Mr Paul Gerard O’Kane

 

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

PAUL GERARD O’KANE (051759C)

Held remotely on

12 to 15 June 2023

———-

Present:

 Sadia Zouq (Chair)

 David Kann (PCC Architect Member)

Martin Pike (PCC Lay Member)

———–

The Architects Registration Board (“the ARB”) was represented by Ms Kathryn Sheridan of Kingsley Napley LLP (“the Presenter”).

Mr Paul Gerard O’Kane (“the Registered Person”) did not attend the hearing and was not legally represented.

 

Allegations

1. Mr Paul Gerard O’Kane (“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 (as amended):

(1) The Registered Person issued a Professional Consultants Certificate dated 26 May 2014 stating that he had inspected the property from commencement of the construction to completion, when in fact:

(a) He did not ever inspect the property; or

(b) He first inspected the property upon completion in 2009.

(2) The Registered Person issued a Professional Consultants Certificate dated 18 November 2016 stating that he had inspected the property from commencement of the construction to completion, when in fact:

(a) He did not ever inspect the property; or

(b) He first inspected the property upon completion in 2009.

(3) The Registered Person’s actions at particular 1 (a) or 1 (b) and/or 2(a) or 2(b):

(a) Were misleading; and/or

(b) Lacked integrity; and/or

(c) Were dishonest.

 

2. This case arises out of a complaint made by Mrs Lucy Burns (“the Referrer”), in respect of the professional services carried out by the Registered Person in relation to her property (“the Property”).

 

Preliminary Applications

Non-appearance by the Registered Person: Proceeding in Absence

3. The Registered Person was neither present nor represented at the hearing. The Committee had regard to the Notice of Hearing documentation sent to the Registered Person on 24 April 2023 by post and by email. The Committee heard and accepted the advice of the Legally Qualified Chair (“the Chair”) who referred to section 24 of the Architects Act 1997 (“The Act”) and Rules 7 to 9 of the Professional Conduct Committee Rules 2022 (“the Rules”). The Committee considered that notice and supporting documentation were successfully sent to the Registered Person on 24 April 2023 at an email address the Registered Person had been using to correspond with ARB since 2021. The Committee calculated that email notice was sent 49 days before the date of the hearing. It noted that the Act did not specify a method of service. Where the Registered Person had provided an email address for entry in the Register, service of the Notice of Hearing via such an email address was valid service. The Committee noted that the email had not been returned as undelivered. In all the circumstances the Committee was satisfied that notice had been served in accordance with the Act and Rules and the Registered Person had been given an adequate opportunity to appear before the Committee.
4. The Presenter applied to proceed in the absence of the Registered Person. She submitted that it was fair to proceed in all the circumstances and referred to the Registered Person’s last engagement with ARB when this hearing was scheduled to proceed on 26 to 28 October 2022. She submitted that the matters were serious and there was a clear public interest in the timely disposal of matters. The Referrer and Inquirer were in attendance and ready to give evidence. The Presenter submitted that any disadvantage to the Registered Person in proceeding should be balanced with the public interest in the expeditious disposal of allegations. Further, any disadvantage would be mitigated by ARB’s evidence being tested by questions asked in evidence in chief and questions from the Committee. In all of the circumstances the Presenter submitted that the Registered Person had decided to voluntarily absent himself from the hearing and therefore the Committee should proceed in his absence.
5. The Committee considered whether to proceed in the absence of the Registered Person pursuant to Rule 18. The Committee accepted the advice of the Chair and had regard to the relevant factors as outlined in the case of R v Hayward, Jones and Purvis in the Court of Appeal [2001] EWCA Crim 168 and approved in the House of Lords, and the case of GMC v Adeogba and Visvardis [2016] EWCA Civ 162. The Committee also had regard to the guidance note on adjournments prepared by ARB.
6. The Committee exercised great care and caution in coming to its decision and carefully considered the overall fairness of the proceedings. The Committee was satisfied that the Registered Person had been properly served with the required notice of this hearing. The Committee had regard to the Proceeding in Absence bundle prepared by ARB. It noted that a hearing had been listed for 26 to 28 October 2022. That hearing was adjourned by the PCC to allow ARB time to review the allegation in the light of further comments of the Inquirer, and to allow the Registered Person an opportunity to assess the new information. The Registered Person had informed ARB by email on 28 August 2022 and 24 October 2022 that he would not be attending the October 2022 hearing. Specifically, the Registered Person told ARB’s solicitors that he considered himself as a retired architect, and that he had no interest in being a member of ARB and no wish to defend himself if “that involves a long drawn out meeting or series of meetings”. In his email of 24 October 2022, the Registered Person stated, “I have no further interest in this hearing and so will not be attending”. This email was the Registered Person’s final communication with ARB. The Registered Person has not responded to any communication from ARB in relation to this hearing. The Committee noted the Registered Person did not attend the Case Management Meeting on 21 April 2023.
7. Having considered the above, the Committee concluded that the Registered Person had chosen to voluntarily absent himself from the hearing and there was no realistic prospect that he would attend any adjourned hearing. There were two witnesses ready to give evidence and any delay or adjournment would be inconvenient and possibly have an effect on their recollection of events.
8. The Registered Person has not requested an adjournment and there is no reason to suppose he will engage at any future hearing. Although there may be some disadvantage to the Registered Person if he is unable to present his case in person, he has been made aware and nevertheless chosen not to attend. The allegations against the Registered Person are serious and the Committee determined it is in the public interest that they are dealt with expeditiously, and so it decided to proceed in his absence.

