THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

Nic Antony (067342K)

Held as a video conference

On 

25 – 29 July 2022

———-

Present 

Sean Hammond (Chair)

 Robert Dearman (PCC Architect Member)

Rachel Childs (PCC Lay Member)

———–

In this case, ARB is represented by Ms Kathryn Sheridan of Kingsley Napley LLP.

Mr Nic Antony (“the Respondent”) has attended this hearing and is legally represented by Tim Grey of 23 Essex Street Chambers.

 

 

Allegation 

1. 1. The allegation against Mr Nic Antony (“the Respondent”) is that he is guilty of unacceptable professional conduct (“UPC”) based on the following particulars:
      
      1) The Respondent did not appropriately manage his financial affairs in accordance with Standard 9.1 of the Architects Code in that he;(a) for the year ending 31 March 2016:
      (i) did not register for VAT despite receiving advice from an accountant to do so; and/or
      (ii) did not submit a VAT return; and/or
      (iii) did not pay to the HMRC VAT which was due;

      (b) for the year ending 31 March 2017:
         (i) did not register for VAT despite receiving advice from an accountant to do so; and/or
         (ii) did not submit a VAT return; and/or
         (iii) did not pay to HMRC VAT which was due;(c) continued to provide services without VAT registration up to and/or including 31 March 2017 despite advice that he had exceeded the registration threshold;

      (d) did not ensure that the company had sufficient resources at the time of liquidation to discharge VAT liability;

      2) The Respondent made inaccurate statements during his disqualification appeal proceedings in that he:

      (a) Stated that there were no regulatory, criminal or civil proceedings pending or outstanding, or words to that effect, when that was not the case; and/or

      (b) Stated that:
         (i) he had notified the ARB of the fact of his disqualification, or words to that effect, when that was not the case; and
         (ii) the ARB were awaiting the outcome of the application, or words to that effect, when that was not the case;

      (c) Stated that he had not ever been the subject of a complaint to a professional body, or words to that effect, when that was not the case.

      3) The Respondent’s actions at particular 1(a) and/or (b) and/or (c) and/or (d) lacked integrity and/or were dishonest;

      4) The Respondent’s actions at particular 2(a):
         (i) were misleading; and/or
         (ii) lacked integrity; and/or
         (iii) were dishonest

      5) The Respondent’s actions at particular 2(b)(i):
         (i) were misleading; and/or
         (ii) lacked integrity; and/or
         (iii) were dishonest

      6) The Respondent’s actions at particular 2(b)(ii):
         (i) were misleading; and/or
         (ii) lacked integrity; and/or
         (iii) were dishonest

      7) The Respondent’s actions at particular 2(c):
         (i) were misleading; and/or
         (ii) lacked integrity; and/or
         (iii) were dishonest

Admissions 

2. The allegation was put to the Respondent and he admitted the following particulars: 1(a)(ii), 1(a)(iii), 1(b)(i), 1(b)(ii), 1(b)(iii), 1(c), 1(d), 2(a), 2(b)(i), 2(c), 4(i), 5(i), and 7(i).

3. The Committee therefore found those particulars of the allegation proved by admission in accordance with rule 25(d) of the Professional Conduct Committee Rules 2022 (“the Rules”).

Background

4. The Respondent is a registered Architect.

5. On 6 April 2018, the Respondent contacted the ARB to advise that his company, ‘Nic Antony Architects Limited’ (“NAAL”) had been liquidated on 27 March 2018. NAAL commenced trading in March 2008. The Respondent was the Director and shareholder of NAAL.

6. In April 2018, the Respondent formed a new company, ‘Alpha Architects Ltd’.

7. On 11 July 2018, the Respondent requested a Rule 25 declaration to change the name of Alpha Architects Ltd back to Nic Antony Architects Ltd. The ARB granted this request on 11 July 2018. The Respondent was, and still is, Director of Alpha Architects Ltd, trading as Nic Antony Architects Ltd.

8. On 15 November 2019, the Respondent sent an email to the ARB informing them that the reason he had liquidated NAAL was because he had been late in registering for VAT and that and that he had been advised by his accountant that he could be liable for back payments of VAT for as much as £100,000. The Respondent informed the ARB that the company could not afford this and that he had been advised by his accountant that it was technically insolvent and that he needed to liquidate NAAL. Within the email the Respondent stated:“The liquidator is duty bound to notify the Insolvency Service of this and so I am now under investigation from the Insolvency Service. There is a possibility I may be disqualified as a company director for a period of time. I have been advised by my solicitor… who specialises in these matters, that if disqualified I do have the option to apply for permission to the court to continue as a company director during the disqualification period, which I intend to do if disqualified.”

9. On 6 December 2019, having been informed of the reasons for the liquidation, the ARB notified the Respondent that the ARB’s Registrar would be making an assessment as to whether the Respondent may be guilty of UPC. The Respondent was asked to provide a number of documents to facilitate that investigation, including the Director’s Report and confirmation as to whether he had been made subject to a Director’s Disqualification Order.

10. On 6 January 2020, the Respondent provided further details regarding the investigation of NAAL and the incorporation of Alpha Architects Ltd. He confirmed that Alpha Architects Ltd was immediately registered for VAT and that VAT returns had been filed and paid in full since registration in May 2018. 

