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Mr Derek Young

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

Mr Derek Young (055089B)

Held on 23 – 25 May 2016

At

Park Inn Hotel, Aberdeen

—————

Present:

Mr Paul Housego: (Chair)

Ms Linda Read: (PCC Lay Member)

Roger Wilson : PCC Architect Member)

 

Mr Stephen Battersby: (Clerk to the PCC)

————–

 

Ms Catriona Watt of Anderson Strathern appeared on behalf of the Board

Mr Derek Young attended in person

 

Allegation

 

  1. Mr Young appeared before the Professional Conduct Committee of the Architects Registration Board to deny an allegation of unacceptable professional conduct (“upc”).

 

  1. It was alleged that he:

 

Allegation 1: Failed to provide the Complainant with his terms of agreement in writing prior to undertaking professional work on her behalf;

 

Allegation 2: Failed to ensure that the work was carried out in accordance with the specification of the drawings in respect of the external walls, roofs, windows and doors in the family room extension and entrance extension;

 

Allegation 3: Failed to ensure that the stove and flue were installed in accordance with the Scottish Building Standards and manufacturer’s installation instructions;

 

Allegation 4: Failed to inspect the building work properly and identify work that had not been carried out to an acceptable standard, in respect of the external walls, roofs, windows and doors in the family room extension and entrance extension;

 

Allegation 5: Acted unprofessionally at a meeting with the Complainant on 23 December 2011 by shouting at her and acting in a manner which intimidated her.

 

  1. It is alleged that the actions of Mr Young breached Standards 4.4 and 4.6 (allegation 1), 2.1, 6.1 and 6.2 (allegation 2, 3 and 4) and 9.2 (allegation 5) of the Architects Code: Standards of Conduct and Practice 2010 (“the Code”).

 

  1. The preamble to the Code states that any failure to comply with the provisions of this Code is not of itself to be taken as constituting unacceptable professional conduct or serious professional incompetence, but it shall be taken into account in any disciplinary proceedings before the Board’s Professional Conduct Committee.

 

  1. It also states that architects are expected to be guided in their professional conduct and professional work by the spirit of the Code as well as by its express terms. The fact that a course of conduct is not specifically referred to in the Code does not mean that it cannot form the basis of disciplinary proceedings.

 

  1. Each case is judged on its facts, and there may be circumstances in which unacceptable professional conduct or serious professional incompetence is found even where there has been no clear breach of the express terms of the Code. Not every shortcoming, or failure to meet the Standards expected by the Code, will necessarily give rise to disciplinary proceedings.

 

  1. The relevant provisions of the Code are:-

 

Standard 2 Competence

       1              You are expected to be competent to carry out the professional work you undertake to do, and if you engage others to do that work you should ensure that they are competent and adequately supervised.

Standard 4

Competent management of your business

       1              …

       2              …

       3              …

       4              You are expected to ensure that before you undertake any professional work you have entered into a written agreement with the client which adequately covers:

◦              the contracting parties;

◦              the scope of the work:

◦              the fee or method of calculating it;

◦              who will be responsible for what;

◦              any constraints or limitations on the responsibilities of the parties

◦              the provisions for suspension or termination of the agreement;

◦              a statement that you have adequate and appropriate insurance cover as specified by the Board;

◦              your complaints-handling procedure (see Standard 10), including details of any special arrangements for resolving disputes (e.g. arbitration)

       5              …

       6              You are expected to ensure that your client agreements record that you are registered with the Architects Registration Board and that you are subject to this Code; and that the client can refer a complaint to the Board if your conduct or competence appears to fall short of the standards in the Code.

 

Standard 6

You should carry out your professional work faithfully and conscientiously and with due regard to relevant technical and professional standards

       1              You are expected to carry out your work promptly and with skill and care and in accordance with the terms of your engagement.

       2              You should carry out your professional work without undue delay and, so far is reasonably practicable, in accordance with any time-scale and cost limits agreed with your client.

 

Standard 9

Maintaining the reputation of architects

       1              …

       2              You are expected to conduct yourself in a way which does not bring either yourself or the profession into disrepute…

 

Summary

  1. The Complainant knew Mr Young. When she and her husband wanted to have work done to their home she asked him to help. Mr Young agreed to do so, but initial advice turned into a professional commitment without Mr Young setting out professional terms of engagement. Work was carried out to the house, it was agreed to a very poor standard, as set out in the allegations. Mr Young said that it was never his responsibility to supervise or inspect the work. The Complainant thought that he was, given email correspondence between them. Work started on 01 August 2011. Matters dragged on, and when Mr Young came to the Complainant’s home on 23 December 2011 there was a meeting which left the Complainant very upset, for which Mr Young apologised.