 

Amendment to the allegation

9. The Presenter sought to amend the stem of Particular 3 of the allegation to remove the word “and” in “Particulars 1(a) and/or 1(b)” and “2(a) and/or 2(b)”. She submitted that the amendment was sought to ensure consistency with the sub-particulars of Particulars 1 and 2 which are drafted in alternatives. The Presenter further submitted that the proposed amendment did not affect the nature or gravity of the allegation against the Registered Person and would cause no unfairness to him.
10. The Committee heard and accepted the advice of the Chair who referred it to Rule 26 which provides:

“Where it appears to the Hearing Panel at any time during the hearing, either upon the application of the Case Presenter or the Registered Person, or of its own volition, that

(a) the particulars of the Charge or the grounds upon which it is based, and which have been notified under Rule 9, should be amended; and

(b) the amendment can be made without injustice,

it may, after hearing from the Case Presenter and Registered Person, and taking legal advice, amend those particulars or those grounds in appropriate terms.”

11. The Committee was satisfied that the proposed amendment would cause no unfairness or prejudice to the Registered Person and was consistent with how the sub-particulars are alleged for Particulars 1 and 2, which were drafted in alternatives. It therefore granted the application to amend Particular 3 in the terms sought, namely:

(3) The Registered Person’s actions at particular 1 (a) and/or 1 (b) and/or 2(a) and/or 2(b):

(a) Were misleading; and/or

(b) Lacked integrity; and/or

(c) Were dishonest.

 

Background

12. The Registered Person registered with ARB on 1 January 1985. The Registered Person is an architect and practices on a self- employed basis for his company Paul O’Kane Architects in County Down, Northern Ireland.
13. On 13 April 2021 ARB received a complaint from the Referrer concerning the issue of two Professional Consultant’s Certificates (“PCC’s”) in respect of her property (“the Property”).
14. The Referrer and her husband bought the property from Mr OC in 2016 who was a builder and had built the house for his own occupation. The building works were completed on 1 August 2009 under the direction of Mr CT, an architect, who died in 2019. Building Control had issued a Building Regulations Completion Certificate on 30 July 2009, and the Registered Person issued a Certificate of Practical Completion on 1 August 2009. As part of the pre-sale enquiries, the Referrer was provided with two PCCs signed by the Registered Person dated 26 May 2014 and 18 November 2016.
15. In both PCCs, the Registered Person certified that he had visited the Property at appropriate periods from commencement of the construction through to completion to check generally (a) progress and (b) conformity drawings approved under the building regulations and (c) conformity with drawings/instructions properly issued under the building contract. He certified that at the stage of his last inspection on 1 August 2009, the Property had reached the stage of completion. He further confirmed that, so far as could be determined by each periodic inspection, the Property had been constructed (a) to a satisfactory standard; and (b) in general compliance with the drawings approved under the building regulations. The PCCs state the Registered Person will remain liable for a period of 10 years from the date of the certificate, and that such liability shall be to the first purchasers and to subsequent purchasers.
16. Contracts were exchanged on 25 November 2016 and the sale was completed on 8 December 2016. The Referrer’s evidence is that she placed reliance on the contents of the PCC dated 18 November 2016 when entering into the contract to purchase the Property.
17. The Referrer experienced issues with the cracking of an external wall and movement of an external staircase. In September 2020, the Referrer commissioned a structural report that advised cracking was visible between the external stair leading to the room over the garage and the garage external wall ranging in width from approximately 10mm at the base of the stair to approximately 30mm at the first-floor landing. The report also noted a “liner wall” constructed below the stair, off the gable foundation, appeared to have been poorly tied to the gable wall and was pulling away. The report advised that the stairs be demolished and re-built with an adequate foundation. The report also noted the lack of galvanised rafter and ceiling joist restraints.
18. On 3 and 24 November 2020, the Referrer contacted the Registered Person to notify him that she wished to make a claim on his indemnity insurance under the terms of the PCCs as the work had not been completed to a satisfactory standard.
19. The Registered Person responded on 26 November 2020 requesting photographs and the Referrer’s written consent for Building Control to release the approved drawings so that he could review it on a without prejudice basis. A site visit took place on 8 December 2020. During that visit, it is the Referrer’s evidence that the Registered Person commented to her that he had no recollection of the external staircase being present on his last visit which aroused her suspicion as to whether he had ever visited the property prior to certifying the PCCs.
20. Following the site visit, on 17 February 2021, the Registered Person wrote to the Referrer stating he was not responsible for the issues at the Property, and that at his previous inspection in 2016 no defects were visible. He further stated that the works were carried out according to Building Control standards, that Building Control inspected the works and issued a Completion Certificate for the same. The Referrer responded expressing her disappointment and requested disclosure of all records, correspondence and photographs which would evidence the Registered Person visiting the Property throughout its construction. The Registered Person did not provide the requested disclosure. The Referrer served a Letter of Claim on 19 February 2021, following which the Registered Person replied on 12 March 2021 with an offer to carry out remedial works, without any admission of liability. This was rejected by the Referrer on 15 March 2021. The Registered Person replied on 31 March 2021 notifying the Referrer he had made his position clear, he did not agree with the Referrer’s allegations and had nothing more to add.
21. On 6 April 2021, the Referrer served her complaint on the Registered Person outlining her concern that the Property may not have been inspected by a suitably qualified professional during its construction, contrary to what she was led to believe by the PCCs. On 13 April 2021, the Referrer submitted a complaint to ARB. In her oral evidence the Referrer said that the problem with the external staircase had not yet been resolved.

