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Mr Corey Waters

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of
Mr Corey Waters (076809J)
Held as a video conference
On
3 and 4 December 2020
———-
Present

Sadia Zouq (PCC Chair)
Roger Wilson (PCC Architect Member)
Jules Griffiths (PCC Lay Member)
———-

In this case, ARB is represented by Mr Greg Foxsmith of Kingsley Napley LLP.
Mr Waters attended and was not legally represented.

The Professional Conduct Committee (“PCC”) found Mr Waters guilty of unacceptable professional conduct (“UPC”) in that he:

(1) undertook work as an architect without adequate and appropriate Professional Indemnity Insurance in place, contrary to Standard 8 of the Architects Code;
(2) Lacked integrity in his actions at Particular 1.

and that by doing so, he acted in breach of Standards 6.2 of the Architects Code: Standards of Conduct and Practice 2010 and 2017 (“the Code”).

The sanction imposed is a reprimand.

The Allegation

1. Mr Waters (“the Respondent”) was charged by the Architects Registration Board (“ARB”) with Unacceptable Professional Conduct (“UPC”), and the Professional Conduct Committee (“the Committee”) was responsible for deciding whether that allegation was found proved, or not.

2. The matters asserted by ARB to have occurred and which it is said amount (if proved) to UPC were the following (with the provisions of the Architects Code 2010 and 2017 said to have been breached, as above):

(1) The Respondent undertook work as an architect without adequate and appropriate Professional Indemnity Insurance in place, contrary to Standard 8 of the Architects Code;

(2) The Respondent’s actions at particular 1 were dishonest and/or lacked integrity.

Background

3. The Respondent registered with ARB in 2009. From January 2017 the Respondent was employed at an architects practice. In 2019 he became an associate within the practice.

4. On 14 April 2020 ARB received a notification from Mr CH, the Managing Director at the practice, advising that it had come to light that the Respondent had been undertaking private work contrary to his employment contract and without professional indemnity insurance (“PII”) in place. Work undertaken by the Respondent privately was not covered by his employer’s insurance as such insurances did not extend to any private work conducted by an employee.

5. The concerns came to light following a review of Shropshire Council’s planning portal in February 2020. It was noted that the Respondent’s name was on a planning application that was not associated with the practice. A search on the planning portal in August 2020 returned 42 search results for the Respondent. Nine of these applications were on behalf of the practice and 33 by ‘Corey Waters Architect’.

6. During the employer’s disciplinary process the Respondent admitted to having no PII in place for his private work, stating that this was an oversight on his part and that the work he had undertaken privately was predominantly for friends and family with the risk of a claim being “low at worst particularly given that I undertake works up to approval stages only (planning and building control)”.

7. In his written representations to ARB, the Respondent admitted that he carried out work for private clients outside of his employment and that he did so without PII.

8. The Respondent admitted particular 1 of the allegation. In relation to particular 2, the Respondent admitted that his actions at particular 1 lacked integrity but denied that his actions were dishonest. The Respondent indicated that his admissions were capable of amounting to UPC. He was reminded by the Legally Qualified Chair that UPC was a matter for the Committee’s judgement and that it did not necessarily follow that UPC would be found on the admitted or subsequently proved factual particulars.

Evidence

9. In reaching its decisions, the Committee carefully considered the live evidence of the Complainant, Mr CH, together with the witness statement of Ms SA, the documentary evidence presented to it in the report of ARB’s Solicitor and the documents exhibited to it. Mr CH confirmed the contents and accuracy of his witness statement. The Respondent and Committee did not have any questions of Mr CH. Ms SA was not required to give oral evidence because her statement referred to the search undertaken on Shropshire Council’s planning portal using the Respondent’s name. Ms SA’s search revealed that 33 of the 42 planning applications were made by the Respondent under “Corey Waters Architect”. Ms SA randomly selected five planning applications between July 2015 and February 2020 and exhibited these as part of her evidence. Ms SA’s evidence was not challenged.

