1.3, 4.3 and 6.1 of the Code, the Committee went on to consider whether the Respondent’s conduct amounted to UPC. 
  1. UPC is defined in section 14(1)(a) of the Act as conduct which falls short of the standard required of an architect.
  1. In reaching its findings, the Committee considered all of the of the evidence presented to it, the submissions made by Mr Foxsmith and Mr Cowlin and accepted the advice from the Legally Qualified Chair.
  1. The Committee recognised 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. 
  1. The Committee reminded itself that a finding of UPC is a matter for its own independent judgment and that there is no burden or standard of proof. 
  1. The Committee noted that misconduct, which is akin to UPC, was defined in the case of Roylance v GMC [2000] 1 AC 311 as: “a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a… practitioner in the particular circumstances”. 
  1. For an architect, the rules and standards ordinarily required to be followed are contained in the 2017 Code.
  1. The Committee had regard to the case of Spencer v General Osteopathic Council [2012] EWHC 3147 (Admin) and noted that for a finding of UPC 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” is required.
  1. The Committee accepted 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”. The Queen on the Application of Dr Malcolm Noel Calhaem v General Medical Council [2007] EWHC 2606 (Admin). 
  1. The Committee also recognised that any failing must be serious, Vranicki v Architects Registration Board [2007] EWHC 506 Admin.
  1. In relation to allegation 1, the Committee found that the Respondent has breached Standard 1.3 of the Code. In the Committee’s view, the Respondent ought to have advised the Complainants in writing of the potential issues that could have arisen should they appoint Trace. She should have explained how this could impact on their project and explained that she would no longer be able to act independently as their architect. She should have also obtained their written consent confirming that they were still willing to proceed. She did not do this and the Complainants were not aware of the conflict issue. Had the Respondent told the Complainants of the merits and pitfalls of them instructing Trace, they could have made an informed decision about whether they wanted to proceed on that basis. The Committee noted that failing to disclose such a conflict not only potentially detrimentally impacts on the client, but also on the confidence the public can have in the profession. The Committee was therefore satisfied that the Respondent’s failing was sufficiently serious to amount to UPC.
  1. The Committee next considered the Respondent’s proven conduct in respect of allegations 2(a) and 3. The Committee found that the Respondent actions breached Standard 4.3 of the Code. This Standard imposes an expectation on an architect to safeguard a client’s confidential information and to ensure that procedures are in place to comply with relevant data protection legislation. In the circumstances of this case, the Committee was satisfied that the Respondent’s conduct breached this Standard of the Code. In her capacity as a director of Trace, the Respondent allowed photographs of the Complainant’s property to be published online without their consent. The Committee noted that information was posted with the photographs, such as the Complainants’ postcode and name of the estate where they lived, that may have allowed others to identify them and the location of their property. The Committee also took account of the Complainants’ sensitivity to this issue and the evidence they gave regarding their concerns about the security of their property. The Respondent was aware that the Complainants were concerned about safety in light of a recent burglary at a neighbour’s home and that they had instructed Trace to install CCTV at the property. In the Committee’s view, the Respondent’s actions in allowing photographs of the Complainants’ property to be published online in an identifiable manner, thus exposing them to risk, was serious and fell short of the standard expected of an architect. In the Committee’s judgement, this amounted to UPC.
  1. In relation to allegation 4, the Committee found that the Respondent had breached Standard 6.1 of the Code. In the Committee’s view, the Respondent’s failure to tell the Complainants that the local authority needed to be informed of the variations to the approved planning permission, and her failure to inform them that either a non-material amendment or minor material amendment made to the existing planning permission, exposed them to risk. Whilst the Respondent may have believed that an amendment would have been granted for the variations and that it was cost-effective for the Complainants for all of the proposed amendments to be submitted together, she nevertheless should have ensured that the Complainants were fully advised of the position as it was their risk. The Committee was satisfied that the Respondent’s failure to explain these matters to the Complainants was a serious matter and amounted to UPC.
  1. The Committee was satisfied that the matters found proved and the corresponding breaches of the Code, represent serious departures from the standards expected of a registered architect. The Committee has therefore concluded, both individually and collectively, those matters amount to UPC.

