THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

Mr Rajenkumar Mangubhai Patel  (073548E)

held on 26 and 27 February 2015 and 2 March 2015 (reading day)

15 January 2016 (sanction)

at

Chartered Institute of Arbitrators

12 Bloomsbury Square

London

WC1A 2LP

&

Architects Registration Board

8 Weymouth Street

London

W1W 5BU

—————–

Present:

Mr Paul Housego (Chair)

Ms Judy Carr (PCC Architect Member)

Ms Linda Read (PCC Lay Member)

Mr Stephen Battersby (Clerk to the PCC)

—————–

 

 

 

Mr Iain Miller of Bevan Brittan appeared on behalf of the ARB.

Mr Simon Wilton, Counsel appeared on behalf of Mr Patel.

 

 

Allegations

 

1.       Mr Patel appears before the Professional Conduct Committee of the Architects Registration Board to deny an allegation of unacceptable professional conduct (“UPC”).

 

2.       The allegation is that he is guilty of unacceptable professional conduct in connection with a project in Leicestershire (“the Project”) for RB and DS “(the Complainants”) in respect of one or more of the following: –

 

1.1       He acted without integrity and/or in a manner which was inconsistent with his professional obligations in:

1.1.1  allowing the Complainants to enter into a payment schedule that was not in the Complainants’ best interests and/or failing to advise them of the consequences of entering into it; and/or

1.1.2   acquiescing and/or encouraging stage payments by the Complainants to the contractor when the works had not been (a) carried out to a suitable standard and/or (b) significantly exceeded the value of the works at the date of payment;

contrary to standard 1 of the Architect’s Code of Conduct 2002 (“2002 Code”) and/or standard 1  of the Architects Code of Conduct 2010 (“the 2010 Code”).

 

1.2       He failed to act with integrity and/or faithfully and conscientiously and with due regard to relevant technical and professional standards in failing to administer the contract by:

1.2.1    Failing to value the works; and/or

1.2.2    Failing to issue any certificates in respect of the works; and/or

1.2.3    Failing to attend the site regularly; and/or

1.2.4    Failing to advise on extensions of time; and/or

1.2.5   Failing to issue variations to the contract and/or architects instructions prior to December 2009; and/or

1.2.6    Failing to advise the Complainants on how to terminate the contract; and/or

1.2.7    Failing to advise the Complainants of their rights under the contract,

contrary to standard 1 of the 2002 Code and/or standard 1 of the 2010 Code and/or standard 4 of the 2002 Code.

 

1.3       He did not have adequate insurance in place in order to meet the Complainants’ claim contrary to standard 8.1 of the 2010 Code.

 

3.       The preamble to the Codes state that any failure to comply with the provisions of the Codes is not of itself to be taken as constituting unacceptable professional conduct, but it shall be taken into account in any disciplinary proceedings before the Board’s Professional Conduct Committee.

 

4.       It also states that architects are expected to be guided in their professional conduct and professional work by the spirit of the Codes as well as by their express terms. The fact that a course of conduct is not specifically referred to in the Codes does not mean that it cannot form the basis of disciplinary proceedings.

 

5.       Each case is judged on its facts, and there may be circumstances in which unacceptable professional conduct is found even where there has been no clear breach of the express terms of the Codes. However not every shortcoming, or failure to meet the Standards expected by the Codes, will necessarily give rise to disciplinary proceedings.

 

6.       The relevant provisions of the 2010 Code are:-

 

Standard 1

Honesty and Integrity

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 8

Insurance arrangements

1    You are expected to have adequate and appropriate insurance cover for you, your practice and your employees. You should ensure that your insurance is adequate to meet a claim, whenever it is made. You are expected to maintain a minimum level of cover, including run-off cover, in accordance with the Board’s guidance.

 

7.       The relevant provision of the 2002 Code is:

Standard 1
Architects should at all times act with integrity and avoid any action or situations which are inconsistent with their professional obligations.

 

Summary

8.       The Complainants wished to make substantial alterations to their home to cater for their young disabled daughter, to be paid for from the trust fund to provide for her long term care which fund was supervised by the Court of Protection. Mr Patel was the architect. The construction work was done in 2009 and was not done well. The Complainants had signed a document (“the fixed payment schedule”) which set out dates for payments without reference to work done: the Complainants ended up overpaying a large amount of money to the contractor, and then had to get another contractor to redo most of the work. The role of the architect is criticised in a variety of ways. When the Complainants wished to sue Mr Patel they found that while he had insurance, the insurer repudiated liability in respect of their claim.

 

Complaint

9.       The ARB brings the allegation following a complaint by the Complainants dated 13 June 2013, it not being done earlier in part because of litigation arising from these problems.

 

Burden and standard of proof

10.   The ARB is required to prove the allegations to the civil standard; that it is more likely than not that any event occurred. That is a single unwavering standard of proof, though the more unlikely an allegation the more cogent the evidence required to prove it. There is no requirement for Mr Patel to prove anything. The Committee has in mind throughout its deliberations that the right to practise a profession is involved in these proceedings and proceeds upon the basis that the Human Rights Act 1998 will apply.  In particular Mr Patel has the right to a fair trial and to respect for his private and family life under Articles 6 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as incorporated within UK law by that Act. The question of whether or not any facts found proved amount to UPC is a matter for the Committee’s judgment, and there is no burden of proof. A finding of unacceptable professional conduct requires the Committee to judge that conduct to be serious.

 

 

Defence

11.   Mr Patel denies the allegations, in every particular, save for the fact of allegation 1.3 which is admitted, but not that that fact amounts to UPC.  The defence is set out at length for us in the documentation, but can be put succinctly. The Complainants, against his advice, signed a contractual payment schedule obliging them to make fixed payments on set dates without reference to the amount of work done on site, and that was the root cause of their difficulties with the contractor. He, Mr Patel, acted professionally throughout, in difficult circumstances. On the insurance matter, he had taken proper professional advice from a broker, and the lack of insurance for the Claimants’ claim against him was caused by the bad advice he had received, so that he was not blameworthy.

