Mr Mark Richard Kemp

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of
Mark Richard Kemp (064495A)
Held on
16th to 27th June 2025
———-
16th – 19 June 2025 (In person)
20th – 27th June 2025 (Remote via Zoom)

Present

Sadia Zouq (Legally Qualified Chair)
Robert Dearman (Architect Member)
Peter Baker (Lay Member)

———– 

In this case, the ARB was represented by Mr Felix Keating, (“the Case Presenter”) of Three Raymond Buildings, instructed by Kingsley Napley LLP.

Mr Mark Kemp (“the Registered Person”) attended the hearing and was represented by Ms Caroline Ziebart of 4 Pump Court, instructed by Keoghs LLP.

 

Allegation

1. Mr Mark Kemp (“the Registered Person”) is charged by the Architects Registration Board (“ARB”) with unacceptable professional conduct (“UPC”), and the Professional Conduct Committee (“the Committee”) is responsible for deciding whether the Allegation is found proved, or not. The ARB relies upon the following particulars in support of the Allegation:

(1) The Registered Person failed to run an adequate tender in that they failed to provide an adequate design at the tender stage.

(2) The Registered Person failed to adequately carry out their duties as contract administrator in that:
a. they did not conduct adequate inspections before certifying the works and/or over-certified the works;
b. they failed to issue or adequately record Architect’s Instructions in accordance with the contract administrator’s duties to reflect the works certified in interim payment certificates;
c. they failed to adequately notify that the Contractor was in culpable delay and/or failed to issue adequate notification of an extension of time.

 

 

Background

2. The Registered Person is a registered Architect.

3. The background circumstances, as set out below, are based on the report prepared by Kingsley Napley LLP, the Referrer’s witness statement dated 25 September 2024 and the Presenter’s opening.

4. This case arises out of a complaint made by Mr Charles Rix, (“the Referrer”), in respect of the professional services carried out by the Registered Person in respect of their property at Pentreath, Crackington Haven (“the Property”).
5. The Property was originally a four-bedroom house with approximately 183 square metres of floor space. The proposed building works involved the extension of the Property at the front and back, replacement of electrics and plumbing, installation of a balcony and general restoration.

6. The Referrer engaged the services of the Registered Person at Place Architects Limited to provide a full range of services in relation to building works at the Property. This included preparing designs and drawings, visiting the site to see that work was proceeding in accordance with the contract, and to certify payments for work carried out or completed. Following a tender process for a suitable contractor, the Registered Person was appointed as Contract Administrator for the contract. The contract was a JCT Minor Works Building Contract (“the Contract”) with a Contractor’s Design Portion (“CDP”) and was made between the Referrer and GA Wildesh Ltd (“the Contractor”) on 4 March 2021.

7. Works were scheduled to begin on 8 March 2021 and due to complete on 22 August 2021 at a cost of £320,778 before VAT. The cost included a contingency of £15,000 and the timeline included a contingency of 4 weeks. Additional works were identified after construction began, including the need for piling foundations for the extension at the front of the house, the need to replace part of the roof, underfloor heating in the sitting room/kitchen, elimination of the southern extension and the need to fill in an underground tank discovered at the front of the property.

8. Interim Payment Certificates were broadly issued every two weeks in line with the Contract. The Registered Person provided a table setting out the inspection dates, due dates, date of issue and final dates for payment of the Interim Certificates.

9. Concerns were raised by the Referrer about the Registered Person about various matters between August 2021 and September 2022. The concerns included: delays and lack of progress, various financial issues which had remained unresolved by the Registered Person, his failure to visit the site, the proposed extension to the project completion date of 28 January 2022 and the Registered Person’s failure to supervise properly.

10. On 24 March 2022 the Contractor sent an email explaining that his firm was unable to continue to operate and was going into liquidation. The Referrer instructed a replacement builder, D. S. Construction, who started work on the Property on 27 June 2022. Almost all of the sub-contractors agreed to continue working on the project.

11. The relationship between the Referrer and Registered Person broke down. The Referrer restricted the Registered Person’s access to the Property from 30 September 2022. The Registered Person’s role was restricted to collecting completion certificates from contractors and obtaining building regulation approval. He did not attend any further site meetings.

12. The works to the Referrer’s Property were completed in March 2023.

13. The Referrer subsequently made his complaint to the ARB on 22 May 2023.

 

The Registered Person’s response

14. The Registered Person denies the Allegation.

15. The Registered Person provided responses at various stages of the ARB’s investigation and for this hearing which are summarised below. He has provided a number of exhibits in support.

16. In respect of Allegation 1, the Registered Person states that in relation to the roof, the full condition of the roof was not identified until the roofing subcontractor was on-site. The survey report carried out for the Referrer did not recommend immediate replacement of the roof. From an external perspective the immediate need for replacement was not obvious and there was no basis for the Registered Person concluding that it was at the time. The Registered Person stated that further investigations of the sort recommended in the survey report and by Robert Morrissey (“the Inquirer”) would be invasive and the costs would be disproportionate to the benefits prior to the Contract. Further, the Referrer had a set budget in mind and their priority was the creation of extensions at the front and rear of the Property and internal alterations. In relation to the foundations, the Referrer had engaged a structural engineer as part of the design team and the design for foundations was for traditional strip foundations. Trial pits were allowed for in the tender and it was reasonable for the Registered Person to not comment on ground investigations against advice already provided by the structural engineer. In relation to the provisional sums for the electrical work, heating and plumbing, these were CDP’s under the Contract, such that the ultimate design and specifications of the same were a matter for the specialist sub-contractors with whom the Referrer was working directly and he did not have design responsibility. Accordingly, it was not possible to finalise these specifications until the specialist sub-contractors were appointed. At the tender stage, the Registered Person acted reasonably by including rough provisional sums and basic specifications for heating and electrics based on a broad outline of what the Referrer wanted and by reference to similar previous projects.

17. In respect of Allegation 2a, the Registered Person states that the Contract was varied by agreement due to circumstances which included the Experian results which showed that the Contractor was a “maximum” credit risk. However, there was no suggestion that the Contractor was considered untrustworthy. Multiple positive references from trusted sources for the Contractor had been obtained, and the general consensus and impression was that the Contractor was a good builder. In order to assist the Contractor to manage their cash flow during the course of the project, at a Pre-Contracting Meeting held on 17 February 2021 it was agreed that interim valuations and applications for payment would be made every two weeks, instead of monthly; and payment applications would include advance payments for the pre-ordering of goods and materials.

18. In relation to advance payments, the Registered Person states that he advised the Referrer at the outset of the project about the risks and benefits of pre-payments and also suggested alternative solutions to direct pre-payment. It was nevertheless agreed between the parties at the Pre-Contract Meeting that advance payments would be made directly. The Registered Person states that it was not reasonable for him to seek receipts for the deposits being paid soon after the claim and deduct amounts if these were not paid. He made efforts during the project to obtain information in relation to proof of title from the Contractor but was unsuccessful due to the Contractor’s poor administration. As the Contract Administrator, the Registered Person said that his role was only to administer the Contract between the Referrer and the Contractor.

19. In respect of over-certification generally, the Registered Person states these are attributable to the reconciliation between advance payments, estimates, and actual prices.

20. In respect of Allegation 2b the Registered Person states that the Contract does not prescribe any specific form to be used when issuing instructions, save that the instructions must be in writing. The Registered Person’s usual practice was to issue instructions printed on a pack of paper RIBA standard forms that were kept in the office. He did issue a formal Architect Instruction on 21 May 2021. However, due to the Covid-19 lockdowns in 2021, this normal practice was not consistently adopted for the project. The variations to the works were appropriately tracked through updated cost variation spreadsheets which were circulated every two weeks along with Interim Certificates. The Registered Person acknowledges that whilst additional formality and consistency would have been good practice, this was an adequate way to keep track of the variations in circumstances where he did not have ready access to a prescribed form for the issuing of formal instructions under the Contract.

21. In respect of Allegation 2c the Registered Person states that he complied with his obligations as Contract Administrator in relation to the Extensions of Time (“EoT”). The Contract only requires the Contract Administrator to notify the parties of an EoT. It does not state that an EoT has to be issued in any particular format, other than it is to be communicated in writing. The Registered Person states that an email notification of an EoT is sufficient. Further, there is no mechanism in the Contract for the issuing of a “certificate of culpable delay”, and in any event, there was never adequate evidence provided by the Contractor to justify such a step.