 

Burden and standard of proof

 

  1. The ARB is required to prove the allegations to the civil standard; that it is more likely than not that any event occurred. That is a single unwavering standard of proof, though the more unlikely an allegation the more cogent the evidence required to prove it. There is no requirement for Mr Young to prove anything. The Committee has in mind throughout its deliberations that the right to practise a profession is involved in these proceedings and proceeds upon the basis that the Human Rights Act 1998 will apply.  In particular Mr Young has the right to a fair trial and to respect for his private and family life under Articles 6 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as incorporated within UK law by that Act. The question of whether or not any facts found proved amount to upc or is a matter for the Committee’s judgment, and there is no burden of proof. A finding of unacceptable professional conduct requires the Committee to judge that conduct to be serious.

 

Preliminary matters

  1. There were none.

 

Defence

  1. The defence of Mr Young is, in essence, that the commission started out as friendly advice to someone he knew, and the drawing of some initial plans for which he expected no payment: there was then a lull caused by the Complainant not being able to proceed, and when the matter got going again he did not think to set out terms. He suggested a builder but that was the extent of his involvement in the build. He was charging a reduced rate as the Complainant was a friend. The email [document 33] relied on by the Complainant was a misunderstanding of his role. As to the stove and flue, this was commissioned separately and he was not involved with it. The meeting of 23 December 2011 was unfortunate, but he had not shouted at the Complainant and he had immediately apologised for upsetting her. Mr Young said that he left it to the Committee to decide whether or not this was upc.

 

Evidence

  1. The Committee perused the report of the Board’s solicitor with accompanying documents running to some 159 pages. The Board called evidence from the Complainant and her husband and from Mr B, a surveyor, who were both cross examined by Mr Young. The Committee heard evidence from Mr Young, who was cross examined by the Board’s solicitor. The Committee asked questions of all the witnesses.

 

Procedural matters

  1. At the start of the second day of the hearing Ms Watt asked for additional drawings to be admitted. It was not known whether these drawings had been before the Investigations Panel, but they were not with the Board’s file for this matter. The Committee refused this application for two reasons.

 

  1. First, the allegations relate to “the drawings” and those must be those in the bundle at pages 9 -10. The allegations could not be founded on or supported by drawings not relied upon by ARB before today.

 

  1. Secondly, Mr Young did not agree to the admission of these new drawings. The Committee bore in mind that Mr Young was not represented, and had previously asked for the hearing to be adjourned by reason of the strain of it (that application being refused), so that it would not be fair on him to admit these documents at the start of the second day of the hearing.

 

  1. Mr Young produced a blank form similar to that which the Complainant had sent into the planning authority, showing the question that had prompted the Complainant’s email of 31 July 2011. Ms Watt did not object to this and the document was admitted.

 

ARB submissions

  1. Whether Mr Young was acting for a friend was not relevant because he owed professional duties to every person for whom he did professional work. Mr Young admitted that there should have been terms and conditions and it was this failure that led to what happened in allegations 2, 3 and 4. In particular the Complainant relied upon an email of 31 July 2011. The Complainant had to submit a form to the planning authority and it contained a question asking about the person“overseeing the development”; Mr Young had replied “That is me, you are not wrong on that one”. While that was a planning form the Complainant was entitled to believe that Mr Young was overseeing the project.

 

  1. As to allegations 2 and 4, the witness, Mr B, a building surveyor, would say that the work was some of the worst he had seen. The Complainant stated that Mr Young had visited the site only occasionally, and the builders went ahead without supervision.

 

  1. It was the failure to supervise that was the background to allegation 5. The Complainant was asking for final drawings and Mr Young came round to see her. The Board said that Mr Young was aggressive, shouting at her, and she was very upset, and this was not professional.

 

  1. As to allegation 3, the stove and flue, the Board’s case was that the lack of terms of engagement meant that the Complainant was entitled to rely on what the respondent had said to her, and a report from an expert set out the ways in which the stove and flue did not conform with requirements. Ms Watt submitted that as project manager the respondent should have overseen what was put into the building, and that it was in accordance with the relevant standards. Ms Watt took the Committee through the provisions of the Code that were relevant. It was accepted that allegations 2, 3 and 4 depended upon the Committee finding that there was a duty to do these things.

