Mr Gordon Simpson
THE ARCHITECTS REGISTRATION BOARD
PROFESSIONAL CONDUCT COMMITTEE
In the matter of
Mr Gordon Simpson (065178H)
Held on 6-8 August and 7 October 2019
International Dispute Resolution Centre
70 Fleet Street
Mr Julian Weinberg (Chair)
Mrs Judy Carr (PCC Architect Member)
Mr Stephen Neale (PCC Lay Member)
In this case, the Board was represented by Mr Jonathan Goodwin of Jonathan Goodwin Solicitor Advocate Ltd.
Mr Simpson attended the hearing and was represented by Mr Paul Renters of Counsel, briefed by Harrison Clarke Rickerbys Ltd on 6-8 August. Mr Simpson was not represented on 7 October 2019.
1. At the material time, the Respondent was practising as an Architect under the name of Art Hand Architecture. This case arises out of a complaint made by the solicitor for Mr O, Mr O and Mr O (“the Complainant”). The complaint relates to the Respondent’s employment as an Architect to build a timber framed house for the Complainant. The Respondent was a Director of Art Hand Ltd (Art Hand). The Respondent was also a Director of Dwell Green Ltd (Dwell), the construction company with whom the Complainant entered into a JCT Design and Build Contract in February 2016 for the sum of £201,156.75.
2. Given that the Respondent was both the Architect and the contractor to the project, it is alleged that he was required to disclose the conflict, or potential conflict, and that he failed to do so. Further, it is alleged that he failed to obtain the informed consent of all parties involved to him continuing to act.
3. The Complainant became dissatisfied with the progress of the work and their concerns were raised by letter dated 18 January 2017 to the Respondent.
4. On 9 May 2017, the Respondent emailed RO regarding planning issues that arose as a result of the overall height of the building. As a consequence, the Respondent lowered the pitch of the roof. The Respondent stated that he considered that only a non-material amendment to the planning permission was required. The Respondent submitted a non-material amendment application to the Council on 13 June 2017. The Council responded by stating that they did not consider the amendment to be non-material, and that a further planning application was required. In November 2017, the Council wrote to the Complainant stating that the property was not being built in accordance with the approved plans and that if a revised application was not submitted by the end of November 2017, an Enforcement Notice would be served together with a request that the property be demolished.
5. On 28 November 2017, an application for variation of the planning permission was submitted. In January 2018, the Council wrote that they were unable to process the application as there was an issue regarding the ownership of the driveway to the property, over which the Complainant only had a right of access.
6. By a Notice dated 3 July 2018, the Council informed the Complainant that planning permission was refused. This was by virtue of its increased height and position within close proximity to the neighbouring property. This meant that there was an unacceptable overbearing impact which was considered significant due to the constraints of the site.
7. An allegation is also made in relation to an alleged failure of the Respondent to pay sub-contractors’ invoices.
8. In December 2017, the Respondent wrote to the Complainant attaching an invoice from Space Craft in the sum of £16,431.46, requesting that payment be made directly to them. In January 2018, another sub-contractor, Flo-Screed UK Ltd, wrote to the Complainant stating that they had not received payment of their fees and that they were contemplating court proceedings. The Complainant’s solicitors, Davies and Partners, wrote on 20 February 2018 to the Respondent at Dwell, requesting that he ask all sub-contractors to stop contacting them directly, and further asked for a breakdown as to how he had spent all the money paid to him by the Complainant. No response was received from the Respondent, so a further request for a response was sent by email on 5 March 2018. A letter of claim was sent to the Respondent on 4 April 2018, and a further email sent on 8 May 2018. It is alleged that the Respondent also failed to respond to this further correspondence.
9. The factual allegations, and hence UPC, are denied.
10. In reaching its decisions, the Panel has carefully considered the documentary evidence presented to it in the Report of the ARB’s Solicitor and the 323 pages of exhibited documents. It has also heard live evidence from AO. The Panel has also had sight of the Respondent’s witness statement and exhibits, and has also heard his live evidence.
11. The Panel has accepted the legal advice given by the Legally Qualified Chair which is a matter of record. It has had regard to the fact that the burden of proof is on the Board and that the civil standard applies, namely proof on the balance of probabilities. Whether the conduct alleged amounts to UPC is a matter for the Panel’s independent judgment to which no burden of proof applies.