 

Evidence

22. In reaching its decisions, the Committee carefully considered the following documentary evidence:

i. The Report of ARB’s Solicitor dated 17 April 2025;
ii. The Referrer’s witness statement dated 25 September 2025, and exhibits;
iii. Mr Robert Morrissey, Inquirer – Inquirer’s Report dated 15 December 2024;
iv. Exhibits and Appendices in the ARB’s bundle (pages D1-D1125);
v. Registered Person’s representations of 8 October 2023 and 9 January 2024, and Exhibits (pages E1-E232);
vi. Registered Person’s witness statement dated 23 May 2025;
vii. Registered Person’s Defence dated 23 May 2025;
viii. Registered Person’s bundle (pages 1–249);
ix. Registered Person’s Spreadsheets, Exhibits MK/1 Spreadsheet 1, and MK/1 Spreadsheet 2;
x. Note of Experts Meeting held on 4 June 2025;
xi. An email dated 20 July 2020 from the Referrer to the Registered Person; and
xii. An extract from the RIBA Job Book (9th Edition, 2013).

 

Decision on Facts

Legal advice

23. The Committee and parties accepted the legal advice given by the LQC which is a matter of record. The LQC reminded the Committee that the onus of proof was on the ARB and that the standard of proof was the civil standard of the balance of probabilities. This is a single and unvarying standard. The Registered Person did not have to prove or disprove anything. The Committee was entitled to draw reasonable inferences from established facts but should not speculate. Where there was doubt regarding a Particular of the Allegation, it should be resolved in favour of the Registered Person.

24. The LQC advised that in relation to the alleged failures, 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.

25. The Committee was advised in relation to witness reliability and credibility. It was referred to the cases of Hindle v. NMC [2025] EWHC 373 (Admin), Dutta v GMC (2020) EWHC 1974 (Admin) and Suddock v. NMC [2015] EWHC 3612 (Admin).

26. The Committee was reminded that the Inquirer and Mr Kavanagh’s evidence are that of an expert and their duties of independence. The Committee was advised that having given the Inquirer and Mr Kavanagh’s evidence careful consideration, which would include an assessment of their expertise, conclusions, and the quality of the analysis which informed their opinions, the Committee may accept their evidence in whole or in part.

27. 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

28. In reaching its decision, the Committee carefully considered the evidence of the Referrer, the Registered Person and the expert opinion evidence of the Inquirer and Mr Kavanagh, together with the documents set out above. It considered the submissions made by the Case Presenter and Ms Ziebart.

29. Both the Referrer and Registered Person gave live evidence. They were cross examined and answered questions from the Committee. The Committee considered the Referrer gave evidence in a considered and measured way. There was no hint of any adverse motivation towards the Registered Person or inflation of his evidence. There were matters the Referrer acknowledged he could not recall such as what options were discussed in respect of heating and fuel at the tender stage and why he did not accept the suggestion put forward by the Registered Person of an escrow account.

30. The Committee considered that both the Referrer and the Registered Person were credible witnesses who had done their best to give their best and truthful recollection of events.

31. The Committee however was assisted in this case by a wealth of contemporaneous documentary evidence. For this reason, the Committee considered that the documentation had particular importance in its decisions. The Committee also acknowledged that given the nature of the build and Property, conversations between the Referrer and Registered Person would have been discussed at site meetings, visits or via telephone, and therefore not all details would have been recorded in writing. Where there were few or no helpful contemporary documents in relation to disputed facts, the disputed facts therefore turned on the recollections of the Referrer and the Registered Person, and the evidence of the Inquirer and Mr Kavanagh, and an assessment of their respective merits as witnesses.

32. The Committee accepted the Inquirer as an expert witness. His evidence was detailed and helpful, explaining for the Committee, the expectations of a reasonably competent Architect in a similar set of circumstances. The Inquirer had significant experience that included residential work undertaken for domestic clients, and experience as an expert. The Inquirer was prepared to concede when propositions were put to him in cross examination.

33. The Committee considered that Mr Kavanagh was a helpful and precise expert witness who gave knowledgeable and professionally informed evidence. He also had significant experience as both an Architect and expert witness.

34. Although the Inquirer and Mr Kavanagh differed in their opinions, the Committee considered that both did their best to assist.

35. Throughout its considerations, the Committee bore in mind that the requisite standard expected of the Registered Person is that of a reasonably competent Architect in a similar set of circumstances. The Committee considered the Registered Person’s reasonable conduct in the context of the nature and size of the build, and the Property being a residential domestic property.

36. The ARB submitted that the Committee may find some, all of the following, or different Standards from the Architects Code: Standards of Professional Conduct and Practice 2017 (“the Code”) apply to the Allegation:

i. Standard 4.1 [Allegation 2a];
ii. Standard 4.5 [Allegations 2b and 2c];
iii. Standard 6.1 [Allegations 1, 2a, 2b and 2c];
iv. Standard 6.2 [Allegations 2a, 2b and 2c];
v. Standard 6.3 [Allegation 1].

37. Standard 4 of the Code is headed “Competent management of your business”. Standard 4.1 requires that an Architect is expected to have effective systems in place to ensure that their practice is run professionally and that projects are regularly monitored and reviewed.

38. Standard 4.5 requires that any agreed variations to the written agreement should be recorded in writing.

39. Standard 6 is headed “You should carry out your professional work conscientiously and with due regard to relevant technical and professional standards”.

40. Standard 6.1 requires that Architects are expected to carry out their work with skill and care and in accordance with the terms of their engagement.

41. Standard 6.2 requires that Architects should carry out their professional work without undue delay and, so far is reasonably practicable, in accordance with any timescale and cost limits agreed with the client.

42. Standard 6.3 requires that Architects are expected to keep their client informed of the progress of work they undertake on their behalf and of any issue which may significantly affect its quality or cost.

43. The Committee had regard to the Code in coming to its decisions. Architects are expected to be guided by the spirit of the Code as well as its express terms.

 

Particular 1 – Not Proved

(1) The Registered Person failed to run an adequate tender in that they failed to provide an adequate design at the tender stage.

44. The Registered Person prepared designs and drawings before the works commenced for the purposes of the tender process used to select a builder for the project. The tender process is competitive and is a means of establishing the price to be charged and the specifications for particular works before entering into a contract with a builder. Additional work or variations after entering into a contract are very likely to be more difficult to price and the contractor will not be in a competitive situation. Therefore, it was important that the proposed works were adequately investigated, considered and described by the Registered Person so that matters of cost, time and quality could be understood by those tendering for the project. As noted above GA Wildesh (“the Contractor”) was selected as the builder for the Property and the Referrer and his wife entered into the Contract with them on 4 March 2021.

45. The ARB relied primarily upon the evidence of the Inquirer in relation to this Particular. The Inquirer’s report listed the main roof, pilings, electrical and heating and plumbing and stated that the Registered Person did not make proper arrangements before tender in respect of the design of these items and that his performance was significantly below the standard expected of a reasonable Architect in a similar set of circumstances. The Committee considered each concern identified by the Inquirer separately.

 

Roof

46. The survey report dated August 2019 was prepared on behalf of the Referrer prior to the purchase of the Property. The surveyor made various observations in relation to the roof, including observations that the roof was “nearing the end of its economic life…” and there was a recommendation for “an active programme of maintenance, repair and eventual renewal of the roof covering. When this is undertaken, the roof should be lined with an appropriate breathable felt, the concealed timbers checked for rot (some rot should be expected in the concealed areas) and improved ventilations should also be provided…” An allowance of £2,250 was allocated for repairs to the main roof. A variation was eventually made to replace the entire roof covering and the cost was £18,932.

47. The Inquirer explained that reasonable, non-invasive and practical options were available to the Registered Person for assessing the state of the roof prior to the tender stage including the use of ladders or a tower scaffold to inspect the south facing roof and the removal of ceilings; and that the additional figure of £18,932 was therefore not priced in a competitive situation and was likely to have been at a greater cost to the Referrer. The Committee carefully considered the contemporaneous evidence first.

