Mr Richard Robb

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

Richard Robb (050333I)

Held as a video conference

On 30-31 July 2024

———-

Present

Martin Winter (Chair)

  Deborah Kirk (PCC Architect Member)

Alastair Cannon (PCC Lay Member)

———–

The Architects Registration Board (“the ARB”) was represented by Mr Jean-Jack Chalmers (“the Presenter”), instructed by Kingsley Napley LLP. Mr Richard Robb has not attended this hearing and is not legally represented.

 

 

Preliminary issue(s)

Proceeding in Absence

 

1. The Registered Person had not attended the hearing and the Presenter applied to the Committee to proceed in the absence of the Registered Person.

 

2. The Committee heard submissions from the Presenter that service had been completed in accordance with the PCC Rules 2022 (“the Rules”) and that it would be in the interest of justice to proceed.

 

3. The Chair advised the Committee to adopt a 2-stage process. First to determine whether service had been completed and second to determine whether the hearing should proceed in the absence of the Registered Person.

 

4. The Committee had regard to the notice of hearing documentation sent to the Registered Person on 20 May 2024 (by post and e-mail) and the further evidence within the 15-page Proceeding in Absence bundle. Although receipt of the documentation by the Registered Person is unclear, the Committee noted that ARB had employed all reasonable efforts to serve the notice to the Registered Person’s address and email in accordance with Rule 18 of the Rules.

 

5. The Committee was satisfied that the Registered Person had been served notice of the hearing as required by Rule 7 of the Rules and that the notice contained all of the information required by Rule 9.

 

6. In determining whether to proceed in the absence of the Registered Person the Committee considered Rule 18 and ARB’s guidance on proceeding in absence. The Legally Qualified Chair provided advice to the Committee, which it accepted.

 

7. The Committee was satisfied that the Registered Person had waived his right to attend and that no purpose would be served by an adjournment. The Registered Person had made it clear that he did not want to participate in these proceedings which was evident from communications between ARB and the Registered Person. In accordance with the ARB published guidance on proceeding in the absence of a Registered Person, the Committee was mindful to ensure that the hearing is as fair as the circumstances permit. Reasonable steps will be taken to test the ARB’s case and to make such points on behalf of the Registered Person as the evidence permits.

Allegation

8. The Registered Person faces an allegation of UPC and ARB relies upon the following particulars:

 

1. The Registered Person failed to cooperate with regulatory requirements and investigations, contrary to Standard 11 of the Architects Code;

 

2. The Registered Person failed to provide evidence of adequate professional indemnity insurance (“PII”) contrary to Standard 8.4 of the Architects Code.

 

Background

 

9. The Registered Person is a registered architect at his own practice, Richard Robb Architects.

 

10. The ARB received a complaint regarding the Registered Person in September 2022. Allegations relating to that complaint were eventually closed in February 2024, following the disengagement of the Referrer (the person bringing the complaint).

 

11. However, on 16 December 2022, during the investigation stage, the ARB Investigations Manager wrote to the Registered Person to advise that the ARB had received a complaint about his conduct from the Referrer and a decision was being made as to whether he had a case to answer. The letter was sent via email by Investigations Officer, Jonathan Franksen.

 

12. The Registered Person responded via email on the same date. He confirmed he would not be renewing his ARB registration and that he would be retiring that month. He provided comments in relation to the Referrer’s complaint and a copy of his most recent correspondence with the Referrer. He asked not to be notified of any outcome regarding the ARB’s investigation. On 23 December 2022, Jonathan Franksen responded to confirm that the Registered Person would remain on the ARB’s register pending the conclusion of the investigation.

 

13. The ARB wrote to the Registered Person on 8 February 2023 inviting him to respond to the complaint. The Registered Person was also asked to provide evidence of his PII. Jonathan Franksen received the Registered Person’s “Automatic Reply” response in relation to this correspondence. This auto-reply stated that the Registered Person had retired and the practice had closed in December 2022. The ARB noted that the message confirmed that the email account was still being monitored, albeit not on a regular basis.