 

Evidence

12.   The Committee perused the report of the Board’s solicitor with accompanying documents running to some 569 pages. The Board called oral evidence from the Complainants.

 

13.   The Committee perused the bundle of 252 pages prepared by Mr Patel’s solicitors. The Committee heard oral evidence from Mr Patel.

 

14.   All the witnesses were cross examined, and the Committee asked questions of them.

 

ARB submissions

15.   Mr Miller made his submissions before the Committee received evidence. He submitted that there was no real dispute as to the facts (though some disputes emerged during the hearing). He narrated the agreed facts, in brief. On the insurance matter, this was UPC almost inevitably, given the importance of insurance. Notwithstanding the broker’s alleged failings, the consequences for the Complainants had been to deprive them of the protection of insurance for the claim they brought against Mr Patel, as a result of which they had discontinued that claim.

 

16.   Mr Patel had failed to administer the contract effectively both during its formation and while the work was being built. The consequences for the Complainants had been very serious – they had lost over £80,000 paid to the contractor, and suffered enormous stress over a prolonged period. The failure to administer the contract was so bad that it amounted to a lack of integrity.

 

Submissions on behalf of Mr Patel

17.   Mr Wilton made his submissions at the conclusion of the evidence. His submissions were lengthy, and are only summarised here, and were considered carefully during our deliberations. Some appear in other parts of this decision. Mr Wilton submitted that Mr Patel had given positive advice to try to shepherd the Complainants through the project. It was not his fault the Complainants had signed the fixed payment schedule, which he had advised against, and he had to work with it. He had visited site often, but the contract did not require valuations, and in any event he could not undertake valuations, as there were no stages to value against, and as there were no stages no certificates could be issued. The contractor turned out to be a rogue, but that was not Mr Patel’s fault. He was concerned that the contractor would walk off site if challenged, and the Complainants would then be exposed to action by the contractor under the payment schedule, which Mr Wilton asserted bore the full weight of a legally enforceable contract. Mr Patel had worked conscientiously at getting the project forward and some of its issues had been addressed. The matter should not be looked at with hindsight. Mr Patel was blameless in the insurance matter, as he had used a broker, and as a matter of fact had continuous insurance cover with the same insurer arranged at all times through the same broker – but the insurer had disclaimed liability through a technicality, caused by a gap in cover – about which Mr Patel had specifically sought and gained reassurance from the broker when taking up the cover. The complaint against Mr Patel was not genuine, as the Complainants had sought the assistance of Mr Patel when trying to pursue the contractor, which assistance he had given. The letter sent to the contractor referred to Mr Patel and the terms of that letter conflicted with the assertions now made about him. Only after the contractor had disappeared had any complaint been made about Mr Patel. There had been a gap of well over two years before the Complainants had raised a complaint about Mr Patel, and that cast doubt on the genuineness of the complaint. The relationship was to be viewed in the light of the friendly personal connection between Mr Patel and Mr S.

 

Findings of fact

 

18.   The Committee found the evidence of the Complainants to have been credible and consistent.  They gave their evidence in a measured and thoughtful way. While the events were some years ago so that no memory could be 100% reliable, on all key matters they were more likely than not to be correct. The matters had been so serious for them that they were highly memorable. On the contrary, as set out below, it found some of the evidence of Mr Patel unreliable as internally inconsistent or inherently implausible.

 

19.   In 2006 the Complainants bought a bungalow. They intended to modify and extend it to accommodate the needs of their young disabled daughter. In March 2007 they approached Mr Patel who was recommended to them by a friend of Mr S who was Mr Patel’s cousin. They told Mr Patel of their budget of £100,000 which Mr Patel considered achievable. His fee was to be £5000 for stages A–L, which included periodic inspection of construction. Planning permission was granted on 11 August 2007. Documents were sent out for tender in early 2008 but were over budget. Mr Patel said that he would make revisions and send out to tender again. He did this in early 2009, but the prices were not dissimilar and were beyond the budget.

 

20.   In or about July 2009 Mr Patel told the Complainants that he knew of a contractor, SE, who was based in Richmond but was able to carry out the works for £92,700, including VAT.

 

21.   In September 2009 the Complainants decided to proceed with Mr E, who told them that the price was now £120,000 plus VAT at 15%; that is £138,000. The Complainants decided to proceed. One contractor had been cheaper but Mr Patel had visited some of the projects completed by the contractor and reported that they looked satisfactory. In addition Mr E could complete the work before Christmas, as the Complainants wished.

 

22.   An agenda was drafted by Mr Patel and this refers to a JCT contract.  This agenda was discussed at a meeting on 16 September 2009 on site with Mr E. Mr Patel gave no copy of the agenda to the Complainants at the time. There was reference to “milestone payments” with a 5% retainer in marginal notes made by Mr Patel. The works were to start on 21 September 2009 and complete on 21 December 2009. The document was vague about whether or not there were to be subcontractors. Mr E had asked for stage payments and had produced to Mr Patel in advance of the meeting a time line showing payments and stage to be reached, for a project to start on 21 September and end on 21 December 2008. In advance of the meeting Mr E had asked Mr Patel about fixed payments, and Mr Patel had indicated that he would not recommend this to the Complainants. Mr Patel did not discuss fixed payments with the Complainants before the meeting. Mr Patel did not prepare or distribute any note of this meeting.

 

23.   No JCT contract was entered into before the work started. On 21 September 2009 Mr E travelled from Richmond, where he lived, to Leicester to receive £4255 in cash, at his request. On the same date the Complainants transferred £23,000 to Mr E by bank transfer, again at his request. Mr Patel knew that this was going to be, and was, done. Mr Patel sent the Complainants by email (209) a blank JCT contract on 21 September 2008, but no step was taken to complete the document or have it signed either by the Complainants or by Mr E, and nor did Mr Patel press for this to happen.

