THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

 

In the matter of

Richard Cutler (052614B)

 

Held as a video conference

On

26-29 July and 16 November 2022

Present

Andrew G Webster KC (Chair)

David Kann (PCC Architect Member)

Alastair Cannon (PCC Lay Member)

———–

In this case, ARB is represented by Mr Greg Foxsmith of Kingsley Napley (“the Presenter”).

Mr Richard Cutler (“the Respondent”) has attended this hearing but is not legally represented.

 

 

Decision on facts and UPC

Allegation

1. The allegation made against the Respondent is that he is guilty of Unacceptable Professional Conduct. The particulars in support of the allegation are:

(1)  The Respondent did not provide adequate terms of engagement to the Complainants, contrary to Standard 4.4 of the Architects Code;

(2)  The Respondent advised the Complainants that a survey would be carried out in-house by a colleague but then out-sourced the survey to a sub-contractor;

(3)  The Respondent did not provide the Complainants with the CAD files for the survey when requested and/or when the Complainants had paid for the survey;

(4)  The Respondent did not deal with a complaint appropriately, contrary to Standard 10 of the Architects Code;

(5)  The Respondent issued an invoice 25 June 2021 for fees for work that he had not yet completed and/or carried out and/or provided to the Complainants;

(6).  The Respondent’s actions at particular 2:

(i)         were misleading; and/or

(ii)        lacked integrity; and/or

(iii)       were dishonest;

(7) The Respondent’s actions at particular 5:

(i)         Lacked integrity; and/or

(ii)        Were dishonest.

 

Background

2. The Charge comes before the Committee further to its jurisdiction under the Architects Act 1997, sections 14(3) and 15(1)(a) to determine whether an architect is guilty of UPC; and if so, to determine whether a disciplinary order ought to be made in consequence thereof; and if so, what order should be imposed.
3. The Respondent is a registered architect. In or about 2021, under the trading name of Cutler Architects, he provided services to Mr and Mrs S (“the Complainants”) in respect of the proposed re-development of their residential property (“the Property”).  A measured survey of the Property was undertaken.  Drawings were prepared.  The Complainants were not content with the service provided and wrote to the Respondent to rescind the agreement to provide services and requested the CAD files arising from the measured survey.  Relations between the Complainants and the Respondent broke down and a complaint to ARB was submitted.  A report dated 24 February 2022 was submitted to the Committee.

 

Preliminary matters and later applications

4. At the start of the hearing the Respondent sought to have witness statements by himself and by NC received into evidence. The Presenter had no objection to the application.  The Committee, noting the apparent relevance of the evidence therein to the subject matter of the allegation and the absence of prejudice to ARB by their introduction, determined to allow the witness statements to be admitted.

 

Response to allegation

5. Further to Rule 18 of the Rules, the Respondent was asked whether he admitted any of the facts alleged in the allegation. No clear and unequivocal admission was made.  The Respondent pled not guilty to the allegation.

 

Evidence

6. The Committee heard and considered oral evidence from the Complainant, the Respondent and Mr NC. All three witnesses adopted their respective witness statements and gave further oral evidence.  The Committee also had regard to the documentary material presented with the Report to the Committee.  The Presenter made oral submissions on the evidence.  The Respondent also made oral submissions on the evidence.  In so doing he referred to and adopted written submissions appearing as comments by him in the documents within the defence bundle.

 