 

14. On 21 February 2023, Jonathan Franksen spoke to the Registered Person by telephone. The Registered Person was encouraged to provide a response to the allegations raised in the ARB’s letter of 8 February 2023.

 

15. Following the above telephone call, Jonathan Franksen emailed the Registered Person the same day to confirm the discussion and, again, the Registered Person was encouraged to respond to the allegations. The original letter of 8 February 2023 was attached to the email. The Registered Person was asked to provide a response by 24 February 2023. He did not respond.

 

16. The Referrer disengaged from the process in November 2023. A decision was made that the allegations relating to the complaint from the Referrer no longer had a realistic prospect of a finding of Unacceptable Professional Conduct or Serious Professional Incompetence.

 

17. On 19 December 2023, Harriet Swanston, Hearings Officer, emailed a letter to the Registered Person regarding his retention fee. That letter noted that the Registered Person had not paid his retention fee which was due on 31 December 2023. It was stated that as the Registered Person was subject to an active investigation he would be kept on the Architects Register until the investigation concluded. The Registered Person did not respond and did not pay his retention fee.

 

18. On 12 January 2024, Jonathan Franksen telephoned the Registered Person to ask for his response to the email from the ARB dated 19 December 2023. The Registered Person said he did not receive the email and that he had retired over a year ago and was not interested in the complaint. The Registered Person said he believed that he no longer needed to be on the Architects Register due to his retirement.

 

19. The Investigations Panel subsequently closed the allegations by way of a decision dated 19 February 2024. On the same day the ARB wrote to the Registered Person. It was stated in that letter that the Investigations Panel had decided there was no longer a case to answer in respect of the allegations and the matter would no longer be referred to the PCC. The ARB acknowledges that this letter should have been clearer that in fact only the original allegations had been closed by the Investigations Panel and that two allegations were still proceeding to a final hearing. However, the complete information was conveyed to the Registered Person both in the Investigations Panel decision itself and then in a telephone call of 1 March 2024. In that telephone call, the Registered Person was again asked to provide evidence of his PII; he confirmed he would do so. That evidence of PII cover was not received. In addition, the ARB wrote to the Registered Person on 29 April 2024 to correct the error in the letter of 19 February 2024, confirming the outstanding allegations that were still to be considered by the PCC.

 

20. On 3 April 2024, Jonathan Franksen telephoned the Registered Person on his mobile telephone. There was no answer but a voicemail message was left asking the Registered Person to call. No return call was received. On the same day, Jonathan Franksen emailed the Registered Person again seeking a copy of the Registered Person’s insurance, and evidence that PII run off cover was in place by 9 April 2024. No response was received.

 

Findings of Fact

 

21. In reaching its decision the Committee carefully considered the submissions made by the ARB together with the evidence presented to it. The Committee also had regard to the advice of the Legally Qualified Chair that, in respect of disputed issues of fact, the burden of proof was on ARB and that the standard of proof was the civil standard of the balance of probabilities.  In determining the facts, the Committee 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.

 

22. The Chair reminded the Committee that it had allowed the evidence of the witnesses Ms Swanston and Mr Franksen to be admitted as hearsay. In the absence of any indication to the contrary by the Registered Person, the Committee assumed the evidence was disputed. However, the hearsay evidence largely adduced records of email and telephone communications between ARB and the Registered Person.

 

23. The fact that the evidence is hearsay may affect the weight that the Committee attach to the evidence. This is because the evidence is not being given on oath or affirmation and it is not being tested in the sense that is not being subject to cross examination. When considering what weight to attach to the hearsay evidence the Committee carefully considered the circumstances surrounding the hearsay evidence. The Committee had no reason to doubt the accuracy of the records of the communications evidenced by the witnesses.

 

24. The Committee then went on to consider each particular in turn and it makes its findings of fact as follows:

 

Particular 1 – The Registered Person failed to cooperate with regulatory requirements and investigations, contrary to standard 11 of the Architects Code.