48. The Committee noted that the Registered Person considered and advised the Referrer regarding the roof ahead of tender. The Committee had regard to the Referrer’s document titled Pentreath Survey Summary and the Referrer’s email to the Registered Person on 27 October 2019 in which he listed his priorities regarding the Property. The list of priorities did not include the roof. The Referrer however concluded his email with “could we also discuss when we see you how this all works with the other repairs that are needed, eg damp, wiring, drainage and roof repairs. See you on 30 October.” Following a site visit on 30 October 2019, the Registered Person sent a letter of appointment to the Referrer on the same date in which he confirmed the Referrer’s priorities and brought to his attention the situation regarding the roof. The Registered Person stated:

“You told me your priority is to reconfigure the existing kitchen to make a larger, more open kitchen diner…You said the lower ground floor bedroom needed to be improved. You told me you wanted imagination and were open to ideas. You said your family would be using the property for several weeks in the year and so would other family members. You also intend to let the property out…”

“We also discussed the repair and maintenance works identified in your surveyor’s report. In particular items regarding the roof, gutters and chimneys. Kevin Hicks who was present towards the end of the meeting said the slates were random regulars and the roadside elevation showed around 5%of the visible area was tingled – he suggested around 15% or more would indicate re-roofing may be required.”

49. The Committee noted an email from the Referrer to the Registered Person dated 20 July 2020 in which the Referrer stated under the heading “other building works” the following: “builders to advise whether further repairs to the roof are required during building work.”

50. The Registered Person told the Committee that the Referrer’s preference was for advice and required repairs to the roof to be undertaken during building work, and the roof was not deemed a priority. The Committee considered the Registered Person’s account was credible given that the roof and repairs to the same had been discussed from the earliest stage of the appointment and the Referrer’s email of 20 July 2020 stated that it was for the builders to advise regarding the roof. The survey report had been commissioned by the Referrer and he was aware of the concerns regarding the roof. Even after the roof was opened up in April 2021, the roofer’s view was that it would not “last more than two winters.” The Registered Person said that he took the roofer’s comment at face value. Mr Kavannagh said there was no reason for the Registered Person to disagree that maintenance repairs of the roof over the next few years would not be adequate.

51. The Registered Person told the Committee why he considered it unsafe, expensive and disproportionate to take up the investigative options for the roof suggested by the Inquirer at the tender stage and that this information was relayed by him to the Referrer prior to July 2020. The Committee had no reason to doubt that a conversation of this nature with the Referrer had taken place, given the above analysis of the contemporaneous documentation before it. The Committee also noted that the specific investigations and repairs identified to the roof in the survey report were included within the tendered schedule of works, and that Mr Kavanagh said this was a reasonable follow through of the surveyor’s recommendations and considered adequate in the circumstances.

52. In the Committee’s view, it was not imperative to replace the roof immediately and it was reasonable for the Registered Person, given the survey report, the roofers views, the Referrer’s design priorities, and the nature of the build and Property, for any further investigative works to be considered and carried out whilst the builder was on site. In this respect, the Committee preferred the evidence of Mr Kavanagh over that of the Inquirer. Accordingly, the Registered Person not incorporating a new roof did not result in an inadequate design at the tender stage.

 

Piling

53. The Referrer had separately appointed a structural engineer to design the structural elements of the works, including the foundations. The foundations for the extension were originally designed as concrete strip, which the Inquirer states was a standard method of constructing foundations for smaller buildings. There was provision in the Contract for the excavation of trial pits and trial pits are also recorded on the schedule of works, however trial pits were not excavated before the discovery of the large underground water tank and the unsuitable ground conditions, leading to a change in the foundation design from strip foundations to piled foundations. The Inquirer states that had the trial pits been dug at the correct stage the need for piled foundations would then have been evidenced and included in the tender documents. The works would then have been priced at the competitive stage.

54. At the joint expert meeting on 4 June 2025, the Inquirer and Mr Kavanagh agreed the following in relation to the piling:

i. Ideally the excavation of trial pits before tender would be preferred;
ii. The number and exact positions of trial pits would normally be according to the structural engineer’s advice;
iii. Instructing the excavation of the trial pits was the responsibility of the Architect and Contract Administrator.

55. Both the Inquirer and Mr Kavanagh agreed that the design of the foundations was the structural engineer’s responsibility. In the Inquirer’s opinion, the management and timing of the excavation of the trial pits was the responsibility of the Registered Person, whereas in the opinion of Mr Kavanagh, it was for the structural engineer to determine both the need for and the timing of the excavation of trial pits in accordance with the requirements of the structural design.

56. The Committee preferred the evidence of the Registered Person and Mr Kavanagh for the following reasons. Trial pits were included in the schedule of works, and therefore clearly recognised by the Registered Person at the design stage. However, the actual requirement for piling was only realised after the discovery in March 2021, shortly after construction had started of a large water tank buried close to the front of the Property. The structural engineer consequently requested two trial pits be dug and concluded that piled foundations were required for the extension because of its proximity to the location of the water tank. The presence of the water tank was not apparent from the site investigations and there was no indication in the survey report of any structural issues within the existing Property. The Registered Person stated that there would have been discussions with the structural engineer about the need for trial pits. Although there is no written record of such discussions, it is noted that the structural engineer was present at the site meeting of 30 October 2019.

57. In his submissions of 8 October 2023, the Registered Person stated that at no point during the relevant period “did the structural engineer advise there was any need to instruct special investigations into the ground conditions before construction, beyond that had already been provided in the form of the drainage survey which included CCTV review of the below ground system and the topographical survey.” In the Committee’s view, given the nature and context of the build, it was reasonable for the Registered Person to rely on the structural engineer’s expertise in the design of the foundation. The Committee accepted Mr Kavanagh’s evidence that he would not expect a reasonable Architect in this context to be familiar with structural considerations for foundations and that he would not expect an Architect to push back or challenge a structural engineer’s design. Accordingly, the Committee concluded that although the change of foundation design had an effect on cost and time, it was not unreasonable for the Registered Person to only make an allowance for trial pits as the structural engineer had not considered them necessary or requested them at the tender stage.

 

Provisional sums for Contract Design Portions: Electrical and Heating and Plumbing

58. The electrical installation and the heating and plumbing were items included in the schedule of works as the CDP’s. The Registered Person said this allowed for the design portion to be carried out by people with relevant specialist expertise, and that a competitive element was preserved because the subcontractors approached by the Contractor would want to price the elements in the schedule as competitively as possible. Mr Kavanagh’s view was that this was reasonable. The Inquirer agreed that these items could be included as CDPs but said that additional information about the requirements for the electrics and heating and plumbing, such as layouts, should have been included in the tender for the subcontractors to price against. The Referrer said that discussing the electrical installation, heating and plumbing, with the subcontractors was the logical thing to do. He had not been involved in building works before and was simply following what to do, hence why these items were agreed after the tender stage.

59. In relation to the electrics, the Inquirer said that it would be reasonable to provide some basic client requirements, with a brief specification, including a layout showing schematic lighting circuits (position of fittings and switching arrangements), and positions of sockets, consumer units etc. This should be part of a briefing discussion with clients including alarm systems, finishes of finger plates etc. Because proper arrangements were not made in relation to electrical installation at the early design stage or tender stage, the final price for the electrical works was £25,515.63, a considerable overspend of £15,515.63 on the provisional sum. This work was placed outside the competitive tender process and only dealt with during the construction phase of the project. The Referrer did not believe he had any discussions with the Registered Person about the electrics at the design stage.

60. In the Committee’s view, the Registered Person could have produced an electrical layout to show what specifications were required as this would have provided a benchmark to measure any changes that may have arisen from the Referrer’s detailed requirements if these were not known at the tender stage. The Registered Person said that he provided the Referrer and electrician blank floor plans at the start of the Contract for the Referrer to then mark up these plans with their preferred electrical layout that was developed in direct discussions between the Referrer and electrical subcontractors and that ultimate design and specification in relation to electrical fittings such as lighting were matters within the Referrer’s control and remit. Therefore, he would not have helped the Contractor or sub-contractor by providing accurate advice at the tender stage when the final design had not been agreed. The Committee considered that, on balance, whilst producing a basic layout had benefits, it was not unreasonable for the Registered Person to have used the CDP in respect of the electrics at the tender stage by comparison to similar projects and in the context of a residential build where electrical layouts do not vary significantly, and given the limited areas involved. It was also reasonable to include the cost of the electrical works as a provisional sum.

