Mr David Shaun Dow

ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

DAVID SHAUN DOW (067588A)

_________________

Held on

19-23 August 2024 and 22 October 2024

Via

Video Conference

_______________

Present:

Margaret Obi (Legally Qualified Chair)
Deborah Kirk (PCC Architect Member)
Martin Pike (PCC Lay Member)

_______________

The Architects Registration Board (“the ARB”) was represented by Mr Tom McEntegart (“the Presenter”) instructed by Anderson Strathern LLP.

Mr David Dow (“the Registered Person”) attended the hearing and was not represented.

 

Allegation

1. The Registered Person faced the following Allegation:

The charge against the Registered Person is that he is guilty of unacceptable professional conduct in that he:

1) failed to provide adequate terms of engagement, contrary to Standard 4.4 of the Architects Code

2) failed to adequately and/or appropriately carry out his duties during the construction stage and/or as contract administrator in that he:

(a) failed to carry out adequate inspections of the project

(b) failed to properly record site visits and meeting notes

3) sought to persuade the Referrers to enter into an agreement in which the terms:

(a) prevented them from submitting a complaint to ARB and/or his other professional bodies

(b) and in attempting to do so, acted without integrity

4) failed to provide the Referrers with a copy of their written complaints procedure upon request

5) failed to record variation(s) to the original terms of engagement in writing, contrary to Standard 4.5 of the Architect’s Code

6) failed to communicate adequately with the Referrers

7) failed to adequately and/or appropriately carry out his duties as Principal Designer

Background

2. The Registered Person is a registered architect.

3. The background circumstances, as set out below, are based on the report prepared by Anderson Strathern, the Referrer’s witness statement dated 16 November 2023 and the Presenter’s opening.

The Property

4. The Referrer (Mr Stephen Burston) and his wife (Mrs Kate Burston) wanted to make changes to their house but had no specific idea in mind. They had a budget of £70,000. The Referrer became aware of the Registered Person through an acquaintance – Mr B. Mr B is an architect and informed the Referrer that he knew of an architect in the Referrer’s area. Mr B and the Registered Person had attended college together but were no longer in contact with one another.

5. Contact was made with the Registered Person, and he attended the property to meet the Referrer and his wife on 17 November 2020. The Referred stated that this was the first time he and his wife met the Registered Person. The Referrer stated that the Registered Person proposed a timber and steel framed extension to the back part of the house. This proposal would extend the existing kitchen downstairs, their daughter’s bedroom upstairs and provide a new bathroom upstairs. The Referrer explained that this aspect was to be particularly useful to him as he has a medical condition and sometimes struggles to go downstairs. As the property is on a hill the Registered Person’s proposal required steel stilts.

 

Instruction of the Registered Person

6. The Referrer stated in his witness statement that later that same day (17 November 2020) the Registered Person sent his terms of engagement with the fee proposal for the proposed alterations and extension. The terms of engagement confirmed that the Registered Person appointment would be based on the RIAS Appointment (ASP2005, April 2015 Revision) and included a leaflet ‘Need Building Work Done’. The Registered Person also stated that the services he would provide included: preparation of the brief, initial design, planning consent application, building warrant application, construction documentation, tender administration, contract administration and post-completion work (all as described in the RIAS Appointment).

7. The Referrer stated in his witness statement that this was the first time he and his wife had been involved with a house extension project and they were in the dark as to what was expected. The Referrer stated that there was no discussion about who would be the principal contractor, but that the Registered Person said he would deal with planning and knew builders who could be appointed.

Planning Permission and Building Warrant

8. After discussion around initial drawings provided by the Registered Person, the planning application was submitted on 1 December 2020. The building warrant application was granted by Fife Council (‘the Council’) on 5 July 2021. The letter from the Council, addressed to the Registered Person at his business address, set out a number of requirements including a Compliance Plan and notification to the Council within seven days of work starting on the site. The Referrer stated, in his witness statement, that the Registered Person forwarded this letter to them but did not say anything to the Referrer or his wife about what their responsibilities were or might be in this regard. It was the Referrer’s understanding that the Registered Person would deal with and meet the requirements as set out by the Council. The Referrer also stated that he and his wife had no awareness of what was required under a Compliance Plan or what it was and assumed that the Registered Person would deal with this.

Building Works

9. The Referrer stated in his witness statement that the Registered Person, the structural engineer, and the builder came as a team and being inexperienced in such matters, accepted the Registered Person’s recommendations. The Referrer stated that construction at the property commenced on 31 August 2021 and that on 11 September 2021, he emailed the Registered Person to ask who would make payment to the builder as this had not been made clear. The Registered Person replied by email on the same day that it was for the Referrer and his wife to pay the builder.