 

Mr Young’s submissions

  1. Mr Young accepted allegations 1 and 5.  Not issuing written terms was unfortunate as this led to the misunderstandings, and he was very sorry for that. So far as allegation 5 was concerned he agreed that his conduct was unprofessional and had immediately apologised both verbally and in writing, but after that there had been several years of speaking together and trying to resolve matters prior to the complaint made to the ARB. He had caused the Complainant to cry, and apologised for that, but did not accept that he had ever shouted at her. As to allegations 2, 3 and 4 the fact he had not issued terms and conditions did not help, but his fee account was absolutely clear that there was no charge or mention of project management or inspection of work carried out. He had made no charge for the work he had done in trying to resolve problems about which they had told him, and nothing he had provided gave any indication that he was inspecting the work or project managing the build.

 

Findings of fact

  1. The Complainant and her husband wished to have alterations made to their home. The Complainant and Mr Young were acquainted having worked in the same building. In 2007 Mr Young was asked to prepare some drawings and did so. He did not regard this as an engagement for which he would be paid. The Complainant and her husband decided not to proceed at this point. They insisted on paying Mr Young £450, and did so. In 2008 they decided to proceed and asked Mr Young to take the project forward. Mr Young again did not issue any terms and conditions. The project was to build a new porch, office and bathroom at the front of the property, to demolish a flat roof extension at the rear and replace it with a pitched roof extension, and to install an ensuite bathroom upstairs in the existing structure.

 

  1. Mr Young suggested a contractor with whom he had worked before. The Complainant and her husband spoke to the contractor and agreed for that contractor to carry out the work.

 

  1. Mr Young received an email on 31 July 2011 at 22:54, “Just remembered about this form that the Council sent along with the approved plans last year. I can hand it into the Council tomorrow but it says I need to tell them before the work commences… Also one of the sections on the form is about the person overseeing the development – do you do that?” Mr Young replied on the same day at 23:00 “That is me, you are not wrong on that one. Just fill it up in my name and put it in on Tuesday.” This the Complainant did. This was a Council planning form unrelated to actual construction, and“overseeing” was not an indication that Mr Young would “project manage” the build. It is understandable that this distinction was lost on the Complainant and Mr Young did not explain it.

 

  1. Work started on 01 August 2011. On 02 August 2011 Mr Young submitted his bill at 6.5% of the estimated cost of the build of £50,000, less, as he had promised, the £450 paid the previous year. The bill described the scope of the work undertaken by him as “Carrying out linear measurement survey, preparing drawings sketch drawings, obtaining both planning and building warrant. Liaison with contractor.”

 

  1. Mr Young sent out no subsequent bill. “Liaison with contractor” was not billing in advance for inspecting the work being done. Mr Young did liaise with the contractor as he had said he would; when building work commenced problems with the existing structure were revealed and Mr Young assisted with their solution. Mr Young also attended site from time to time when requested by the Complainant and her husband. There were very few occasions when he was required so to do and for the most part these were at the start of the build when the problems with the existing structure were revealed.

 

  1. On Thursday, 22 December 2011 at 20:43 the Complainant sent an email to Mr Young saying “We need the final copies for the build as is, not sketches that you gave us previously. We have spoken about this in the past. Your fee has been paid in good faith, but as yet, our expectations have not been met. The builders effectively build using sketches that show little or no information about dimensions and have had to ask me a lot of information which, they say, should have been available to them within the drawings. Please forward the fully amended, accurate, copies of the drawings that we can submit to the Council.”

 

  1. The following morning, at perhaps 8:30 am, Mr Young attended at the Complainant’s house. The contractor was there, together with some of his workmen. Mr Young went into the kitchen and an interchange followed which left the Complainant tearful and upset. She left with her two children, then 3 and 5, to take one to school and the other to nursery. On her return Mr Young was waiting for her and apologised for upsetting her. When he returned to the office he sent her an email at 10:25 “Hi J…, just to say sorry again for upsetting you this morning, it was not meant just a misunderstanding. Derek x”.

 

  1. It is alleged that Mr Young shouted at the Complainant. This was 4 ½ years ago. Entirely understandably, the Complainant cannot recall what was said. Later that morning the Complainant spoke to her husband and he clearly recalls how upset she was, and the Complainant described the effect of this on her with clarity, and credibly. Plainly she was greatly upset. The email prompting Mr Young to visit does not on the face of it seem to be a sufficient reason to cause anger, though it did cause him to visit immediately. The kitchen was a small space, and so they would have been close to one another. That Mr Young waited for her to return to apologise was credibly explained by Mr Young as being a result of his concern for someone he regarded as a friend, and by the realisation that he had caused that upset. The matter was not referred to again, by either side, and Mr Young continued to be involved with them for a long time. The allegation is that Mr Young shouted at her and acted in a manner which intimidated the Complainant. Both parts of that have to be proved by the Board, on the balance of probabilities. Mr Young accepted that what he had done was not professional, but we are not satisfied on the balance of probabilities that he shouted at the Complainant.