11. On 21 May 2020, the Respondent signed a Form of Disqualification Undertaking which disqualified him as a Company Director for a period of two years commencing on 11 June 2020.

12. On 10 June 2020, the Respondent lodged an application at the High Court for permission to act as a Company Director, subject to conditions, during the period of disqualification.

13. On 19 June 2020, the High Court granted the Respondent’s application.

14. On 7 July 2020, the Respondent contacted the ARB to inform them that he had signed an Undertaking for Disqualification as a Director for a minimum of 2 years but that he had successfully ‘appealed’ that decision, resulting in him being able to continue to act as a Director of his company. The Respondent provided a copy of the Form of Undertaking signed on 21 May 2020. Within that Undertaking, the Respondent accepted:“I failed to ensure that Nic Antony Architects Limited (hereinafter referred to as NAA) complied with its statutory obligations to HM Revenue & Customs (hereinafter referred to as HMRC) by failing to register for VAT and not charging VAT on sales from at least 01 June 2016 resulting in a liability to HMRC of at least £56,716.44”

15. On 7 July 2020, the Respondent provided the ARB with further documentation including copies of the High Court order dated 19 June 2020 and his affidavit dated 10 June 2020, submitted to the High Court in support of his application for permission to act as a Company Director during the disqualification period.

16. The ARB identified three paragraphs within the affidavit which they believed to be incorrect, namely:“30. …NAAL was registered as a Chartered RIBA practice with RIBA and ARB in March 2008. Since that date, I have practised successfully, in that neither I personally nor NAAL (nor, for the avoidance of doubt, the Company) have ever been the subject of a complaint, whether formally to a professional body or otherwise.”;“92. …I have notified my regulator of the fact of my disqualification and they are also awaiting the outcome of my application.”; and“95. There are no other regulatory, criminal or civil proceedings pending or outstanding against me far as I am aware.”

17. In respect of paragraph 30 of the Respondent’s affidavit, the ARB relies upon the fact that in February 2017, following a complaint made to the ARB, the Investigations Panel issued the Respondent with advice as to his future conduct. The Respondent was notified of the decision in a letter dated 16 February 2017, which stated:“You will note that the Panel has decided that you do not have a case to answer at the Professional Conduct Committee, but should be issued with advice as to your future conduct. The decision will remain on your ARB record and may be taken into account should you face any complaint of a similar nature in the future.”

Decision on the Facts

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

• A 220-page ARB hearing bundle;
• A 39-page transcripts bundle of the evidence previously given by Maryam Ahmed and Sarah Atkinson on 26 May 2022, and agreed between the parties to stand as their evidence for this hearing;
• The Respondent’s witness statement dated 28 June 2021;
• The Respondent’s 232-page exhibit bundle;
• The Respondent’s 14-page additional exhibit bundle; and
• The ARB’s 5-page opening submissions.

19. The Committee heard live evidence from the Respondent and from Mr Ziardis, a character witness called on behalf of the Respondent.

20. The Committee heard submissions from Ms Sheridan and from Mr Grey. In addition, Mr Grey provided the Committee with written submissions.

21. The Committee accepted the legal advice given by the Legally Qualified Chair which is a matter of record. The Committee noted that at the fact-finding stage of the hearing, the burden of proof is on the ARB and that the civil standard applies, namely proof on the balance of probabilities. The Committee has applied the relevant tests in relation to dishonesty and lack of integrity matters as set out in the cases of Ivey v Genting Casinos (UK) Ltd [2017] UK SC67, Wingate and Evans v SRA and SRA v Malins [2018] EWCA Civ 366 and Beckwith v SRA [2020] EWHC 3231 (Admin).

Particulars 1(a)(i) – Found Proved

22. The Committee considered the contents of the letter dated 1 June 2016, sent to the Respondent by his accountant Peter Angel.  The Committee noted that the letter was a single page and was headed ‘NIC ANTONY ARCHITECTS LTD – YEAR ENDED 31^st MARCH 2016”. The letter makes reference to three attachments, namely Full Financial Statements, Abbreviated Financial Statements and Form CT600 – Company Tax Return. The Committee further noted that the letter contained paragraphs relating to the company’s taxable profit and Corporation Tax liability, the Respondent’s Director’s salary and Director’s loan account and confirmation that Peter Angel and Co Ltd had applied to register as the Respondent’s personal tax agent. In addition to the above, the Committee noted the following paragraph in relation to VAT:“In respect of VAT, you have exceeded the registration threshold – £81,000, and it is therefore important you register as soon as possible. Robin has discussed with you the “flat rate scheme” and I am enclosing a VAT registration form under separate cover.”

23. During his oral evidence to the Committee, the Respondent stated that the individual referred to as ‘Robin’ within the letter dated 1 June 2016, was an employee of his accountants, Peter Angel and Co Ltd. The Committee noted that during his evidence, the Respondent accepted that he had discussed the ‘flat rate scheme’ with Robin prior to receiving the letter.