10. The Referrer stated that the Registered Person visited the site once early on in the construction process but did not visit again until after the steel beams had been incorrectly fitted. The steels were unsupported by padstones and were resting on single bricks with one side concealed behind cemented brick. The overhead steel beam was not bearing the weight of the cut-out wall above it. According to the Referrer the Registered Person conducted a site visit on 15 July 2022, after much of the work had been done.

11. The Referrer stated in his witness statement that he found it hard to pin down the Registered Person on the specifics of how the project was going and no minutes were provided for the meetings the Registered Person said he had with the Contractor.

12. On 29 July 2022, following discussions between the Referrer’s wife and the Contractor, about whom they had concerns, the Contractor left the project and did not return. That afternoon the works were inspected by a carpenter. He informed the Referrer and his wife that the house looked unsafe and installed props without charge. The Referrer and his wife were concerned about the state of the project. Over the course of meetings and discussions in early August 2022 the Referrer and his wife set out a series of problems with the construction, including the alleged incorrect installation of steel beams.

13. After a meeting with the Registered Person on 5 August 2022, the Referrer and his wife emailed the Registered Person setting out the issues which had been discussed, in particular that the Registered Person had agreed to pay the new Contractor for the rectification work now required. The Referrer noted that the Registered Person had said the original Contractor was not competent to do the work on the steel beams and that the Registered Person had not inspected the work done.

14. On 19 September 2022, the Referrer and his wife contacted Building Standards at the Council to seek advice about visits from the Council. At this stage they discovered that the Council did not know the build had commenced, had not received photographs of the foundations and that the Registered Person had not been updating the Council in terms of the Compliance Plan. When the Referrer asked the Registered Person for the drawings, as requested by the Council, the Registered Person said by email that there was no Principal Contractor. This is said to have caused confusion for the Referrer and his wife as it was their understanding from the information provided in the terms of engagement that there was a Principal Contractor and a Principal Designer (the Registered Person) who would undertake contract administration.

The Complaints

15. The Referrer’s wife asked for the Registered Person’s complaint procedure on 11 September 2022 and although this was not provided to them, they then sent a detailed complaint letter to the Registered Person dated 21 September 2022. This letter set out the concerns as identified by the Referrer and his wife. They described their stress, and the expense involved in the construction failures and remedial work involved. The Registered Person responded on 29 September 2022. He acknowledged the serious complaint and referred them to RIAS and also the ARB. He offered to meet the Referrer and his wife.

16. Following emails and discussions between the parties and also the input of the new Contractor during October and November 2022, the Registered Person wrote to the Referrer and his wife on 17 December 2022. In this letter the Registered Person set out a series of bullet points. He said that all matters relating to the project were ceased. He also said that monies he agreed to pay the new Contractor, and the Engineer (for rectification) was “good will” and inferred no liability. The letter included the statement that: “you [the Referrer and his wife] will not take action, either legally or via my professional body…” He stated that once the agreement was signed the “monies will be settled.”

17. On 30 January 2023, the Referrer and his wife submitted a complaint to the ARB setting out their concerns about the Registered Person and what had happened with their project.

18. In the concluding paragraphs of his witness statement, the Referrer described the impact the project has had on him, his wife and his children including stress, the safety concerns and the financial consequences which involved borrowing money from family and extending the mortgage on the property. He stated that the redundancy payment he received on the grounds of ill-health had been intended to be used to extend and improve the house in a way that would have made life easier for him but have been used on an incomplete and unsafe construction.

 

Registered Person’s Response

19. The Registered Person submitted responses to the allegations by letter dated 19 May 2023 (“the first response”) and by email dated 9 August 2023 (“the second response“).

20. In the first response the Registered Person refuted the complaint/allegations and referred to various ‘mitigating factors’ including the national lockdown and the Covid pandemic. In the second response, the Registered Person referred to a difficult domestic situation that had impacted his practice. He admitted the failure in respect of the terms of appointment and meeting Standard 4.4 of the Architects Code and also that he failed to record variations to the terms of appointment. The Registered Person also admitted that he had not carried out his duties as a Principal Designer adequately and/or appropriately. The Registered Person denied the other allegations and advised that the responsibility for the Compliance Plan lay with the Referrer and his wife; not with him.

21. The Registered Person also stated in his second response in relation to Allegation 6 (failure to communicate adequately) that he had “not sent all communication nor notes from tel-cons and site visits”. He stated that “this is more of my time than I am willing to give to this project.”