Findings of Fact
12. The Panel makes the following finding of facts:
Allegation 1.1: The Architect failed to manage a conflict, or potential conflict, of interest adequately, or at all, in that he:
1.1.1 failed to disclose the conflict, or potential conflict, of interest in writing and make clear that by acting as both architect and contactor his advice would no longer be impartial; and/or
1.1.2 failed to seek written confirmation that all parties involved gave their informed consent to him continuing to act.
13. The Panel has heard and accepted the evidence of AO which it found to be measured, credible, reliable and consistent with the documentary evidence before it. The Panel considered the Respondent to be an honest, but at times, evasive witness.
14. The Panel notes that the following facts are agreed between the parties namely:
I. That the Respondent was a Director of both Dwell and Art Hand;
II. That Art Hand provided architectural services for the project;
III. That the Respondent, as a matter of fact, did not disclose a conflict of interest or a potential conflict of interest in writing, thereby making it clear to all affected parties that his advice would no longer be impartial;
IV. That the Respondent, as a matter of fact, did not seek written confirmation that all parties involved had given their informed consent to the Respondent continuing to act;
15. Standards 1.1 and 1.3 of the 2010 Code state:
Honesty and Integrity
1.1 You are expected at all times to act with honesty and integrity and to avoid any actions or situations which are inconsistent with your professional obligations. This standard underpins the Code and will be taken to be required in any consideration of your conduct under any of the other standards.
1.3 “Where a conflict arises you are expected to disclose it in writing and manage it to the satisfaction of all affected parties. You should seek written confirmation that all parties involved should give their informed consent to your continuing to act. Where a consent is not received you should cease acting for one or more of the parties”.
16. The Panel notes that compliance with this Standard relates to “affected parties”, not simply, a “client”.
17. Standard 6.4 of the 2010 Code states:
“You should, when acting between parties or giving advice, exercise impartial and independent professional judgment. If you act as both architect and contractor, you should make it clear in writing that your advice will no longer be impartial”.
18. The Respondent disputes that there was a conflict of interest and further denies that he was under any obligation to disclose a conflict or to seek consent to continuing to act. He stated he was not appointed as the Architect by the Complainant, but by Dwell and that the Complainant would not have been in any doubt about this. He stated that the JCT contract was open and transparent, and made the relationship between the parties clear. The Panel does however note that the specific JCT Design and Build Contract that Dwell used for the project is only appropriate “where the Employer employs an agent…. To administer the conditions”. In this instance, there was no such agent appointed. Furthermore, he stated that he did not consider that the wording of Standard 6.4 of the 2010 Code, in referring to “your advice will no longer be impartial”, required him to disclose any conflict. This, he stated, was because this was not a case where he was initially acting in the first instance as an independent Architect appointed by the Complainant before going on to act as both Architect and contractor. Rather, he stated that he had never acted as an independent Architect so that there could not have been any confusion about his role on the part of the Complainant. He also stated that his role was not a traditional Architect’s role and that he was not offering advice to the Complainant. These, he submitted, were essential elements of the Code’s requirements.
19. The Respondent relies on his letter of 9 September 2015 written on Art Hand Architecture headed paper. In that letter, the Respondent states that “Art Hand Architecture is my architectural design practice…..and Dwell Green is our joint development company”. This, he asserted, made it clear to the Complainant, that he had a role in both companies.
20. The Respondent accepts that that letter did not raise the issue of a conflict or potential conflict in that letter. However, he stated that the letter represented nothing more than a fee proposal which was not taken up, and he was therefore not appointed as the Architect by the Complainant.
21. In giving his evidence, AO accepted that he had not directly appointed the Respondent’s firm, Art Hand, as Architects but that this had been arranged by Dwell with whom he considered he was dealing. In the circumstances, the Panel is satisfied, noting that it is not necessary to make a specific finding on the issue, that on the balance of probabilities, the Respondent was appointed as Architect by Dwell, and that the Complainant was not his client.