24. The Committee noted the submissions made by Mr Grey. In short, they can be summarised that there is no evidence before the Committee that the Respondent received advice that he should register for VAT for the year ending March 2016, simply that he should do so as soon as possible after 1 June 2016. However, the Committee was not persuaded by this argument.

25. In the Committee’s view, the letter dated 1 June 2016 must be considered as a whole. The Committee was satisfied that the entirety of the letter relates to NAAL’s tax year ended 31 March 2016 and that this would have been clear to the Respondent. The Committee was further satisfied that the letter states unequivocally that NAAL has exceeded the £81,000 VAT registration threshold during the tax year ended 31 March 2016 and that therefore it was important for the Respondent to register the company for VAT as soon as possible. The Committee also noted that in the letter, Mr Angel made reference to the fact that he was ‘enclosing a VAT registration form under separate cover.’

26. The Committee also took into account NAAL’s profit and loss account for the tax year ended 31 March 2016, provided by the Respondent in his exhibit bundle. The Committee noted that NAAL’s turnover was £231,320, significantly in excess of the £81,000 VAT registration threshold. During his oral evidence to the Committee, the Respondent confirmed that he was aware of the level of NAAL’s turnover during the tax year ended 31 March 2016.

27. Having regard to the above, the Committee was satisfied on the balance of probabilities that for the year ending 31 March 2016, the Respondent did not register for VAT despite receiving advice from an accountant to do so. The Committee therefore finds particular 1(a)(i) of the allegation proved.

Particular 2(b)(ii) – Found Proved

28. In order to understand the correct context of the part of the sentence relied upon by the ARB in this particular of the allegation, the Committee considered the entirety of paragraph 92 of the Respondent’s affidavit dated 10 June 2020:“92. I am also a professionally qualified and regulated Architect which means that I have additional obligations to my customers and regulator above and beyond the matters set out in this affidavit. I have notified my regulator of the fact of my disqualification and they are also awaiting the outcome of my application.”

29. The Committee had regard to the chronology of this matter. In particular, it noted that on 21 May 2020, the Respondent had signed a Form of Disqualification Undertaking which disqualified him as a Company Director for a period of two years commencing on 11 June 2020. The Committee further noted that the Respondent had not informed the ARB of that fact and that he has admitted particular 2(b)(i) of the allegation.

30. In the Committee’s view, to give the words ‘and they are also awaiting the outcome of application’ their intended meaning, they must be read as part of the full sentence, namely ‘I have notified my regulator of the fact of my disqualification and they are also awaiting the outcome of my application.”

31. The Committee was satisfied that by his own admission, on 10 June 2016 when the Respondent signed the affidavit containing paragraph 92 (as set out above), he had not informed the ARB of his actual disqualification. The Committee was therefore satisfied that neither had the Respondent informed the ARB that he had lodged an application for permission to act as a Company Director during the disqualification period. The Committee noted that the application for permission was lodged with the High Court on the same date, 10 June 2016.

32. The Committee noted that on 15 November 2019, the Respondent had sent an email to the ARB that he was being investigated by the Insolvency Service. He stated:“There is a possibility I may be disqualified as a company director for a period of time. I have been advised by my solicitor… who specialises in these matters, that if disqualified I do have the option to apply for permission to the court to continue as a company director during the disqualification period, which I intend to do if disqualified.”

33. In the Committee’s view, this was a statement of the Respondent’s intent, conditional upon an event that had not yet happened. The Committee noted that the Respondent informed the ARB of the application for permission on 7 July 2020, after it had been granted on 19 June 2020.

34. Accordingly, the Committee was satisfied on the balance of probabilities that particular 2(b)(ii) of the allegation is proved.

Particular 3 – Found Proved (in-part)

35. The Committee noted that this particular alleged that the Respondent’s actions in respect of particulars 1(a) and/or 1(b) and or 1(c) and or 1(d) lacked integrity and/or were dishonest. The Committee was therefore mindful that it was required to give separate consideration to and reach separate decisions in relation to each.

36. The Committee first considered the test for dishonesty as set out in the case of Ivey. Accordingly, the Committee first considered the evidence in relation the Respondent’s knowledge or belief of the facts in relation to each of the factual particulars 1(a) to 1(d) and then went on to determine whether the Respondent’s conduct was dishonest by applying the objective standards of ordinary decent people.

37. The Committee next considered whether the Respondent’s conduct lacked integrity having regard to the guidance in the cases of Wingate and Beckwith. The Committee applied the following principles:

• Integrity is a more nebulous concept than honesty. 
• In professional codes of conduct, the term “integrity” is a useful shorthand to express the higher standards which society expects from professional persons and which the professions expect from their own members. The 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. That involves more than mere honesty. 
• The duty to act with integrity applies not only to what professional persons say, but also to what they do. It is possible to give many illustrations of what constitutes acting without integrity. 
• The duty of integrity does not require professional people to be paragons of virtue. In every instance, professional integrity is linked to the manner in which that particular profession professes to serve the public.
• The PCC is a professional disciplinary tribunal with specialist knowledge of the Architect’s profession and of the ethical standards of that profession. Accordingly, it is well placed to identify want of integrity.
• The requirement to act with integrity must be applied within the context of the relevant statutory framework, namely the Architects Code: Standards of Conduct and Practice. In this case, both the 2010 and the 2017 versions of the Code are applicable. 