Preliminary Issues

Admissions

22. The Registered Person admitted Allegations 1, 2(b), 4, and 5 at the outset of the hearing. He denied the remainder of the allegations. The Legally Qualified Chair (“LQC”) announced that the admitted allegations had been found proved by reason of the Registered Person’s admissions.

23. The Presenter explained during his Opening that Allegation 5 is dependent upon the Committee accepting that the terms upon which the Registered Person was engaged were varied. It was the ARB’s position that there was no variation of the Registered Person’s terms of appointment and in these circumstances, there was no variation that required to be recorded in writing.

Evidence

24. The Committee took into account the documentary evidence contained within the hearing bundle which included:

i. Report to ARB prepared by Anderson Strathern
ii. Witness Statement of the Referrer dated 16 November 2023
iii. Inquirer’s Report dated 1 February 2024
iv. Various email correspondence including emails, letters, photographs and invoices
v. Registered Person’s first and second responses to the Allegation

25. The Committee heard oral evidence from the ARB’s witnesses – the Referrer and the Inquirer – Mr Robert Johnston. The Committee also heard oral evidence from the Registered Person.

Decision on Facts

The Committee’s Approach

26. The LQC advised the Committee that the burden of proof lies with the ARB and the standard of proof is on the balance of probabilities. The Registered Person did not have to prove or disprove anything. The LQC advised that where the allegation refers to a ‘failure’ the ARB must first prove that the Registered Person had a duty to do something, and secondly, that it was not done. If the Committee determines that there was a duty to do something, which was not done, it should go on to consider if there is any evidence that this was for good reason.

27. The LQC further advised that having given the Inquirer’s evidence careful consideration, which would include an assessment of his expertise, conclusions, and the quality of the analysis which informed his opinions, the Committee may accept his evidence in whole or in part.

28. The Committee was not required to address every point that was made; only such matters as enabled it to conclude whether the facts under consideration had been proved.

Findings of Fact

Allegation 2(a) – Found Proved

“failed to carry out adequate inspections of the project”

29. There was no dispute that the Registered Person, having entered into an agreement with the Referrer and his wife to provide his services as an architect had a duty to carry out his duties adequately and appropriately.

30. The Committee noted that the Registered Person admitted at the outset of the hearing that he had failed to provide the Referrer with adequate terms of engagement in that the letter of appointment he provided, dated 17 November 2020, makes no reference to insurance cover, a complaints procedure or that the Registered Person is registered with the ARB and is subject to the Code.

31. The letter of appointment refers to eight stages of work. Stage 7 is Contract Administration. The Registered Person states in his letter of appointment that his services would be based on the Royal Incorporation of Architects in Scotland Appointment (RIAS) (ASP2005, April 2015 revision). The Committee noted that the Inquirer provided evidence that the Schedule of Services included in the RIAS Appointment at Stage 7 involves administering the contract, attending progress meetings on site, inspecting the works as necessary to review progress and check quality, issue instructions, report on the work stages, and advise the client when works are ready for handover. The Inquirer expressed the opinion that inspecting the works formed part of the Registered Person’s contracted services. The Inquirer also referred to the RIBA Job Book in his report and during his oral evidence. He stated that the Job Book is widely accepted as a guide to good practice and includes guidance relating to site inspections which should be carried out periodically and to the extent determined by the nature of the work. The Inquirer informed the Committee that there was nothing in the evidence available to him to suggest that an adequate regime of site visits and progress meetings was in place. This evidence was not challenged. The Inquirer commented in his report that the Registered Person provided a limited contract administration service.

32. The Referrer stated, during his oral evidence, that the Registered Person submitted an invoice on 9 July 2022 referring to ‘Fee for Stage 7’ and convened a meeting on site in August 2021 which was attended by the Referrer and his wife. The notes from the meeting in August 2021 relate to a pre-construction meeting, and the Committee noted that there is no suggestion in the notes that any works were inspected.

33. The Registered Person stated that he attended the property on 5 July, 15 July and 5 August 2022. However, there was no evidence before the Committee as to the extent of any inspections which were undertaken on any of these dates. At its highest, the evidence indicates that on 15 July 2022 the Registered Person discussed the guttering with the Contractor and viewed the external and internal works. The Committee concluded that there was no evidence that the Registered Person went any further than this on 15 July 2022. The Referrer stated in his witness statement that by the time of the Registered Person’s attendance at the property on 15 July 2022, the “steel was installed” and during his oral evidence he stated that the Registered Person did not see any aspect of the “botched steel.”

