Mr Paul Karlsson
THE ARCHITECTS REGISTRATION BOARD
PROFESSIONAL CONDUCT COMMITTEE
In the matter of
Mr Paul Karlsson 050581A
Held on 7 – 9 September 2020
International Dispute Resolution Centre
70 Fleet Street
Julian Weinberg (Chair)
David Kann (PCC Architect Member)
Jules Griffiths (PCC Lay Member)
In this case, the ARB is represented by Mr Jonathan Goodwin of Jonathan Goodwin Solicitor Advocate Limited.
Mr Karlsson has attended this hearing but is not legally represented.
|The Professional Conduct Committee (“PCC”) found Mr Karlsson guilty of unacceptable professional conduct (“UPC”) in that he:
1. failed to issue the Complainant with adequate terms of engagement;
and that by doing so, he acted in breach of Standards 4, 10 and 11 of the Architects Code: Standards of Conduct and Practice 2017 (“the Code”).
The sanction imposed is a Penalty Order of £1,500 payable within 28 days.
Charge and allegations:
1) In this case, ARB is represented by Mr Jonathan Goodwin. Mr Karlsson (“the Respondent”) has attended this hearing but is not legally represented. The Respondent faces a charge of unacceptable professional conduct (“UPC”) based on seven allegations in relation to breaches of Standards 4 and 6 of the Architects Code: Standards of Conduct and Practice 2010 (“the 2010 Code”) and Standards 1, 2, 4, 10 and 11 of the architects Code: Standards of Conduct and Practice 2017 (“the 2017 Code”) in that he:
Part 1 – Complaint by VS
1.1 failed to issue the Complainant with adequate terms of engagement;
1.2 failed to deal adequately, or at all, with a complaint;
1.3 failed adequately, or at all, to supervise the work of those carrying out work on behalf of PSK Architect.
Part 2 – Complaint by AEA
1.4 failed to issue the Complainant with adequate terms of engagement;
1.5 failed to deal adequately with a planning application;
1.6 failed to deal adequately, or at all, with a complaint.
Part 3 – Complaint by the Registrar
1.7 failed to co-operate fully and promptly with the ARB in respect of a complaint.
Part 1 – Complaint by VS
2) The Respondent is the registered person at PSK Architect (“PSK”). SP, who had the day to day conduct of VS’s project, was described as the “Principal Designer” at PSK. A colleague, DA, was described as the “Senior Architectural Technologist”.
3) On 7 December 2018, VS made a complaint to the ARB about the Respondent who she said had been retained to prepare drawings and to submit a planning application for her property. It is alleged that once the project reached the planning application stage, the relationship between VS and SP broke down.
4) It is initially alleged that the Respondent did not provide VS with code compliant terms of engagement.
5) VS became concerned at the lack of progress with the planning application and emailed SP on 7 December 2018 believing that the application had not in fact been submitted as the application did not show up on the Council’s online portal. Her complaints were summarised in her email dated 7 December 2018 headed “URGENT Complaint” which indicated that she was dissatisfied with the service that she had received. It is alleged that the response from SP was inappropriate in that it failed to address the complaint adequately. It is alleged that the response was also unprofessional and confrontational. There was subsequent email correspondence between SP and VS which SP copied to the Respondent.
6) The Respondent asserts, contrary to ARB’s position, that VS was not his client, but was a client of SP trading under the name of Codel Consulting Ltd (“Codel”), and that he was “completely unaware of the project”. ARB alleges that being a client of the Respondent’s practice, the Respondent failed to manage his supervisory obligation to manage SP in respect of work undertaken on behalf of the Respondent at PSK. It is alleged that drawings, an invoice and email correspondence made reference to PSK and that the Respondent failed to ensure that work carried out on his behalf was competent and adequately supervised.
Part 2 – Complaint by AEA
7) On 5 January 2019, AEA made a complaint to the ARB about the Respondent.
8) It is alleged that in respect of this complainant, the Respondent did not send compliant terms of engagement.