38. Insofar as particular 1(a) is concerned, the Committee noted that the Respondent had recently changed to a new firm of accountants, Peter Angel and Co Ltd. The Committee accepted the Respondent’s evidence that he had not received advice in relation to VAT from his previous accountants. However, the Committee was satisfied that the advice provided to the Respondent in the letter from Peter Angel dated 1 June 2016, made clear that NAAL’s turnover had exceeded the VAT registration threshold during the tax year ended 31 March 2016 and that he was therefore required to register NAAL with HMRC for VAT. The Committee carefully assessed the Respondent’s explanation as to why he did not follow this advice. The Committee noted that his failure to do so meant that NAAL remained unregistered for VAT, that no VAT return was submitted and that no payment was made to HMRC. The Committee was of the view that although the Respondent had received and had understood the advice from his accountant, he had not fully appreciated the urgency with which he was required to act. The Committee also accepted that the Respondent may have wrongly believed that if NAAL’s turnover was to fall in the following tax, that this, may in some way have abrogated the need to register NAAL for VAT. 

39. Having regard to this factual background, the Committee considered whether the Respondent’s conduct was dishonest. The Committee’s decision was finely balanced, however, having regard to the burden and standard of proof, the Committee was not satisfied that the Respondent’s conduct in respect of particular 1(a) was dishonest.

40. The Committee next considered whether or not the Respondent’s conduct lacked integrity. The Committee noted that the Architect’s Code 2010 was in force in 2016. The Committee further noted that Standards 1.1 and 9.1 of the Code provide that:“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…”“9.1 You should ensure that your professional finances are managed responsibly.”

41. In the Committee’s view, the Respondent’s conduct in failing to follow his accountant’s advice to register to VAT and failure to seek further advice or clarification if he was uncertain of the situation, fell short of the relevant standards expected of a registered architect. It resulted in a loss to HMRC and eventually led to the chain of events culminating in the liquidation of his practice, NAAL. 

42. Accordingly, the Committee was satisfied that in respect of particular 1(a) the Respondent’s conduct lacked integrity.

43. In respect of particular 1(b) of the allegation, the Committee was satisfied that having received the letter dated 8 May 2017, the Respondent understood that during the tax year ending March 2017, NAAL’s turnover had exceeded the VAT registration and that he was required to register NAAL for VAT. The Committee accepted the Respondent’s evidence that by this time he understood the seriousness of his failure to do so. The Committee accepted the Respondent’s evidence that he had been shocked to learn of the extent of the potential VAT liability to HMRC and the consequences for NAAL, his employees and his clients. The Committee further accepted that following receipt of the letter, the Respondent took further advice from his accountant which led to him approaching a number of firms of liquidators and ultimately appointing Benedict Mackenzie to liquidate NAAL. The Committee noted that there was however, a delay of several months and that during this period the Respondent did not register NAAL for VAT.

44. Having regard to this factual background, the Committee was not satisfied that the Respondent’s conduct as set out in particular 1(b) was dishonest.

45. The Committee next considered whether the Respondent’s conduct lacked integrity. The Committee noted that by 2017, the 2017 version of the Architect’s Code had come into force. However, the provisions of Standards 1.1 and 9.1 remained unchanged. 

46. The Respondent failed to register for VAT, failed to submit a VAT return and failed to pay HMRC the VAT that was due during the tax year ended March 2017. In so-doing, the Committee determined that the Respondent had failed to manage his professional finances responsibly and that his conduct lacked the integrity required of a registered Architect.

47. In relation to particular 1(c), for the same reasons as set out at paragraphs 43 to 46 above, the Committee was not satisfied that the Respondent’s conduct was dishonest but was satisfied that it lacked integrity.

48. Insofar as particular 1(d) of the allegation is concerned, the Committee noted that in the Form of Undertaking signed by the Respondent on 21 May 2020, NAAL’s VAT liability was at least £56,716.44. The Committee further noted that the Respondent’s position has always been that NAAL could not afford to pay this amount and that it was therefore technically insolvent which was the reason why he had to liquidate NAAL. In the Committee’s view, from at least 1 June 2016, the Respondent was on notice that NAAL had a VAT liability to HMRC, even if it had not been quantified at that point. The Committee noted that notwithstanding this, there is no evidence that the Respondent made any provision to enable NAAL to meet its VAT liabilities. 

49. Having regard to the Committee’s previous decisions and reasoning in respect of particulars 1(a), 1(b) and 1(c) of the allegation, the Committee was not satisfied that the Respondent’s conduct was dishonest. It was, however, satisfied that the Respondent’s conduct lacked integrity.

50. Accordingly, the Committee found particular 3 of the allegation not proved in relation to dishonesty but proved in relation to lack of integrity, in respect of particulars 1(a), 1(b), 1(c) and 1(d).