 

25. The Committee finds the facts of particular 1 proved.

 

26. The Committee considered the first letter from ARB to the Registered Person dated 8 February 2023 requesting a detailed response to the Referrer’s complaint. This was followed by a telephone conversation on 21 February 2023 when the Registered Person was encouraged to address the points contained within the first letter. The Registered Person stated that “he just wants to forget about it and enjoy his retirement”. Despite a follow-up email later the same day, he does not respond.

 

27. The Registered Person is spoken to by telephone on 12 January 2024 and 1 March 2024 where he again expresses to ARB that he is not interested in the proceedings. The Registered Person did not respond to requests made during these telephone conversations.

 

28. The Committee was satisfied that the Registered Person has consistently demonstrated a wilful refusal to fully and promptly engage and cooperate with his regulator. This amounts to a clear breach of Standard 11.1.

 

Particular 2 – The Architect failed to provide evidence of adequate professional indemnity insurance contrary to Standard 8.4 of the Architects Code.

 

29. The Committee finds the facts of particular 2 proved.

 

30. The Registered Person is asked for evidence of his PII in the letter from ARB dated 8 February 2023 and this request is repeated by email on 21 February 2023. No response is provided. As recently as 3 April 2024, ARB again ask for the evidence following an assurance by the Registered Person during a telephone conversation on 1 March 2024 that he would provide the evidence “in a couple of weeks”.

 

31. Standard 8.4 sets out the requirement for a Registered Person to provide information on request regarding the insurance they have in place. The Registered Person did not provide the information. The Committee is satisfied that this particular is proved.

 

32. In conclusion the Committee finds the facts proved in relation to both particulars 1 and 2.

 

Unacceptable Professional Conduct

 

33. Having found the particulars of the allegation set out above proved, the Committee went on to consider whether the Registered Person’s conduct amounted to Unacceptable Professional Conduct (“UPC”).

 

34. The Committee heard submissions from ARB and accepted the advice of the Legally Qualified Chair. The Committee reminded itself that a finding of UPC is a matter for its own independent judgement having regard to any facts found proved. There is no burden or standard of proof.

 

35. The Committee noted that UPC is defined in section 14(1)(a) of the Architects Act 1997 as conduct which falls short of the standard required of an Architect. The Committee further noted that misconduct, which is akin to UPC, was defined in the case of Roylance v GMC [2000] 1 AC 311 as: “a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances”.

 

36. In the Registered Person’s case the standards required to be followed by the Registered Person are contained in The Architects Code: Standards of Conduct and Practice 2017. The Committee recognised that not every shortcoming on the part of an architect, nor failure to comply with the provisions of the Code, will necessarily result in a finding of UPC. However, a failure to follow the guidance of the Code, whether in one’s professional or private life, is a factor that will be taken into account should it be necessary to examine the conduct or competence of an architect.

 

37. The Committee had regard to the case of Spencer v General Osteopathic Council [2012] EWHC 3147 (Admin) and noted that for a finding of UPC to be made, “a degree of moral blameworthiness on the part of the registrant likely to convey a degree of opprobrium to the ordinary intelligent citizen” is required. The Committee also recognised that any failing must be serious as was confirmed in the case of Vranicki v Architects Registration Board [2007] EWHC 506 (Admin).

 

38. The Committee was satisfied that the finding in particular 1 is serious. It is a fundamental requirement that a Registered Person complies fully with ARB in the context of an investigation. Confidence in the integrity of the profession is eroded if an individual frustrates an investigation through wilful refusal to engage and the public would be appalled if these breaches were not considered to be serious. The fact that the Registered Person was approaching retirement does not absolve him of this responsibility.

 

39. The Committee was satisfied that the finding in particular 2 is also clearly serious as it was an unequivocal breach of a clear and precise Standard. It is essential that ARB can monitor the insurance cover possessed by architects in order to protect the public. A wilful refusal to provide this information undermines this protection and therefore would be considered deplorable by fellow professionals and the public.