 

Evidence

22. In reaching its decisions on facts and UPC, the Committee carefully considered the following documentary evidence:

• The Report of ARB’s Solicitor dated 24 April 2023
• The Referrer’s witness statement dated 10 February 2022;
• Mr Cameron Dryhurst Coates witness statement dated 11 August 2022;
• Ms Sarah Atkinson’s witness statement dated 15 August 2022;
• Ms Carol Norton, Inquirer, Reports dated 31 January 2023 and 17 March 2023 and Appendices;
• Exhibits 1 to 33 in ARB’s bundle;
• Email correspondence between ARB and the Registered Person dated between May 2022 and August 2022 (Exhibit 34);
• The Registered Person’s responses to ARB dated 7 and 21 July 2021, 20 August 2021, and 27 November 2021;
• Reports of Christopher Beaver, Inquirer, dated 7 April 2021 and 20 July 2022;
• Correspondence between Mr Beaver and Kingsley Napley LLP;
• Correspondence between Mr Beaver and the Registered Person.

 

23. The Committee also heard live evidence from the Referrer and the Inquirer, Ms Carol Norton. The ARB did not seek to rely on any of the written evidence provided by the Inquirer, Mr Beaver.

 

Legal Advice

24. The Committee accepted the legal advice given by the Chair which is a matter of record. The Chair reminded the Committee that the onus of proof was on ARB and that the standard of proof was the civil standard of the balance of probabilities. In determining the facts, the Committee will consider the evidence in the round and is entitled to draw reasonable inferences from established facts but should not speculate. The Committee will have regard to the guidance published by ARB and to the content of the Architects Code: Standards of Professional Conduct and Practice 2010 (“the Code”).
25. If the Committee finds some or all of the factual particulars proved, it will need to consider UPC. UPC is a matter for the Committee’s independent judgment to which no burden or standard of proof applies. UPC is defined as conduct which falls seriously short of the standard required of a registered person. In reaching its findings on UPC, the Committee recognises that not every shortcoming on the part of an architect, nor failure to comply with the provisions of the Code, necessarily amounts to UPC. However, a failure to follow the guidance of the Code is a factor that could be taken into account should it be necessary to examine the conduct or competence of an architect. Architects are expected to be guided by the spirit of the Code as well as its express terms. The Committee was advised to have regard to the decisions in Ivey v Genting Casinos (UK) Ltd (trading as Crockfords Club) [2018] AC. 391 and R v Barton and another [2021] QB 685 as regards the allegation of dishonesty and to Solicitors Regulation Authority v Wingate and another; Malins v Solicitors Regulation Authority [2918] 1 WLR 3969 and Beckwith v SRA [2020] EWHC 3231 (Admin) as regards the allegation of integrity. The Committee should also take into account the good character of the Registered Person.