9) It is also alleged that following a complaint being made by AEA to the Respondent, the Respondent’s response was unprofessional and inappropriate and further, the Respondent failed to provide a copy of his complaints procedure when he was required to. Following the Investigation Panel’s decision, it is alleged that the Respondent accepted that he had failed to deal with the complaint appropriately.
10) It is alleged that the Respondent failed to correspond and adequately liaise with the local planning authority in that there is no evidence to suggest that the Respondent entered into any pre-application and/or subsequent discussions with the planning department. It is alleged that, given the stated terms of engagement, a reasonably competent Architect would have entered into such discussions before submitting the application but the Respondent failed to do so. ARB relies upon the Respondent’s representations in relation to the proposed fee which included: “Negotiate with planning department to make amendments when necessary”.
11) Following a complaint being made to ARB, ARB wrote to the Respondent on a number of occasions between March and May 2019, but it is alleged that the Respondent failed to respond to its correspondence.
Part 3 – Complaint by the Registrar
12) This relates to the Respondent’s alleged initial failure to provide a response to the complaint submitted by AEA to ARB. ARB first emailed the Respondent on 15 March 2019 requesting a response to the complaint. The Respondent responded on 28 May 2019. ARB had sent chasing emails to the Respondent which included a request that he provide evidence of the health condition that the Respondent stated he had been suffering from that prevented him from fully responding to ARB’s correspondence. ARB informed the Respondent on 18 April 2019 that an allegation in relation to his alleged failure to respond to ARB’s correspondence would be raised.
13) Save for particulars 1.4 and 1.7, all the allegations are denied. UPC is also denied.
14) In reaching its decisions, the Committee has carefully considered the live evidence of VS, AEA and the Respondent. It also considered the documentary evidence presented to it in the Report of ARB’s Solicitor and the 289 pages of documents exhibited to it, which include the Respondent’s detailed written representations to ARB. The Respondent has provided a defence statement and supporting exhibits.
15) The Committee has accepted the legal advice given by the Legally Qualified Chair which is a matter of record. It has had regard to the fact that the burden of proof is on ARB and that the civil standard applies, namely proof on the balance of probabilities. The Committee is mindful that the more serious the allegation, the more cogent should be the evidence to find it proved. Whether the conduct alleged amounts to UPC is a matter for the Committee’s independent judgment to which no burden or standard of proof applies.
Findings of facts:
Part 1 – Complaint by VS
16) The Committee first considered whether VS was a client of the Respondent’s practice, PSK.
17) The Committee heard from VS who gave clear, credible and consistent evidence in relation to her instructing SP. Her evidence was measured and not prone to exaggeration or malice. She stated that she had initially made contact through PSK’s website, and from there, had made contact with SP. She did not have any contact, or have any dealings with the Respondent during the project. She stated that she believed that she was dealing with PSK.
18) The Respondent stated that he had no knowledge of VS’s project. He stated that SP had in effect, taken the case from his practice and that SP had been running the project under a practice trading name strikingly similar to the Respondent’s practice, PSK Architects / PSK Architectural, but in reality, in the name of Codel.
19) ARB’s evidence was that PSK Architect had contracted with VS. It relied upon the following:
I. That SP referred to himself as the Principal Designer at PSK Architects;
II. His emails used the Respondent’s practice’s email address of @psk-architect.co.uk;
III. SP gave PSK’s office address, website address and phone number in all correspondence;
IV. In his correspondence with ARB, the Respondent purported to accept that VS was a client of his practice, PSK. The Committee is nevertheless satisfied, looking at all the evidence in the round, that the Respondent’s representations and admission resulted from a failure on his part to pay sufficient detail to what occurred prior to responding to ARB. His position in evidence was unequivocal that he did not consider VS to be a client of PSK.