10. The Respondent provided a number of documents which included his written submissions to the Committee dated 12 November 2020, a document titled “Appeal Notification to dismissal letter from [employer]” dated 13 March 2020, and a document titled “Appeal following Dismissal from [employers]” dated 6 March 2020. The Respondent referred to a further document titled “typical appointment email” during the course of the hearing which was produced by ARB and consisted of two A4 pages and related to his appointment when undertaking private client work. The Respondent submitted that this document was relevant to the allegation of dishonesty because it did not refer to him having PII, and therefore it assisted his case. ARB did not object to the document being considered by the Committee as it confirmed the Respondent’s position of “dishonesty by omission”. The Legally Qualified Chair referred to Rule 15. The Committee determined that the document was relevant and that it would be unjust not to admit it. The Respondent did not give evidence and did not make further submissions to those in his written documentation. The Committee carefully considered the Respondent’s documentation.

Legal Advice

11. ARB was required to prove the allegations to the civil standard; that it was more likely than not that the events occurred. This was a single unwavering standard of proof, though the more serious an allegation the more cogent the evidence required to prove it. There was no requirement for the Respondent to prove anything.

12. The test for dishonesty applied by the Committee was that laid down by the Supreme Court in Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67. First the actual state of an individual’s knowledge or belief about the facts must be decided. The question as to whether that conduct was honest or dishonest is then decided by applying the objective standards of ordinary decent people. The words “honest” and “dishonesty” are ordinary English words which need no definition.

13. The test for lack of integrity applied by the Committee was explained in Wingate & Evans v SRA and SRA v Malins [2018] EWCA Civ 336. Society expected professionals to adhere to their moral and ethical codes and to have higher standards than expected of everyone, and professional integrity was linked to the way that a professional served the public. Not all lack of integrity would be dishonest, but all dishonesty lacked integrity. In Williams v. SRA [2017] EWHC 1478 Admin, at paragraph 130 “honesty is a base standard which requires everyone to meet. Professional standards, however, rightly impose on those who aspire to them a higher obligation to demonstrate integrity in all of their work. There is a real difference between them”.

14. ARB confirmed that the Respondent had no previous matters and was a man of good character. The Chair advised that the weight, and the extent to which the Respondent’s good character assisted the Committee was a matter for them, having taken into account everything it had heard from the Respondent and what it knew of him.

Findings of Fact

15. The Committee made the following finding of facts:

Particular 1
16. The Respondent formally admitted this particular. The Respondent had admitted the allegation to his employer in his “Formal Responses to Allegations” document dated 6 March 2020, which he had submitted in advance of his disciplinary meeting. In this document the Respondent stated “I concede that I do not have PI insurance in place for the private works undertaken…” In the disciplinary meeting the Respondent stated “Any of the work that I have completed goes up to building controls so, yes I am aware that it should have been in place. I cant [sic] argue with that”. The Committee noted the Respondent’s submissions to ARB’s Investigation Officer in which he stated “I cannot and am not going to attempt to refute allegation 1 as I can confirm that I have carried out some work for private clients outside of my employment….and did not have PI insurance”.

17. The Committee had regard to the unchallenged evidence of Mr CH and Ms SA. The Committee accepted that Ms SA, having searched the planning portal for Shropshire Council, found that 33 of the 42 applications were made by the Respondent under “Corey Waters Architect”. The Committee reviewed the sample of 5 planning applications exhibited by Ms SA:

• Application dated 16 July 2015. The Respondent’s company name is noted as “Corey Waters Architect”;
• Application dated 2 October 2017. The Respondent’s company name is noted as “Corey Waters Architect”;
• Application dated 8 October 2019. The Respondent’s company name is noted as “Corey Waters Architect”;
• Application dated 8 January 2020. The Respondent’s company name is noted as “Corey Waters Architect”;
• Application dated 13 February 2020. The Respondent’s company name is noted as “Corey Waters Architect”.