22. The Panel notes that it is not the Board’s case that the Respondent should not have acted as both the Architect and contractor for the project, which subject to compliance with the Codes is not improper, but that he failed to make the necessary disclosure.
23. The Panel finds that whilst the letter of 9 September 2015 makes reference to the Respondent’s connection to both the architectural and construction companies, he does not disclose any conflict or potential conflict, nor does he seek consent from the Complainant in him continuing to act either in that letter or in any subsequent written communication. The Panel notes that the Respondent in his letter refers to the advantages of the “integrated approach” of the Respondent acting in both capacities, yet he does not refer to any impact on his impartiality or seek consent to acting in these dual roles. This information was not provided in writing after he was instructed as the Architect by Dwell either. Furthermore, the Respondent accepts that, in relation to the conflict, or potential conflict, “There is very little email/paper trail and none to add to that which you don’t already have”. However, the Respondent states that the Complainant was made aware of the Respondent’s involvement in both companies.
24. The Panel has had regard to the extracts from the ARB website produced by the Respondent. In it, he recognises that “An architect can act as both contractor and architect/contract administrator, but only after explaining the natural conflict of interest and in underwriting both roles, and that their advice can no longer be relied upon as impartial”.
25. The facts of the Respondent’s instruction as Architect, whilst acting as contractor in this case are such that there is a real and potential conflict in ensuring that the property was constructed in accordance with his architectural design. Such a conflict should have been disclosed in writing to affected parties, and informed consent to continuing to act sought in accordance with the 2010 Code, but was not.
26. In the circumstances, the Panel finds that the Respondent failed in his obligations as alleged and therefore finds the facts of allegation 1.1 proved in its entirety. As such, the Panel finds that the Respondent acted in breach of Standards 1.3 and 6.4 of the 2010 Code.
27. The Panel then went on to consider whether the Respondent acted without integrity as alleged, contrary to Standard 1.1 of the 2010 Code.
28. In reaching its determination, it has taken account of the Legally Qualified Chair’s advice, with particular reference to the case of Wingate, Evans and Malins v SRA (2018) EWCA Civ 366. Having done so, the Panel is satisfied that the issue of a lack of integrity is not synonymous with dishonesty (which is not alleged). “Rather, it refers to the higher standards which society expects from professional persons and which the professions expect from their own members. The underlying rationale is that the professions have a privileged and trusted role in society. In return they are required to live up to their own professional standards…” Integrity connotes adherence to the ethical standards of one’s own profession and professional integrity is linked to the manner in which that profession professes to serve the public.
29. Having heard the evidence of both the Respondent and AO, the Panel is satisfied that the Complainant was aware that the Respondent was a director of both Art Hand and Dwell. This limited information had been disclosed to the Complainant in the Respondent’s letter of 9 September 2015. The Respondent had however, failed to disclose the implications of that connection. The Panel is satisfied that that this omission was not a deliberate attempt to conceal that information, but arose from a failure to understand his obligations under the 2010 Code.
30. In the circumstances, the Panel finds that the Respondent did not act without integrity. However, in acting as found proved in respect of allegations 1.1.1 and 1.1.2, the Panel finds that he failed to avoid any action or situation which was inconsistent with his professional obligations. To that extent, the Panel finds that the Respondent acted in breach of standard 1.1 of the 2010 Code.
Allegation 1.2: The Architect failed adequately, or at all, to ensure the build was carried out in accordance with planning permission
31. The Panel finds the facts of this allegation proved for the following reasons.
32. Planning consent was originally obtained for the building of a 3 bedroom chalet bungalow which was designed by another architect. Following discussions between the Complainant and the Respondent, the Complainant agreed to build a timber framed house using a revised design which the Respondent prepared.
33. It is not disputed that the build was not carried out in accordance with the planning permission obtained. An Enforcement Notice was served on the Complainant as a result of the building failing to comply with the granted planning permission, which was appealed but refused on 7 August 2019. The Inspector’s conclusions were that
“By reason of its increased height and position within close proximity to the adjacent neighbouring property, that the build represented an unacceptable overbearing impact causing a detrimental impact on the amenities enjoyed by neighbouring residents”.
However, the Respondent denies that he had failed to take adequate steps to ensure that this was done.