 

24.   On 30 September 2009 the fixed payment schedule was signed when Mr E took it to the Complainants. The document bears the date 21 September 2009. It is a one page document that looks home-made. It states that payments were due on 21 September 2009 (already paid), and on 5 October 2009, 19 October 2009, 2 November 2009 and 16 November 2009. From the last payment there was to be a deduction of the retention of £6000 and a further deduction for the £4255 already paid on 21 September 2009, in cash. There are two other short provisions. One was to make no changes in the work without authorisation from the Complainants or Mr Patel and secondly a right for the Complainants to inspect, with an undertaking by Mr E to keep the premises clean and orderly and maintain good work conditions.

 

25.   Mr Patel’s evidence is that he advised the Complainants not to sign up to fixed payments. The Complainants’ evidence is that they were told by Mr Patel that this “was normal procedure”. This is a conflict of evidence. On the balance of probabilities we find that Mr Patel told the Complainants that there was to be a payment schedule attached to a JCT contract. He did not advise them that a fixed payments schedule unrelated to work should not be entered into, and took no step to get the contract documented save emailing his clients a blank form, to which he told them a payment schedule should be attached. Mr E had raised fixed payments with Mr Patel, who had said this would not be agreed: it was then not discussed at the meeting on 16 September 2009. However when Mr E produced such a schedule the Complainants thought it was what Mr Patel had said needed to be signed. We reject Mr Patel’s evidence that he specifically advised the Complainants not to enter a fixed price contract. As Mr S said in evidence, they had sought professional advice and there was absolutely no reason for them to ignore it and every reason for them to follow it. They were told there was a payment schedule to be attached to the JCT contract and they assumed that the document they signed was that document, and assumed that Mr Patel had approved it. It was unfortunate, if entirely understandable, that they should so assume, and they were in that position as Mr Patel had not formalised the contract, leaving the parties to fill it in themselves.

 

26.   Mr Patel’s witness statement was signed only recently, and on oath he stated that he had read it recently and did not wish to alter correct or amend anything, and which was true, states that he was provided with a copy of the fixed payment schedule a couple of days after it was signed, and  therefore by early October 2008.

 

27.   His oral evidence was that he learned of it only shortly before the JCT contract document of 3 November 2008 was signed, which contract was entered into to try to give the Complainants some protection. At no time did he advise the Complainants about their position under the fixed payment schedule or what their alternatives might be. The extent of Mr Patel’s case is that he had one short telephone conversation with them about it soon after he read it.

 

28.   It is clear that he knew there was a fixed payment schedule soon after it was signed for he asked for a copy of it by email (using that phrase), and mentioned adding the payment schedule to the blank JCT contract which he emailed again on 28 October 2008 (RP9). The Complainants and Mr E signed the JCT contract that day, Mr E having filled it in. (236 – 243)

 

29.   Mr Patel was sent this document but considered the contract incorrectly drawn and so completed a new JCT contract (“the contract”). It is the “JCT Building Contract for a Home Owner/Occupier who has appointed a consultant to oversee the work”. He signed it as agent for the Complainants and Mr E signed it as well. It bears the date 3 October 2009 (244-251), but this was an error: it was signed on 3 November 2009. (see email 3 November 2009, 255) The contractors’ names that were inserted were both Mr E and K&D C. Previously the blank contract had borne the name only of Mr E. Mr Patel is referred to in both JCT contracts as “consultant”. Either Mr Patel knew of the fixed payment schedule, and did not ask for a copy of it, or he saw it early on and did nothing. He had certainly seen it by the time he saw the first JCT contract at the end of October, because he drafted the second JCT contract which refers to it. Mr Patel was unable to account for the disparity between his two accounts.

 

30.   The Complainants and Mr Patel agree that the contract of 3 November 2009 (“the contract”) is the governing document. Mr E conducted himself on that basis too.

 

31.   At paragraph E of the contract there is a section marked “payment”. This states “the customer should tick one of the boxes below to show how he will pay the contractor”. The box is ticked and there is also the following statement“the agreed instalments shown below together with any price adjustment for changes to the work when the consultant certifies that the relevant stage of the work is finished” and beneath this text are boxes to be filled in for the stages to be entered and installments to be paid for those stages. In this box is inserted the words “please refer to attached payment schedule produced by contractor”.

 

32.   In the contract the consultant is named as “FDR design associates – Raj Patel”. The work to be done was defined by the consultant’s drawings, undated, and the consultant’s specification dated 22 December 2008. Attached to the contract is a set of conditions in standard form. Number 3 sets out the role of the consultant. This states:

 

“(a) the consultant will act for the customer while the work is being done. He will give the contract instructions, extend timescales is necessary, issue a certificate when all the work of each stage of the work has been finished, and issue a certificate when the contractor has put right all faults which have appeared in the work at any time between the date it started and three months after it was finished. (b) The consultant will give a copy of the certificates that he issues to the customer and the contractor.”

 

33.   The work that was carried out was catastrophically bad. It turned out that Mr E was not a builder, and had not previously been engaged in building work. He was not VAT registered, though was charging VAT. He had engaged a subcontractor, K&D C, to undertake the work whose workmen were not competent. They lived on site while carrying out the work.

 

34.   Ms B’s father was a plumber and heating engineer. He visited the site and on 4 November 2009 sent a letter to Blaby Council Building Control setting out a series of matters about which he was unhappy.

 

35.   On 5 November 2009 the senior building control surveyor at Blaby District Council, Mr C, visited the site and found the works to be unsatisfactory. He wrote to Ms B requesting the details of the building contractor. The Complainants decided to withhold further payment.