20) The Respondent stated that he had been the victim of a rogue employee, in that SP had siphoned off VS’s project. He relied on the following:
I. His practice was PSK Architect, and not PSK Architects or PSK Architectural and that SP had purported to pass Codel’s trading name off as PSK by being strikingly similar to the Respondent’s practice name;
II. The invoice dated 7 June 2018 headed “PSK architectural www.psk-architect .co.uk” requested payment be made to Codel’s bank account, not PSK Architect’s account. The Respondent stated that he was not connected to Codel. This, he submitted, was evidence that he had been misled by SP who was taking the work for his own company rather than the Respondent’s practice;
III. He stated that he had had no knowledge of VS at the time of the project and this was confirmed by VS in her evidence. The Committee accepts that the Respondent was not aware of the emails from VS to SP in relation to her complaint;
IV. The Respondent stated that he had taken legal action and made a statement to the Police about SP’s actions, although the Committee was not provided with any supporting evidence to show that this had been done.
21) The Committee noted that SP’s correspondence to VS referred to him being a designer at PSK Architects. It further noted that SP’s emails contained a footer stating that “All content remains the intellectual property of PSK Architects”. The Respondent’s emails and some of SP’s emails to AEA had a footer which referred to PSK Architect.
22) The Committee accepts that VS did not appreciate that she was dealing with anybody other than the Respondent’s practice, PSK, particularly having made initial contact through his practice website. However, the Committee is satisfied, on the balance of probabilities, that SP undertook the project as part of his own separate business, purporting to be under the umbrella of PSK. This is borne out by the use of almost identical names, fonts, and the reference to the same office address and phone number would have disguised the reality of who was, in reality, undertaking the work and that the fees would be paid to Codel and not PSK.
23) The Committee is satisfied, having considered all the evidence that, on the balance of probabilities, ARB has not discharged its burden of proof in respect of the allegation in relation to VS.
24) The Committee finds the facts not proved for the following reasons:
25) Having found that VS was not a client of the Respondent’s practice, and that he had no knowledge of VS’s project, the Committee finds that the Respondent was under no obligation to issue terms of engagement to VS. As such, he cannot be found to have failed to provide compliant terms of engagement to VS.
26) The Committee finds the facts not proved for the following reasons:
27) Following concerns about the progress of the planning application, VS emailed SP and DA on 29 November 2018 expressing her frustration at the lack of progress being made. SP responded by email dated 30 November 2018 in which he stated: “Firstly you have paid me to submit a Planning Application and this I have done that was refused – i [sic] am now doing another Application FOC that has to fall on to our schedule. there [sic] will be no refund and I am really quite annoyed and rather confused that you feel that you are entitled to one!!!! if [sic] you would like to appoint another Architect then feel free to do so….however, I can assure you that your drawings have been completed and sent to the Planning Officer for his comments“.
28) In an email dated 7 December 2018, VS wrote to SP, and copied in DA. The email was neither addressed to the Respondent nor was he copied in to it. The subject box of the email was headed “URGENT Complaint”. In the email, she raised her concerns and dissatisfaction with the service she had received. She took exception to the way SP expressed himself in his email of 30 November 2018, and stated that despite having checked the Council’s online portal that week, and despite assurances from SP, the application did not appear on the portal. She stated that she had lost faith in SP and that she was going to make a complaint to ARB.
29) She received a response from SP which stated “I fail to see why is should apologise for anything…I can assure you that your re-submission has been sent to the Planning Dept. why would I lie to you and to what benefit is it to me to mislead you????….it is your prerogative to complain about PSK Architects to the ARB but I must point out (again) that there is no charge for this re-submission and my original instruction has been completed therefore I am no longer willing to continue with my futile quest to assist you over and above your original engagement. Therefore I will not be undertaking any further work on your behalf”. The Committee notes in particular that the email makes reference to a complaint about PSK Architects and not PSK or Codel Consulting.
30) Having found that VS was not a client of the Respondent’s practice, the Committee finds that the Respondent was under no obligation to deal with VS’s complaint. As such, he cannot be found to have failed to have failed to deal with it.