34. The Panel has had regard to the terms of the JCT contract dated 2 June 2016 between the Complainant and Dwell. Dwell’s obligation was to design and construct a chalet bungalow in accordance with the planning permission that had been granted, namely S.15/0917/FULL. Art Hand was contracted to undertake the design element.
35. As the build progressed, it became apparent that the roof pitch required amendment as the height of the building was too high. On closer inspection of the original plans drawn up by the previous architect, the Respondent then appreciated that in order to comply with the approved plans, a site wide dig would have been needed to lower the base level of the construction. The Respondent proposed a minor amendment application and was confident that this would resolve the issue. An application was submitted on 13 June 2017 to Stroud District Council who considered that the changes did not come within the remit of a non-material amendment.
36. The Complainant had communicated their concern to the Respondent in an email dated 29th May 2017 stating that the non-material application, if granted “would give us all peace of mind and the confidence to go forward”. However, work continued on the build from July 2017 after the Respondent was informed of the Council’s decision. In November 2017, the Respondent submitted an application to vary a condition, which was withdrawn in January 2018 due to being unable to serve the relevant notices on the owners of the driveway, whose details the Respondent was unable to get from the Complainant.
37. The Respondent stated that he had “informal” discussions with a planning consultant and the Council, but no documentary record was kept as to those discussions.
38. The Panel has concluded that, albeit well-intentioned, the Respondent failed to adequately address the fundamental issues of the incorrect base level for the property, and that his changes to the plans, resulted in a fundamental change in the nature of the structure being built. In the circumstances, the Respondent was proposing an inadequate solution to problems that he had initially failed to identify. Any “informal” discussions with third parties were inadequate to resolve these issues. This resulted in a situation where the appeal decision to refuse a Condition 5 variation stated that:
“The building currently on site has not been built in accordance with the 2015 permission – it is in a slightly different position and there are other differences including the floor slab level, roof height and shape, and some window positions….. The overall effect is to make the building more like a two-storey house than a chalet bungalow….because of the local topography and the sensitive location of the site so closely adjacent to other properties, the combination of building height and bulk has an unacceptably dominating effect on the outlook….”
39. After the Council rejected the application for a minor amendment, it was open to the Respondent, as the Architect, to advise Dwell and the Complainant that work on the project should be stopped pending resolution of the planning issues. The Complainant could then have made an informed decision as to how to proceed in the full knowledge of the risks involved, which included, potentially, demolition of the property if an Enforcement Notice were served. However, work continued on the build without any meaningful steps being taken by the Respondent to resolve these issues. It is a moot point, but possible, that his decision not to stop building was in part, influenced by the fact that he was a director of Dwell.
40. In the circumstances, the Panel finds that the Respondent failed adequately to ensure that the build was carried out in accordance with planning permission. As such it finds the facts of this particular proved.
Standard 6.1 of the 2017 Code states:
“You are expected to carry out your work with skill and care and in accordance with the terms of your engagement”.
41. In the circumstances, the Panel finds that the Respondent acted in breach of Standard 6.1 of the 2017 Code in respect of his conduct from July 2017 when the Council rejected the non-material amendment application.
42. The Panel then considered whether, by acting as found proved, the Respondent acted without integrity. In reaching its decision, the Panel considered that the Respondent’s failure to ensure the property was constructed in accordance with the planning permission was not deliberate, and that he taken some steps, albeit inadequate, to resolve the situation.
43. The Panel therefore concluded that the Respondent did not act without integrity. However, in acting as found proved in respect of allegation 1.2, the Panel finds that the Respondent failed to avoid any action or situation which was inconsistent with his professional obligations. To that extent, the Panel finds that the Respondent acted in breach of standard 1.1 of the 2010 Code.
Allegation 1.3: The Architect failed to pay sub-contractors
44. The Panel finds the facts of this allegation proved for the following reasons.
45. The Panel has had regard to the evidence of AO and the documentary evidence before it, which includes an invoice from Space Craft to Dwell dated 13 December 2017, which the Respondent forwarded to the Complainant for settling directly under cover of an email dated 15 December 2017.
46. The Panel also noted that Flo-Screed UK Ltd, another sub-contractor, issued proceedings against Dwell for unpaid fees and subsequently obtained judgment.