 

36.   This precipitated a meeting on 6 November 2009. Mr Patel was present, as was Mr E and the Complainants. Unannounced, Mr E brought with him a quantity surveyor, Mr D. Neither Mr Patel, Mr E or Mr D explained Mr D’s role, but he chaired the meeting and prepared the minutes. Mr E brought two other men with him which was intimidating for the Complainants. One was a “business adviser”. The other resembled a night club bouncer, according to Mr S, whose evidence we accept. The meeting was held on site, in the cold and dark of November, as the house had little in the way of facilities at this time. Mr Patel let Mr D take over the whole process completely and Mr Patel took little part in this meeting. It ended with the Complainants feeling threatened enough to agree to pay the next installment even though the work on site was in a dreadful mess. Mr Patel did not do other than acquiesce to  Mr D’s demands of the Complainants on behalf of the contractor. Mr Patel did not, and does not, know the full name, or qualifications, or address of Mr D. The name D may be his first rather than surname. Only an email address was given for Mr D.

 

37.   An email (271) dated 9 November 2009 to Mr Patel from Mr D said:  “this [that is the money] has still not been received despite your assurances. You will confirm prior to 12 pm the reference nr (sic) of this transaction. Failure to provide this overdue payment will result in further action which will be detrimental to the project. We would also require written confirmation of the next payment being made on the due date of the 16th tomorrow”

 

38.   It is unclear what this means as it was written on 9^th November 2009, unless it means that the payment due on 16th November was being demanded in advance. Mr Patel replied to this email on 11 November 2009, by adding comments to it and sending it back, and this reply refers to other emails of that day about payment, but did not deal with the issue of payment being ahead of work, or the very poor quality of the work. We accept the evidence of Mr S that at the meeting he had felt threatened into agreeing to pay more, but had not paid the money once out of the meeting. The Committee notes the statement made in that email that Mr Patel had given assurances that the money would be paid, which Mr Patel did not deny. The Committee finds this was so.

 

39.   There was then correspondence from Mr Patel to Mr D but Mr Patel did not deal with the difficulties that existed with the work on site, restricting himself to requesting site visits and schedules of works in order to facilitate the programming of site visits.

 

40.   Mr Patel produced to the Committee manuscript notes of site visits.  Mr Patel’s evidence is that he visited site on 16, 25, 29 September, 5, 21, 29 October, 6, 16, 17, 18, 27 November, 7, 11, 14, 16 and 23 December 2009, 11 and 18 February 2010, and provided handwritten notes of such meetings. He said that he held off site meetings with Mr E on 3 November 2009 and 6 December 2009. The Complainants deny that such meetings took place and say that these documents are false.  Mr Patel could produce no emails or other verification of the arranging of almost all such meetings (he habitually corresponding with the contractor by email or telephone). These notes were not sent to anyone contemporaneously. The Committee has cross checked the documentation. It is clear that site visits took place on 16 and 29 September, 5 and 21 October, and 17 and 27 November, and 7 December.

 

41.   We find there was no meeting on 29 October 2009. The reasons for this are as follows. On 28 October 2009 at 11:56 Mr Patel emailed Mr E asking him to send a list of choices made about outstanding items, expressing concern about the timeline, asking for an update and for a breakdown of costs and savings made. The email ends “Thanks Sam I appreciate your help, give me a call if you want to discuss further.”  On 29 October 2009 at 17:43 Mr E emailed Mr Patel “Titch [Mr S] was there at the site today. I hope all is well with you and the family.” It then records Mr S asking Mr E about a forthcoming building control officer visit, mentions steelwork and asks that Mr S talk to Mr Patel directly. (Respondent docs 20/21).

 

42.   These two emails are inconsistent with there being a visit by Mr Patel to the site on 29 October 2009. The first email does not mention a visit the next day, and the reference to “give me a call” would instead have been “we can discuss this tomorrow when we meet”. The email of 29 October 2009 does not refer to a visit, and Mr E would not be enquiring as to the health of Mr Patel’s family if he had seen him that day. Nor would it report what Mr S had said, as Mr Patel would have heard it for himself.

 

43.   The Committee’s perusal of the documents does not assist with the other dates contended for as visits by Mr Patel, but given one false document there may be others. The Committee therefore restricts itself to finding as a matter of fact that the visits occurred where there is a cross reference as set out above.

 

44.   No copy of any manuscript note of any site visit was given by Mr Patel either to Mr E, or to the Complainants. Mr Patel told us in oral evidence that where matters were agreed Mr E would write it down, and such matters would be entered in a site book. This was not referred to earlier and was not before the Committee.  It seems likely, and the Committee so finds, that Mr S would not have been at every visit made by Mr Patel to the site.

 

45.   In the meantime there had been concern expressed by Mr S that the invoices being provided by Mr E did not contain a VAT number, although Mr Patel was telling the Complainants to pay the invoices including VAT. Mr S emailed (266) Mr Patel on Sunday 8 November 2009 at 21:09, to say that the invoices would not be accepted by the Court (Ms B, as receiver for her daughter, had to account to the Court of Protection for the expenditure of their daughter’s trust fund monies) because there was no VAT number on them.

 

46.   Mr Patel replied by email (266) on 8 November 2009 at 21:42 “Bruv you really do want this to fuck up dont you, read the payment schedule it states the last payment will be less £4255 (sic). Therefore the proof is there that this is part of the contract and that amount will be shown on the final payment invoice.” The email goes on to say that a VAT number is awaited and that Mr Patel would be chasing Mr E to let him have the VAT number. He concludes “Im (sic) not being awkward I am just trying to underline the fact of it and protect you guys, therefore this does not stop you from paying him the amount on monday (sic). It can get much worse remeber (sic) that you have actually signed this project as a fixed payment schedule, not as stage payment specifically depending on amount of work done. Therefore when the date arrives you have to pay. Unless there is reasonable justification of the work you paid for isnt (sic) getting done.” (266)

 

47.   The Committee is unable to reconcile this last sentence with the defence of Mr Patel that the contract provided for stage payments as set out in the payment schedule whether the work was done or not. Mr Patel could not explain this contradiction.  The Committee finds as a fact that when he wrote this Mr Patel was not aware just how bad the work was. It is the only logical explanation of Mr Patel’s position at the time, and this is reinforced by Mr Patel’s reaction to reading Mr B’s report on 2 December 2009.