 

  1. The Complainant and her husband had a wood-burning stove. This was in the part of the house to be demolished and rebuilt. They always hoped and intended to have a new wood-burning stove installed. They had not decided which stove, or where it would go, and so it was not included in the plans drawn by Mr Young. At some point during the construction the Complainant and her husband decided upon a wood burning stove, and arranged with the contractor for it to be installed. Mr Young did not see it prior to its installation. When Mr Young saw it for the first time (not having known that it was to be installed before seeing it) he wondered whether it needed an alteration to the building warrant and immediately contacted the Council. In the meantime the Complainant and her husband obtained a report on the stove which revealed that it was installed in breach of the regulations governing wood-burning stoves such that it was unsafe to use. When they found this out the Complainant and her husband were greatly concerned about this because they had used it throughout the winter.  An expert contractor reinstalled the stove and flue correctly.

 

  1. Later, the Complainant and her husband prepared a detailed snagging list and asked Mr Young to help. He did assist, and some were resolved by the builder. On 07 December 2012 (35) the Complainant and her husband wrote to Mr Young setting out that he was aware that there were many snagging issues, which they described him as “overseeing”. They set out that another problem had occurred, a leak in the roof. They asked that he should make all necessary arrangements with the contractor to rectify all the items on the list without further delay, given that 16 months had passed since work commenced. They also asked Mr Young to modify his drawings to comply with the project as built, and organise all the relevant paperwork to enable the issue of a building warrant completion certificate for the work.

 

  1. Ultimately the Complainant and her husband engaged other builders to remedy the many defects in the work, and this has cost them in excess of £23,000 and taken some 5 years to do, partly as they have paid the cost as they have gone along.

 

  1. Mr Young was not involved in the formation of the contract between the contractor and the Complainant and her husband. During the project, Mr Young did not issue any architects instructions or certify any payments, and was not expected so to do.

 

Discussion and conclusion

  1. Mr Young accepted that he failed to comply with the obligation to provide terms of agreement in writing prior to undertaking professional work on behalf of the Complainant, and this allegation is found proved on that admission. He never provided such terms and conditions.  Failure to provide terms and conditions is not a mere technicality. It is the foundation of all that is done by architects for their clients. It is important, and for the benefit of the architect as well as the client.  In this case, it is the root of the problems that have led to this hearing. It is clear that the Complainant and her husband regarded Mr Young as responsible for project management by reason of the email of 31 July 2011 which stated that he would “oversee” the development, and the bill of 2 August 2011 which referred to “liaison” with the contractor.

 

  1. The allegations as framed do not assert that Mr Young was guilty of serious professional incompetence, or unacceptable professional conduct, in permitting or causing his client to make that assumption. The allegations are predicated upon Mr Young having the obligation to ensure that the work was carried out in accordance with the specification and the drawings, and that he was obliged to inspect the building work. In fact, Mr Young did precisely what he intended to do, and for which he billed his clients, which was to draw plans, and obtain a planning permission and a building warrant. He liaised with the contractor as he said he would. That his clients genuinely believed that Mr Young was “project managing” does not mean that he had that obligation. This is the case even though he was inadvertently responsible for them making this assumption. As a matter of logic, it is not possible to fail to perform an obligation which you have not accepted, and so we must find allegations 2 and 4 not proved.

 

  1. However, the circumstances set out here make the finding in respect of allegation 1 the more serious, as if he had set out the extent of his retainer then the clients would not have formed this view (or if they had it would not have been his responsibility). Architects must, as with other professions, set out clearly what they are to do for their clients, and preferably also what they are not doing for them.

 

  1. Allegation 3 concerning the stove and flue asserted that Mr Young failed to ensure that the stove and flue were installed in accordance with Scottish Building Standards and the manufacturer’s installation instructions. Since Mr Young did not know, prior to its installation, that this stove was to be installed, as a matter of simple logic, the allegation cannot be found proved.

 

  1. Allegation 5, on the findings of fact is found not proved, despite Mr Young’s admission: he has never admitted shouting. It alleged that he “acted unprofessionally… by shouting at her and acting in a manner which intimidated her”. As framed it must be shown that Mr Young both shouted at and intimidated the Complainant. Mr Young did accept that he had acted in an unprofessional manner, but never admitted shouting at the Complainant. The allegation as framed required the Board to prove that he shouted at the Complainant. It is very difficult to prove such an allegation occurring so long ago to which there were no witnesses other than the two people giving contradicting accounts, both credibly. The burden of proof is on the Board, and it cannot be met in this case, even though a differently framed allegation could have been proved on Mr Young’s admission.