Particular 4(iii) – Found Not Proved

51. The Committee accepted the Respondent’s evidence in relation to the circumstances in which the affidavit dated 10 June 2020 was prepared. The Committee noted that it was during the first national lockdown arising as a result of the coronavirus pandemic. The Committee accepted the Respondent’s evidence that as a result of this, he was not able to have face to face meetings with the solicitor he had instructed to prepare the affidavit and act for him in the Company Director’s disqualification proceedings. The affidavit was therefore prepared as a result of email exchanges and telephone calls. The Committee also noted that Respondent’s evidence that there was also a time pressure to complete the affidavit in order to lodge the application for permission to act as a Company Director with the High Court before the disqualification came into effect.

52. The Committee also noted the Respondent’s oral evidence and the documentary evidence provided in relation to the Respondent’s personal and professional circumstances at this time. The Respondent and his wife were both working from home, his children were home schooling, his son suffered a broken arm and there was a bereavement in the family. In addition, the Respondent was making efforts to enable his employees to work remotely and also navigating the requirements of the Government’s recently introduced furlough scheme. 

53. In paragraph 95 of the affidavit, the Respondent stated “There are no other regulatory, criminal or civil proceedings pending or outstanding against me far as I am aware.” This was incorrect as the Respondent had been notified on 6 December 2019 that the Registrar of the ARB would be making an assessment as to whether the Respondent may be guilty of Unacceptable Professional Conduct. The Committee noted that in his evidence, the Respondent had accepted that this paragraph of his affidavit and misleading. He told the panel that the inclusion of this paragraph was a genuine mistake and that he had not seen it when he had reviewed the affidavit before signing it. 

54. The Committee also took into account that the assessment being undertaken by the Registrar of the ARB related directly to the matter that necessitated the application for permission to act as a Company Director, namely the liquidation of NAAL.

55. Taking all of the above into account and applying the test in Ivey, the Committee was not satisfied that the Respondent’s actions were dishonest. The Committee therefore finds particular 4(iii) of the allegation not proved.

Particular 4(ii) – Found Not Proved 

56. Having regard to the extremely difficult and unusual circumstances found by the Committee to exist at the time the affidavit was sworn by the Respondent, as set out in paragraphs 51 and 52 above, the Committee determined that although paragraph 95 was misleading, it may well have been included as a result of a mistake on the part of the Respondent. In these circumstances, having regard to the burden and standard of proof, the Committee was not satisfied that the Respondent’s actions lacked integrity. The Committee therefore found particular 4(ii) of the allegation not proved.

Particulars 5(iii) – Found Not Proved

57. In paragraph 92 of the affidavit, the Committee noted that the Respondent had stated “…I have notified my regulator of the fact of my disqualification and they are also awaiting the outcome of my application.”. 

58. The Committee has already set out its findings in relation to the circumstances that existed at the time the affidavit was sworn by the Respondent, as set out in paragraphs 51 and 52 above.

59. The Committee noted that in his evidence to the Committee the Respondent stated that he was confused as to what he had told the ARB and when he had done so. The Committee had regard to Ms Sheridan’s submissions, and in particular the fact that the last contact between the Respondent and the ARB had been on 6 January 2020. However, the Committee noted that during this stressful time the Respondent was also having contact with other professional advisers and that this may have caused him some confusion. The Committee also noted that in his original representations to the ARB dated 17 September 2020, the Respondent appeared to be asserting that the content of paragraph 92 of the affidavit was correct.

60. For all of the above reasons, the Committee was not satisfied that the Respondent’s actions were dishonest and therefore found particular 5(iii) of the allegation not proved.

Particular 5(ii) – Found Not Proved

61. Having regard to the extremely difficult and unusual circumstances found by the Committee to exist at the time the affidavit was sworn by the Respondent, as set out in paragraphs 51 and 52 above, and to its reasons at paragraph 59, the Committee was not satisfied that the Respondent’s actions lacked integrity. The Committee therefore found particular 5(ii) of the allegation not proved.

Particular 6(i) – Found Proved

62. The Committee was satisfied for the reasons set out above in paragraphs 28 to 34 that this statement in paragraph 92 of the Respondent’s affidavit was factually incorrect. The Committee was therefore satisfied that it was misleading.

63. Accordingly, the Committee found particular 6(i) of the allegation proved.

Particular 6(iii) – Found Not Proved

64. For the same reasons as set out in relation to particular 5(iii) at paragraphs 57 to 60 above, the Committee found particular 6(iii) of the allegation not proved.

Particular 6(ii) – Found Not Proved

65. For the same reasons as set out in relation to particular 5(ii) at paragraph 61 above, the Committee found particular 6(ii) of the allegation not proved.

Particular 7(ii) – Found Proved and Particular 7(iii) – Found Not Proved

66. In paragraph 30 of the affidavit, the Respondent stated that “…NAAL was registered as a Chartered RIBA practice with RIBA and ARB in March 2008. Since that date, I have practised successfully, in that neither I personally nor NAAL (nor, for the avoidance of doubt, the Company) have ever been the subject of a complaint, whether formally to a professional body or otherwise.”  The Committee noted that the Respondent accepted that this statement was misleading as NAAL had been the subject of a complaint to the ARB in 2017, which although resulted in a finding of no case to answer, led to the Respondent being issued advice.