 

40. The Committee considers that the Registered Person’s actions fell short of the following Standards of the Code:

i. Standard 8.4

ii. Standard 11.1

 

Sanction

 

41. Having found that the Registered Person’s actions amounted to UPC the Committee then went on to consider what, if any, sanction to impose in this case. The Committee heard submissions by the Presenter, legal advice from the Chair and took careful note of the ARB sanctions guidance 2022. The Committee had regard to the public interest which includes the need to protect the public, maintain confidence in the profession and ARB and to declare and uphold proper standards of conduct, behaviour and competence. The Committee was mindful that the purpose of imposing a sanction is not to be punitive although it may have a punitive effect. Any sanction must balance the rights of the Registered Person against the need to uphold proper standards and protect the public. The Committee first assessed the seriousness of the finding of UPC with reference to the facts found proved during the hearing and by considering the competing aggravating and mitigating factors.

 

42. The Committee found the following aggravating factors;

i. There is potential risk to public confidence in the ARB investigative process by the conduct found proved.

ii. A pattern of poor conduct is demonstrated by the persistence of the conduct found proven at particulars 1 and 2.

iii. The Registered Person has demonstrated a serious lack of insight and an enduring refusal to acknowledge his failings or to accept that retirement does not allow him to avoid his obligations. This is a significant factor in the Committee’s deliberations.

iv. The Registered Person failed to engage in the disciplinary process. This was a factor with moderate weight as it amounted to a continuation of the factual particulars of the allegation itself through to his non-attendance at the PCC hearing.

v. The Registered Person failed to take appropriate remedial steps despite frequent opportunities to resolve the matter. This factor supported the finding of a lack of insight and his refusal to acknowledge his failings.

vi. Actions were deliberate and persistent. This is a significant factor carrying more weight. The Registered Person demonstrated a deliberate choice not to comply with the Standards 8.4 and 11.1.

 

43. The Committee found the following mitigating factors;

i. No previous adverse disciplinary findings over a long career. This factor carried less weight with the Committee in light of the serious nature of the proven conduct.

ii. There is some evidence that it was a stressful engagement with the Referrer. This factor had little weight with the Committee as an architect is required to deal with complaints appropriately and engage with ARB as required.

 

44. The Committee went on to consider the sanctions available to it in ascending order. It first considered whether it was appropriate to impose no sanction. Given the serious nature of the findings, this was not considered appropriate.

 

45. A Reprimand or Penalty Order were not considered suitable as the findings are too serious and there was no insight into the seriousness of the very deliberate actions of the Registered Person and no corrective steps were taken to remediate the situation. This matter ought to have been resolved by the Registered Person soon after the complaint was raised with him in February 2023. Instead, he persisted in avoiding the reasonable requests of ARB.

 

46. The Committee considered whether a suspension order was the appropriate sanction. This would be appropriate for serious offences. However, the concern of the Committee was that the findings confirm that the conduct found proven is fundamentally incompatible with continuing to be an architect. The Registered Person persistently refused to cooperate with the investigation and failed to provide evidence of his PII to ARB in direct defiance of Standards 11.1 and 8.4. Agreement to be subject to the Standards of ARB is fundamental to being an architect. The Registered Person’s conduct established that he did not want to be subject to these regulatory requirements.  A suspension order is not appropriate for this reason.

 

47. Finally, the Committee considered an erasure order. As set out above, the Committee is satisfied that the proven conduct is fundamentally incompatible with continuing to be an architect. The Committee lacks confidence that a repeat offence will not occur given the persistent lack of insight demonstrated by the Registered Person into the seriousness of his conduct.

 

48. The Committee therefore imposes an erasure order in this case. The Committee is satisfied that the minimum period of 2 years should apply before the Registered Person can apply for restoration to the Register.

 

49. That concludes this determination.