18. On each of the five planning applications, the Respondent had typed his qualifications and his title of “Architect”. The Respondent did not challenge the planning applications exhibited by Ms SA.

19. In view of the above, and the Respondent having admitted the particular alleged, the Committee found particular 1 proved.

Particular 2
20. The Committee then considered whether the Respondent acted dishonestly and/or without integrity in relation to his actions at particular 1. It had regard to the good character of the Respondent and applied the relevant test in relation to dishonesty and lack of integrity as outlined in the cases of Ivey v Genting Casinos (UK) Ltd [2017] UK SC67 and Wingate and Evans v SRA and SRA v Malins [2018] EWC8 Civ 366.

21. The Committee first ascertained the Respondent’s knowledge and belief as to the facts. At the material time the Respondent was registered with ARB and was aware of the 2010 and 2017 Codes, and Standard 8.1. The Respondent did not believe that not having PII was dishonest (either by omission or commission). The Committee noted that the Respondent:

• Undertook work for private clients as an architect in his own time;
• Made no representation to those clients about his lack of PII;
• Believed that the risk to his clients (and by extension himself because he became personally liable) was small because of the nature of the work;
• Stated to the Investigations Officer that undertaking private client work was “just a continuation of an intermittent pattern, which I had fallen into prior to achieving full qualification as an architect”;
• Did not intend to deliberately mislead his private clients.

22. The Committee considered that the Respondent’s knowledge and belief was that because he had carried out work for private clients as an architectural technician and architectural assistant prior to registering as an architect with ARB in 2009, and that this work was for friends and family or via “friendly referrals”, for Local Authority approval, he genuinely considered that he could continue undertaking private client work after his registration with ARB. The Respondent stated that he returned to undertaking private client work following his registration “out of habit” and “it was just a continuation of an intermittent pattern, which I had fallen into prior to achieving full qualification as an architect”. The Committee determined that the private client work undertaken by the Respondent between 2015 and 2020, without PII, was a genuine oversight and that he had (in his own words) “made an error of judgment” in not having the required insurance in place.

23. Having established the Respondent’s actual state of mind as to knowledge and belief of the facts, and applying the objective standard, the Committee concluded that ordinary, decent people having full knowledge of the circumstances of this case would not consider the Respondent’s conduct to be dishonest.

24. The Committee then considered whether the Respondent’s actions found proved amounted to a lack of integrity. The Respondent admitted that his actions at particular 1 lacked integrity. The Respondent was bound by the 2010 and 2017 Codes. Both Codes explicitly state that the need for insurance extends to work undertaken outside of the Respondent’s employment. Society expects professionals to adhere to their moral and ethical codes and to have higher standards than expected of everyone, and professional integrity is linked to the way that a professional serves the public.

25. Undertaking private client work over a period of five years without PII posed a risk of reputational damage, not only to the Respondent, but to the profession. Should any client have experienced an issue which resulted in legal proceedings against the Respondent then they would have been potentially exposed to not being able to claim costs or funds as a result of the Respondent not having insurance in place. The Committee rejected the Respondent’s submission that because he had undertaken work for friends and family, and due to the nature of the work, that there was a “low risk” of a claim being made against him. In accordance with the Code all aspects of professional work are required to be covered by the appropriate insurance, regardless of the scope of the work or who the client is. The Respondent failed to take reasonable steps to ensure that he was acting in accordance with the Code. In the circumstances, the Committee found the facts of this particular proved, in that the Respondent acted without integrity.

Findings on allegation of Unacceptable Professional Conduct

26. Having found the above facts proved, the Committee went on to consider whether the Respondent’s conduct amounted to UPC. UPC was a matter of judgment for the Committee, and no burden of proof applied. UPC was defined as conduct that fell short of the standard required of a registered person. The Committee had regard to standards 1 and 8 within the 2010 and 2017 Codes. The Committee noted that the Respondent had accepted that a lack of integrity for not having adequate and appropriate PII in place was capable of amounting to UPC.