61. In relation to the heating and plumbing, this was not shown as a provisional sum, and the increase to this item was identified as £10,534.40. This additional sum was expended outside the normal tender process and was therefore not subject to a competitive environment. In the Inquirer’s opinion, the reasonable practice is for an Architect to discuss and agree the heating proposals (type of fuel and boiler and radiator positions) with the client and include these requirements within the tender documents. The Inquirer stated that the Registered Person did not undertake reasonable investigations at an early design and tender stage in relation to the heating system and that there was a change of boiler type from electric to oil fired, thereby resulting in a substantial change in the design with considerable costs.

62. The Referrer, when asked whether he had any discussion with the Registered Person at the design stage about the type of fuel, boiler and radiators, replied “I don’t believe I had any but I cannot be 100% certain. However, I don’t believe any decisions were made. Different options were discussed…but I am clear a decision wasn’t made.” The Referrer said that the intended radiator positions on the floor plan diagrams were not marked on any drawings at the design stage.

63. The Committee considered the contemporaneous evidence. The heating and plumbing works were CDP’s under the Contract, and therefore their ultimate design and specification was a matter for the specialist subcontractors with whom the Referrer worked directly. The Committee considered the email of 21 April 2021 from the Registered Person to the Referrer which records a discussion between the Registered Person, the plumber and the electrician, during which the design parameters for four alternative heat sources were considered. The Registered Person stated, “we interrogated each option to assess efficacy and running costs and we concluded oil will provide the most effective and efficient system…Issues around the elec boiler were as we discussed on site.” The Registered Person reviewed the pros and cons with the Referrer.

64. The Registered Person’s evidence was that the change of fuel type for the boiler was due to the Property being already heated by storage heaters, and that the cost of electric heating would be too high as an upgrade to the electrical supply that would be required. In the end a decision was made to install an oil fire boiler. The complications with an electric boiler, including the need to upgrade the power supply, were only identified however following discussions with the electrician and plumber. In the circumstances, the Committee agreed that it would not have been possible for the Registered Person to finalise the boiler specifications until the specialist subcontractors were appointed.

65. In relation to the radiators, the Committee had regard to the diagrams from March 2021 showing the layout of the Property and the position of radiators. The Inquirer stated that he would expect a reasonable Architect to discuss radiator positions with the Referrer at the design stage, however the failure to do so on its own was not a serious falling short by the Registered Person. Mr Kavanagh said the position of radiators is something the subcontractors would be involved in with the Referrer in line with the CDP. The Committee agreed with Mr Kavanagh. The Registered Person did not have design responsibility for CDP’s. It was ultimately for the specialist subcontractor and Referrer to consider the radiators and their layout and to finalise these specifications. Accordingly, the Registered Person had not provided an inadequate design at the tender stage in relation to heating and plumbing.

66. In conclusion, the Committee was satisfied on the balance of probabilities that the Registered Person provided an adequate design at the tender stage in respect of the main roof, piling, electrical works and heating and plumbing. The Registered Person’s performance was of a reasonable Architect in a similar set of circumstances.

67. For these reasons, Particular 1 of the Allegation was found not proved.

 

Particular 2a – Proved in part

(2) The Registered Person failed to adequately carry out their duties as contract administrator in that:
a. they did not conduct adequate inspections before certifying the works and/or over-certified the works;

68. 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 and Contract Administrator had a duty to carry out his duties adequately and appropriately.

69. At the joint expert meeting of 4 June 2025, it was agreed that there was no issue with the performance of the Registered Person with regard to the adequacy of the inspections of the works for compliance with the Contract. Accordingly, the ARB did not pursue this aspect of Particular 2a.

70. The concern identified by the Inquirer in respect of over certification was that there might be overpayment to the Contractor and risks to the Referrer of being unable to recover payments where the work had not been completed, and needing to pay additional sums if the Contractor goes out of business, which is what happened in this case as the Contractor went into liquidation. The Inquirer states that the need for balance must be observed by an Architect throughout the course of the works.

71. The Registered Person’s role as Contract Administrator was to administer the terms of the contract agreed by the parties. The framework for payment of interim sums was set out in Clause 4.3 of the Contract. The normal position in respect of interim payments under the Contract is for the Contract Administrator to certify “what he considers to be the total value at the due date of … work properly executed…; and materials and goods reasonably and properly brought onto site for the purpose of the Works”. Unless otherwise specified, the Contract provides for monthly valuations, which are the industry standard. The payment system in this case was varied by agreement in the context of the project, which included the difficulty in securing a Contractor, the credit checking process indicating that the Contractor’s were a credit risk (cash poor and lacking capital reserves), and the project taking place in the context of Covid-19 which saw large increases in material prices and lead times. In view of this context, it was agreed at the Pre-Contract Meeting on 17 February 2021, that to assist the Contractor to manage their cash flow during the project:

i) Interim valuations and applications for payment would be made every two weeks, instead of monthly; and
ii) Payment applications would include advance payments for the pre-ordering of goods and materials.

72. It is alleged that the Registered Person over-certified by signing off on the advanced payments in respect of the windows, ground floor slab, plastering and zinc roofing without security of items and without requiring proof of payment.

73. The Committee had regard to the two emails dated 8 and 10 February 2021 (prior to the Pre-Contract Meeting) sent by the Registered Person to the Referrer in which he advised of the risks and benefits of pre-payments and also suggested alternative solutions to direct payment. The Registered Person said “my concern is based on the vulnerability of pre-orders – you will have nothing to show if anyone along the chain from purchase to supplier ceases to trade before you receive the goods…” The Registered Person put forward an escrow account as a means of guaranteeing the Contractor remained in funds with the Referrer’s agreement and this would provide the Referrer overarching control over any pre-payments as they would require sign off from any draw down of funds. However, the Referrer did not pursue this option as he felt the certification process was sufficient but said that he may have misjudged this.

74. A variation to the usual payment provisions of the Contract was then agreed between the parties at the Pre-Contract Meeting. This variation is recorded in the meeting notes of 17 February 2021 as “applications to include details of pre-orders and deposits with ‘proof of title’ for undelivered materials.” In his Defence and witness statement the Registered Person said, “once the system for pre-orders had been agreed, I did not consider it to be within the scope of my responsibility to monitor GAW’s contracts and payments to its subcontractors; I was only engaged to administer the Contract between the clients and GAW.” However, in his oral evidence the Registered Person accepted that the agreement at the Pre-Contract Meeting was a variation to the Contract and that accepted he had taken on an extended role as Contractor Administrator in verifying advance payments or pre-orders. Despite this, the Registered Person said he had difficulty in obtaining proof of title from the Contractors but that he made efforts to do so. Other than a reference in the site visit record of 19 March 2021 to a windows order deposit being paid by the Contractor upon payment of their invoice, the Committee was unable to locate any other written records in the documentation where the Registered Person had asked the Contractor to provide evidence that orders had been placed and paid for. Mr Kavanagh’s evidence was that it is not unusual for small contractors to operate with little formality in regard to paperwork, that works on site were progressing with materials being delivered, and this was sufficient for proof of title and security. Mr Kavanagh further stated that the Contract offered limited levers for the Registered Person as the Contract Administrator to pull in order to put pressure on the Contractor.

75. The Committee determined that the Registered Person did not obtain proof of title and security from the Contractor. The Committee acknowledged that the adoption of a two-week valuation cycle offered some protection, and considered the context of the build and Covid-19, as well as the Registered Person’s desire to work in a collaborative atmosphere based on trust; however, the Committee balanced these factors against the Registered Person’s knowledge that following credit checks, where the Contractor was assessed as presenting a maximum financial risk, there was a high risk of exposing the Referrer to financial loss at various points within the works. In the Committee’s view it was therefore reasonable for the Registered Person to monitor payments, obtain receipts and secure proof of title for goods and materials. Any application from the Contractor for payment of materials off site should have been evidenced before certification. At the very least the Registered Person should have used as leverage the threat of deductions against no evidence of orders or pre-orders.

76. In terms of over-certification of other items, the Committee considered the submission of the ARB that the ground floor slab and plastering were the most egregious examples of the Registered Person certifying payments when he had not inspected the work at all, or where he simply signed off on applications from the Contractor without checking whether the amounts were correct. Clause 4.3 of the Contract required the Contract Administrator to certify “what he considers to be the total value at the due date of… work properly executed… and materials and goods reasonably and properly brought on to the site…” Certification is based on inspection of works done.