31) The Committee finds the facts not proved for the following reasons:
32) Having found that VS was not a client of the Respondent’s practice, and that he had no knowledge of VS’s project, the Committee finds that SP was not carrying out work on behalf of PSK Architect. The Committee therefore finds that the Respondent was under no obligation to supervise that work. As such, he cannot be found to have failed to have supervised it.
Part 2 – Complaint by AEA
33) By reason of the Respondent’s admission, the Committee finds the facts of this particular proved.
34) The Committee has had sight of SP’s email, on behalf of PSK dated 18 August 2016. It has also noted the requirements of Standard 4 of the 2010 Code in relation to the information to be included in the terms of engagement, which states:
35) Standard 4 of the 2010 Code states:
4.4 You are expected to ensure that before you undertake any professional work you have entered into a written agreement with the client which adequately covers:
• the contracting parties;
• the scope of the work:
• the fee or method of calculating it;
• who will be responsible for what;
• any constraints or limitations on the responsibilities of the parties;
• the provisions for suspension or termination of the agreement;
• a statement that you have adequate and appropriate insurance cover as specified by the Board;
• your complaints-handling procedure (see Standard 10), including details of any special arrangements for resolving disputes
36) In the circumstances, the Committee finds that the Respondent, whilst providing some terms of engagement, by failing to provide terms of engagement that contained all the above requirements, has acted in breach of Standard 4 of the 2010 Code.
37) The Committee finds the facts not proved for the following reasons:
38) ARB relies on such terms of engagement as were sent to AEA in SP’s email on behalf of PSK dated 18 August 2016. In it, SP stated that the scope of the work would include “Negotiate with Planning Dept and make amendments where necessary”. The Committee has had sight of confirmation from the Council that no such negotiations took place.
39) The Respondent stated the terms of engagement should not have included that such negotiations would take place. He stated that he specifically informed AEA that he would not do this. He stated that he had extensive experience of dealing with the Planning Department, and that he had had several successful previous applications of a similar nature, and that having preliminary discussions would have been counter-productive in this particular case. AEA was adamant that whilst the Respondent suggested taking such a course in relation to the appeal against the refusal to grant planning permission, the Respondent did not state that this would not take place at the time of the initial application. He relied on the terms of engagement provided that specifically stated that such negotiations would take place.
40) The Committee was satisfied that the Respondent was experienced in planning applications with the Council in question. The Committee accepts that the Respondent, given his experience of this particular Planning Department, and success rate in planning applications, reasonably and genuinely believed that the Respondent considered the application stood the greatest prospect of success by not having preliminary discussions with the Planning Officer. The Committee is also mindful that, even though the Respondent did not undertake negotiations in accordance with the written terms of engagement supplied, there was insufficient evidence before the Committee to suggest that by acting as he did, his approach fell below the standard expected of an Architect. Whilst the Committee understood AEA’s disappointment that planning permission had not been granted, the evidence before the Committee did not establish to the required standard that this was the fault of the Respondent’s approach. As such, the Committee does not find that the Respondent failed to adequately deal with the planning application.
41) In the circumstances, the Committee finds the allegation not proved.
42) The Committee finds the facts of this particular proved for the following reasons.
43) On 31 March 2018, AEA made a complaint to the Respondent as he had not responded to a request from AEA to have a meeting to discuss amending and resubmitting the plans. In his email, AEA wrote “I have finally reached the end of my patience regarding your appalling handling of this application. You are in breach of your undertakings under the Consumer Rights Act 2015 and unless I receive a full refund on the fees I will commence proceedings against you for their recovery having followed the due process set out in the Pre-Action Conduct and Protocols. I expect to hear from you within 14 days from 2 April 2018”.
44) The Respondent replied on 30 May 2018 by email in which he stated ”In our opinion, you do not have a valid complaint so therefore it does not necessitate a Complaints procedure…..As far as we are concerned, your file is now closed and we wish you well”. Despite requests from AEA, the Respondent did not provide a copy of his complaints procedure. The Respondent accepted in evidence that he did not have a written complaints procedure to provide in any event.