34. The Registered Person stated during his oral evidence that the steel beams that were in the incorrect position were not installed until after his attendance at the property on 15 July 2022. He suggested that the steel beams had been incorrectly installed between 15 July 2022 and his meeting with the Referrer and his wife on 5 August 2022.

35. The Registered Person’s evidence conflicted with the evidence of the Referrer. In resolving this conflict, the Committee noted that the email correspondence strongly supported the Referrer’s account that the incorrectly positioned steel beam was in place at the time of the Registered Person’s attendance at the property on 15 July 2022. On 15 July 2022, the Registered Person sent an email to the Referrer’s wife. He made reference to the “roof and gutter etc” but made no reference to an inspection of the steel beams. Furthermore, in an email from the Referrer to the Registered Person, dated 18 August 2022, he stated:

“From our meeting on 5th August and subsequent SMS communication I understand that you have agreed to pay our current builder to fix the incorrect installation of the internal steel beams, all padstones and related issues arising from the errors which only came to light when [the original builder] walked out of the job.

None of these errors would have been detected as no inspection was carried out during your postponed site visit of 15th July when you failed to notice the safety issue of steel beams resting on single house bricks.”

The Committee noted that the Registered Person replied to this email on the same date. He clarified the basis on which he was prepared to “cover the remedial work” but did not (at that time) challenge the sequence of events with regard to the installation of the steel beams.

36. The Committee accepted the evidence of the Referrer. He was at times blunt, direct, and combative, but these features did not undermine the veracity of his evidence. The Committee took the view that these characteristics reflected his frustration and occasional annoyance whilst being cross examined and noted that the problems associated with the project have had a devastating impact upon him and his family. His inability to readily recall dates or the specific details of what may have been discussed several years ago was understandable and did not adversely impact the Committee’s assessment of his credibility as a witness and the reliability of his evidence. The Committee found the Referrer to be a credible and reliable witness. The Committee was satisfied that in relation to inspections at the property the evidence of the Referrer should be preferred. The Registered Person’s evidence on this issue was inconsistent and confused. During his oral evidence, the Registered Person initially stated that the steel column was in place at the time of his visit on 15 July 2022 but shortly thereafter said it was not there. The Registered Person was unable to offer a plausible explanation for his contradictory evidence. He was also unable to adequately explain why he had submitted an invoice dated 9 July 2022 which refers to reviewing the installation of the steel if the installation had not yet taken place. The Committee also noted that the Registered Person suggested that he had documents and photographs to support what he was saying but he said it was too late to submit this documentation. This was despite the fact he had lodged late documents the day before relating to communication with the Referrer and his wife before construction had commenced. The Committee concluded that the Registered Person’s evidence lacked credibility and was unreliable.

37. The Committee accepted the evidence of the Inquirer. His evidence was balanced, and he made appropriate concessions. He explained the conclusions he reached clearly and comprehensively, and his evidence took account of the relevant guidance.

38. The Committee concluded that the Registered Person was the Contract Administrator and despite agreeing to undertake site inspections, there was no evidence that the Registered Person carried out appropriate site inspections at any stage of the project. Had he done so, the defective steel installation would have been obvious.

39. For these reasons, Allegation 2(a) was found proved.

 

Allegations 3(a) and 3(b) – Found Proved

“Sought to persuade the Referrers to enter into an agreement preventing them from submitting a complaint to ARB and/or his other professional bodies and doing so acted without integrity.”

40. The Referrer gave evidence about a meeting with the Registered Person at the property on 5 August 2022. The meeting was attended by the Referrer, his wife, his brother-in-law, and his sister-in-law. When the Registered Person was told by the Referrer’s wife that the steel beams were installed before his visit on 15 July 2022, the Registered Person stated he would fix everything at no cost to the Referrer and his wife. The emails, dated 18 August 2022 (referred to in paragraph 35 above), set out from the perspective of each party what was agreed. The Committee noted that there was no suggestion that the payment for remedial works would be conditional upon the Referrer and his wife doing anything or agreeing not to take any action against the Registered Person. Having agreed to make these payments the Registered Person did not do so and has not done so to date. The Referrer stated during his evidence that the Registered Person subsequently became impossible to contact.

41. The Referrer and his wife received a letter from the Registered Person dated 17 December 2022. In this letter the Registered Person sought to make the payments which he had already agreed to pay to the new Contractor and Engineer, conditional upon no legal action being taken against him or any complaint being made to the ARB. The Registered Person in his first response to the Allegation appeared to acknowledge the terms of the letter. He suggested that he was merely attempting to find a suitable resolution and had obtained legal advice on how to achieve this.