77. With respect to the ground floor slab, the Registered Person’s email to the Contractor on 3 December 2021 estimates a total figure of £4,808 whereas the schedule of works shows a certification of £6,505. On 24 January 2022, the Referrer sent the Registered Person an updated schedule of queries indicating an overpayment of £1,752. The Registered Person said in his evidence that he had certified the work because it had been done. He had calculated the area and the rates and then took back some of the costs. When it was put to the Registered Person that his role as Contract Administrator when certifying sums was to measure and certify sums so there was no requirement to make deductions in the future, he replied that this was ideal however due to the two week cycle, the opportunity to review items and assess costs was quick. The Committee considered that Registered Person did not carry out a simple calculation over a period of time and there was no good reason for not doing so. The simplest action for the Registered Person was to go to the site, measure the floor, and make an assessment or valuation of the work claimed.

78. With respect to the plastering, the Registered Person’s evidence is that he relied on a broad assessment of the works to certify before carrying out a detailed remeasure and thereafter made the relevant deduction. In an email dated 23 November 2021 the Registered Person stated, “until I am able to remeasure the plastering, the total claimed for re-plastering is £10,322 which has been allowed against the interim certificates to date.” In an email dated 3 December 2021, the Registered Person provided a revised figure of £6,481 for the plastering. The Registered Person explained in evidence that he valued the plastering on a settlement basis and did not get the opportunity to take measurements before certification due to the current circumstances. In Mr Kavanagh’s opinion it was reasonable for the Registered Person to certify the plastering in this way in view of the circumstances of Covid-19 and the two weekly cycles. The Committee preferred the evidence of the Inquirer and determined that the Registered Person had over-certified for the plastering, and that this was a large over-certification which had the potential to expose the Referrer to a financial loss of approximately £3,800. At the very least, the Registered Person ought to have asked the Contractor and obtained further evidence that the extent of the plastering work claimed had been carried out.

79. The Committee went onto consider the concerns of over-certification in relation to the zinc roof, kitchen fittings and windows.

80. In respect of the zinc roof, the Registered Person had certified a payment to the Contractor to cover the cost of the zinc on 5 August 2021 yet no security was obtained by the Registered Person for the goods. The Registered Person said he anticipated materials arriving on site to be placed. The Committee had regard to interim certificate number 12 issued on 7 September 2021. This referred to the roof and the word “order” is noted in the final column, which meant that as of 7 September 2021 the order for the zinc had still not been placed. In the Registered Person’s email of 9 December 2021, the Referrer stated “if you have paid up to certificate 18 you have paid around 85% of my forecast sum…They have claimed for some materials which have not yet been placed…such as the zinc…” Therefore, as of December 2021, the zinc had still not been placed. The Registered Person agreed that during the gap between the zinc order and at this point in December 2021, he had still not obtained any evidence from the Contractor of the order having been placed, and that his over-certification during this period exposed the Referrer to a financial risk. The Registered Person agreed that he should have inquired with the Contractor where the zinc was in the supply chain. In the Committee’s view the Registered Person’s approach to over-certification of the zinc order without verification was not reasonable.

81. In respect of the kitchen fittings, the Registered Person explained that the quotes from the suppliers (Howdens) were estimates with an expiry date and that the actual deduction could not be confirmed at this stage but was anticipated to be £1,697.97. It was therefore reasonable to make deductions in later interim certificates to reconcile advance payments against actual sums incurred. Mr Kavanagh agreed. He said that the Registered Persons’s actions were reasonable in the circumstances, and that certificates were balanced with no impact on the Referrer. The Committee accepted that it was reasonable to certify kitchen fittings based on an estimate from Howdens until the final price was known.

82. In relation to the windows, there was a delay to placing the order until measurements were finalised. A deposit had been paid to Horizon, and the Registered Person’s case was that it would have been inappropriate to deduct an amount from the deposit until measurements had been provided. The Inquirer stated that deductions could have been reflected in the certificates to show a gradual reduction to even out the amount that was at risk. The Committee had regard to the email exchanges of 28 February 2022 regarding the price for the windows. On 1 March 2022, the Registered Person issued a certificate certifying the full amount claimed by the Contractor. In respect of obtaining proof of title for the windows, the site visit record of 19 March 2021 shows that the Registered Person’s colleague asked the Contractor for proof of title for the windows: “I asked if the manufacturers could offer any more guarantee of the windows/doors being produced and stored for the clients (ideally with photo/marked products as evidence).” The Committee accepted that the Registered Person attempted to obtain proof of title for the windows.

83. The ARB’s overall position in relation to over-certification is that at the point of liquidation, the Registered Person had over-certified payments of around £25,000. This figure was provided by the Referrer and adopted by the Inquirer in his report.

84. The Committee had determined that there was evidence of over-certification in respect of the electrical works, ground floor slab and plastering as set out above. It could not be satisfied however as to the amount over-certified as it was not clear why the Inquirer had adopted the Referrer’s figure of £25,000. In cross examination the Inquirer stated that at the time of liquidation the figure was less than £25,000 and “probably about £10,000” but later in his evidence he said it could be more than £10,000. The Inquirer acknowledged it was difficult to estimate the over-certification amount and that the figures required interrogation. The Inquirer said that the figure of £10,000 in of itself was not a failure by the Registered Person and he revised his opinion of the Registered Person’s actions in relation to over-certification from a serious falling below the standard expected of a reasonable Architect in a similar set of circumstances to a falling short of the standard expected.

85. The Registered Person accepted in his oral evidence that the Referrer ended up paying twice in relation to certain elements of work. Specifically, the Registered Person acknowledged that there must have been some level of over-certification on the electrics as the entire sum was certified at the time of liquidation while some works remained outstanding. The Registered Person valued this over-certification to be no more than £8,900.

86. The Committee concluded that on the balance of probabilities the Registered Person failed to adequately carry out his duties as Contract Administrator by over-certifying the works, and that his actions fell short of the standard expected of a reasonable Architect in a similar set of circumstances. Accordingly, Particular 2a is proved.

 

Particular 2b – Proved

(2) The Registered Person failed to adequately carry out their duties as contract administrator in that:
b. they failed to issue or adequately record Architect’s Instructions in accordance with the contract administrator’s duties to reflect the works certified in interim payment certificates;

87. The Committee had regard to the following clauses in the Contract:

2.4 The Architect/Contract Administrator shall issue any further information and instructions necessary for the proper carrying out of the works and all certificates required by these conditions.

1.6 Each notice, instruction or other communication referred to in the Agreement or these Conditions shall be in writing.

3.4 The Architect/Contract Administrator may issue instructions, and the Contractor shall forthwith comply with them. If instructions are given orally, they shall not have effect until the Architect/Contract Administrator confirms them in writing.

3.6.1 The Architect/Contract Administrator to issue instructions requiring an addition to, omission from, or other change in the Works or the order or manner in which they are to be carried out (a ‘variation’).

88. The Contract allowed for Architect’s Instructions regarding variations, including additions and omissions of work. The Contract does not prescribe any particular form that an Architect’s Instruction must take, other than the instructions do not have effect until confirmed in writing. The Inquirer referred to Architect Instruction number 1 as an example of the RIBA standard form that was used by the Registered Person in May 2021. The Inquirer and Mr Kavanagh set out in their respective reports the details expected in an Architect’s Instruction and the Committee was provided with the RIBA Job Book (9th Edition, 2013) which stated, “all instructions to the Contractor should be in writing: it is good practice to issue them on a Contract Administrator’s instruction form (not via correspondence or site meeting minutes).”

89. The Registered Person’s evidence was that his usual practice was to issue instructions in the same format as Architect Instruction number 1. The forms he used were kept in the office. However, his access to the office was disrupted due to Covid-19 and the national lockdowns in 2021 with an increase in home working replacing office attendance. As an alternative means of recording variations, the Registered Person used cost variation spreadsheets. The spreadsheets included a headline summary of the variation made and the cost of it, and, in conjunction with various other documents, ensured that the individual variation details were recorded. Variations were also discussed at site meetings and recorded in emails. The spreadsheet was circulated to the Referrer and Contractor every two weeks along with the Interim Certificates issued. The Registered Person said this was an adequate way to keep track of the variations in the circumstances.