 

Decision on Facts

26. In reaching its decision, the Committee carefully considered the live evidence of the Referrer and Ms Norton, together with the documents set out at paragraph 22 above. It considered the submissions made by the Presenter on behalf of the ARB and the written representations of the Registered Person.
27. The following Standards from ARB’s Code of Conduct from 2010 apply to the particulars of allegation:

• Standard 1.1
• Standard 1.2

28. Standard 1 of the Code is headed “Honesty and Integrity”. Standard 1.1 expects an architect to act with honesty and integrity at all times and to avoid any actions or situations which are inconsistent with their professional obligations. Standard 1.2 states that an architect should not make any statement which is contrary to their professional opinion or which they know to be misleading, unfair to others or discreditable to the profession.
29. The Committee accepted Ms Norton’s evidence that a Professional Consultant’s Certificate was a formal document certifying that a property has been completed satisfactorily, reviewed and signed off by a Professional Consultant, in this case an architect. A PCC shows a purchaser and lender that a property was built in accordance with drawings and instructions approved in the building contract. It therefore gives comfort to the lender and purchaser that if there are any problems with a new property and the original contractor/developer is no longer trading, financial redress can be made by making a claim against the professional consultant, who should have professional indemnity insurance in place for the lifetime of the certificate. A PCC is distinct from a Practical Completion Certificate which confirms that the building is practically complete and ready to occupy. A Final Certificate is then issued to draw all outstanding contractual matters to a close which includes remedying any defects.
30. The Committee made the following findings of fact.

 

Particular 1

1. The Registered Person issued a Professional Consultants Certificate dated 26 May 2014 stating that he had inspected the property from commencement of the construction to completion, when in fact:

(a) He did not ever inspect the property; or

(b)  He first inspected the property upon completion in 2009.

31. The Committee was provided with a copy of the PCC signed by the Registered Person on 26 May 2014 (“2014 PCC”). The Committee first considered whether the Registered Person issued the 2014 PCC.  In his email of 7 July 2021 to ARB, the Registered Person stated he “first inspected the Property upon its completion in 2009 and then again prior to issuing a Final Cert. in 2014”. The Committee was of the view it could rely upon the contents of the Registered Person’s email, as it was his considered response to ARB correspondence dated 24 June 2021 during the investigation stage.
32. The 2014 PCC certificate signed by the Registered Person confirmed that he visited the Property at “appropriate periods from commencement of the construction to the current stage to check generally (a) progress and (b) conformity drawings approved under the building regulations and (c) conformity with drawings/instructions properly issued under the building contract.” He further certified that the Property had been constructed to a satisfactory standard. The Committee was therefore satisfied that the Registered Person issued the 2014 PCC as described in the stem of Particular 1.
33. The Committee noted sub-particulars 1(a) and 1(b) were pleaded in the alternative: either the Registered Person issued the PCC without ever inspecting the Property, or, contrary to the terms within the PCC, he first inspected the Property upon its completion in 2009. The Committee considered each sub-particular.

 

Particular 1(a) – not proved.

34. In relation to sub-particular 1(a) the Committee considered the Referrer’s evidence in which she stated that during the site inspection of 8 December 2020, she had a conversation with the Registered Person. She made a contemporaneous statement the day after the site visit of the conversation, in which she noted:

“He (Registered Person) said that he didn’t think that the drain went under the stairs, but it would be useful to see. He then said that this staircase appeared to be an afterthought. He told me that he couldn’t remember it being there when he visited last. He then shook his head and then said it must have been. I told him that the staircase was originally an internal one on the planning permission plans and that, at some point and for a reason I wasn’t aware of, the plans changed to place an external staircase on the gable wall of the garage.”

“I am 100% sure that Mr O’Kane told me he didn’t recall the stairs being in place when he last visited. I thought about it later and found it a surprising thing to say. There was no other access to the room above the garage as there is no evidence the internal staircase was ever constructed. Therefore, if he was inspecting the house to establish it had been constructed satisfactorily, I couldn’t imagine him not knowing the external staircase was present as he would need to have used it to access the room above the garage. He seemed unaware of the point in the build when the staircase was constructed and therefore could not have seen or inspected the foundations for it. Had he done so, I would assume he would remember this or at least have kept some record of his inspections to refresh his memory.”

 

35. In oral evidence the Referrer said that the Registered Person’s comment about the staircase stayed with her because it was an odd comment to make when, according to the Building Control records, the foundation and drains were in before the plans submitted to change the location of the staircase. If the Registered Person was inspecting the Property, the Referrer assumed there would have been discussions about the change. The Referrer’s suspicions were further raised when the Registered Person made no comment about undertaking any inspections during the site visit and he failed to provide the Referrer with records and documentation to evidence any inspections. Requests for records and documentation were also made by ARB’s solicitors, to which the Registered Person told ARB in an email dated 21 July 2021 “About 2 years ago all my records were lost in a major computer and backup disc malfunction…I have no memory of the detail of my site inspections of 2009 or 2014. Any records would have been digital and lost…”.
36. The Committee noted the Registered Person signed the PCC in 2014, 5 years after completion. No adequate explanation was provided by the Registered Person regarding this delay. In his email of 29 June 2022 to ARB, the Registered Person stated that he was asked by the builder of the Property to sign-off on the Property in 2014 but he was not happy to do so.