Findings of fact

7. In reaching its decision the PCC carefully considered the submissions made, together with the evidence presented to it, both in documentary form and in oral evidence.
8. The PCC also had regard to the advice of the Legally Qualified Chair that on disputed issues of fact, 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 PCC considered the evidence in the round and noted that it was entitled to draw reasonable inferences from established facts, but that it was not to speculate.
9. The Complainant’s evidence was that she and her husband had acquired the Property in September 2020 with a view to carrying out renovation works. The Respondent attended the Property in January 2021.  Following discussions, the Complainants appointed the Respondent as their architect for the renovation works.  The appointment was made following a letter from the Respondent dated 30 January 2020.  In that letter he set out the work proposed in stages.  Of a number of stages, Stage 1 was described as “Preparation and Brief”.  It entailed a measured survey.  The proposed fee was £3,200 (ex VAT).  Stage 2 was described as “Concept Design”.  It entailed a sketch scheme.  The proposed fee was £500 (ex VAT).  Stage 3 was described as “Developed Design”.  It entailed drawings and 3D modelling.  The proposed fee was £3,500 (ex VAT).  Other, subsequent, stages were set out.  All of the proposed fees for stages 1 to 3 were qualified as “payable when completed”.  Further, the letter stated as regards invoicing “Staged work will not proceed to the next stage until invoices from the previous stage have been paid in full.”    The letter also stated that “The works to be in accordance with the ‘RIBA Domestic Professional Services Contract 2018: Architectural Services’”.  No copy of that document was produced to the Complainants by the Respondent.
10. The Complainant stated that before instructing the Respondent she had sought further information from the Respondent as regards the cost of the survey under Stage 1. She referred to an email to her on 19 February 2021 in which the Respondent had stated “[w]e undertake the measured surveys ourselves … when other Architects often subcontract this element”.  In a subsequent email on 12 February 2021 the Respondent stated, “My colleague [NC] will undertake the survey”.  The survey was subsequently undertaken by “NC”.  She recalled clearly that “NC” had said to her at the end of the survey that he would have no further involvement and that the Respondent “just gets me in to do my surveys for him”.  She recalled his van.  The Stage 1 survey was provided, invoiced and paid.
11. The Complainant went on to give evidence of receiving drawings on 8 April 2021 containing proposals for redevelopment of the Property. Her evidence was that the Complainants viewed the drawings as disappointing.  The drawings did not reflect what had been discussed with the Respondent and had mislabelled and failed to label other rooms.  She referred to an email dated 3 May 2021 to the Respondent setting out extensive proposed changes.  In the absence of a response from the Respondent she chased him for a reply on 13 May 2021 in a further email.  No immediate reply was received.  She discussed matters with her husband.  She said that they determined to terminate the contractual relationship with the Respondent due to the disappointing proposals provided combined with what they considered to be poor responsiveness in his communications with them.  They understood that they terminated the agreement on the basis that liability for Stage 2 costs had been incurred in the provision of the drawings, but before Stage 3 was commenced.  On 17 May 2021 she had started to compose an email to the Respondent when she received an email from him stating “I will have a good look at this and get back to you over the next few days”.  She responded later that day and advised that “we won’t proceed with you to the next stage …”  She referred in her email to concerns as to the content of (or more accurately lack of content within) the Stage 2 drawings produced and over the apparent use of a subcontractor to undertake the measured survey despite the prior statement that the Respondent did not subcontract that work.  She also requested “all components of the survey”.