90. It was agreed by the Inquirer and Mr Kavanagh that in the context of a Minor Works Building Contract, a failure to issue an instruction on a specific form would not, in and of itself, be a failing, as long as the instruction itself contained adequate detail to act as a confirmation of agreed variations. In Mr Kavanagh’s opinion the spreadsheets contained adequate information to conform to valid instructions. In the Inquirer’s opinion, the Registered Person’s purported instructions did not fulfil the expectations of an Architect’s Instruction as set out in his report.

91. The Committee carefully considered the evidence. The Registered Person had issued Architect Instruction (number 1) which the Inquirer confirmed fulfilled the requirements of a valid instruction. However, the Committee determined that the Registered Person’s replacement of using spreadsheets and other documentation was an inadequate way to issue formal Architect’s Instructions in view of the good practice described in the RIBA Job Book (9th Edition, 2013). For example, there is no precise record of when the Architect’s Instructions were dated, there is no precise record of when they were issued and had effect (only a broad two week period but no actual date), there is a deficiency in terms of detail and there are no references to documents that became part of the contract. The Committee also did not find the Registered Person’s evidence credible that he was prevented as the project progressed from making alternative arrangements for obtaining the necessary forms that he was previously using to issue Architect Instructions or adapting his way of working to issue Architect’s Instructions to an equivalent standard.

92. The Committee was satisfied on the balance of probabilities that the Registered Person failed to adequately carry out his duties as Contract Administrator in that he failed to adequately issue Architects Instructions in writing to reflect the works certified in interim payment certificates. The Committee concluded that the Registered Person’s performance fell below the standard expected of a reasonable Architect in similar circumstances. Accordingly, Particular 2b is proved in respect of the Registered Person’s failure to issue adequate Architect Instructions.

 

Particular 2c – Proved in part

(2) The Registered Person failed to adequately carry out their duties as contract administrator in that:
c. they failed to adequately notify that the Contractor was in culpable delay and/or failed to issue adequate notification of an extension of time.

93. An Architect/Contract Administrator has a duty to record any delays to the works. The works in the Contract had originally been scheduled to complete on 22 August 2021. Where a Contractor fails to complete the works by the agreed date, for reasons not of their making, and those actions are likely to delay the completion date, then the Contractor can ask the Architect/Contract Administrator to issue an EoT to the completion date specified in the Contract. This contractual requirement for an EoT is set out at Clause 2.8 of the Contract. The Architect/Contract Administrator shall give such EoT for completion as may be reasonable and notify the parties accordingly. Clause 1.6 states that each notice, instruction or other communication referred to in the Agreement or these Conditions shall be in writing. The Contract does not prescribe any particular format for these notifications and there is no requirement to provide reasons for the EoT.

94. The Registered Person granted, EoT’s on three separate occasions and notified the parties of the EoT via email. The Registered Person stated that email notification was sufficient to comply with EoT’s as set out in the terms of the Contract. The Committee considered each EoT occasion in turn.

95. On 5 August 2021, the Registered Person sent an email enclosing interim certificate 10 to both parties which confirmed a previously agreed 9 week EoT. The email stated “…however with the extension agreed makes the actual progress 20/33 weeks”. The completion date was therefore moved from 22 August 2021 to 24 October 2021. The Committee was satisfied that the Registered Person issued adequate notification of an EoT and adequately carried out his duty as Contract Administrator.

96. On 27 August 2021, the parties had a site meeting where a further extension was discussed, after which the Registered Person emailed the parties on 7 September 2021 stating that the completion date would be extended to 30 November 2021. The email states:

“Following our last site meeting of 27 August 2021, you have confirmed you are satisfied with a revised completion date of 30 November 2021, representing an extra 14 weeks on the original contract date. I have not received a formal request for this extension of time from GAW yet, but expect I will receive one in due course, once I have assessed the detailed evidence, I will issue an Extension of Time Certificate.”

97. The Committee considered the Registered Person’s email was ambiguous because, although the email confirmed an EoT to a new date, the Registered Person had not received a formal request from the Contractor for an EoT which is required under the Contract. Both the Inquirer and Mr Kavanagh agreed the email was ambiguous, with Mr Kavanagh stating that although the email was “not well drafted”, it “covered the ground” required. In his evidence to the Committee, the Registered Person said that the EoT was discussed and agreed at the site meeting. He did not subsequently email an EoT certificate because “I don’t believe I had any detailed evidence from GAW limited,” and he accepted in oral evidence that the email was not a notification of an EoT.

98. The Registered Person did not request any more information from the Contractor yet proceeded to send the email of 7 September 2021 whilst acknowledging in the email he was going to prepare a formal issue of an EoT once he has assessed the detailed evidence and received a formal request for an EoT from the Contractor. The Registered Person did not prepare a formal issue of an EoT. His position in oral evidence was that the email was not an EoT. Accordingly, in respect of the email of 7 September 2021, the Committee was satisfied that the Registered Person failed to issue adequate notice of an EoT on this occasion and therefore failed to adequately carry out his duty as Contract Administrator.

99. On 23 November 2021, the Registered Person sent an email to the Referrer in which he stated “The Extension of Time was agreed during our last site progress meeting, the adjusted Completion Date is now: 28th January 2022. When I get back to the office, I will prepare a formal issue recording the Extension of Time.” The Inquirer stated that because the Registered Person promised formality, this cast doubt on the email as an adequate notification of an EoT. Mr Kavanagh disagreed. He said that despite the reference to a formal issue, the email was an adequate notification of an EoT. The Committee agreed with Mr Kavanagh. The email was an adequate notification of an EoT because it confirmed that an EoT had been agreed and stated the revised completion date. The Committee was therefore satisfied that the Registered Person issued adequate notification of an EoT and adequately carried out his duty as Contract Administrator.

100. The Committee considered whether the Registered Person had failed to adequately notify the Referrer that the Contractor was in culpable delay and therefore had failed to adequately carry out his duty as Contract Administrator. The Inquirer’s opinion is that it is entirely possible that some overruns to the contract period could have been covered by a notice of an EoT, and others by a notice of Culpable Delay. However, there was no notice of non-completion/Culpable Delay and in the Inquirer’s opinion this meant that the Registered Person did not act in accordance with his duties as Contract Administrator.

101. The Committee noted that during the hearing, no evidence was advanced, and no submissions made by the Case Presenter and Ms Ziebart in relation to this part of the Particular of Allegation 2c. When asked by the LQC what the ARB’s position was in relation to culpable delay, the Case Presenter submitted that the ARB’s position is that the allegations in relation to the EoT’s are considered to be more serious and referred the Committee to the ARB’s report. In the Committee’s view the over-runs to the Contract period were being dealt with by the Registered Person in notices for an EoT. Further, there was no mechanism for the issuing of a “certificate of culpable delay” under a Minor Works Building Contract. Accordingly, the Committee did not find the Registered Person had failed to adequately notify the Referrer that the Contractor was in culpable delay.

 

Decision on Unacceptable Professional Conduct (“UPC”)

102. The LQC advised that whether the facts found proved amounts to that UPC is a matter for the Committee’s independent judgment and there is no burden or standard of proof.

103. UPC is defined as conduct which falls short of the standard required of a Registered Person. 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.

104. In deciding whether the Particulars found proved amount to UPC the Committee had regard to the definition of misconduct, which is akin to UPC, and which was defined in the case of Roylance v GMC [2000] 1 AC 311 as, “a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in particular circumstances”. The Committee also recognised that any failing must be serious, Vranicki v Architects Registration Board [2007] EWHC 506 Admin. It bore in mind that for a finding of UPC, “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, Spencer v General Osteopathic Council [2012] EWHC 3147 (Admin). The Committee was aware of the distinction between a single act and multiple acts of concern, “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 and a single instance of negligent treatment unless very serious indeed, would be unlikely to constitute deficient professional performance.” (R (Calhaem) v General Medical Council [2007] EWHC 2606 (Admin)). The issue for the Committee in this case is whether the failings on the part of the Registered Person were sufficiently serious as to amount to UPC.