67. The Committee noted that the Respondent’s explanation as to how this incorrect statement was included in the affidavit has changed over time. In his representations to the ARB dated 17 September 2020 he stated that the previous complaint had ‘slipped his mind’. Whereas, in his evidence to the Committee, the Respondent stated that he had not spotted the error in the paragraph that had been inserted by his solicitor who prepared it. 

68. In the Committee’s view, the Respondent’s evidence lacked credibility in this regard. The panel noted that the letter from the ARB to the Respondent informing him of the outcome of the complaint was dated 16 February 2017.

69. The Committee determined that at the time he signed the affidavit, the Respondent was aware of the misleading content of paragraph 30.

70. In these circumstances, the Committee carefully considered whether the Respondent’s actions were dishonest. The Committee bore in mind the nature of the document in which the inaccurate and misleading statement appeared. The affidavit was a formal, sworn document, provided to the High Court in support of the Respondent’s application for permission to act as a Company Director during his period of disqualification. In the Committee’s view, the document therefore related directly to the Respondent’s practice as an architect. The Committee had regard to the competing submissions made by both counsel in respect of this particular. Taking all of these matters into consideration, the Committee was not satisfied that the Respondent’s actions were dishonest. The Committee was, however, satisfied that his actions lacked integrity. In the Committee’s view, as a registered architect, the Respondent had a duty to correct the misleading statement at paragraph 30 of the affidavit.

71. The Committee therefore found particular 7(iii) of the allegation not proved but particular 7(ii) of the allegation proved.

Decision on UPC

72. Having found particulars 1(a)(i), 1(a)(ii), 1(a)(iii), 1(b)(i), 1(b)(ii), 1(b)(iii), 1(c), 1(d), 2(a), 2(b)(i), 2(b)(ii), 2(c), 3 (in-part), 4(i), 5(i), 6(i), 7(i) and 7(ii) of the allegation proved, the Committee went on to consider whether the Respondent’s conduct amounted to UPC.

73. The Committee heard submissions from Ms Sheridan and from Mr Grey.

74. The Committee accepted the advice of the Legally Qualified Chair. 

75. The Committee reminded itself that a finding of UPC is a matter for its own independent judgment having regard to any facts found proved. There is no burden or standard of proof.

76. The Committee noted that UPC is defined in section 14(1)(a) of the Architects Act 1997 as conduct which falls short of the standard required of an architect.

77. The Committee further noted that Misconduct, which is akin to UPC, was defined in the case of Roylance v GMC [2000] 1 AC 311 as: “a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances”.

78. In the Respondent’s case, the allegation relates to matters that occurred between 2016 and 2020. Therefore, the standards required to be followed by the Respondent are contained in The Architects Code: Standards of Conduct and Practice 2010 and in The Architects Code: Standards of Conduct and Practice 2017.

79. The Committee recognised that not every shortcoming on the part of an architect, nor failure to comply with the provisions of the Code, will necessarily 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.

80. The Committee had regard to the case of Spencer v General Osteopathic Council [2012] EWHC 3147 (Admin) and noted that for a finding of UPC to be made, “a degree of moral blameworthiness on the part of the registrant likely to convey a degree of opprobrium to the ordinary intelligent citizen” is required.

81. The Committee accepted that “mere negligence does not constitute misconduct” and that “a single negligent act or omission is less likely to cross the threshold of misconduct than multiple acts or omissions”. The Queen on the Application of Dr Malcolm Noel Calhaem v General Medical Council [2007] EWHC 2606 (Admin). 

82. The Committee also recognised that any failing must be serious. Vranicki v Architects Registration Board [2007] EWHC 506 (Admin).

83. In the Committee’s view, the Respondent’s conduct constituted a breach of the following Standards of the 2010 Code:Standard 1
    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.Standard 9
    Maintaining the reputation of architects

1. 1. 1. You should ensure that your professional finances are managed responsibly.

84. The Committee was also satisfied that the Respondent’s conduct constituted a breach of Standards 1.1 and 9.1 of the 2017 Code. The Committee noted that the wording of Standards 1.1 and 9.1 in the 2017 Code is identical to that in the 2010 Code.

85. The Committee considered the Respondent’s conduct in relation to his failure to register NAAL with HMRC to pay VAT to be a serious failing on his part. It resulted in a loss to HMRC of at least £56,716.44. The Committee noted that the national system of taxation exists to provide an income stream to the Exchequer. The Respondent, by his conduct deprived the Exchequer of that income. The Committee noted that the Respondent’s poor decision making in this regard and his failure to manage his finances responsibly led to the liquidation of NAAL. In the Committee’s view this exposed NAAL’s existing clients and projects to risk.

86. The Committee noted that another consequence of the Respondent’s failings was that he was disqualified from acting as a Company Director and was only permitted by the High Court to continue to act as a Company Director subject to conditions.

87. In the Committee’s view, the Respondent’s conduct has damaged public confidence and brought the architects’ profession into disrepute.

88. The Committee noted that by failing to register for VAT when required to do so, and then continuing to trade, the Respondent may have gained an unfair commercial advantage compared to other architects who were required to charge clients VAT on their professional fees. 