45) Following the matter being considered by the Investigations Panel, the Respondent accepted in his letter to ARB dated 2 July 2019 that he failed to deal with the complaint appropriately. Irrespective of whether the Respondent considered the complaint justified, the Respondent was obliged to deal with it pursuant to Standard 10 of the 2017 Code, but he failed to do so.
46) Standard 10 of the 2017 Code states:
10.2 Complaints should be handled courteously and promptly at every stage, and as far as practicable in accordance with the following time scales:
a) an acknowledgement within 10 working days from the receipt of a complaint; and
b) a response addressing the issues raised in the initial letter of complaint within 30 working days from its receipt.
47) In the circumstances, the Committee finds the allegation proved and that by doing so, the Respondent acted in breach of Standard 10 of the 2017 Code.
Part 3 – Complaint by the Registrar
48) By reason of the Respondent’s admission which is consistent with the documentary evidence before it, the Committee finds the facts proved.
49) The Committee notes that the Respondent failed to respond to the ARB within the time prescribed by them in their correspondence, despite repeated request to do so in correspondence that included reference to the Respondent’s obligations under Standard 11 of the 2017 Code.
50) Standard 11 of the 2017 Code states:
Co-operation with regulatory requirements and investigations
11.1 You are expected to co-operate fully and promptly with the Board, and within any specified timescale, if it asks you to provide information which it needs to carry out its statutory duties, including evidence that you are complying with these Standards.
51) In the circumstances, the Committee finds the Respondent acted in breach of Standard 11 of the 2017 Code.
Finding on Unacceptable Professional Conduct:
52) Having found allegations 1.4, 1.6 and 1.7 proved, the Committee went on to consider whether the Respondent’s conduct found proved amounts to UPC. UPC is defined as conduct which falls short of the standard required of a registered person.
53) In reaching its findings, the Committee has carefully considered all the evidence presented to it, all submissions made and has accepted the advice from the Legally Qualified Chair. The Committee recognises that not every shortcoming on the part of an Architect, nor failure to comply with the provisions of the Code, will necessarily result in a finding of UPC. However, a failure to follow the guidance of the Code, whether in one’s professional or private life, is a factor that will be taken into account should it be necessary to examine the conduct or competence of an Architect. The Committee reminds itself that a finding of UPC is a matter for its own judgment.
54) The Committee recognises that any failing should be serious. The Committee has borne in mind the case of Spencer v General Osteopathic Council  EWHC 3147 (Admin) and accepts that “mere negligence does not constitute misconduct” and that “a single negligent act or omission is less likely to cross the threshold of misconduct than multiple acts or omissions” (The Queen on the Application of Dr Malcolm Noel Calhaem v General Medical Council  EWHC 2606 (Admin). Misconduct, which is akin to UPC, was defined in the case of Roylance v GMC  1 AC 311 as, “a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances”. The Committee also recognises that any failing must be serious (Vranicki v Architects Registration Board  EWHC 506 Admin).
55) Sending code compliant terms of engagement is an essential requirement to provide certainty for both the architect and his/her client to understand their respective rights and obligations. It forms the basis of the contractual relationship between the parties and provides clarity for both parties to understand what is expected. Failure to do so has the potential to lead to confusion, as has happened in this case, which in turn risks damaging the client /architect relationship.
56) Similarly, clients should be able to expect that when a complaint is made, it will be properly addressed by their architect. This obligation is essential to ensure the public can have confidence that their concerns will be properly addressed as and when they arise. The fact that the Respondent did not consider AEA’s complaint justified, did not detract from his obligation to deal with it in compliance with the 2017 Code.
57) So far as allegation 1.7 is concerned, architects are required to comply with the ARB when it raises a complaint with them. Failure to do so potentially frustrates the ARB in its carrying out of its statutory function. The Committee notes that the Respondent repeatedly failed to respond to ARB’s correspondence despite repeated requests to do so. As such, the Committee finds that the Respondent’s failure in this regard represents a serious departure of the standard expected of him.