105. On behalf of the ARB, the Case Presenter invited the Committee to find that the Registered Person’s failings amounted to UPC. He submitted that Standards 4.1, 6.1, 6.2 and 6.4 of the Code were engaged. The Case Presenter submitted that all the Registered Persons’s failures in Particular 2 occurred over a significant period of time. In respect of the Committee’s findings in relation to Particular 2a, the Case Presenter submitted that the failures took place throughout the duration of the building works, and in relation to Particular 2b, the failures occurred for the remainder of the works following the Architect Instruction number 1. The Case Presenter referred to the Committee’s findings in relation to the over-certification of the ground floor slab and plastering and submitted that although the over-certifications were recognised by the Registered Person, the risk to the Referrer would have significantly increased had the Contractor entered liquidation at an earlier stage. The Case Presenter reminded the Committee that the Registered Person accepted that at the point of the Contractor going into liquidation, works had been over-certified in the region of £8,900. This was a substantial amount. The risk was not hypothetical as the Registered Person knew the Contractor presented as a credit risk. The Case Presenter submitted that overall, the Registered Person’s failings at Particular 2a were serious as he exposed the Referrer to a significant financial risk.

106. In relation to Particulars 2b and 2c, the Case Presenter submitted that, although no detriment resulted following the purported EoT email of 7 September 2021 and the failure to issue adequate Architect’s Instructions, should a dispute have arisen between the Contractor and Referrer about changes of scope to the project, this would have been difficult to resolve. In conclusion, the Case Presenter submitted that taken in the round, the Registered Person’s failures in relation to his duties as Contract Administrator was a serious falling short and amounted to UPC.

107. Ms Ziebart submitted that the Registered Person’s failures did not fall seriously short so as to amount to UPC. She reminded the Committee that it had assessed both the Inquirer and Mr Kavanagh’s expert opinion evidence to be helpful and credible. The Inquirer considered the Allegation to be a serious falling short, whereas Mr Kavanagh did not consider it was a serious falling short. She submitted that where credible witnesses disagreed, the benchmark of what was acceptable fell somewhere in the middle and that the evidence of the Inquirer and Mr Kavanagh demonstrated a range of acceptable opinions as to how a reasonable Architect should act in a similar set of circumstances. Ms Ziebart submitted there was a falling short but that it was not serious.

108. Ms Ziebart asked the Committee to consider UPC by placing its findings in the context of the nature and build of the Property, and to consider the motivation of the Registered Person and the impact of his conduct.

109. In respect of over-certification and advance payments, Ms Ziebart submitted that the Registered Person erred in his judgment but this did not amount to a serious falling short. The over-certification of the ground floor slab and plastering are two isolated instances which do not equate to a pattern of failings. She referred to the email the Registered Person sent to the Contractor in which he stated the ground floor slab and plastering costs were difficult to establish from the schedules and the quantity surveyor’s rates had been applied, thereby highlighting that the Registered Person recognised further clarity of costs was required. Ms Ziebart submitted that the difficulty in providing accurate figures at this stage was a mitigating factor. In any event, both items were measured and the figures corrected, and so there was no over-certification. In respect of obtaining proof of title, Ms Ziebart submitted that the Registered Person was in a difficult position with limited levers to pull. The Registered Person had a desire to work collaboratively and in a spirit of trust with both the Contractor and sub-contractors operating in an informal way. Although the Referrer was exposed to a risk of financial loss, the risk did not materialise. Ms Ziebart submitted that when viewed in the round, the concerns regarding over-certification did not amount to a serious falling short.

110. In respect of Particulars 2b and 2c, Ms Ziebart submitted that both the Inquirer and Mr Kavanagh agreed that the failure was not a serious falling short. She stated that the Contract was a Minor Works Building Contract. This was not a case where an Architect had ignored variations. The Registered Person’s failures did not extend to the whole period of works. Approximately 50% of the variations were not adequately reflected in the Architect’s Instructions. In respect of the purported EoT of 7 September 2021, Ms Ziebart submitted this was a single finding of an inadequate notification an EoT and a minor lapse when set in the context of otherwise adequate notifications of EoT’s and therefore should not be viewed as serious.

111. Mr Ziebart submitted that taken in the round, the Registered Person’s failures in relation to his duties as Contract Administrator did not amount to a serious falling short to justify a finding of UPC.

 

Findings on UPC

112. The Committee has taken into account all the evidence before it together with the submissions from the Case Presenter and Ms Ziebart. It has had regard to the Code.

113. In the Committee’s view the Registered Person had to make a judgment in respect of the ground floor slab and plastering as he had to obtain different rates from the quantity surveyor. He corrected the over-certification once all the information was available. However, there was an over-certification of works overall and this had the potential to expose the Referrer to a risk of loss during the Project, and to actual realised costs on liquidation of the Contractor. The Registered Person accepted the Referrer ended up paying twice for some items and further accepted some level of over-certification on the electrics as the entire sum was certified at the time of liquidation while some works remained outstanding. He valued this over-certification to be no more than £8,900, which the Committee considered was a substantial sum.

114. The Committee did not accept the submission made on behalf of the Registered Person that the conduct had to be considered in the context of a Minor Works Building Contract and the nature and build of the Property. To seek proof of title in circumstances where the Contract had been varied to allow for advance payments at commencement in the knowledge of the Contractor being a maximum credit risk, was not onerous or difficult to achieve. Securing goods or materials protects a client, the Architect and Contractor and also provides assurances. By not seeking proof of title and instead issuing interim certificates for items not reasonably secured or verified exposed the Referrer to a risk of financial loss at various points within the works. The Committee viewed the Registered Person’s failings as a serious falling short. By acting on trust alone, he had failed to perform his duty regarding certification and advance payment diligently.

115. The prime purpose of Architect’s Instructions is to inform the Contractor of a variation to the work that it is required to carry out and provide it with further information necessary to enable it to undertake the varied works. Issuing adequate Architect Instructions is therefore important to keep parties informed of matters of cost and time during the course of a project and to reduce the possibility of disputes. By failing to adequately issue Architect instructions regarding variations risked a lack of control over cost variations together with a lack of control over the Contract period. In the Committee’s view the Registered Person understood the need for, and intended to issue, formal Architect Instructions. The Registered Person did not ignore variations during the Project, and he maintained efforts to take account of variations by using cost variation schedules, even though this did not meet the standards required of a reasonably competent Architect in the circumstances. The Registered Person’s failure was falling short of the standards.

116. The Committee noted that EoT’s are crucial for both contractors and clients as they protect contractors from penalties for delays outside their control and ensures clients can still enforce remedies for delays. Architects play a key role in administering and issuing EoT’s as Contract Administrators, assessing claims and recommending appropriate extensions. Issuing an inadequate EoT that did not conform to requirements had the potential risk of denying the Referrer an opportunity to make deductions and risked the Contractor from being unable to claim certain costs. In respect of the purported EoT of 7 September 2021, the Committee considered this failure was a one-off isolated instance of an inadequate EoT issued by the Registered Person in a project where he had issued EoT’s that satisfied the requirements of the Minor Works Building Contract. The Registered Person recognised the need for an EoT and, although an inadequate EoT was issued on one occasion, the parties understood the email was an EoT as it set a new completion date for the project.

117. The Committee noted the impact of the Registered Person’s failures on the Referrer and his wife, in particular the feeling that the financial aspects of the project were not under control and the emotional impact as the Referrer felt under considerable stress and pressure.

118. The Committee considered Standards 4.1, 6.1 and 6.2 of the Code are engaged. In respect of Standard 4.1 of the Code, the Registered Person failed to have an effective system in place in respect of certifications, and he failed to monitor the security and verification of goods or materials in circumstances where the Contract had been varied because the Contractor was a known credit risk. In respect of Standards 6.1 and 6.2 of the Code, the Registered Person failed to carry out his work with skill and care by over-certifying the works and failing to obtain proof of title for goods or materials in accordance with the variation of the Contract. This was a serious failing which was repeated throughout the duration of the project. 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. The Registered Person’s failures impacted the Referrer and his wife. The Referrer spent considerable time evidencing the over-certification of works and told the Committee “this was not his job.”
119. In all the circumstances and for the reasons set out above, the Committee concluded the Registered Person’s conduct as Contract Administrator was sufficiently serious and amounted to UPC.

 

Decision on sanction

120. Prior to hearing submissions on sanction, the Committee was provided with a second witness statement from the Registered Person dated 26 June 2025.