89. The Committee took into account its findings in relation to the Respondent’s lack of integrity in relation to his failure to register for VAT. In the Committee’s view, integrity is a core tenet of the profession. Both versions of the Code make clear that it underpins the other Standards contained in the Code. In the Committee’s view, the Respondent’s conduct was a significant falling short of the standards required of an architect.

90. The Committee considered that another member of the profession would regard the Respondent’s failure to act with integrity and manage his financial affairs responsibly in accordance with Standard 9.1 of the Code as deplorable.

91. The Committee was therefore satisfied that the Respondent’s conduct as found proved in particulars 1 and 3 of the allegation amounted to UPC.

92. The Committee next considered the Respondent’s conduct in respect of his affidavit dated 10 June 2020. The Committee noted that this affidavit was a formal legal document that formed a key part in the Respondent’s application to the High Court for permission to continue to act as a Company Director during the period of his disqualification. In these circumstances, the Committee considered that the creation of the affidavit related directly to the Respondent’s profession.

93. The Committee was satisfied that it was the Respondent’s responsibility to ensure the accuracy of the content of the affidavit, notwithstanding the difficult circumstances that existed at the time it was created. However, having regard to its findings of fact in relation to particulars 4, 5 and 6 of the allegation, the Committee considered that the misleading statements in the affidavit contained in particulars 2(a), 2(b)(i) and 2(b)(ii) of the allegation were not intentional. Taking this into account, the Committee was not satisfied that these particulars either individually or cumulatively, amounted to UPC.

94. The Committee was of the view that having regard to its finding in respect of particular 7(ii) of the allegation, the misleading statement in the affidavit contained in particular 2(c) of the allegation fell into a different category. The Committee has found that in relation to this particular, the Respondent’s conduct lacked integrity. In the Committee’s view this is a serious matter. Furthermore, the Committee considered that courts, other professionals and the wider public are entitled to expect an architect to act with integrity in their professional life and to not provide misleading statements in a formal document such as an affidavit provided to the High Court. The Committee was therefore satisfied that the Respondent’s conduct fell far short of the standard expected of an architect.

95. For the reasons set out above, the Committee found the Respondent guilty of UPC.

Decision on Sanction 

96. Having found the Respondent guilty of UPC, the Committee considered whether to impose a sanction, and if so, which one.

97. The Committee heard submissions from Ms Sheridan and from Mr Grey.

98. In addition, the Committee was provided with:

• The Respondent’s 12-page reflective statement dated 28 July 2022; and
• A 100-page bundle of exhibits produced by the Respondent in his reflective statement.

99. In reaching its decision, the Committee had regard to the Sanctions Guidance (2022) published by the ARB and accepted the advice of the Legally Qualified Chair. The Committee has exercised its own independent judgement.

100. The Committee reminded itself that the primary purpose of sanctions is to protect members of the public, to maintain the integrity of the profession, and to declare and uphold proper standards of conduct and competence. 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 and the need to act proportionately.

101. The Committee noted that the Act does not require the Committee to impose a sanction in every case where a guilty finding is reached. If it decides to impose a sanction, then the sanctions available to the Committee are:

• Reprimand;
• Penalty order;
• Suspension (for a maximum of two years); and
• Erasure

102. In accordance with the Sanctions Guidance, the Committee first considered the seriousness of the case. 

103. The Committee identified the following aggravating factors:

• The Respondent by his conduct exposed NAAL’s clients and members of staff to the risk harm.
• The Respondent’s conduct involving a lack of integrity, included two separate situations and occurred within a period of four years.
• The Respondent has a previous finding of UPC against him in 2007 relating to a failure to obtain run-off insurance prior to the formation of NAAL. This resulted in the imposition of a financial penalty of £750. In addition, the ARB found that there was no case to answer in relation to a complaint made in 2017, however, it issued the Respondent with advice as to his future conduct. 

104. The Committee identified the following mitigating factors:

• The Respondent has expressed clear and genuine remorse.
• The Respondent has demonstrated that he has developed a good level of insight into his failings.
• The difficult circumstances that existed at the time when the Respondent prepared his affidavit dated 10 June 2016. These included the first national lockdown arising as a result of the coronavirus pandemic and his personal and family circumstances.
• The Respondent has taken significant steps to remediate his failings in relation to VAT matters. Furthermore, the Respondent has demonstrated that he has managed the finances of Alpha Architects Ltd responsibly over the last four years. The Committee noted that it is always difficult for a Respondent to demonstrate remediation in relation to concerns involving a lack of integrity. However, in this case the Respondent has produced evidence of his reflection on his past conduct and the Committee noted that there have been no further concerns raised about his integrity since these matters occurred.
• The Respondent notified the ARB of the facts giving rise to the disciplinary proceedings and has fully cooperated with the ARB’s investigation.
• The Respondent made a number of admissions at an early stage.
• The Respondent has provided a significant number of very positive testimonials and character references.

105. In the Committee’s view, any finding of UPC involving a lack of integrity is very serious for the reasons previously given within this determination. Having regard to the specific aggravating and mitigating factors present in this case, the Committee therefore considered that the Respondent’s UPC was not at the lower end of the spectrum. 