 

48.   The phrasing of the email of 8 November 2009 is highly unsatisfactory. It is not the subject of any allegation, and is partially explained by a quasi familial relationship between Mr Patel and Mr S, who had himself used the salutation “Bruv” on occasion when emailing Mr Patel. However it does demonstrate that Mr Patel was firmly of the view – and was telling the Complainants in no uncertain terms – that there was nothing that could be done but for them to pay as demanded by Mr E.

 

49.   On receipt of this email from Mr Patel the Complainants paid Mr E. On Tuesday 10 November 2009 Mr Patel emailed Mr S to say that it looked like the money had left their account but not yet reached Mr E, and that he was dealing with the accountants about invoices. (The unprofessional nature of the whole correspondence is demonstrated by the valediction “dont u lowwee me anymore!!!” (268) and this lack of professionalism permeated the whole of Mr Patel’s conduct of this project.)

 

50.   A further site visit took place on 17 November 2009 (278). This did not progress matters. K&D Cn left site on 19 November 2009, either at Mr E’s order, or because they were not paid. By this time the Complainants had paid approximately £80,000 to Mr E, and were being pressed to pay a further £20,000, which Mr Patel had said must be paid (see above).

 

51.   Mr D emailed (279) Mr Patel on 26 November 2009:  “Raj, I have just had a rather upset, to say the least, Sam [E] on the phone following a conversation from yourself. Allegedly your viewpoint was that everything was fine with Kris [K&D]. If this was the case how come the wall has had to come down 2 times? And more to the point why the hell are you still withholding the last payment together with freezing the previous payment. You state that you wish to move forward amicably but should continue to put obstacles in the way and frustrate the contract and then have the audacity to ask Sam to walk away from the contract! You have signed up to a staged payment schedule that is not tied into progress works with the next payment due on Monday 30th November rest assured we will use the full weight of the contract if the previous payments and the next are not issued.”

 

52.   It would seem that Mr Patel had a discussion with Mr E on that day. The email indicates that payment was being withheld, though in his oral evidence Mr Patel said this was not possible. Mr Patel forwarded the email later that day (279) to Mr S “Here is today’s email from D. I haven’t responded but I did respond to something else earlier.” He did nothing further. The Committee attaches no weight to anything said by Mr E or by Mr D. It was the Complainants who were withholding payment. Mr Patel’s involvement is conspicuous by its absence.

 

53.   The Complainants now took independent advice from DB and Associates (independent building surveyors), and at 20:10 on 02 December 2009 DB emailed a draft copy of his findings to the Complainants and to Mr Patel. At 11:36 on 3 December 2009 Mr Patel replied to the Complainants “Blooming heck so when we going court lol, I crapped myself just looking at the intro. I’ve spoke to David for were going send them just the email and not the draft until it is fully complete. Cheers (sic)” (280) The Committee finds that this response is consistent only with the opinion of Mr B being of matters then unknown to Mr Patel.

 

54.   The report (282 et seq) is damning.  It states that the works were about 30% complete, which equated to around £36,000 of the contract sum. However there was remedial work likely to be of the order of £20,000 exclusive of VAT. The value of work done was therefore approximately £16,000 excluding VAT. Given that £80,000 was being paid by this point the expert’s opinion was that there had been overpayment of approximately £64,000, excluding VAT.

 

55.   Mr Patel’s evidence was that he had seen much of this, and was trying to get matters resolved. He pointed to the manuscript site meeting notes of 29 October 2009, which refer to some of the matters raised by Mr B. These notes were written at a later date as ex post facto justification. No such visit occurred, and so the notes cannot be genuine.

 

56.   Some work was then done on site by other individuals retained by Mr E, and Mr Patel issued a series of Architects Instructions (327). These were all dated 9 December 2009 and there were 11 of them, all being confirmations of verbal instructions starting 21 October 2009.

 

57.   In January 2010 Mr E’s involvement ceased and a new contractor appointed by the Complainants undertook the work. The cost of that work meant that the entirety of the money spent with Mr E was wasted.

 

58.   Mr E threatened to sue the Complainants, but did not. Mr Patel assisted the Complainants, who were trying to get remedy from the contractor. The Complainants’ solicitor advised them that tactically this was best. Mr E disappeared. The Complainants’ health was affected, and it took some time to resolve the matter of the work (which was of primary importance to them not only for themselves but mainly for their daughter) and the potential litigation against Mr E. They had to move house several times before they could finally move back into their home. When they had resolved matters as best they could (and bearing in mind the Complainants’ primary focus was their daughter) they instructed solicitors concerning proceedings against Mr Patel. The Committee does not consider the delay impacts on the credibility of the Complainants. Initially Weightmans LLP was instructed by the insurers to defend the claim on behalf of Mr Patel. However when they investigated the claim they found that there had been a break in the cover of Mr Patel’s firm. This meant that they did not have to accept liability for the claim and they did not do so. The Complainants (and their solicitors) decided that Mr Patel, as an uninsured individual, was not worth suing and so the Complainants did not proceed against Mr Patel, in part as the action was to have been funded by a conditional fee agreement. Thereafter they brought their complaint to the ARB.

 

Discussion and conclusion

59.   Mr Patel’s handling of the contract was unprofessional. Largely he abdicated his responsibilities. The setting up of the contractual documentation consisted of attending a meeting and giving the client and the contractor a blank JCT form and expecting them to fill it in, and they were to attach a payment schedule, which he left to the contractor to draft.