12. The Complainant said that the Respondent responded the same day. She referred to an email in which the Respondent replied “Is it still possible to salvage the situation?  If not I will email you the survey tomorrow, and return your sketches by post”.  She said that she replied to the Respondent the following day.  She referred to an email of 18 May 2021 in which the offer from the Respondent seeking to salvage the situation was not accepted and the request for the survey files and “our hard copy drawings” was repeated.  In the absence of a response from the Respondent a further request was made in an email on 25 May 2021 and 2 June 2021.  She further stated that on 21 June 2021 her husband had sent a further email to the Respondent.  She referred the Committee to that email which advised that the Complainants had proceeded with another architect.  It also sought return of the money paid to the Respondent for the Stage 1 survey in the light of concerns of “misrepresentation, delays and lack of responsiveness, and the very poor standard of the design work” by 5pm on 25 June 2021 and warned of a complaint to RIBA.  She said that the only response from the Respondent was an Invoice sent at 5pm on 25 June 2021 for the Stage 2 work and also apparently for some Stage 3 work.  A complaint was subsequently made to ARB.
13. The Complainant stated that they have not received the CAD files from the measured survey. She described the refurbishment project as something that she and her husband had gone from being really excited about to the project being “really disappointing, confusing and worrying that this is possible”.  She said they had missed a development window due to the delay in progressing the project as prices had “gone through the roof”.
14. The Complainant was cross-examined by the Respondent. With an apparent view to challenging her credibility, she was asked if she was registered with the Solicitors Regulatory Authority (“SRA”) (she had described herself in her witness statement as having previously practised as a solicitor).  She stated in response that she was not aware if she was so regulated.  She said she did not have a practising certificate.  Her evidence as to the absence of a practising certificate was consistent with documentary material in the Respondent’s Defence Bundle what appeared to be a print of the electronic record kept by the SRA.  That document described the Complainant as a “SRA-regulated solicitor, not practising”.  She was also challenged as to truthfulness of her recollection of her discussions with “NC” following the measured survey.  However, she adhered to her evidence-in-chief.  A further apparent challenge to her credibility was presented in questions as to her claimed dissatisfaction with the work of the Respondent.  She admitted that the brief described in the Respondent’s letter of 30 January 2021 was as accurate reflection of what the Respondent had been asked to consider.  She also accepted that the sketch session reflected the brief.  When challenged as to why, then, she had been critical of his work, the Complainant explained that the proposals in the sketch drawings were unworkable in relation to the positioning of rooms, and that the Respondent had not come up with a design that worked.  To the contrary, she recalled in an apparent reference to the email of 3 May 2021 that she had to send designs to the Respondent.
15. The Committee also heard evidence from NC, who was led in evidence by the Respondent. NC written statement, which was adopted by him explained that he had conducted a survey of the property at the request of the Respondent on 22 February 2021.  He stated in the witness statement that he was a CAD technician and had been in the Respondent’s employment from 2001 to June 2015.  He said it was “absolutely not the case” that he had advised the Complainant that he would have no further involvement in the project or that he had said the Respondent “just gets me to do my surveys for him” … “or words to that effect.  In cross-examination he stated he was a self-employed sole trader.  He had attended at the Property in his car, but recalled a van in the driveway, which he believed was because a delivery was taking place.  He described himself as carrying out a role as part of the larger project, but when asked if he was sub-contracted to a larger project he responded that he was “not sure I would say sub-contracted.  I provided freelance assistance as and when required.”  He said he could not recall word-for-word his conversation with the Complainant.  He asked rhetorically why he would have said to the Complainant that he would have no further involvement in the Project.  In response to questions from the Committee members he confirmed that he was a sole-trader in February 2021.