106. However, the Committee was satisfied that the Respondent has provided good evidence of remediation in the form of recent CPD and relevant training addressing the concerns in relation to VAT matters. The Committee noted that this included attending a VAT course (12-13 April 2021) called ‘The Essentials of UK VAT’ and a further ‘top-up’ VAT course (10 Feb 2022). The Committee also noted that the Respondent’s most recent record of CPD activity included 5 completed hours in relation to “Legal, regulatory and statutory compliance” alongside 16 completed hours on “Business, clients and services” (2022). This provided reassurance to the Committee that the risk of repetition was low in relation to concerns regarding the management of his professional finances.

107. The committee further noted the Respondent’s completion of the RIBA training in “The business of architecture; exploring ethics in practice” in June 2021. It considered that this addressed in part some of the concerns about the Respondent’s integrity and showed he had taken positive steps towards addressing these.

108. The Committee took into account the overwhelmingly positive testimonials from fellow professionals in the building industry, in which the Respondent is described as “an extremely honest person with integrity….an exceptional architect”; “honest and professional” and “very transparent in…dealings and interactions”.

109. The Respondent also provided a significant number of positive reviews of his work and the Committee noted that he has been described by his clients as “a visionary architect”; “a master in his field” and a “consummate professional”.

110. The Committee considered that these testimonials and references indicated that the Respondent’s identified failings in terms of financial management did not extend across the full range of his practice as an architect.

111. The Committee also noted that the Respondent has demonstrated a commendable engagement with a number of local schools in providing talks, reviewing students design work and career advice in respect of the role of an architect and to attempt to dispel the view that ‘architecture is elitist or not for them’. Furthermore, the Respondent has since completed a RIBA Architecture Ambassador Course (completed on 27 April 2022) which allows him to continue his architectural teaching and advice to schools with the benefit of support of the RIBA. Given the Respondent’s less traditional route into architecture his own journey will hopefully be an inspiration for the architects of the future.

112. Taking all of the above matters into account, the Committee concluded that there was a low risk of the Respondent repeating his failings in relation to the management of his professional finances. The Committee was also persuaded that the Respondent’s evidence that he now ‘double’ and ‘triple’ checks the accuracy of any documents before they are sent out, was genuine.

113. The Committee was satisfied that in this case, the Respondent’s appearance before the PCC has been a salutary experience and therefore, it is unlikely that the Respondent will act without integrity in the future.

114. The Committee therefore found that the risk of repetition of the conduct leading to the finding of UPC in this case was low. In these circumstances, the Committee considered that a sanction was not required on the grounds of public protection.

115. As the Committee has previously observed, integrity is a core tenet of the profession and underpins all of the Standards in the Code. The Respondent’s conduct has damaged public confidence and brought the profession into disrepute. The Committee therefore determined that it should consider whether or not to impose a sanction to uphold public confidence in the profession, and to declare and uphold proper standards of conduct and competence.

116. The Committee recognised that it is not necessary to impose a sanction in every case where there has been a finding of UPC. However, in the Committee’s view, the UPC in this case is too serious for it to impose no sanction. 

117. Having determined that it is necessary to impose a sanction, the Committee considered each available sanction in ascending order of severity.

118. The Committee first considered whether to impose a reprimand. The Committee noted that a reprimand is the least severe sanction that can be applied. It may be used in relation to cases which fall at the lower end of the scale of seriousness, and where it would be appropriate to mark the conduct of an architect as being unacceptable. Having regard to the facts of this case, the Committee concluded that a reprimand would not be sufficient to maintain confidence in the reputation of the profession or to declare and uphold proper standards of conduct.

119. The Committee therefore went on to consider the imposition of a penalty order. The Committee had regard to the list of factors identified in the Sanctions Guidance as to when this may be an appropriate sanction and noted that this sanction may be considered where the offence is too serious to warrant a reprimand.

120. The Committee decided that in the particular circumstances of this case, a penalty order was the necessary and appropriate sanction. In reaching this decision, the Committee took into account its previous finding that the risk of repetition of the UPC in this case was low and that therefore the main purpose of the sanction was not to protect the public but to maintain public confidence in the profession and to declare and uphold proper standards of conduct. The Committee was satisfied that a penalty order would meet those public interest requirements. The Committee was also satisfied that a finding of UPC by this Committee and a penalty order would be the proportionate sanction in this case.

121. The Committee noted that its powers are limited to fines of up to level 4 on the standard scale of fines for summary offences, currently set at £2,500. The Committee had regard to the submissions made by Mr Grey that the Respondent was in a position financially to pay a penalty order if imposed by the Committee. In these circumstances, the Committee was satisfied that given the seriousness of this case, it would be appropriate and proportionate to impose a penalty order for the maximum amount permitted.

122. In reaching this decision, the Committee gave very careful consideration to the imposition of a suspension order. However, in light of the extensive mitigation available to the Respondent, including his admissions, his insight, his genuine remorse, the steps he has taken to remediate his practice, and the compelling evidence contained in the testimonials, the Committee was persuaded that it would be disproportionate to impose a suspension order in his case. 

Sanction

123. The Committee therefore imposes a penalty order in the sum of £2,500. This must be paid within 28 days. 

124. That concludes this determination.