 

“I surveyed the completed building and declined to offer an Architect Final Certificate. The builder owner/contractor was not pleased.  So we agreed on a compromise. I agreed to write a ‘Completion’ certificate in the hope that this would satisfy his Building Society and allow final monies to be released. This wording did indeed satisfy his Building Society. His final draw was released. But the same ‘Completion’ wording was intended as a red flag to any future house sale conveyancing solicitor who would then contact me asking for a proper final cert.  By that stage, sometime in the future, any latent defects would be manifest. I could then decide whether to sign off or not.” 

 

37. In her oral evidence, Ms Norton said that in her view the Referrer stating on the PCC that the property had reached “completion” stage was not an obvious “red flag” and did not render the PCC meaningless.  In the Committee’s view, the Registered Person’s description of the PCCs as “meaningless” showed his careless disregard of what the PCCs meant for future purchasers and lenders when he himself had not certified the PCCs with proper care and accuracy.
38. The Committee considered Ms Norton’s answer to the question whether it is ever acceptable to retrospectively date a PCC and whether any steps are required to note the certificate as being retrospectively dated. Ms Norton stated that it is possible to retrospectively date a PCC certificate as it is not linked to a specific contractual event. As the PCC clearly indicated the date of the last inspection and the date of the certificate, no additional steps were required by the Registered Person. However, in Ms Norton’s view signing a PCC 5 years after inspection in 2014 was very unusual as defects may have occurred in the intervening years that the Registered Person was not aware of and therefore, he exposed himself to unnecessary liability. The Committee noted that by signing the PCC in 2014, the Registered Person extended his liability by a further 5 years.
39. The Committee carefully considered whether the Registered Person did not ever inspect the Property. The evidence of ARB to prove sub-particular 1(a) largely rests on inferences being drawn from the conversation between the Referrer and the Registered Person during the site visit of 8 December 2020 and the absence of records and documentation from the Registered Person. The Registered Person stated that his records and documents were held digitally and subsequently lost as a result of a computer malfunction. The Committee had no evidence to disprove that. The Committee recalled that it was entitled to draw reasonable inferences from established facts, but that it was not to speculate. In the Committee’s view it was not reasonable to draw an inference from the conversation between the Referrer and Registered Person that the Registered Person did not ever inspect the Property. Accordingly, ARB had not discharged the burden of proof in relation to this sub-particular and the Committee did not find Particular 1(a) proved.

 

Particular 1(b) – proved.

40. The Committee had regard to the PCC and the Certificate of Practical Completion dated 1 August 2009, also signed by the Registered Person. In his email of 7 July 2021, the Registered Person said that he first inspected the Property upon its completion in 2009 and then again prior to issuing a Final Certificate in 2014. He has no memory of the detail of his site inspections of 2009 or 2014 and any records would have been digital and lost due to the computer malfunction. The Committee placed reliance on the Registered Person’s email and was satisfied that he only inspected the Property for the first time upon its completion in 2009. The Registered Person has not provided an explanation why he certified that he had carried out inspections from commencement of the works, and why he had certified the property had been constructed to a satisfactory standard and in compliance with drawings approved under the building regulations. There was no evidence before the Committee that the Registered Person inspected the property before its completion in 2009. Accordingly, the Committee finds Particular 1(b) proved.

 

Particular 2

(2) The Registered Person issued a Professional Consultants Certificate dated 18 November 2016 stating that he had inspected the property from commencement of the construction to completion, when in fact:

 (a) he did not ever inspect the property; or

(b)  he  first inspected the property upon completion in 2009.

41. The Committee was provided with a copy of the PCC signed by the Registered Person on 18 November 2016 (“2016 PCC”). It first considered whether the Registered Person issued the 2016 PCC.
42. In his email of 21 July 2021, the Registered Person stated that he did not recall issuing the 2016 PCC and suspected that Mr OC delayed selling the Property from 2014 to 2016 at which point an updated certificate may have been requested.
43. In his email of 9 August 2022, the Registered Person stated he understood ARB to be referring to the “two ‘Completion Certs. that I issued. The first on the 26/5/14 and the second on the 18/11/2016.” He goes onto say that:

“the purchaser did not ask me to amend the 18/11/16 Cert wording. Instead (as I recall) the purchaser’s solicitor asked that its date be updated. I was happy to do that and reissued it on 18/11/2016 knowing that it bore me no liability. The purchaser and their solicitor accepted the ‘Completion’ cert as an Architect’s Final Cert. That was their mistake and has led us to the present impasse. In short, I have not issued a Practical Completion Cert. (or an Architect’s Final Cert.) for the building.”