 

60.   Whichever version of his evidence is to be believed as to when he found out about the fixed payment schedule, he gave his clients no proper advice about it. We reject Mr Wilton’s assertion that come what may the fixed payment schedule bound the Complainants to pay fixed sums fortnightly irrespective of progress on site. Regulation 7(6) of the Cancellation of Contracts made in a Consumer’s Home or Place of Work etc. Regulations 2008 would seem to make the fixed payment schedule unenforceable as a contract, and The Unfair Contract Terms Act 1977, an implied term that Mr E’s timeline showing work against money over a fixed 3 month period was part of the contract, a breach of contract in not progressing the work, a breach of contract in the poor quality of the work, lack of consensus ad idem and estoppel come readily to mind as defences that would have been argued with every prospect of success. Mr Patel is an architect, not a lawyer. However he advised his clients against their interests. He should either have given them proper advice, or ensured that they knew they should take legal advice. All he did was have one short telephone conversation with them and tell them that they had to pay, and then reiterate that advice whenever Mr E demanded more money.

 

61.   The submission to the contractor’s will throughout, and when Mr D was brought in, was unacceptable and unprofessional.

 

62.   Taking the allegations in order:

 

1.1    He acted without integrity and/or in a manner which was inconsistent with his professional obligations in:

1.1.1  allowing the Complainants to enter into a payment schedule that was not in the Complainants’ best interests and/or failing to advise them of the consequences of entering into it; and/or

1.1.2   acquiescing and/or encouraging stage payments by the Complainants to the contractor when the works had not been (a) carried out to a suitable standard and/or (b) significantly exceeded the value of the works at the date of payment;

 

contrary to standard 1 of the Architect’s Code of Conduct 2002 (“2002 Code”) and/or standard 1  of the Architects Code of Conduct 2010 (“the 2010 Code”).

 

63.   The Committee does not find that Mr Patel allowed the Complainants to sign a payment schedule that was not in their best interests, as is alleged. The fixed payment schedule was most certainly not in their best interests. He allowed them to do so in the sense that had he acted professionally the situation would not have arisen, but to establish unacceptable professional conduct the word “allow” would necessarily require knowledge that this was what they were going to do. The Committee finds that Mr Patel knew that the Complainants were to enter into a JCT contract with a schedule of payments annexed to it, but not that it was a fixed payment schedule.

 

64.   Mr Patel failed to advise the Complainants of the consequences of entering into the fixed payment schedule, other than to say in one short telephone conversation that it was a binding contract and they had to pay the sums of money set out in it, regardless. While this allegation is not well phrased, because he did advise them, it was inconsistent with his professional obligations to offer them advice in so short a form, unrecorded in any way, and to offer them such wrong advice, to repeat that they had to pay, and not to tell them that they needed legal advice. Nowhere is the point even considered that the document is headed “schedule” which begs the question of to which document is it a schedule?

 

65.   Mr Patel not only acquiesced in the Complainants making stage payments, and encouraged them to make those stage payments. It was worse than that; he told them that they would have to make the stage payments. He allowed them to be intimidated at a site meeting where he allowed another to take over, where they were effectively bullied into agreeing to make further stage payments. When, after that meeting, they decided not to make the stage payments on the date agreed at the meeting, Mr Patel wrote them the extra ordinary email stating that they were going to “fuck it up” by not making payments.

 

66.   At the time he was doing this it is abundantly clear not only from the Complainants’ evidence but also from his own (not to mention that of Mr B) that the work had not been carried out to a suitable standard. The Council building surveyor found works were unsatisfactory. Even if such works were put right, as Mr Patel says it was, that simply means that the works were not in breach of building regulations, not that they were of a satisfactory standard. The Committee finds that the works were not at a satisfactory standard at any stage of the building work.

 

67.   The money paid significantly exceeded the value of the works. Leaving aside the fact that the works were effectively worthless as the whole project had to be redone (and one wall, for example, was built and demolished twice by the contractor because it was not vertical and, on the first occasion, had inadequate foundation). The Complainants were, to Mr Patel’s knowledge, funding the project in advance having paid £28,000 before any work commenced. Mr Patel gave no consideration as to how this might interface with the timeline with a work and payment schedule based upon it. The Committee rejects as facile the argument that he could not value work as there were no stages in the JCT contract to value, and he is not a QS. He could value to the stages in the timeline, and use his professional judgment. He could not certify payments against stages as there were none, but he could and should have advised the client whether the money they had paid was represented by work done on site.

 

68.   These are matters which were inconsistent with Mr Patel’s professional obligations. The Committee deals with the allegation of acting without integrity later in this decision.

 

Allegation 2

Allegation 1.2               He failed to act with integrity and/or faithfully and conscientiously and with due regard to relevant technical and professional standards in failing to administer the contract by:

1.2.1       Failing to value the works; and/or

1.2.2       Failing to issue any certificates in respect of the works; and/or

1.2.3       Failing to attend the site regularly; and/or

1.2.4       Failing to advise on extensions of time; and/or

1.2.5      Failing to issue variations to the contract and/or architects instructions prior to December 2009; and/or

1.2.6       Failing to advise the Complainants on how to terminate the contract; and/or

1.2.7       Failing to advise the Complainants of their rights under the contract,

 

contrary to standard 1 of the 2002 Code and/or standard 1 of the 2010 Code and/or standard 4 of the 2002 Code.

 

69.   This is divided into several parts, first the factual elements:

 

70.   1.2.1 – Mr Patel agrees that he did not value the works; he says there was no obligation so to do. For the reasons set out above the Committee considers that there was such an obligation upon him.

 

71.   1.2.2 – the stem of the charge refers to administering the contract. The only certificate referred to in the JCT contract that could be relevant is the certificate to be provided at the completion of the works. The works were not completed, and so no certificate was appropriate. This limb of the allegation is therefore not made out.

 

72.   1.2.3  – this limb of the allegation is not made out. Mr Patel did attend the site on a variety of occasions as set out above. These visits would appear to have been approximately fortnightly. While the Committee has found that the site notes of one purported visit were fabricated, and have doubts about two other visits, the remaining visits were regular (and frequent). Mr S did not accept that such visits had been made; for the most part the Committee accepted Mr S’s evidence, but finds that Mr Patel may have had site visits which were not site meetings attended by Mr S.