47. It is accepted by the Respondent that both these companies were subcontracted by Dwell and that Dwell was contractually responsible for paying their invoices.
48. Whilst there may be a dispute between the parties as to whether the Respondent had already been paid sufficient funds by the Complainant to settle these costs, the Respondent accepts that the invoices in question were not paid by him / Dwell when he was contractually bound to do so. This, he stated, was because Dwell was in financial difficulties and that “it would be best if [the Complainant] can settle up directly with him”.
49. In the circumstances, the Panel finds the facts of this allegation proved.
50. The Panel then considered whether, by acting as found proved, the Respondent acted without integrity. In reaching its decision, the Panel noted Dwell’s difficult financial circumstances at the time, and that the Respondent was taking a pragmatic view as to how Space Craft could be paid. It further noted that the Respondent had made a personal financial injection into Dwell to try and keep the company viable.
51. The Panel therefore concluded that whilst the Respondent’s failure to pay sub-contractors results from poor business acumen, it does not conclude that the Respondent acted without integrity. However, in acting as found proved in respect of allegation 1.3, the Panel finds that the Respondent failed to avoid any action or situation which was inconsistent with his professional obligations. To that extent, the Panel finds that the Respondent acted in breach of standard 1.1 of the 2010 Code.
Allegation 1.4: The Architect failed adequately, or at all, to deal with a dispute about his professional work in an appropriate manner
52. The Panel finds the facts of this allegation proved for the following reasons.
53. The Panel has had sight of a letter dated 20 February 2018 from Davies and Partners, Solicitors, on behalf of the Complainant. That letter was sent to the Respondent and Mr Wood at Dwell. That letter raised concerns regarding Dwell’s conduct under the JCT Design and Build Contract and requested information from him, including the name and contact details of the Respondent’s professional indemnity insurers. The Panel considered that even though the body of the letter made no specific criticism of the Respondent as an Architect, the fact of requesting details of his insurers suggests that a claim against such insurance cover was being considered which would have resulted from concerns about his professional work. The Respondent did not reply to that letter.
54. On 5 March 2018, Davies and Partners emailed the Respondent at Dwell Green regarding his failure to respond to their earlier letter. Following a telephone conversation between JO of the Solicitors and the Respondent on 8 March, they sent an email to the Respondent inviting him to “enter into mediation/negotiation/arbitration and you confirmed that you were not”. There is no evidence before the Panel that the Respondent responded to that correspondence.
55. The Respondent stated that he did not receive the letter of 20 February 2018 until he received a copy of it attached to the email to him dated 5 March. It is his position that the correspondence related to the Complainant’s dispute with Dwell.
56. The email of 5 March 2018 from the Complainant’s solicitors also refers to the possibility of taking proceedings against Art Hand. Their email of 8 March 2018 also makes reference to the Respondent’s professional indemnity insurance and further makes reference to a possible referral to the ARB.
57. The Respondent stated that he had taken legal advice and having done so, concluded that the potential claim was spurious and speculative and chose not to respond to the correspondence or explain that he was unable to do so having taken legal advice.
Standard 10 of the 2017 Code states:
Standard 10.2: Complaints should be handled courteously and promptly at every stage, and as far as practicable with the following time scales:
a) An acknowledgement within 10 working days from the receipt of a complaint; and
b) A response addressing the issues raised in the initial letter of complaint within 30 working days from its receipt
Standard 10.3: If appropriate, you should encourage alternative arrangements of dispute resolution, such as mediation or conciliation.
58. Having carefully considered the contents of the various letters and emails, the Panel is satisfied that concerns had been raised about the Respondent’s professional work. Reference to requiring his professional insurance details suggested that that was the case, even if the concerns were not particularised.
59. In the circumstances, the Panel finds that the Respondent acted in breach of standards 10.2 and 10.3 of the 2017 Code.
Finding on Unacceptable Professional Conduct
60. Having found allegations 1.1, 1.2, 1.3 and 1.4 proved, the Panel went on to consider whether the Respondent’s conduct amounts to UPC. UPC is defined in Section 14(1)(a) Architects Act 1997 as conduct which falls short of the standard required of a registered person. Any finding of UPC is a matter for the Panel’s independent judgment.
