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Mr Robert O’Sullivan

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

Mr Robert O’Sullivan (073288E)

Held on

 8 July 2024 – 12 July 2024

Via

Video Conference

—————-

Present

 Emma Boothroyd (Chair)

Deborah Kirk (PCC Architect Member)

Alastair Cannon (PCC Lay Member)

—————-

In this case, the ARB was represented by Mr John Greany of Three Raymond Buildings

instructed by Kingsley Napley.

Mr Robert O’Sullivan attended this hearing and was legally represented by Mr Luke Wygas of Four Pump Court instructed by Clyde & Co.

 

 

The PCC found the Registered Person guilty of unacceptable professional conduct (“UPC”) in that he:

 

  1. Failed to act without undue delay contrary to Standard 6.2 of the Code;
  2. Failed to keep the Referrer adequately updated in relation to the progress of the works, contrary to Standard 6.3 of the Code;
  3. Failed to respond to a dispute and/or complaint adequately and in a timely manner; contrary to Standard 10.2 of the Code; 

 

and that by doing so, the Registered Person acted in breach of Standards 6.2, 6.3 and 10.2 of the Architects Code: Standards of Conduct and Practice 2017 (“the Code”).

The sanction imposed is £1,000 penalty order.

 

  1. In this matter, the ARB was represented by Mr Greaney. Mr Robert O’Sullivan (“the Registered Person”) attended and was represented by Mr Wygas.

 

  1. The Registered Person faces the following allegation:

 

That he is guilty of unacceptable professional conduct based on the following particulars:

 

  1. The Registered Person failed to act without undue delay contrary to Standard 6.2 of the Code;

 

  1. The Registered Person failed to keep the Referrer adequately updated in relation to the progress of the works, contrary to Standard 6.3 of the Code;

 

  1. The Registered Person failed to respond to a dispute and/or complaint adequately and/or in a timely manner; contrary to Standard 10.2 of the Code;

 

Background

 

  1. The Registered Person is a registered architect and Director of his own practice “State Architects Limited” (the Practice).

 

  1. The Referrer purchased a two bedroomed flat in London August 2020. The flat is situated within a Grade II listed building and a conservation area. The Registered Person had previously been involved with other projects in the same building and was recommended to the Referrer by the Building Manager of the flats. The Referrer appointed the Practice in October 2020 to assist with the renovation of the flat which included reconfiguration of the layout. The Registered Person was initially engaged to provide pre-construction design services, obtaining listed building consent, drafting construction drawings and overseeing the tender process.

 

  1. Listed Building Consent was granted in June 2021 and the Referrer had verbally agreed to engage a Contractor in around September 2021. However, before work could commence the Referrer was required to obtain a license from the head leaseholder of the building for alterations. This license was obtained in July 2022. The delay in obtaining the license impacted on the start date for the works which was delayed on a number of occasions. The Referrer entered into a contract with the Contractor on 29 July 2022.

 

  1. Works were scheduled to begin on 30 August 2022 and complete on 7 March 2023. The first phase of the works began in September 2022 which included demolition and a strip out of the property. In November 2022 there were difficulties with the progress of works on site and the Contractor’s sent an email to the Registered Person on 10 November 2022 which set out that the project was suspended “until we have a complete set of revised drawings and finishes information to enable works to continue.”

 

  1. At a site meeting on 7 December 2022 the Referrer states he was not advised by either the Registered Person or the Contractor that there were any issues with the progress of his project and he then went on holiday for 5 weeks.

 

  1. The Referrer states that on his return to the UK he met with the Registered Person at the property on 17 January 2023 and it looked like no progress had been made since his last visit and there were no workmen on the site. The Referrer states that this was of concern to him and, not accepting the explanation of the Registered Person, that work had been undertaken not readily apparent to a layman, he contacted the Contractor directly who informed him that no work had been undertaken on his project since the site meeting in December as they were waiting for information from the Registered Person.

 

  1. In a response to an email from the Contractor to the Registered Person on 20 January 2023 seeking further information on the drawings provided, the Registered Person had a meeting with the Contractor in the absence of the Referrer on 24 January 2023 to discuss the outstanding queries and information required.