 

  1. The Committee considered allegation 1 to meet the test of upc, which is that it must be serious and carry blameworthiness to the extent of opprobrium.

 

  1. Accordingly the Committee finds the allegation of upc proved.

 

  1. The Committee was told that there are no previous matters recorded against Mr Young.

 

  1. Ms Watt drew attention to the fact that the seriousness of allegation 1 was reflected in the effect of it on the Complainant and her husband. The Committee would be guided by the Indicative Sanctions Guidance. The clients had spent an extra £23,000, though Ms Watt accepted that responsibility for that lay primarily with the contractor.

 

Mitigation

  1. Mr Young spoke in mitigation. He said that he deeply regretted what had occurred. He now ensured that in every case proper terms and conditions were used, as produced by RIAS.  Although the allegation 5 had not been proved, he expressed deep regret and apology for upsetting the Complainant. He had a written complaints procedure and in future would try to use mediation or other forms or alternative dispute resolution. He provided testimonials from several clients. He provided a copy of his accounts showing that he is of modest means. This was an isolated incident.

 

Sanctions

  1. The primary purpose of sanctions is not to be punitive (though this may be their effect) but to protect members of the public, to maintain the collective reputation of the profession (and the ARB as its regulator), and to declare and uphold proper standards of conduct and competence. Sanctions also help ensure that the profession better understands the importance of professional standards.

 

 

  1. The Committee has considered the Indicative Sanctions Guidance. Appearance before this Committee is in itself salutary. 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 make no disciplinary order.  If it decides to impose a sanction, the Committee commences at the lowest sanction, and only if it decides that sanction is not appropriate does it move to the next level of sanction. Having arrived at a sanction that it is minded to impose the Committee then reviews the next sanction above so as to satisfy itself that this would be too severe a sanction before arriving at a final conclusion. If the Committee decides on a fine, it is limited by the Architects Act 1997 to £2500 for each of the charges of upc and of spi.

 

  1. In all the particular circumstances of this case we consider that a sanction is appropriate because of the need to declare and uphold professional standards, and in the public interest.

 

  1. The Committee identified the following mitigating and aggravating factors:

 

  1. The aggravating factors are that the clients were unaware of the situation they were in, and that there was a severe financial consequence for them which might have been mitigated had Mr Young ensured that the clients knew exactly what their position was.

 

  1. The mitigating factors are that this was an omission by Mr Young, not an intentional unacceptable action by him. His expressions of regret were heartfelt and sincere. Mr Young has put in place proper procedures. It is plain that this has been a painful lesson for him and it has been well learned. There is little or no risk of repetition, and the Committee sees no future risk to the public. His testimonials speak of a careful and caring architect and this is an isolated aberration by Mr Young.

 

  1. The indicative sanctions guidance states:

 

Reprimands

 

Where the PCC decides that it is appropriate to impose a sanction in relation to a guilty finding, a reprimand is the lowest sanction that can be applied. It may be used in relation to those offences at the lower end of the scale of seriousness, where and where it would be appropriate to mark the conduct or competence as being unacceptable.

 

This sanction may be considered where the following factors are present (this list is not exhaustive):

 

–               Evidence that the conduct or competence has not seriously affected clients/the public

–               Insight into failings

–               Genuine expression of regret

–               Corrective steps taken

–               Previous good disciplinary history

 

Like all disciplinary orders a reprimand will remain permanently on an architect’s record, but only published for two years after the date of sanction.

 

Penalty orders

 

Penalty orders are fines of up to level 4 on the standard scale of fines for summary offences, currently set at £2,500. Only one penalty order can be issued per charge, and under the Act only two charges can be brought (unacceptable professional conduct and/or serious professional incompetence). It may be used in relation to those offences too serious to warrant a reprimand, or where a lack of remorse or understanding is displayed.

 

This sanction may be considered where the following factors are present (this list is not exhaustive):

 

Offence is too serious to warrant a reprimand

Limited or lack of remorse

Architect has benefitted financially from the offence

 

 

The PCC will specify the period within which the sum must be paid, and a failure to satisfy the order may lead to it being replaced by a suspension or erasure order. A penalty order is published for two years after the date of sanction.

 

  1. While all the factors are present for a reprimand the effect on the client was such that the Committee considers the matter too serious for a reprimand and so decided on a penalty order. The Committee decided that to interfere with Mr Young’s right to practice would be disproportionate.

 

  1. The Committee decided to impose a penalty order of £1,000, payable within 28 days.

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