16. The Committee also heard from the Respondent, who adopted his witness statement. He stated that the contract with the Complainants, set out in the letter of 30 January 2021, included by incorporation the standard form contract RIBA Domestic Professional Services Contract 2018: Architectural Services.  He referred to a 2020 iteration of that standard form contract, including a reference therein to consent, which would otherwise be required from the client for the subcontracting of any work, “not being required for agency or self-employed staff.”  He stated that there was no provision in his contract with the Complainants that he could not subcontract work.  He stated that it was remarkable that the Complainant had not noticed NC’s distinctive car.
17. The Respondent stated that the work undertaken at Stage 2 was more than the production of a sketch. It included 3D designing, which was listed under Stage 3 works.  That was why he had invoiced the Complainants one third of the Stage 3 proposed fee.  He stated that the design work undertaken by him reflected what he understood the Complainants wanted to achieve.  He described the drawings he produced as a “working draft”, but that the Complainants had never come back to him.
18. He stated that he had professional indemnity insurance, but he accepted that he had not stated in his correspondence to the Complainants that he had. He said that “people do not like you saying that you have PI insurance as you get shot in the neck.”  He would have been happy to provide the Complainants with the CAD files from the survey, but he had not done so as he had outstanding fees from “Stage 3” and was adamant that “under contract law” he did not have to provide anything if he had not been paid.
19. He said he did not view the Complainants’ concerns as a complaint, but rather a contract dispute and that he did not need to do anything until his invoices were paid.
20. He denied that his actions were misleading or lacked integrity. He denied that his conduct amounted to UPC.
21. In cross-examination he accepted that NC had not been “on his payroll” since 2015. He described him as a “colleague.”  He declined to recognise him as a subcontractor because “NC works for me all of the time.”  He said he had been honest at all times in the use of the descriptor “colleague.”  He said it was not a misleading description of NC.
22. He accepted that his contract documentation with the Complainants did not contain provisions on termination, insurance, the possibility of reference to alternative dispute resolution procedures, nor a complaints handling procedure, nor information that he was registered with ARB and subject to the Architects Code (“the Code”). He said that the “RIBA Contract” covered issues as to constraints and limitations within the contract, but accepted that he did not provide a copy of the 2018 standard form contract to the Complainants.  He accepted that the contract documentation sent to the Complainants was not adequate in respect of any constraints and liabilities of the parties, on suspension or termination of the agreement, insurance cover, complaints handling and on the fact of his registration with ARB and being subject to the Code.
23. Reviewing the evidence in the round the Committee found the ARB’s witness’s evidence to be credible and reliable. It was consistent with the documentation available to the Committee.  Where there was a dispute in the evidence the Committee preferred her evidence over others.  In particular, it preferred her evidence over that of NC as to the discussion as to NC’s ongoing involvement after the survey.  The Complainant was clear in her recollection.  The Committee noted that NC was engaged to conduct many surveys.  In contrast, this was the only project that the Complainants had on-going.  The Complainant, had previously raised an issue as to the survey and had been assured that it would not be undertaken by a sub-contractor.  In the view of the Committee, she was, therefore, more likely than NC to recall accurately the content of a conversation with him which appeared to contradict the information given by the Respondent as he endeavoured to secure the work.  Furthermore, NC was at times uncertain as to the exact words he used.  The Complainant’s recollection was consistent with the reality that NC’s involvement was only to undertake the survey.  Whilst she was challenged on her recollection of NC attending by van when NC drove a distinctive car, the Committee noted that NC recalled a van being present at the time he called upon the Complainants.  In the view of the Committee, the Complainant’s attachment of the van to NC did not materially detract from the overall reliability of her evidence.  The Complainant was, in the view of the Committee, a more reliable witness than NC and preferred her evidence over his when in conflict.
24. Against that background the Committee made the following findings of fact:

Particular 1: FOUND PROVED.

25. There was no dispute in the evidence that the terms of engagement were provided by the letter of 30 January 2021. That letter made reference to the 2018 RIBA standard form contract, but that document was not provided to the Complainants.  It was not placed before the Committee either.
26. Standard 4 of the Code provides:

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 contrasting 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 existence of any Alternative Dispute Resolution schemes that the contract is subject to and how they might be accessed;
• that you have a complaints-handling procedure available on request;
• that you are registered with the Architects Registration Board and that you are subject to this Code.

 

27. The Presenter sought to rely upon only a failure to provide adequate terms of engagement in relation to:

• any constraints or limitations on the responsibilities of the parties;
• the provisions for suspension or termination of the agreement, including any legal rights of cancellation;
• a statement that you have adequate and appropriate insurance cover as specified by ARB;
• that you are registered with the Architects Registration Board and that you are subject to this Code.

 

28. Noting that the only contractual document provided to the Complainants was the letter of 30 January 2021 and that the letter did not contain provisions relating to those four matters, the Committee determined on the balance of probabilities that the Respondent did not provide adequate terms of engagement to the Complainant, contrary to Standard 4.4 of the Code, to that extent.

Particular 2: FOUND PROVED

29. The Committee accepted the uncontested evidence of the Complainant that the Respondent had emailed on 10 February 2021 and stated that “we undertake measured surveys ourselves … when other Architects often subcontract this element”. Further, it accepted her uncontested evidence that on 12 February 2021 in another email he stated, “my colleague NC will undertake the survey.”  The Committee determined that taken together the emails carried a clear message that the Stage 1 survey, whatever the terms of engagement said, would be carried out by a colleague who was “in-house”, that is to say not by a sub-contractor.  In the event, the uncontested evidence was that the survey was carried out by NC.  NC was, on his own evidence, self-employed.  NC was not an “in-house” colleague of the Respondent.  Indeed, in the view of the Committee NC was not a colleague of the Respondent as that expression was used in the email correspondence to imply the very antithesis of a subcontractor.  He was instructed by the Respondent, not the Complainants, and therefore was a contractor to the Respondent.  He was, in undertaking the survey at the request of the Respondent, a sub-contractor as regards the Complainants’ contractual relationship with the Respondent.