58) The Respondent’s actions found proved reflect a number of serious failings on his part relating to his client and his regulator. The Committee has found that the Respondent has breached several standards of his professional code. His actions, and the corresponding breaches of the Code, are serious and adversely impact both on his reputation and on the architect’s profession generally.
59) As such, the Committee has reached the conclusion that the Respondent’s conduct, both individually and collectively, amounts to unacceptable professional conduct, which finding the Committee so makes.
60) The Respondent addressed the Committee in mitigation. He accepted that he had previously been given a Caution by ARB in 2009 in relation to his obligations to provide compliant terms of engagement and complaints handling, and advice in 2014 in relation to complaints handling and cooperating with ARB.
61) He expressed concern that AEA had pursued his complaint against him in relation to failing to deal with his complaint and considered that AEA had been dishonest. He nevertheless stated that he would manage any complaints in accordance with the Code from now on. He had joined a new company, and even though he was the only registered architect there, he stated that solicitors had drafted compliant terms of engagement and a complaints procedure.
62) The Committee then considered whether to impose a sanction, and if so, which one. The Committee has 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 has carefully considered all the evidence and submissions made during the course of this hearing. It has heard and accepted the advice of the Legally Qualified Chair. It has borne in mind that the purpose of imposing a sanction is not to be punitive although it may have a punitive effect. It has taken into account the Respondent’s interests, the Sanctions Guidance and the need to act proportionately. It has taken into account any aggravating and mitigating factors in this case. The Committee has exercised its own independent judgement.
63) The Committee has identified the following aggravating factors:
I. The Respondent has demonstrated limited insight into his failings, regarding dealing with complaints raised. He continues to maintain that AEA has been dishonest in referring his complaint to the ARB rather than acknowledge his own professional responsibilities in relation to complaints handling;
II. The terms of engagement provided to AEA allowed a misunderstanding to develop which contributed to the client’s dissatisfaction;
III. He has not made any expression of regret or apology for his actions;
IV. Whilst there have not been any previous adverse findings against the Respondent, he has been the subject of a caution and formal advice by the ARB in 2009 and 2014 regarding his obligations to provide compliant terms of engagement and in relation to complaints and co-operating with ARB. Against this background, the Respondent should have had a heightened awareness of his obligations in this regard. The Committee considered this to be a seriously aggravating factor.
64) The Committee has identified the following mitigating factors:
I. He has engaged in the regulatory process;
II. He made a number of admissions both in his correspondence with ARB but also at the commencement of this hearing;
III. He did in due course engage with ARB even if not in a timely manner;
IV. He is no longer working with SP, but has stated that he has joined a new company with a more robust compliance culture.
65) In the circumstances, the Committee concluded that the risk of the Respondent repeating his UPC was moderate.
66) The Committee notes that the matters found proved are serious to the extent that the Respondent’s failings diminish both his reputation, and that of the profession generally for the reasons set out in its determination on UPC. The Committee therefore concluded that the Respondent’s conduct was sufficiently serious for it to require the imposition of a sanction and has considered them in ascending order of severity.
67) The Committee first considered whether to impose a reprimand. The Committee considered that such a sanction was neither appropriate nor proportionate given that it did not consider the Respondent’s UPC to be at the lower end of the scale given the aggravating factors identified.
68) The Committee then considered whether to impose a penalty order and concluded that such a sanction would be appropriate and proportionate and would adequately protect the public and the reputation of the profession. The Committee therefore imposes a £1,500 penalty order which the Committee considers to be an appropriate and proportionate sum to impose given the seriousness of the UPC found proved. That sum must be paid within 28 days. Failure to pay that sum within that time frame may lead to the order being replaced with a suspension order or erasure order.
69) The Committee gave consideration to imposing a suspension order, but given the suitability of a penalty order, considered that such a sanction would be disproportionate and unduly punitive.
70) That concludes this determination.