44. When ARB’s solicitors asked the Registered Person whether the Practical Completion Certificate he was referring to was the certificate he had sent to ARB (and which the Committee had sight of), the Registered Person replied that he could not recall writing the certificate which was signed by him, but that he “obviously wrote the certificate on 1 August 2009”, and “so as you can see, I am confused myself.”
45. The Committee had regard to the 2016 PCC and the Registered Person’s representations as set out above in which he refers to his confusion regarding the various certificates. In the Committee’s view the Registered Person was referring to updating the 2014 PCC by amending its date to 18 November 2016, signing, and issuing the same.
46. The 2016 PCC certificate signed by the Registered Person confirmed that he visited the Property at “appropriate periods from commencement of the construction to the current stage to check generally (a) progress and (b) conformity drawings approved under the building regulations and (c) conformity with drawings/instructions properly issued under the building contract.” He further certified that the Property had been constructed to a satisfactory standard. The Committee was therefore satisfied that the Registered Person issued the 2016 PCC as described in the stem of Particular 2.
47. As with Particular 1, sub-particulars 2(a) and 2(b) are pleaded in the alternative: either the Registered Person issued the 2016 PCC without ever inspecting the Property, or, contrary to the terms within the PCC, he first inspected the Property upon its completion in 2009.

 

Particular 2(a) – not proved.

48. The Registered Person told ARB that the first time he inspected the Property was in 2009, and again in 2014. The Committee relies on the same reasoning in relation to Particular 2(a) as it did in relation to Particular 1(a) set out above. The Committee therefore concluded that it could not be satisfied on the balance of probabilities that the Registered Person did not ever inspect the Property. Accordingly, Particular 2(a) was not proved.

 

Particular 2(b) – proved.

49. The Committee relies on the same reasoning in relation to Particular 2(b) as it did in relation to Particular 1(b) set out above. The Registered Person has not provided a satisfactory explanation or justification for the further issue of another PCC in 2016. The Registered Person has also not provided an explanation why he certified on 18 November 2016 that he had carried out inspections from commencement of the works, and why he had certified the property had been constructed to a satisfactory standard and in compliance with drawings approved under the building regulations. Accordingly, the Committee finds Particular 2(b) proved.

 

Particular 3

(3) The Registered Person’s actions at particular 1 (a) or 1 (b) and/or 2 (a) or 2(b):

(a) Were misleading; and/or

(b) Lacked integrity; and/or

(c) Were dishonest.

50. Having found Particulars 1(b) and 2(b) proved, the Committee went on to consider whether the Registered Person’s conduct at Particulars 1(b) and 2(b) was misleading, and/or lacked integrity, and/or was dishonest.

 

Misleading

51. The Committee was of the view that having regard to its findings at 1(b) and 2(b), in respect of Particular 3(a) of the allegation, the Registered Person had misled the Referrer and lender by certifying two PCCs which confirmed he had inspected works at the Property from commencement through to completion and that during each periodic visual inspection the Property had been constructed to a satisfactory standard and was in general compliance with drawings approved under the building regulations. The Referrer stated that she understood that she could rely on the 2014 PCC for a period of 10 years (until May 2024) and, having been reassured by her solicitor of this, did not arrange a Home Buyers Survey. Upon receiving the 2016 PCC, the Referrer noted again that it was signed by the Registered Person. The Referrer was advised that she had obtained an extra two and a half years on the liability to November 2026. The Referrer proceeded with the purchase and exchanged contracts in November 2016. The Registered Person knew he had not inspected the Property until 2009. As a registered architect he had a duty to correct the misleading information. Instead, he certified two PCCs containing misleading information and knowingly misled the Referrer and lender. His description of the PCCs as “meaningless” showed his disregard for their contents and their importance to future purchasers and lenders. Accordingly, the Committee found the Registered Person’s actions at 1(b) and 2(b) misleading. Standard 1.2 of the Architects Code 2010 states that an architect should not make any statement which they know to be misleading. The Registered Person breached this standard in relation to Particulars 1(b) and 2(b).

 

Lack of integrity

52. In considering the issue of integrity the Committee accepted the legal advice that integrity entails maintaining the higher standards which society expects from professional persons and which professionals expect from their own members in the light of the way in which the profession professes to serve the public. The Committee was firmly of the view that the Registered Person’s conduct as found proved under Particulars 1(b) and 2(b) lacked integrity for the following reasons. By signing the PCCs, the Registered Person stated he had inspected the Property during construction through to completion, when he himself stated his first inspection was in 2009 at completion. He further stated that during each periodic visual inspection the Property had been constructed to a satisfactory standard and was in general compliance with drawings approved under the building regulations, when this was also not true. As a professional architect registered with ARB it was important that the Registered Person satisfy himself that the conditions he was certifying had been met. He did not, and he described the PCCs as “meaningless”. By issuing the PCCs, the Registered Person had therefore certified misleading information and shown a disregard of the importance of a PCC, a formal document, upon which an individual is entitled to trust and rely upon as being accurate and issued in compliance with professional requirements.
53. Standard 1.1 of the Architects Code expects an architect to act with integrity and honesty at all times. The Registered Person’s actions in issuing the PCCs demonstrates a lack of integrity and a departure from the higher standards that society expects from architects and the standards that the profession expects from its members. The Committee therefore concluded the Registered Person’s actions at Particulars 1(b) and 2(b) lacked integrity and breached Standard 1.1 of the Architects Code 2010.