 

73.   1.2.4 –  failure to advise on extensions of time; we accept Mr Wilton’s submission on this point. The provision for extensions of time is to benefit the contractor; it cannot be of detriment to the Complainants that Mr Patel did not extend time to the advantage of the contractor, which would have been to their disadvantage. Nor, looking at the provisions of clause 6 of the standard conditions attached to the JCT contract, did the circumstances apply where such an extension could have been given. This limb of the allegation is therefore not made out.

 

74.   1.2.5 –  Failing to issue variations to the contract and/or architects instructions prior to December 2009.  The first part of this limb of the allegation is not apparent from the papers, and nor was it put in cross examination. Accordingly it is not made out. No architects instructions were issued prior to December 2009. In oral evidence Mr Patel stated that this was because he considered that to do so would delay matters. He was unable to explain why this might be the case. The architects instructions were issued in December to be given to new builders once K&D C had left site. The architects instructions state that they are to confirm verbal instructions. It necessarily follows that these instructions were not recorded elsewhere in a proper fashion, and that is not to administer the contract faithfully and conscientiously and with due regard to relevant technical and professional standards.

 

75.   1.2.6 – Mr Patel did not advise the Complainants how to terminate the contract. As we understand this allegation it is not asserted that he should have done so when he first became aware of the fixed price schedule, other than as part of the advice which was not, and should have been, given about the situation. That is dealt with elsewhere in this decision. This allegation appears to relate to the ultimate termination of the contract with Mr E towards the end of 2009 and at the beginning of 2010. At this point the Complainants had rightly instructed solicitors, who were giving them advice about legal matters. Plainly it was sensible for the client to be so advised, and when the client is receiving advice on legal matters from a solicitor it is outwith the architect’s remit to offer such advice. Accordingly this limb of the allegation, as understood by the Committee, is not made out.

 

76.   1.2.7 –  Mr Patel failed to advise the Complainants of their rights under the contract, for the reasons set out above and this was to fail the stem of the charge.

 

77.   Accordingly, there was a failure faithfully and conscientiously and with due regard to relevant technical and professional standards to administer the contract in allegation 1.1 and 1.2, 1.2.1, 1.2.5 (second part only), and 1.2.7.

 

78.    Having so decided the Committee next considered whether this, individually or collectively, was a failure to act with integrity.

 

79.   Mr Wilton did not address the Committee on this question, and Mr Miller’s submission was brief, to the effect that it was serious enough to amount to a lack of integrity. It is not suggested that Mr Patel was dishonest. Integrity is much broader than honesty. It is different to negligence. To be negligent is accidentally to omit to do something, or to do it less well than it should have been done. Here, Mr Patel abrogated his responsibilities to a very considerable degree. He failed to direct his client to seek competent advice when he should have done, and he consistently and in a definite way took the part of those with interests adverse to those of his clients. He was obliged to do more for his client than act impartially between contractor and client had he been architect. He had put in place a JCT contract where he was acting as consultant and this required him to “act for the customer”. The matters set out in this decision show him so far from this obligation as to justify a finding of lack of integrity. Here there is the necessary moral opprobrium which requires such a finding. The Complainants’ situation arose as it was the way that Mr Patel had conducted – or failed to conduct – the pre contract negotiations which had led his clients to be in that position.  The failure to take any appropriate or effective action given the dreadful state of the client’s project compounds and is part of the rationale for considering this to be a lack of integrity. Mr Patel comprehensively failed his clients. In coming to this conclusion the Committee has considered carefully the derivation of the word “integrity” and its philosophical meaning, particularly as applied to professional work. There is a moral code that runs right through the work of any professional, and that is to safeguard the interests of the client as the ethics of the profession may require. This was a professional person conducting his professional activity, for reward. The manner in which Mr Patel conducted this project breaches the code of ethics of the profession of architect to the level that a finding of a lack of integrity is warranted.

 

80.   1.3          Mr Patel did not have adequate insurance in place in order to meet the Complainants’ claim contrary to standard 8.1 of the 2010 Code. This fact in this allegation is proved by admission, and is a matter of record.

 

81.   The Committee accepted that Mr Patel retained insurance brokers, and asked them the right questions, and appears to have been let down by them. It accepted that subsequent to the gap in cover he had put in place unbroken cover with the same insurer, and that there had been more than one renewal since the events giving rise to the claim. The difficulty was that there was no retroactivity for claims arising subsequent to the renewal but before the gap. The problem only arose as Mr Patel allowed a situation to arise where he was uninsured for a period of 6 weeks. The consequence for the Claimants has been to deprive them of the opportunity to bring a claim in professional negligence amounting to close to £100,000.  Absence of insurance cover has such serious consequences that it is usual for it to be unacceptable professional conduct.

 

82.   In this case the Committee finds that, while there is extensive mitigation, there is no reason to depart from finding it to be unacceptable professional conduct.

 

83.   Accordingly the Committee finds the allegation proved, on those particulars indicated above.

 

Sanction – heard on 15 January 2016

 

84.   The ARB was not represented at the hearing, and the Committee appreciated that the approach taken by ARB is that the question of sanction is a matter for the Committee, having regard to the Indicative Sanctions Guidance.