61. In reaching its findings, the Panel has carefully considered all the evidence presented to it, all submissions made and has accepted the advice from the Legally Qualified Chair which is a matter of record. The Panel recognises that not every shortcoming on the part of an Architect, nor failure to comply with the provisions of the Code, will necessarily result in a finding of UPC. However, a failure to follow the guidance of the Code, whether in one’s professional or private life, is a factor that will be taken into account should it be necessary to examine the conduct or competence of an Architect.
62. Misconduct, which is akin to UPC, was defined in the case of Roylance v GMC  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 Panel recognises that any failing must be serious (Vranicki v Architects Registration Board  EWHC 506 Admin). Any failing should be sufficiently serious, such that it would attract a degree of opprobrium. The Panel has borne in mind the case of Spencer v General Osteopathic Council  EWHC 3147 (Admin) and accepts 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  EWHC 2606 (Admin)).
63. The Panel has taken into account all the evidence before it together with both Mr Goodwin’s and Mr Renter’s submissions.
64. However, so far as the matters found proved and the corresponding breaches of the Code are concerned, the Panel finds that the Respondent’s failings in relation to allegations 1.1 and 1.2 represent conduct falling substantially below the standard expected of a registered Architect. By failing to comply with his obligations in relation to the conflict / potential conflict of interest by acting as Architect and contractor, the Complainant was deprived of information to be able to make an informed decision as to whether the Respondent should continue to act. The Panel considers this to have been aggravated by the fact that when the Respondent informed the Complainant in his letter of 9 September 2015 of his connection to both companies, he specifically brought to their attention the benefits, yet failed to inform them of the consequences for his impartiality. His failing in this regard impacts on the reputation on the profession and resulted in adverse consequences for the Complainant.
65. In respect of allegation 1.2, the Respondent’s failings resulted in an Enforcement Notice being served on the Complainant resulting in them being liable to demolish their property. Such devastating consequences for the Complainant severely impact on the reputation of the profession and amounts to conduct falling seriously short of that expected of an Architect.
66. So far as allegation 1.3 is concerned, the Panel considered that the Respondent’s failure to pay the sub-contractors’ fees resulted not from a deliberate attempt to evade payment, but from the difficult financial circumstances in which Dwell found itself in at the time as a result of the business failing. The Panel notes that the Respondent, in forwarding Space Craft’s invoice directly to the Complainant, was making some effort to ensure that their invoice would be settled. Those circumstances are such that the Panel has concluded that, notwithstanding the Respondent’s breach of the 2010 Code, his failing was neither so serious, nor carries a sufficient degree of moral opprobrium such that it can properly be said to amount to UPC.
67. As for allegation 1.4, the Panel notes that the Respondent failed to respond as required to legitimate and serious concerns raised by Solicitors acting for the Complainants. Members of the public should quite rightly be able to expect that when concerns are raised, that they will be appropriately addressed by the Architect. The Respondent’s failure to reply to repeated correspondence from a Solicitor raising issues of concern marks a serious departure from the standard expected of an Architect and has the potential to undermine the reputation of the profession. As such, the Panel finds that the Respondent’s conduct in respect of this allegation amounts to UPC.
68. The Panel therefore concluded that the matters found proved at allegations 1.1, 1.2 and 1.4 represent serious departures from the standard expected of a registered Architect. Those failings, the Panel has concluded, both individually and collectively, are sufficiently serious to amount to unacceptable professional conduct, which finding the Panel therefore makes. For the avoidance of doubt, no finding of UPC is made in respect of allegation 1.3.
69. At the resumed hearing to consider sanction, the Respondent was unrepresented and attended via a telephone link. Having had sight of the Panel’s written reasons on the facts and UPC which was emailed to him, the Respondent addressed the Panel in mitigation.
70. He submitted that so far as allegation 1.1 was concerned, he now recognised his failings and that he should have identified and managed the conflict situation that arose. In relation to allegation 1.2, he emphasised that he was not responsible for the contents of the appeal that was refused as he had no input into that documentation. He expressed regret, stating that he was “mortified” for the Complainant’s position, understood the impact his actions had had on them, and that he would be willing to assist them to resolve their current difficulties. So far as allegation 1.4 was concerned, he stated that he believed at the time the complaint was commercially motivated, but now regrets he did not manage the situation appropriately.