27. The Committee carefully considered all the evidence presented to it, all submissions made and accepted the advice from the Legally Qualified Chair. The Committee recognised that not every shortcoming on the part of an architect, nor failure to comply with the provisions of the Code, necessarily resulted in a finding of UPC. However, a failure to follow the guidance of the Code, whether in one’s professional or private life, was a factor that could be taken into account should it be necessary to examine the conduct of an architect.

28. The Committee recognised that any failing should be serious. The Committee had borne in mind the case of Spencer v General Osteopathic Council [2012] EWHC 3147 (Admin) and 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).

29. 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 medical practitioner in the particular circumstances”. The Committee also recognised that any failing must be serious.

30. By reason of the facts found proved, the Committee found that the Respondent acted in breach of standards 1 and 8 of the 2010 and 2017 Codes, as having adequate and appropriate insurance is a fundamental obligation on an architect.

31. The Committee considered that the Respondent’s failure, which related to a number of clients over a lengthy period of time, attracted a degree of opprobrium. As noted above, the Committee rejected the Respondent’s assertions that the work he had undertaken was low risk, that his clients were family or friends or via a friendly referral, and that he did not advertise his services. By practising without insurance, the Respondent potentially exposed his clients to greater risk in the event of any possible future claim. Although no claim or complaint had been made against the Respondent, should a complaint have arisen, the complainant could incur a financial loss beyond their means.

32. The Committee found the Respondent’s conduct and the corresponding breaches of the Codes serious and substantially adversely impacted both on the reputation of the Respondent and the profession generally and potentially placed the public at risk. The Committee took into account its findings in relation to integrity and considered that the Respondent’s conduct was a significant falling short of the standards required of an architect. Members of the public and the profession would be concerned that an architect had undertaken work without having the appropriate insurance in place.

33. The Committee therefore concluded the Respondent’s conduct amounted to UPC on each particular, as set out above.

Sanction
Submissions
34. Prior to hearing submissions on sanction, the Respondent submitted a 22-page document which he referred to as a number of testimonials for the Committee’s consideration. The ARB had no objection to the document being admitted. The Legally Qualified Chair reminded the Committee of Rule 15. The Committee determined to accept the document as it was relevant and fair to do so. The document contained a number of photographs of buildings, and a series of email chains between 2016 and 2020 from a number of the Respondent’s private client’s who commented positively on the Respondent’s work and thanked him for his services.

35. In relation to sanction, Mr Foxsmith, on behalf of ARB, drew the Committee’s attention to ARB’s Sanctions Guidance. He submitted that the Committee should have regard to the relevant aggravating and mitigating factors when assessing the level of sanction. The aggravating factor in this case was that the Respondent’s conduct took place over a period of time. In terms of mitigating factors, ARB submitted that these included the Respondent’s insight and admissions at the earliest opportunity and that no actual damage came to the clients the Respondent undertook work for. This was a case about risk rather than harm. Mr Foxsmith acknowledged the Respondent’s good character and supported the feedback with regards to the Respondent’s positive quality of work.

36. ARB reminded the Committee that the purpose of sanction was to protect the public, to ensure public confidence in the profession and to uphold standards. The Committee were reminded that the Respondent had no previous regulatory history with ARB.

37. In terms of the type of sanction to impose, it was submitted that, in view of the Committee’s findings on UPC, a sanction was required, and this case was appropriate for either a reprimand or a penalty order. This was not a case for a suspension or erasure.

38. The Respondent concurred with ARB’s submissions, adding that he had fully complied with ARB’s investigation and had participated in these proceedings. In response to the Committee’s questions regarding his current employment and financial circumstances, the Respondent stated that he was self-employed, and that following a slow start in undertaking private client work due to the Covid-19 pandemic, he had received an increase in commission enquiries.