42. The Committee concluded that the Registered Person sought to use the inducement of payment for the remedial works to persuade the Referrer and his wife to agree to the terms set out in his letter dated 17 December 2022.

43. The Registered Person is a registered architect. The Referrer, as his client, the ARB as his regulatory body and the public are entitled to expect higher standards of him than they would expect from a non-registered professional. The Registered Person knew that the Referrer had concerns relating to his professional practice and any attempt to prevent these concerns from being brought to the attention of the ARB has the potential to undermine the regulatory process. The Registered Person chose to put his own interests above his obligation to observe a high ethical code consistent with the standards of conduct expected of a registered architect.

44. In these circumstances, the Committee concluded that the Registered Person’s conduct and behaviour demonstrated a lack of integrity.

45. For these reasons, Allegations 3(a) and 3(b) were found proved.

 

Allegation 5 – Found Not Proved

“failed to record variation(s) to the original terms of engagement in writing, contrary to Standard 4.5 of the Architect’s Code”

46. As stated above, the Registered Person admitted Allegation 5 at the outset of the hearing, and this was formally found proved by the Committee. However, Allegation 5 was dependent upon the Committee accepting that the terms upon which the Registered Person was engaged were varied. It was the ARB’s position that there was no variation of the Registered Person’s terms of appointment.

47. Although the Registered Person stated in his second response to the Allegations that he was not the Contract Administrator this was not because his role had changed at any point during the project. The Committee has already found that the Registered Person was the Contract Administrator, and he acknowledged during his oral evidence that the terms of appointment he had provided to the Referrer and his wife had not been varied.

48. The Committee concluded that the letter of appointment was not varied at any stage of the project and in these circumstances treated the Registered Person’s admission as if it had been retracted.

49. For these reasons, Allegation 5 was found not proved.

 

Particular 6 – Found Proved

“failed to communicate adequately with the Referrers”

50. This allegation relates to the letter the Registered Person received from the Council dated 5 July 2021 which enclosed the building warrant and detailed a series of requirements relating to the construction of the extension. The Referrer gave evidence about an email he and his wife received from the Registered Person dated 5 July 2021 in which they were advised that the building warrant had been granted. The paperwork was enclosed. The Referrer stated during his evidence that no explanation was provided by the Registered Person as to what, if anything, they were required to do. As the Registered Person had said “all good to start building” it was the Referrer’s understanding that the Registered Person was dealing with the requirements in the letter.

51. The Inquirer explained during his oral evidence that following the grant of the building the Council had to be notified of certain stages of the construction. Some of these stages relate to complex construction matters which a client unfamiliar with construction would not understand. There was no explanation from the Registered Person to the Referrer and his wife about the need to notify the Council when work commenced and at subsequent key stages. The Committee accepted the evidence of the Inquirer that the Registered Person should have properly advised the Referrer and his wife if he was passing the responsibility to notify the Council to them but, in any event, it was unreasonable to expect them to undertake the requirements as set out by the Council.

52. The Registered Person acknowledged during his oral evidence that it was his responsibility to notify the Council, and he had failed to do so.

53. The Committee took into account its findings in respect of Allegation 2(a). The Committee noted that the lack of site visits and progress reports from the Registered Person was also indicative of a failure on his part to communicate properly with the Referrer and his wife.

54. The Committee was satisfied that the Registered Person failed throughout the construction phase of the project to communicate adequately with the Referrer and his wife.

55. For these reasons, Allegation 6 was found proved.

 

Particular 7 – Found Proved

“failed to adequately and/appropriately carry out his duties as Principal Designer”

56. The Referrer and the Inquirer both gave evidence about what was stated by the Registered Person in his letter of appointment dated 17 November 2020. The Committee noted that the letter of appointment states in clear terms that the Registered Person would “act as Principal Designer under the CDM Regulations 2015…”. As stated in paragraph 48 above the terms of appointment did not change at any stage during the project.

57. The Inquirer explained the duties of the Principal Designer in his report. He stated that these duties include preparing pre-construction information to document residual risks and creating a health and safety file to be maintained by the Principal Contractor during the project. The Inquirer also explained that the Principal Designer should also ensure the Principal Contractor prepares the Construction Phase Plan which includes identifying any risks with the project. There was no evidence before the Committee that any of these documents were prepared. The Inquirer acknowledged that smaller contractors routinely failed to prepare Construction Phase Plans. However, this did not relieve the Registered Person of his professional responsibilities.