Submissions

121. The Case Presenter took the Committee through the ARB’s Sanctions Guidance (2022). The Case Presenter submitted that the Registered Person exposed the Referrer to a substantial risk of financial harm and his behaviour displayed a pattern of poor conduct over a long period of time. The Case Presenter asked the Committee to carefully consider the Registered Person’s insight and remorse, the extent that he had acknowledged his failings, and the stage of the proceedings when the Registered Person submitted his second witness statement and the weight to be attached to it. The Case Presenter reminded the Committee that it had concluded that the conduct impacted both the reputation of the Registered Person and the profession generally.

122. The Case Presenter referred to the Sanctions Guidance in that as a general principle the Committee is less able to take mitigating factors into account when the concern is about public safety, than if the concern is about public confidence in the profession. As the Committee had found there was no risk to public safety in its findings of UPC, they may wish to consider any mitigation put forward by the Registered Person. The Case Presenter did not advance a particular sanction.

123. Ms Ziebart submitted that the appropriate and proportionate sanction in this case was a Reprimand. Ms Ziebart submitted that the Registered Person’s pattern of poor conduct was confined to the circumstances of a single project and a “matter of months.” His conduct should therefore be viewed as an isolated incident in an otherwise unblemished career. Ms Ziebart submitted that the circumstances of Covid-19 interfered with the Registered Person’s normal working practices. Ms Ziebart submitted that the Registered Person does not pose a risk to the public and the conduct was unlikely to be repeated.

124. In terms of insight and remediation, Ms Ziebart referred to the Registered Person’s first witness statement and oral evidence to the Committee where he had explained the improvements made in his practice and that he has taken corrective steps. She stated that although the Registered Person had not given oral evidence in respect of his second witness statement, he has given extensive evidence during the hearing and the Committee found him to be a credible witness. The Committee is therefore well placed to consider what weight to attach to the Registered Person’s second witness statement.

125. Ms Ziebart stated that the Registered Person had acknowledged the impact of the project on the Referrer. She submitted there were other factors out of the Registered Person’s control also impacting the Referrer such as the increase in costs of materials and delays. The eventual cost over-run identified by the Referrer was not the Registered Person’s fault and this was agreed by the Inquirer. Ms Ziebart stated that the Registered Person was also subject to his own stressors during this period and that that his conduct was not deliberate but an error of judgment. Ms Ziebart reminded the Committee of the Registered Person’s previous good disciplinary history and submitted that there was evidence of the Registered Person’s genuine remorse.

 

Decision on sanction

124. The Committee considered whether to impose a sanction, and if so, which one. The Committee had regard to the public interest, which included the need to protect the public, to maintain confidence in the profession and the ARB, and to declare and uphold proper standards of conduct and behavior. The Committee carefully considered all the evidence and submissions made during the course of the hearing. It heard and accepted the advice of the LQC in relation to sanction which is a matter of record. It bore in mind that the purpose of imposing a sanction is not to be punitive although it may have a punitive effect. It took into account the Registered Person’s interests, ARB’s Sanctions Guidance (2022) and the need to act proportionately. It identified the aggravating and mitigating factors set out below and exercised its own independent judgement. The Committee took into account the submissions made by both parties.

125. The Committee had concluded that the Registered Person’s failing in relation to over-certification and proof of title of goods and materials was serious and repeated throughout the project. The seriousness of the failing was exacerbated as the Registered Person knew that the Contractor was a maximum credit risk. The Committee acknowledged that the Registered Person had highlighted the financial risks to the Referrer at the outset of the Contract, and that the project took place during the Covid-19 period. Despite these factors the Committee considered the Registered Person’s failings as serious. His failings had impacted the Referrer and had the potential to expose the Referrer to a risk of financial loss.

126. The Committee identified the following as aggravating factors:

i. There was a significant risk of financial loss to the Referrer;
ii. The Registered Person’s conduct caused the Referrer and his wife harm in the form of stress and delay;
iii. The Registered Person’s conduct was a departure from the amended Contract;
iv. The Registered Person’s failings demonstrated a poor pattern of conduct that was repeated throughout the duration of the project;
v. The Registered Person had not fully acknowledged the impact of his conduct on the Referrer and his wife, and there was no expression of remorse in this regard. In his first witness statement dated 23 May 2025, the Registered Person stated, “I also wish to record that, while I do not think their complaints are valid, I do have sympathy for Mr and Mrs Rix. This was a challenging project carried out at a stressful time for everyone in the country during the Covid-19 pandemic. I entirely understand their frustration at the way the project developed, with various unforeseen issues arising during the curse of the works……all of which led to delay and unforeseen costs, While none of these issues were within my control or arose from issues on my part, I clearly understand why they were so frustrating.” The Registered concluded his second witness statement with, “This has had a detrimental effect on my business…”

127. The Committee identified the following mitigating factors:

i. The Registered Person’s conduct related to one project which took place during Covid-19, in an otherwise unblemished career;
ii. In respect of insight, remedial action and remorse, the Committee took into account the following:
a) The Registered Person explained how he had made improvements to his work in his second submission dated 9 January 2024. For example, he said that he had implemented adjustments to his contract administration procedures and was committed to practice formalities.
b) In his first witness statement dated 23 May 2025, the Registered Person explained the remedial steps taken in relation to Architect’s Instructions and said he had invested in CPD for himself and his staff.
c) In his oral evidence to the Committee, the Registered Person said he had reflected and treated the Inquirer’s report as an “Ofsted Inspection” and peer review. He said that “Architect’s do not usually get this opportunity so I have used it as CPD in the office….everyone has learned a lot about the contract process.”
d) In his second witness statement dated 26 June 2025, the Registered Person said that the complaint had caused him to “reflect deeply over the last two and a half years” and that the ARB proceedings have been a “sobering process.” He has continued to train his staff and implement CPD and has taken necessary steps to improve his processes. He explained in detail the methodology he has now adapted in relation to the certification of works.
e) The Registered Person said that he was “very sorry that his performance during the project fell short of what was expected.”

128. Having considered all of the above, the Committee concluded that the Registered Person’s conduct was sufficiently serious for it to require the imposition of a sanction and considered sanctions in ascending order of severity.

129. Taking into account the aggravating and mitigating circumstances and looking at all the facts in the round, the Committee considered the Registered Person’s conduct was unlikely to be repeated. The Registered Person had demonstrated an appreciation of his failings and told the Committee how he had remediated his conduct. Although the Registered Person did not provide real examples in relation to the practical steps he has undertaken to prevent a recurrence, the Committee was satisfied that in light of the Registered Person’s appearance before it, he was highly likely to be compliant with the steps outlined in his evidence in relation to certification that a contract may require in respect of proof of title of goods and materials.

130. Nevertheless, the Committee considered the Registered Person’s conduct was serious to the extent that his failings diminished both his reputation, and that of the profession generally and his conduct had exposed the Referrer to a risk of financial loss and personal distress. The public would expect an Architect to have effective systems in place, to regularly monitor and review a project in line with the terms of a contract, to obtain proof of title of goods and materials, and to carry out their work with skill, care and undue delay. The Committee took into consideration that the Registered Person had breached two separate aspects of the standards of the Code, namely Standards 4.1, 6.1 and 6.2.

131. 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.

132. The Committee noted that some of the factors referred to in paragraph 6.2.2 apply to the circumstances of this case. The Committee was satisfied that there is no ongoing risk to the public and there was evidence of genuine insight and appropriate corrective steps had been taken. The Registered Person has had a long and successful career as an Architect; the failings were confined to a single project and were not deliberate. In these circumstances, the Committee concluded that a Reprimand would be sufficient to mark the seriousness of the Registered Person’s failings. The Committee was satisfied that a Reprimand would re-affirm to the Registered Person, the profession and the public the importance of complying with the Code and the high standards of conduct expected of Architects.

133. In accordance with the guidance provided to the Committee, the next sanction in order, a penalty order, was also considered to test the correctness of the Committee’s finding. While the conduct had significantly affected the Referrer and his wife, a penalty order was assessed as being unduly punitive in the circumstances of this case, and the mitigating factors, and would add nothing of materiality to the need for public censure.

134. Therefore, the Committee concluded that a Reprimand was the appropriate and proportionate sanction.

135. That concludes this determination.