Particular 3:  FOUND PROVED

30. The Committee accepted the evidence of the Complainant that the Complainants had requested the CAD files from the survey in correspondence and had not been provided with the same. The Respondent in his evidence was clear that he had not provided the same to the Complainants.  The Committee also accepted the evidence of the Complainant that the Complainants had paid for Stage 1 of the works, which was payment for the survey.  Accordingly, the Committee was satisfied that the Respondent had failed to provide the CAD files for the survey despite it having been paid for.  The Committee noted the Respondent’s belief that as he had not been paid for what he believed to be some Stage 3 works he was under no obligation to provide the files.  However, the Committee determined that in the light of the terms of engagement compartmentalising work and payment into distinct stages, the issue of payment of Stage 3 works was irrelevant to the issue of whether the Stage 1 works had been paid for, which they had.

Particular 4:  FOUND PROVED

31. Standard 10 of the Code provides:

10.2 Complaints should be handled courteously and promptly at every stage, and as far as practicable in accordance with the following timescales:

1. an acknowledgement within 10 working days from the receipt of a complaint; and
2. a response addressing the issues raised in the initial letter of complaint within 30 working days from its receipt.

 

32. The Committee accepted the evidence of the Complainant that on 21 June 2021 an email was sent to the Respondent by the Complainant in the terms of the email of that date timed at 21:21:24 BST within the Exhibits. The letter expresses dissatisfaction with the Respondent’s conduct and asserts breach of the RIBA Code of Professional Conduct, warns of a formal complaint to that body, and seeks some form of recompense from the Respondent.  The Committee was satisfied that on any reasonable construction the email was a complaint made to the Respondent as regards his conduct.  The Respondent’s response was, on 25 June 2021, to issue an invoice for payment for Stage 2 and alleged Stage 3 works.  No acknowledgement of a complaint was sent and no attempt was made to respond to the issues raised, far less within the time scales set out in the Code.  The Committee therefore determined that the Respondent had neither provided an acknowledgement of the receipt of the complaint within 10 working days, nor a response addressing the issues raised within 30 working days.  The Committee noted the Respondent’s position that he did not see the email as requiring a response, but reject that as a reasonable inference in the light of the terms of the email.

Particular 5:  FOUND PROVED

33. Again, there was agreement between the parties that the Respondent had issued an invoice on 25 June 2021 which included fees for purported Stage 3 work. The Respondent characterised the 3D drawings produced as a working draft of the stage 3 drawings.  The Stage 3 drawings were described in the letter of 20 January 2021 as being “As suitable for submission for Planning Permission”.  The Committee determined that the drawings produced by the Respondent were rudimentary.  They were, in the view of the Committee, on the balance of probabilities produced as part of the sketch scheme under Stage 2 and not as part of Stage 3 works.  In reaching that view the Committee took account of the provisions of the letter of engagement that provided that staged work would not proceed to the next stage until invoices from the previous stage had been paid in full.  As the invoice itself records, Stage 2 had not been paid for as it was only then being invoiced.  Accordingly, in seeking on 25 June 2021 to obtain payment for Stage 2 and some Stage 3 works the Respondent sought fees for purported Stage 3 work that had not been completed and indeed had not been carried out or provided to the Complainants.