58. The Registered Person suggested at one point during his evidence that he had prepared a health and safety plan but within a few minutes confirmed that he had not.

59. The Committee concluded that no health and safety plan had been prepared by the Registered Person. Nor had he taken any steps to ensure that the Principal Contractor prepared the Construction Phase Plan.

60. For these reasons, Allegation 7 was found proved.

 

Decision on Unacceptable Professional Conduct (UPC)

The Committee’s Approach

61. The LQC 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.

62. 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 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.

63. In deciding whether the facts found proved amount to UPC the Committee had regard to Spencer v General Osteopathic Council [2012] EWHC 3147 (Admin). It bore in mind in reaching its decision 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” was required. The Committee also took into account the observation made by Mr Justice Kerr in Shaw v The General Osteopathic Council [2015] EWHC 2721 (Admin) 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

64. The Committee found at the fact-finding stage that the Registered Person failed to communicate adequately with the Referrer and his wife and failed to carry out his duties as Principal Designer adequately and appropriately. There were also specific failings relating to the provision of adequate terms of appointment and access to his written complaints procedure. The Registered Person also failed to carry out adequate inspections and properly record site visits/meeting notes. When the Referrer and his wife raised concerns the Registered Person sought to persuade them to enter into an agreement which would have the effect of preventing them from submitting a complaint to ARB. The Committee concluded that this behaviour demonstrated a lack of integrity.

65. The Committee concluded that the factual findings and the corresponding breaches of the Code are sufficiently serious to adversely impact both on the reputation of the Registered Person and the profession generally. In all the circumstances and for the reasons set out below, the Committee finds that the Registered Person’s conduct amounts to UPC in respect of Allegations 1, 2(a), 2(b), 3(a), 3(b), 4, 6 and 7 both individually and cumulatively.

Communication (including the absence of adequate terms of engagement, failure to carry out inspections and failure to properly record site inspections)

66. Adequate terms of appointment were not provided at the outset of the project and the Registered Person failed to provide the Referrer and his wife with a copy of his written complaints procedure. The Registered Person failed to comply with some of his own obligations, failed to notify the Referrer and his wife of their obligations as set out in the letter from the Council dated 5 July 2021 and failed to ensure that the Principal Contractor complied with its obligations. In addition, the Registered Person failed to carry out adequate site inspections. To the extent that the Registered Person did carry out inspections he failed to properly record such visits.

67. In accordance with Standard 2 of the Code, an architect has to be competent to carry out their professional work. Standard 4 deals with the competent management of an architect’s business and Standard 6 requires architects to carry out their professional work conscientiously and with due regard to relevant, technical and professional standards.

68. The Registered Person had a duty to be aware of and to follow the terms of the Code. Standard 4.4 sets out clearly what the terms of engagement are expected to include. Compliance with these expectations protect the client, the architect, and the public. It is not aspirational; nor is it onerous or difficult to achieve. It is fundamental to professional work as a registered architect that adequate terms and conditions, are communicated clearly to the client, in writing, at the outset of a project. A failure to do so, has the potential to cause delays, undue stress and anxiety, and financial loss. In the absence of a good reason, the failure to provide adequate terms of engagement is serious. Although the Registered Person provided the Referrer and his wife with a letter of appointment, a number of the requirements set out in Standard 4.4 were missing. For example, a statement that he had adequate and appropriate insurance cover as specified by the ARB, the existence of the Registered Person’s complaints-handling procedure and clear confirmation that the Registered Person is registered with the ARB and subject to the Code. The Registered Person’s failure to provide adequate terms is serious because it had the potential to lead to misunderstanding and confusion about important matters. The separate failing in not providing the Referrer and his wife with a copy of the written complaints procedure even after it had been requested. Such conduct has the potential to deter complainants and as a consequence undermine trust and confidence in the profession.

69. Furthermore, it is fundamental to professional conduct as a registered architect that adequate inspections take place at key stages of a construction project. The installation of the steel beams was a crucial aspect of the extension of the property as serious defects would have health and safety implications. The Registered Person failed to identify a serious defect in the construction of the steel beams either because he did not inspect the work that had been carried out or because he failed to recognise the problem with the positioning of the steel beams. An architect is also required to advise their client with regard to building compliance obligations including the consequences of non-compliance. When an architect is appointed as the Principal Designer they are (amongst other things) required to prepare pre-construction information and ensure that the Principal Contractor creates a Construction Phase Plan. It is important that professional and technical standards are adhered to at all times because of the potential adverse consequences of non-compliance which includes additional costs and delay; they are not optional extras.