 

Dishonesty

54. As to dishonesty, the Committee considered the Registered Person’s actual state of knowledge or belief as to the facts and then assessed whether his conduct was dishonest by the standards of ordinary decent people. The Registered Person knew that he had not inspected the Property at the commencement and during its construction, nor had he determined during periodic inspections that the Property had been constructed to a satisfactory standard, and in general compliance with the drawings approved under the building regulations. His knowledge was that he inspected the Property for the first time in 2009, at completion. The Committee did not accept the Registered Person’s explanation to ARB that he was confused. He had previously described the PCCs as “meaningless” and hoped that the builder’s lender would accept the same and “release his final draw, which they did. But knowing that any even eventual purchaser would ask for a bona-fide Architect’s Final cert.” He therefore knew that the declarations he had certified as a professional architect in the PCCs were untrue and misleading and would be relied upon by others, yet he went ahead and issued the PCCs. There was no doubt that the Registered Person knew his actions were dishonest.
55. In the Committee’s view, ordinary decent people would regard the actions of the Registered Person as dishonest. Standard 1.1 of the Architect’s Code expects an architect to act with honesty and integrity at all times and to avoid any actions or situations which are inconsistent with their professional obligations. Accordingly, the Committee found the Registered Person’s actions at Particulars 1(b) and 2(b) were dishonest and breached Standard 1.1. of the Architect’s Code 2010.

 

Finding on Unacceptable Professional Conduct

56. In respect of particulars 1(b) and 2(b), the Registered Person’s actions and declarations on both PCCs to confirm that the Property had been inspected throughout its construction and adequately constructed was misleading and untrue as he first inspected the Property upon completion in 2009. The Registered Person therefore provided both PCCs without due regard to the circumstances in which they may be used; in particular that PCCs are relied upon by purchasers and lenders. The presumption when a professional architect certifies a PCC is that the contents of the PCC are accurate and truthful. However, the Registered Person described the PCCs as “meaningless” – a view he held at the time when he certified both PCCs. The Registered Person’s actions were repeated. The Committee concluded that the Registered Person’s failings at Particulars 1(b) and 2(b) were therefore serious and a falling short of the standards expected.
57. As regards to Particular 3, the Committee took account of its findings in relation to misleading, honesty and integrity. The Committee recalled again Standard 1.1 of the Code, a Standard that on its own terms “underpins the Code.” The Committee determined that the public would not expect an architect to certify a professional document in such a careless manner without satisfying themselves in relation to its contents, knowing that the document would be relied upon by a future lender and purchaser. It further determined that the profession would regard it deplorable to do so. The Committee considered the Registered Person’s failings to be very serious. They have impacted on the reputation of the profession, and in the Committee’s view members of the public and the profession would be shocked that an architect certified and issued PCCs in the manner the Registered Person did. The Registered Person’s conduct had a profound financial and personal effect on the Referrer and her family. The Referrer described the impact of the Registered Person’s actions in her evidence to the Committee. In her witness statement she stated, “it makes me very angry that the build was not inspected during construction, as I was led to believe by the Respondent’s Professional Consultant’s Certificate…I would be far happier if it had been inspected by a qualified professional during its construction.”
58. For the above reasons the Committee concluded that the Registered Person’s conduct as found proved under Particulars 1(b), 2(b) and 3 amounted to UPC. The Registered Person’s breaches of Standards 1.1 and 1.2 of the Architects Code 2010 represent a standard of conduct falling significantly and materially below the standard expected of a registered architect.

 

Decision on Sanction

59. The Committee went on to consider whether a disciplinary order was necessary.
60. The Presenter set out ARB’s submissions in relation to sanction and drew the Committee’s attention to ARB’s Sanctions Guidance (2022). The Presenter identified the relevant aggravating and mitigating factors and reminded the Committee of the purpose of sanction. She referred to the cases of Bolton v Law Society [1994] 1 WLR 512, Khan v GMC [2015] EWHC 702 (Admin), Lusinga v. NMC [2017] EWHC 1458 (Admin) and Nicholas-Pillai v GMC [2009] EWHC 1048 (Admin). The Presenter confirmed that the Registered Person had no previous regulatory history with ARB.
61. The Committee then considered whether to impose a sanction, and if so, which one. The Committee had regard to the public interest, which includes the need to protect the public, to maintain confidence in the profession and ARB, and to declare and uphold proper standards of conduct and behaviour. The Committee carefully considered all the evidence and submissions made during the course of this hearing. It heard and accepted the advice of the Chair 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 has taken into account the Registered Person’s interests, ARB’s Sanctions Guidance (2022) and the need to act proportionately. It has taken into account the aggravating and mitigating factors as set out below and exercised its own independent judgement.
62. The Committee identified the following aggravating factors:

• The Committee found the Registered Person’s conduct dishonest. The dishonesty was serious, deliberate and repeated. It could not be considered to be isolated or a “one off”.
• The Registered Person has not provided any evidence of remorse or insight into his conduct. In his email of 11 May 2022, the Registered Person told ARB that the Referrer “bought the house based I assume on that ‘Completion’ document. She, or her conveyancing solicitor did not read it properly. When the stair issue arose, she looked again at the document and realised her mistake. At that point she set out for revenge. I offered to make good the staircase at my own expense. That would not have amended her dented ego. So, she refused my offer.” The Committee noted that the Registered Person’s offer to make good damage to the staircase was made to the Referrer on a without prejudice as to liability basis. In an email dated 28 August 2022 to ARB, the Registered Person stated “If it will bring this episode to a close, I am happy to admit my guilt on all counts of unacceptable professional conduct. Trusting this will enable you to remove my name from your register forthwith.” In the view of the Committee, the Registered Person has no insight. He failed to take responsibility for his conduct by blaming the Referrer and has not acknowledged any failings.
• The Registered Person has not taken effective corrective steps to demonstrate that he understands the extent of his professional responsibilities with regard to Professional Consultant’s Certificates and their importance to purchasers and lenders. The Committee was not confident that the Registered Person would not repeat the UPC identified.
• The Registered Person’s conduct had a significant effect on the Referrer as she relied on the contents of the PCCs when purchasing the Property and did not undertake a Home Buyers Survey. The Referrer attempted to resolve matters with the Registered Person directly. She also pursued civil legal proceedings. The Registered Person has not demonstrated an understanding of the impact of his conduct both on the Registered Person and the wider public interest.

63. In terms of mitigating factors, the Committee considered the Registered Person’s conduct was of a brief duration in an otherwise long-standing unblemished career.
64. Taking into account the aggravating and mitigating circumstances and looking at all the facts in the round, the Committee considered there was a risk of repetition given the Registered Person’s lack of insight, his lack of appreciation of the issues and his failure to provide evidence of remediation.
65. The matters found proved are serious to the extent that the Registered Person’s failings diminish both his reputation, and that of the profession generally and exposed the Referrer, who relied on his Professional Consultant’s Certificates to substantial inconvenience and distress. The public would expect to rely on a PCC signed by an architect confirming a building has been inspected from commencement of construction to completion, and that the building is constructed to a satisfactory standard and in accordance with drawings approved under the building regulations. The public would expect any architect to satisfy themselves following appropriate inspection that such certification was accurate and correct. The Committee therefore concluded that the Registered Person’s conduct was sufficiently serious for it to require the imposition of a sanction and has considered them in ascending order of severity.
66. The Committee first considered whether to impose a reprimand. However, having regard to the Sanctions Guidance and the factors detailed above, the Committee considered that the nature of the UPC found proved was too serious for such a sanction to be appropriate nor proportionate. The Committee reminded itself of its findings and did not consider the Registered Person’s conduct was at the lower end of the scale.
67. The Committee next considered whether to impose a penalty order and concluded that, for the same reasons, such an order was neither appropriate nor proportionate. The UPC was too serious for the imposition of a penalty order.
68. The Committee then considered whether to impose a suspension order. However, the Committee determined that such a sanction would be insufficient to uphold the reputation of the profession or protect the public. In view of the seriousness of the UPC and the identified risk of repetition together with the lack insight the Committee concluded that a suspension order would not be sufficient to uphold the public interest.
69. The Committee took into account the Registered Person’s unblemished career and the fact that his conduct related to one property. However, the conduct was serious, deliberate and repeated. In the absence of insight and remediation, the Committee believed that the conduct is likely to be repeated. The Committee therefore concluded that the UPC found proved was fundamentally incompatible with the Registered Person continuing to be an architect. The only appropriate and proportionate sanction would be one of erasure. The Committee had regard to the impact of such a sanction on the Registered Person but considered that the public interest outweighed his interests.
70. The Committee therefore concluded that the Registered Person’s name be erased from the Register and so directs the Registrar.
71. Should the Registered Person wish to return to practice as an architect he may apply and seek to demonstrate that he is a fit to be registered in the light of the concerns found established in these proceedings. The Registered Person will be entitled to apply for restoration of his name to the register no earlier than a period of two years beginning with the date of this order.
72. That concludes this determination.