71. He stated that he did not intend working on private residential projects moving forward but that he would focus on larger commercial public sector projects. He regretted that he had been the subject of these proceedings and that this was an isolated incident in an otherwise unblemished career of just short of 20 years. He reminded the Panel that it had not made any adverse findings against him in relation to his integrity. He invited the Panel to conclude that these proceedings had had a salutary effect on him and that it had been a harsh learning experience for him.
72. He submitted that suspension or erasure would be disproportionate and that he would be accepting of a reprimand.
73. The Panel then considered whether to impose a sanction, and if so, which one. The Panel has had regard to the public interest, which includes the need to protect the public, to maintain confidence in the profession and the Board, and to declare and uphold proper standards of conduct and behaviour. The Panel has carefully considered all the evidence and submissions made during the course of this hearing. It has heard and accepted the advice of the Legally Qualified Chair. It has borne in mind that the purpose of imposing a sanction is not to be punitive although it may have a punitive effect. It has taken into account the Respondent’s interests, the indicative sanctions guidance and the need to act proportionately. It has taken into account any aggravating and mitigating factors in this case. The Panel has exercised its own independent judgement.
74. Having taken all the evidence and submissions before it into account, the Panel has identified the following aggravating factors:
I. The Respondent’s failings have had severe adverse consequences for the Complainant who is now at risk of having their property demolished;
II. The Respondent demonstrated limited insight during the facts and UPC stage of the hearing into the impact of his actions on the reputation of, and public confidence in the profession and considers that he had been unfairly wronged by the complaint against him being maliciously motivated. However, it has balanced this against the fact that the Respondent, having reflected on his actions, now accepts he acted inappropriately in relation to both the conflict and responding to the complaint made against him, having then failed to recognise his obligations at the time.
75. The Panel has identified the following mitigating factors:
I. that the Respondent has no adverse regulatory history in a 19 year career;
II. he had admitted a number of the underlying facts forming the basis of the allegation he faced;
III. he has engaged in the regulatory process and he has cooperated with the ARB;
IV. the Respondent stated, and the Panel accepts, that he does not intend undertaking private residential work in the future;
V. he has now recognised and expressed regret for his failings, and has considered the experience a salutary lesson in compliance;
VI. not only has he not personally gained financially from his failings, this matter has proved financially costly, Dwell Green Ltd having now been wound up;
VII. he expressed a willingness to assist the Complainant to resolve their issues, accepting that they may not want him to.
76. In all the circumstances, the Panel accepts that, having demonstrated a level of insight absent from the earlier part of this hearing, that the risk of the Respondent repeating his UPC was low.
77. The Panel notes that the matters found proved are serious to the extent that Mr Simpson’s failings diminish both his reputation, and that of the profession generally. The aggravating factors, and particularly the impact his failings have had for the Complainant, are such that the Panel has concluded that the Respondent’s conduct was sufficiently serious for it to require the imposition of a sanction and has considered them in ascending order of severity.
78. The Panel first considered whether to impose a reprimand. The Panel considered that such a sanction was neither appropriate nor proportionate given that it did not consider the Respondent’s UPC to be at the lower end of the scale given the aggravating factors identified.
79. The Panel then considered whether to impose a penalty order and concluded that such a sanction was appropriate and proportionate to protect the public and the reputation of the profession given the mitigating factors present and the Panel’s conclusion that there is a low risk of the Respondent repeating his UPC. The Panel therefore imposes a penalty order in the sum of £1,500 which the Panel considers reflects the seriousness of the UPC found proved given all the circumstances of this case. That sum must be paid within 28 days. Failure to pay that sum within that time frame may lead to the order being replaced with a suspension or erasure order.
80. The Panel considered whether a suspension order was appropriate. Having carefully considered the Indicative Sanctions Guidelines, the Panel concluded that such a sanction would be disproportionate and unduly punitive given the suitability of a penalty order.
81. That concludes this determination.