Decision on sanction

39. The Committee then considered whether to impose a sanction, and if so, which one. The Committee had regard to the public interest, which included the need to protect the public, to maintain confidence in the profession and ARB, and to declare and uphold proper standards of conduct and behaviour. The Committee carefully considered all the evidence and submissions made during the course of this hearing including the Respondent’s written

submissions. It heard and accepted the advice of the Legally Qualified Chair. It was aware that the purpose of imposing a sanction was not to be punitive although it may have a punitive effect. It took into account the Respondent’s interests, ARB Sanctions Guidance and the need to act proportionately. It took into account any aggravating and mitigating factors in this case and exercised its own independent judgement.

40. Having taken all the evidence and submissions before it into account, the Committee identified that the only aggravating factor in this case was that the Respondent’s conduct took place over a period of time. The Committee identified the following mitigating factors:

• The Respondent’s unblemished career;
• The Respondent’s genuine insight and remorse. In his response to the Investigations Officer at ARB, the Respondent stated “I am committed to rectifying the error….made while undertaking private work outside of my previous employment, and to fully represent ARB and RIBA in the correct and required manner, which is something I always intended to do, despite my oversight”;
• The Respondent’s admissions at the hearing, and earlier in his written submissions in response to the Investigations Officer of ARB in which he stated “I fully acknowledge my mistake not having the requisite PI insurance in place…” and “…I concede that to do this is one thing when not a qualified architect or member of ARB / RIBA, and another when belonging to these organisations and being subject to the relevant Codes of Conduct”;
• The remedial action of the Respondent in having put in place PII from 1 April 2020;
• No damage or loss occurred to the clients for whom the Respondent undertook work for.

41. The Committee had regard to the positive emails submitted by the Respondent. These emails were part of a chain of general correspondence between the Respondent and his clients. His clients told the Respondent that they were pleased with his work and services. The Committee accepted the Respondent’s written submissions to ARB in which he stated that “the clients for whom I have carried out these works have been extremely pleased with my service and the subsequent results” and that “there has never been a single complaint or even a note of concern from a client toward or against me in all of the years I have been practising, both prior to and following full qualification and either in my places of employment or in carrying out private works”. The Committee also noted that during his disciplinary meeting on the 6 of March 2020, the employer’s interviewing officer stated that the Respondent had “done a sterling job (at the Respondent’s former place of employment); you are one of two Associates. What you have brought to the team and the practice…” and “you have done a good job all along”. The Committee determined that, in view of the mitigating features and the feedback of the Respondent’s quality of work, and his positive work ethic, that his conduct was highly unlikely to be repeated.

42. The Committee noted that the matters found proved were serious to the extent that practising with the appropriate insurance in place was a fundamental requirement of an architect, and the potential consequences that followed by not having insurance in place exposed clients to a potential risk of harm and loss. The conduct had the potential to diminish both the Respondent’s reputation, and that of the profession generally. The Committee therefore concluded that the Respondent’s conduct was sufficiently serious for it to require the imposition of a sanction and considered them in ascending order of severity.

43. The Committee first considered whether to impose a reprimand. The Committee considered that such a sanction was appropriate and proportionate in view of the mitigating features identified and that the Respondent’s conduct was highly unlikely to be repeated.

44. Having determined that a reprimand was the appropriate and proportionate sanction the Committee carefully considered a penalty order. However, in view of all of the mitigating factors and the Committee’s finding regarding the risk of repetition, it considered that the criteria for a penalty order was not met. The Respondent had displayed insight and significant remorse, and his conduct was not so serious as to warrant a penalty order. To issue a penalty order was therefore disproportionate taking account of all of the circumstances of this particular case.

45. The Committee therefore imposed a reprimand. The Committee considered this to be an appropriate and proportionate sanction that reflected the degree of seriousness of the Respondent’s failings.

46. That concludes this determination.

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