Particular 6:  FOUND PROVED

34. The Committee was satisfied that the Respondent was well aware of the contractual relationship between himself and NC in the light of their long-standing professional relationship and the departure of NC from the Respondent’s employment some years previously; and well aware that NC was not an “in-house” colleague, but rather a contractor to him and a sub-contractor to the Complainants. To purport to the Complainants that the survey was to be carried out by an in-house colleague was, in the circumstances, misleading.  It was the basis upon which the Respondent secured his instruction.
35. In considering the issue of integrity the Committee accepted the Presenter’s submission under reference to Wingate v Solicitors Regulatory Authority [2018] 1 WLR 3696 that integrity entails maintaining the higher standards which society expects from professional persons and which professional 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 Respondent’s conduct as found proved under Particular 2 lacked integrity as it demonstrated a failure to provide the Complainants with accurate information upon which to make an assessment as to whether to instruct the Respondent.  In the view of the Committee a member of the public and fellow architects would regard such conduct to fall seriously below the standard expected of an architect in seeking business.
36. Furthermore, in assessing whether the Respondent’s conduct as found proved under Particular 2 was dishonest the Committee had regard to the decision in Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67. In the view of the Committee the Respondent was, subjectively, aware of the nature of his professional relationship with NC; that NC  was not “in house”; and yet the Respondent provided the explanation as to the survey to the Complainants in the emails of 10 and 12 February 2021.  In the view of the Committee, ordinary decent people would regard as dishonest the conduct of the Respondent in seeking to obtain and obtaining an instruction of work on a stated premise to which he then did not subsequently adhere.

Particular 7:  FOUND PROVED IN RELATION TO LACK OF INTEGRITY

37. Recalling the authorities on integrity and dishonesty already referred to, the Committee determined that the Respondent’s conduct as found proved in Particular 5, in invoicing for work not undertaken, fell below the high standard the public expects of professional persons and that professionals would expect of each other. In the view of the Committee the public would not expect a professional person to seek to recover payment for work which had not undertaken and consequently for which there was no entitlement to payment.
38. The Committee noted that the Presenter declined to press the allegation of dishonesty as regards the matters found proved under Particular 5. He explained that this was because the basis upon which payment had been sought was stated in the invoice provided by the Respondent and therefore could not be said to be misleading.  In the light of the approach of ARB to that matter the Committee found Particular 7(ii) not proved.

 

Finding on UPC

39. Having found the foregoing facts proved, the PCC proceeded to consider whether the Respondent’s conduct amounted to UPC, that is “conduct that falls short of the standard required of a registered person” (s. 14(1)(a), Architects Act 1997). The PCC had regard to the advice of the Chair of the Hearing Panel that the issue of whether the proved conduct amounts to UPC is one for the PCC’s independent judgment.  The deficient conduct must be serious.  The PCC also bore in mind that to reach a decision of UPC “a degree of moral blameworthiness on the part of the registrant likely to convey a degree of opprobrium to the ordinary intelligent citizen” was required (Spencer v General Osteopathic Council [2012] EWHC 3147 (Admin), [2013] 1 WLR 1307)  The PCC also reminded itself of the relevance of drawing a distinction between a single act and multiple acts of concern, viz. “mere negligence does not constitute misconduct” and that “a single negligent act or omission is less likely to cross the threshold of misconduct than multiple acts or omissions and a single instance of negligent treatment unless very serious indeed, would be unlikely to constitute deficient professional performance.” (R (Calhaem) v General Medical Council [2007] EWHC 2606 (Admin).)
40. The Presenter submitted that each and all of the proved Particulars was serious. The Complainants were entitled to have the CAD files returned to them and to have a response to their complaint.  They were entitled to be treated courteously, to not be misled, nor to be treated with a lack of integrity.  The Respondent, in a brief response, submitted that he had done all he had been expected to do.
41. As regards the Respondent’s failure to provide CAD files, whilst the Committee was satisfied on the balance of probabilities that the Respondent had not provided them, it was unclear to the Committee whether the Respondent was under a contractual obligation to deliver the same. That issue was not explored in evidence. The Committee was therefore not able to conclude that the Respondent was obliged to provide the CAD files such that the failure to do so amounted to UPC.
42. Otherwise, the Committee regarded each and all of the remaining proven Particulars to be serious. The Code sets out standards of conduct that the public are entitled to expect from registered architects.  The Respondent accepted when questioned that in four material ways he had failed to provide the Complainants with information in his terms of engagement in a manner contrary to Standard 4.4 of the Code.  Clear terms of engagement are necessary to protect both the client and the architect in the event of a breakdown in relationship.  Adequate terms of engagement minimise the risk of confusion about the extent and scope of the services to be provided and the liability for payment.  The failure to provide adequate terms of engagement in this case was serious because the Respondent failed to clarify the circumstances for termination of the agreement to provide services and rights in the event of such terminations, manners in which to resolve disputes and the significance of the Respondent’s registration with ARB and the professional expectations upon him in terms of the Code.  The Respondent’s proved failure under Particular 1 therefore amounted to UPC.
43. Furthermore, when the relationship did break down the Respondent’s response was little short of contemptuous towards the requirements of the Code, under Standard 10, to respond. Rather than acknowledge a complaint and then respond, he chose simply to render an invoice for payment for work that had not been completed, carried out, nor provided to his clients.  Such conduct is, in the view of the Committee, anathema to the good reputation of the profession and the Standard set out in the Code and is to be viewed with opprobrium and to amount to UPC.
44. The Committee was also of the opinion that whether characterised as misleading, lacking in integrity or as dishonest, the Respondent’s advising of the Complainants that work would be carried out in house by a colleague but then out-sourcing that work to a sub-contractor also seriously undermined the reputation of the profession having regard to Standards 1.1 and 1.2 of the Code and amounted to UPC.
45. As regard the Respondent’s proven conduct in issuing an invoice for work that had not been completed, carried out or provided to the Complainants, which the Committee found demonstrated a lack of 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 act in such a manner and that the profession would regard it as deplorable so to do.  The Committee therefore had no hesitation in concluding that the Respondent’s conduct as found proved under Particulars 5 and 7 amounted to UPC.
46. The Committee therefore concluded that save in respect of Particular 3, each and all the remaining Particulars, as found proved, on their own or taken together, amounted to UPC.