Decision on Sanction:

  1. Having found that the Respondent is guilty of UPC, the Committee considered what, if any sanction to impose.
  1. The Committee heard submissions from Mr Foxsmith on behalf of ARB and from Mr Cowlin on behalf of the Respondent. Mr Cowlin also provided the Committee with written testimonials from a Building Control Surveyor and the Chief Executive of the Local Authority Building Control Services. Both of these confirmed that their team has worked with the Respondent for many years, and during the last 15 years, have collaborated on 24 projects which have varied in scale. They refer to the Respondent as being “professional, competent, and timely in her responses”. 
  1. In reaching its decision, the Committee had regard to the Sanctions Guidance published by ARB and accepted the advice of the Legally Qualified Chair. The Committee exercised its own independent judgement.
  1. The Committee reminded itself that the primary purpose of sanctions is to protect members of the public, to maintain the integrity of the profession, and to declare and uphold proper standards of conduct and competence. 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 and the need to act proportionately.
  1. The Committee noted that the Act does not require the Committee to impose a sanction in every case where a guilty finding is reached so the Committee may choose to impose no sanction.
  1. If it decides that it is necessary to impose a sanction, then the sanctions available to the Committee under section 15 of the Act are:
  • Reprimand;
  • Penalty Order (a fine of up to level 4 on the standard scale of fines for summary offences, currently set at £2,500;
  • Suspension (for a maximum of two years); and
  • Erasure.
  1. In determining the seriousness of the Respondent’s unacceptable professional conduct, the Committee has identified the following mitigating factors:
  • The Respondent has a previously unblemished 18-year career as a registered architect. The Respondent has no previous regulatory findings recorded against her;
  • The Respondent has demonstrated some insight into her failings;
  • The Respondent has demonstrated genuine remorse and has apologised for her behaviour;
  • The Respondent has taken remedial action to change her practice to prevent the unacceptable professional conduct from reoccurring; and
  • The risk of repetition of the unacceptable professional conduct is low.
  1. The Committee identified no aggravating factors in this case.
  1. The Committee was satisfied that the Respondent’s appearance before it has been a salutary experience. The Committee took into consideration the fact that the Respondent has demonstrated some insight into her failings. The Respondent told the Committee how she has changed her practice as a result of this complaint.
  1. In respect of the conflict of interest arising from her roles as an architect at Silva Architects and as Design and Creative Director of Trace, the Respondent informed the Committee that she took professional advice in relation to the form of words and declaration she should use to explain the position to clients. She confirmed to the Committee that she now uses that formulation. The Respondent provided the Committee with a copy of the form of words and the declaration that she now uses, and on that basis the Committee was satisfied that the risk of a similar situation arising in the future was low.
  1. The Respondent and Mr MH gave evidence that it is now the practice of Trace to obtain the consent of clients before photographs of projects are taken and before those photographs are posted online or published in any way. They also gave evidence to the Committee that it is now the practice of Trace to discuss at directors’ meetings what material will be posted online or published in any other way. In these circumstances, the Committee was satisfied that the risk of clients’ confidentiality being breached in this way again was low.
  1. The Committee noted that there was no evidence in relation to how the Respondent would act differently in future to ensure that clients fully understood the necessity to make amendment applications as a result of changes to the existing planning permission. However, in light of her appearance before this Committee, it was satisfied that the Respondent would ensure that in future clients are fully informed. 
  1. The Committee took into consideration that the Respondent had breached three separate Standards of the Code, namely Standards 1.3, 4.1 and 6.1. Individually, the Committee was satisfied that the seriousness of each breach was towards the lower end of the spectrum. However, cumulatively, the Committee concluded that the Respondent’s UPC was too serious for it to impose no sanction. The Committee was satisfied that a sanction was required to protect the public, to maintain confidence in the profession and to declare and uphold proper standards of conduct and competence within the profession.
  1. Having determined that it was necessary to impose a sanction, the Committee considered each available sanction in ascending order of severity.
  1. The Committee first considered whether to impose a Reprimand. The Committee noted that Reprimand is the least severe sanction that can be applied. It may be used in relation to offences which fall at the lower end of the scale of seriousness, and where it would be appropriate to mark the conduct or competence of an architect as being unacceptable. 
  1. The Committee had regard to the factors identified in the Sanctions Guidance in relation to the suitability of a reprimand as a sanction. In particular, it considered whether or not the Respondent’s conduct had seriously affected the Complainants. The Committee acknowledged the considerable impact and hardship that the various construction issues with the project have had upon the Complainants. In particular, the Committee acknowledged that the project remains unfinished. However, the Committee had to consider the impact of the Respondent’s conduct as found proved, not the wider construction issues. The Committee therefore concluded that this was a case that fell within the scope of a reprimand as an appropriate disposal. The Committee went on to consider the other factors as set out in the guidance and having regard to the mitigating factors identified above, decided that a reprimand was the appropriate and proportionate sanction in the Respondent’s case.
  1. The Committee was satisfied that a reprimand would be sufficient to protect the public. Furthermore, this sanction together with the Committee’s findings in relation to UPC would be sufficient to mark the Respondent’s conduct as unacceptable and to uphold the reputation of the profession.
  1. In deciding whether a reprimand was the appropriate sanction, the Committee did consider the imposition of a penalty order. However, the Committee considered that this sanction would be disproportionate in all of the circumstances of the case. 
  1. The Committee therefore imposes a reprimand which will remain on the Respondent’s record and will be published on ARB website for one year from the date of this determination.
  1. That concludes this determination. 

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