 

85.   Mr Patel and one of his colleagues, Mr N, and a former colleague, Mr A, gave evidence to the Committee.

86.   Mr Wilton spoke for Mr Patel in mitigation, at length. In essence, and n very brief summary, he said that Mr Patel had taken great steps to ensure that his practice was now well run, and that in the six years since these events it was now a very different practice. He attributed the problems to inexperience by a relatively newly qualified architect running his own newly established practice. In essence he was now older and wiser so that there was no public protection issue in the future. He laid stress on the insight shown by Mr Patel and stressed that there were no integrity issues. Through inexperience he had allowed a rogue contractor, who was doubtless dishonest, to take advantage of everyone involved. Mr Patel did not then have the experience to know how to deal with this circumstance, and had no mentor to turn to.
87.   There was no question of Mr Patel seeking or gaining financial advantage from the client.
88.   He also spoke to Mr Patel’s personal difficulties at the time, but as this is a public document we do not set those out in detail, but have taken full account of them.
89.   Mr Wilton laid stress on the fact that Mr Patel had used a broker in connection with insurance, and that while he accepted his own responsibility, the broker upon whom he had relied had effected the insurance for him that had, in the event, not covered the claim of the complainants .
90.   Mr Patel had fully engaged with the ARB throughout the course of the matter, and had taken steps to deal with the issues even before there was a complaint to the ARB.

91.   Whilst fully respecting the decision, and expressing contrition remorse and apology, Mr Wilton submitted that of the range of sanctions available to the Committee a financial penalty was the one most appropriate.

92.   The Committee listened very carefully to the submissions made by Mr Wilton on behalf of Mr Patel, and found them very helpful. The Committee took note of the testimonials supplied, and noted the efforts made by the practice to ensure that it is now an entirely properly run practice.

 

93.   The primary purpose of sanctions is not to be punitive (though this may be their effect) but to protect members of the public, to maintain the collective reputation of the profession (and the ARB as its regulator), and to declare and uphold proper standards of conduct and competence. Sanctions also help ensure that the profession better understands the importance of professional standards.

94.   The Committee considered the Indicative Sanctions Guidance. Appearance before this Committee is in itself salutary. The Act does not require the Committee to impose a sanction in every case where a guilty finding is reached, so the Committee may choose to make no disciplinary order.  If it decides to impose a sanction, the Committee commences at the lowest sanction, and only if it decides that sanction is not appropriate does it move to the next level of sanction. Having arrived at a sanction that it is minded to impose the Committee then reviews the next sanction above so as to satisfy itself that this would be too severe a sanction before arriving at a final conclusion. If the Committee decides on a fine, it is limited by the Architects Act 1997 to £2500 for the charges of unacceptable professional conduct which the Committee found made out.

 

95.   In all the particular circumstances of this case we consider that a sanction is appropriate because of the need to declare and uphold professional standards.

 

96.   The Committee identified the following mitigating and aggravating factors:

 

The mitigating factors put forward for Mr Patel were that:

–           he has no previous appearance before the PCC

–           he expresses regret

–           this happened early on in the practice, in 2008/2009  and so now over 6 years ago

–           he has undertaken changes to the way the practice works

–           he has undertaken extensive retraining

–           he has appointed a reputable broker to ensure that his practice is properly insured

–           he produced a large number of testimonials, many from former colleagues

 

The aggravating factors are:

–           the effect on the clients was dire, both in personal terms and in cost

–           they have been able to gain no recompense

–           this was a course of conduct extending over a period

–           there were fundamental failings in undertaking the most basic responsibilities of an architect to a client, to the extent that the Committee found this to be lacking in integrity

 

97.   The indicative sanctions guidance states:

Reprimands

Where the PCC decides that it is appropriate to impose a sanction in relation to a guilty finding, a reprimand is the lowest sanction that can be applied. It may be used in relation to those offences at the lower end of the scale of seriousness, where and where it would be appropriate to mark the conduct or competence as being unacceptable.

 

98.   In this case the effect on the clients was so serious that a reprimand would not be appropriate.

 

Penalty orders

Penalty orders are fines of up to level 4 on the standard scale of fines for summary offences, currently set at £2,500. Only one penalty order can be issued per charge. It may be used in relation to those offences too serious to warrant a reprimand, or where a lack of remorse or understanding is displayed.

 

99.   In this case the offence is too serious to warrant a reprimand, and a financial penalty is a sanction the panel may consider, unless it considered the matter too serious.

 

100.  The Committee gave very serious thought to the possibility of imposing an order for suspension. The impact on the client was so great, and the extent of Mr Patel’s failings meant that this had to be given very serious thought. Paragraph 79 of the earlier decision in this case made a finding of a lack of integrity. A suspension or erasure would usually follow such a finding. The finding in paragraph 79 was of failure to have steady adherence to a moral code. However the Committee finds that there is no entrenched integrity issue with Mr Patel, as evidenced by the conduct of Mr Patel and the progress of the practice over the 6 years ensuing since the events leading to this hearing. There is no requirement for a sanction to protect the public in this case.

 

101.  There is no question of Mr Patel seeking to gain financial advantage of the client by any of his actions or inactions. It is entirely plain that the mischief was primarily caused by the actions of the contractor, and it was Mr Patel’s failure adequately or at all to deal with those matters that resulted in the consequences that befell the complainants. It was not what he did that caused the problems, but his failure to cope with the activities of others. The Committee is satisfied that Mr Patel has learned greatly from these matters.

 

102.  So far as the insurance matter is concerned, Mr Patel had instructed brokers, and he was unfortunate in that they failed, it would appear, to ensure that the replacement cover that he obtained was retrospective.

 

103.  On balance, the Committee decided that the need to declare and uphold professional standards, and the obligation to maintain the public confidence in the profession, is met by the imposition of a fine rather than by suspension. Throughout its deliberations the Committee had borne in mind the effect on the complainants.

 

104.  The Committee observes that the level of fine that it may impose is capped by statute, and so the level of the fine should not be taken to be indicative of the Committee’s estimation of the seriousness of the matter. However the first task of the Committee is to decide whether the sanction should be a financial penalty or whether suspension would be too serious in all the circumstances of this case.

 

105.  Performing that exercise, the Committee decided that a suspension would be too serious an impact on this professional,  in these circumstances, even taking into account the very serious consequences for the complainants.

 

106.  The financial penalty cannot be other than the maximum. Mr Patel is ordered to pay a financial penalty of £2500 within 28 days.