 

Sanction

47. The PCC, having found the Respondent guilty of UPC, went on to consider whether a disciplinary order was necessary.
48. Under reference to the Sanctions Guidance, the Presenter submitted that the Committee’s finding of dishonesty on the part of the Respondent was a significant aggravating factor in the consideration of the appropriate sanction. It was for the Respondent in the light of what had been proved to demonstrate any mitigating insight or remorse as to his conduct.  He accepted that the events found proved related to only one client and that there was an absence of other regulatory concerns after a long career.  However, he highlighted that there had been no apology from the Respondent.
49. The Respondent stated that he found himself in an awkward position as regards insight and he had for some time disagreed with the allegation, but he now accepted the decision. He referred to the pandemic circumstances that prevailed at the time of the concerns and he reflected on the possibility that but for Covid NC might well have been more closely connected to his business such that the descriptor used of him to describe NC would have been more appropriate.  He submitted that if unable to practise as an architect, it would affect his ability to employ and train others.  He said it was difficult to know whether his practice could continue with a new principal.  He was asked what, in the light of the decision of the Committee, he had learnt.  He explained that he had previously employed an office manager but that as a result of the pandemic he had made that person redundant and that had contributed to the problems in the case.  He said he was also now acutely aware of the need for clear and required contract terms.  He said any future complaints would be dealt with point by point.  He said he would continue to defend civil litigation brought by the Complainants for fear of losing payment of the invoices he had submitted.
50. In response to further questions from the Committee he said he was now incorporating the RIBA 2020 Domestic Contract into his proposed terms of engagement. However, he placed no documentary evidence before the Committee to demonstrate the extent to which he had incorporated clearly into his contractual documentation references to the matters set out in Standard 4.4 of the Code.  He said he had not sought external advice on that matter.
51. He described himself as having been “caught out” in this case and reaffirmed that he intended to keep going in his attempt to recover payment on the invoices he had rendered to the Complainants, although latterly he stated that he did not know how to proceed.
52. The Committee, following the advice of the Legally Qualified Chair, reminded itself that the primary purpose of any sanction is to protect the public, uphold public confidence in the profession and to declare and uphold proper standards of conduct and competence. Sanctions are not imposed to punish architects, although sanctions may have a punitive effect.  It also reminded itself of the need to have regard to the Sanctions Guidance issued by ARB, and of the need to act proportionately.
53. The Committee considered the aggravating and mitigating factors in the case. As to mitigating factors, the Hearing Panel had regard to the absence of prior regulatory concerns in respect of the Respondent.  However, as to aggravating factors, the Committee weighed the finding of dishonesty.  The Committee considered it was at the serious end of dishonesty as it occurred in the process of seeking to obtain business that might not otherwise have been secured by him and had resulted in financial gain.  Further the Committee had regard to its finding of lack of insight as regards to the making of a demand for payment of invoices.  The Committee heard the Respondent and observed his immediate determination to proceed to seek payment of the invoices which the Committee had concluded had been rendered by him without integrity for work not done, completed or provided.  Consequently, it was not satisfied that the Respondent had any meaningful insight into the Committee’s findings.  It saw no evidence of any remorse on his part.  Whilst the Respondent referred to changes made to contractual terms it was not provided with any documentary evidence of the extent to which concerns had been taken on board and acted upon by the Respondent going forward.
54. The Committee considered first whether it would be appropriate to impose no sanction. However, the Respondent’s conduct was far from being at the low level of seriousness as would justify such an approach and the Committee identified no exceptional circumstances that would justify such a conclusion to proceedings given the findings already reached.
55. The Committee next considered whether a reprimand would adequately reflect its concerns as to the Registered Person’s conduct. The view of the Committee having regard to the seriousness, breadth and scope of concerns was that the Respondent’s conduct was not at such a low level of seriousness that would render such a disposal appropriate or proportionate.
56. The Committee then considered whether to impose a penalty order. It again determined that in the light of the seriousness, breadth and scope of the conduct a penalty order was neither appropriate nor proportionate to protect the public or the reputation of the profession.
57. The Committee next considered whether to impose a suspension order. In doing so the Committee recalled that the primary function of any sanction is to protect the public and the public interest going forward.  The Committee had regard to its findings of dishonesty and lack of integrity on the part of the Respondent.  The Committee regarded those failings as particularly serious and, at least as regards the finding of dishonesty, which resulted in personal financial gain by the securing of business, fundamentally incompatible with continuing to be an architect.  The public should be entitled to expect an architect, carrying the privileges of that office, to be honest.  Dishonesty carries the risk of reputational damage to the profession at large and dishonesty in the context of professional arrangements, all the more so.  The Committee therefore gave careful consideration to the issues of insight and remorse in so far as they might demonstrate a willingness to initiate remediation if given time to reflect.  However, the Committee found no evidence of remorse on the part of the Respondent.  To the contrary, his initial reaction was to state a desire to continue to seek to recover fees which the Committee had found were not due.  Even on reflection, apparently realising the negative impression created by adopting such a position, he would only go so far as to say he did not know how to proceed.  As to insight, whilst the Respondent made reference to steps taken to improve his standard contractual arrangements, no documentary evidence was placed before the Committee as to what he had actually done and the Committee could draw no confident conclusion that the respondent had engaged with the issues of concern in that regard.  In the light of the otherwise simply tacit recognition of the decision against him the Committee was not satisfied that the Respondent had anything other than very limited insight into his failings.  Therefore, the Committee lacked confidence that similar conduct would not be repeated.  Similarly, the Committee lacked confidence that if suspended the Respondent would take steps to remediate his conduct.  The Committee was apprehensive that at the end of any period of suspension the Respondent would simply resume practise without having addressed the concerns identified by the Committee.  Therefore, the Committee concluded that a suspension order would not only fail to mark the seriousness of the Respondent’s conduct, it would also not adequately protect the public in the event of the Respondent returning to practice.  Therefore, the Committee concluded that a suspension order would not properly meet the concerns of the Committee and that the only appropriate and proportionate sanction would be one of erasure.
58. In so concluding the Committee had regard to para. 6.5.2 of the Sanctions Guidance and was satisfied that an erasure order would be justified in the light of the Respondent’s dishonest conduct demonstrating a fundamental incompatibility with continuing to be an architect; the absence of confidence on the part of the Committee that a repeat offence would not occur; the evidence a serious lack of integrity; and the persistent lack of insight into the seriousness of this actions by the Respondent.
59. The Committee therefore concluded that the Respondent’s name be erased from the Register and so directs the Registrar.
60. The Respondent, should he wish to return to practice as an architect 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. However, the Respondent will not be entitled to apply for restoration of his name to the register earlier than a period of two years beginning with the date of this order.