70. The Committee concluded that the Registered Person breached Standards 2, 4 and 6 of the Code. Although the failings relate to a single instruction, they represent a serious departure from the high standards expected of registered architects because the potential consequences were so serious. The foreseeable consequences included more time and money (including reinstatement costs and consequential delay), stress and inconvenience, and a prolonged period of uncertainty. The project remains incomplete.

71. The Committee concluded that the Registered Person’s conduct fell significantly and materially below the standard expected of a registered architect.

72. The Committee also took into account the wider public interest, which includes the maintenance of public trust and confidence and the declaring and upholding of professional standards. Standard 9 requires architects to maintain the reputation of the profession. The Committee concluded that the Registered Person breached Standard 9 and also determined that if there was no finding of UPC it would undermine rather than uphold public trust and confidence in the professional standards of architects.

Lack of Integrity

73. The Registered Person had a professional obligation to act with integrity at all times. Such qualities are fundamental to the personal standing of individual architects and maintaining public confidence in the profession. The Registered Person, in seeking to persuade the Referrer and his wife to enter into an agreement which would prevent them from making a complaint to the ARB, chose to disregard his professional obligations to further his own objectives.

74. The Committee concluded that the Registered Person’s breach of the trust placed in him as a registered architect fell far below the standards expected and is a clear breach of Standard 1 of the Code which deals with honesty and integrity.

75. For the same reasons, as stated in paragraph 72 above, the Committee concluded that the wider public interest required a finding of UPC.

 

Decision on Sanction

The Committee’s Approach

76. The Committee took into account its previous findings and the submissions made by both parties.

77. The Committee also took into account the Sanctions Guidance (“SG”). 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.

78. The Committee applied the principle of proportionality by taking into account the aggravating and mitigating factors, weighing the Registered Person’s interests with the public interest, and considering the available sanctions in ascending order of severity.
Submissions

79. The Presenter did not make a “bid” for any particular sanction. However, in taking the Committee through the available options, he highlighted the factors in this case which may make erasure the appropriate sanction.

80. The Registered Person provided the Committee with two character references in advance of the resumed hearing (22 October 2024). He also submitted written representations in which he invited the Committee to impose a Reprimand only. He highlighted various mitigating features which can be summarised as follows:

i. No harm was caused to any other clients or the wider public;
ii. The circumstances were very specific and unique;
iii. The complaint relates to an isolated incident within the context of a previously unblemished career;
iv. He has experienced “personal upheaval since early 2022” including family court proceedings and the loss of his business;
v. He is considering “out-housing” his complaints to a service company.

Decision

81. The Committee noted that the Registered Person’s inadequate terms and engagement had the potential to cause delay, undue stress and anxiety, and financial loss. His lack of communication also exposed the Referrer and his wife to additional unwarranted harm, in that it caused undue delay, uncertainty, stress, inconvenience and significant financial loss. These acts and omissions were repeated throughout the project and formed a pattern of behaviour which persisted for a significant period of time. The Registered Person also, in seeking to persuade the Referrer and his wife to enter into an agreement which would prevent them from making a complaint to the ARB, acted without integrity.

82. The Committee noted that the Registered Person expressed little or no remorse. He stated in his written submissions:

“I believe the complaint was in many ways upheld due to lack of appropriate admin and defensive practice provided by me. In my 30 years a career I have encountered 3 clients hell bent on obtaining money from my insurers, all complained to the ARB, with this being the only one that has been proved.”

The Committee took this to mean that the Registered Person believes that the complaints were made for malicious reasons. He suggests that the motivation may have been jealousy because at that time he had a wealthy girlfriend (following the breakdown of a long-term relationship) and went on 8 holidays between April-October 2022. The Registered Person also demonstrated only limited insight. The level and scope of his insight appeared to have developed following the Committee’s UPC finding, in that, he acknowledged the “validity of the complaint and evidence in support” but this appeared to relate solely to what he described as “the admin/clerical duties”. However, there was no evidence before the Committee that the Registered Person had taken the opportunity to reflect on his conduct and behaviour in order to demonstrate an understanding of what went wrong and an appreciation that he should have acted differently. On the contrary, the Registered Person sought to blame others for what went wrong with the project. He suggested that it was an issue between the Referrer and the contractor. The Committee noted that meaningful reflection would have provided some assurance that similar concerns were unlikely to be repeated. In the absence of meaningful insight the Committee concluded that the risk of repetition was high.

83. In these circumstances, the Committee identified the following as aggravating factors:

i. The Registered Person’s actions caused the Referrer and his wife significant harm in the form of stress, delay and financial loss. The financial loss included £1000’s to correct the defective works and further costs of £10,000 to complete the project.
ii. The Registered Person’s lack of sufficient insight demonstrated a limited ability to acknowledge his failings and the part he played in the harm caused to the Referrer and his wife.
iii. The Registered Person has failed to take appropriate remedial action.
iv. Although the failings occurred in relation to a single commission the Registered Person demonstrated a pattern of poor conduct which persisted for a significant period.

84. The Committee noted that the Registered Person had provided positive character references from the directors of Dryburgh Associates and David Finley (Building Contractors) Ltd. Both referees spoke in positive terms about the Registered Person’s professional work and William Finley made reference to the Registered Person’s personal problems. The Panel acknowledged that the references were addressed to the Committee and therefore it was reasonable to infer that the directors of both companies were aware that the Registered Person was subject to regulatory proceedings. However, there was no indication that the referees had been informed of the Committee’s factual findings. In these circumstances, the Committee concluded that the references were of limited value and did not amount to a mitigating factor.

85. The Committee identified the following as mitigating factors:

i. The Registered Person has a previous unblemished record.
ii. The Registered Person was experiencing significant personal stressors around the time of the project.

No Sanction

86. 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 SG 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.”

87. 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 diminish 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

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

89. The Committee noted that harm was caused by the Registered Persons acts and omissions. In the absence of sufficient insight and remediation, the Committee was unable to exclude the possibility of the risk of harm to the wider public. The Registered Person demonstrated poor judgment for a significant period of time. In these 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.

90. Therefore, the Committee concluded that a Reprimand would be neither appropriate nor proportionate.

Penalty Order

91. The Committee considered whether the imposition of a Penalty Order would effectively reinforce the importance of complying with the Code and the high standards of conduct expected of Architects. The Committee concluded it would not. In the circumstances of this case, the Committee concluded that a financial penalty would add nothing of materiality to the significance of public censure in the form of a Reprimand. In reaching this conclusion the Committee was mindful that it had found that the Registered Person had acted dishonestly.

92. The Committee concluded that 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 dishonest conduct and behaviour.

Suspension Order

93. 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 the suspension period, which would therefore provide a degree of protection to the public.

94. The Committee took into account the factors set out in paragraph 6.4.3 of the SG which indicate that a Suspension Order may be the appropriate and proportionate sanction. The Committee noted that the Registered Person has demonstrated only limited insight into his conduct and has not taken full advantage of the opportunity to persuade the Committee that meaningful lessons have been learned. Furthermore, although the Registered Person’s failings are capable of being rectified, there is only limited evidence that the Registered Person is willing or able to resolve the attitudinal failures which underly his lack of integrity and the failure to adhere to the standards expected of him as an architect. As a consequence, the Committee concluded that the risk of repetition was high. The Registered Person’s conduct involved a disregard for his professional obligations as an architect and the Committee concluded that such behaviour is fundamentally incompatible with continued registration as an architect.

95. In these circumstances, the Committee concluded that a Suspension Order would not be sufficient to protect clients, uphold standards of conduct and behaviour and maintain public trust in the profession.

Erasure

96. The Committee, having determined that a Suspension Order does not meet the wider public interest, determined that the Registered Person’s name should be erased from the Register. Erasure is a sanction of last resort and should be reserved for those categories of cases where there is no other means of protecting the public and the wider public interest. The Committee concluded that the Registered Person’s case falls into this category because of the nature and gravity of his conduct, his persistent lack of insight and the ongoing risk of repetition. The Committee was also satisfied that any lesser sanction would undermine public trust and confidence in the profession.

97. In reaching this conclusion the Committee balanced the wider public interest against the Registered Person’s interests including the consequential personal and professional impact erasure may have upon him. However, the Committee concluded that these considerations were significantly outweighed by its duty to give priority to the wider public interest.

98. The Committee concluded that the Registered Person’s conduct is fundamentally incompatible with continued registration as an architect and that any sanction short of erasure would undermine rather than promote and maintain proper standards of conduct and maintain public confidence in the profession.

99. The Committee determined that the appropriate and proportionate order is erasure.

100. The Committee directs that the Registered Person is not eligible to apply for re-entry to the profession until after the expiry of 2 years from the date of this order. The Committee imposed this period because the Registered Person’s failings are capable of being remedied and in the event that he develops an appropriate level of insight he should be able to take steps to ensure that the conduct and behaviour which led to the finding of UPC will not be repeated.

101. That concludes this determination.