 

  1. A further site meeting was arranged for 31 January 2023 between the Registered Person and the Referrer. The Referrer states that it was agreed that the Registered Person would complete a drawing package to allow the Contractor to re-quote and re-schedule the works and return to site within 4 weeks.

 

  1. The Referrer states that he chased the Registered Person for delivery of the drawings throughout February 2023, but he did not receive them, despite various promises by the Registered Person that the drawings were ready to be issued including that they only needed to be converted into a different file format.

 

  1. On the 22 February 2023, the Contractor sent an email to the Registered Person to advise that as there had been no information received since the meeting on 24 January 2023, they were no longer in a position to return to site as they had missed an opportunity to appoint an alternative site manager and had re-committed their labour elsewhere.

 

  1. The Referrer continued to request delivery of the drawings from the Registered Person. On 4 April 2023 the Referrer made a formal complaint to the Registered Person. The Registered Person acknowledged the complaint on the 6 April 2023 but did not provide a substantive response to the concerns raised by the Referrer at this time. On the 13 April 2023 the Referrer submitted a complaint to the ARB.

 

  1. On 20 June 2023 the Registered Person sent the Referrer a drawing package issued “for information”. There was then an exchange of correspondence between the Referrer and the Registered Person about the timescale for a response to the Referrer’s complaint. On 4 July 2023 a bundle of evidence was provided to the Referrer and the Registered Person provided his representations to the ARB in July 2023.

 

  1. At the outset of the hearing the Registered Person admitted that in respect of Particular 1 of the allegation he had failed to act without undue delay in that he had failed to issue the drawing package as promised between 31 January 2023 and 20 June 2023. The Registered Person did not accept that he was responsible for any earlier delay and his position was that the Contractor had all the necessary information by 3 January 2023 to return to site.

 

  1. The Registered Person denied Particular 2 of the allegation.

 

  1. The Registered Person admitted Particular 3 of the allegation.

 

Decision on facts

 

  1. In reaching its decisions, the Committee has carefully considered the submissions of Mr Greaney and Mr Wygas, together with the documentary evidence presented to it in the Report of the ARB’s Solicitor (“the Report”) together with the exhibits attached. It has also had careful regard to the witness statement of the Registered Person and the defence documents and skeleton argument. The Committee heard live evidence from the Referrer and the Registered Person.

 

  1. The Committee has accepted the legal advice given by the Legally Qualified Chair. It has had regard to the fact that the burden of proof in this case is on the ARB and that the civil standard applies, namely proof on the balance of probabilities.

 

Particular 1 – Found proved in part

 

  1. The Registered Person failed to act without undue delay contrary to Standard 6.2 of the Code.

 

  1. The Committee noted that the ARB alleged in the Report that the Registered Person had failed to provide construction drawings over a period of many months and that they were required by no later than November 2022.

 

  1. The Committee noted that the project began on 30 August 2022 with the demolition and strip out phase. On 4 October 2022 the Registered Person issued construction drawings for electrical and lighting plans together with room elevations for reception rooms bedrooms and hall. The Contractor was advised that the Referrer was revising the plans for cloakrooms dressing rooms and utility rooms and they would be issued as soon as they were approved. In October 2022 the Referrer changed the specification for “En Suite 02”. An email dated 12 October 2022 details the revised costs confirmed by the Contractor for this element. The quote refers to the sanitary schedule issued on 28 September 2022 by the interior designer engaged by the Referrer. 

 

  1. The Committee noted from the contemporaneous documentary evidence that the Referrer was still making design decisions in November 2022. On 3 November 2022 the Registered Person wrote an email to the Referrer which stated as follows:

 

“My team will be continuing with work this evening and again from 8am in the morning, revisions now need to be carried through the whole drawing package including room elevations, mechanical and electrical details. Any initial comments you have on the attached plan would be welcome as there has been a lot of hours lost on multiple revisions since the works commenced on site and we have a tough task to have all the information ready for issue to [the Contractor] by end of day tomorrow.”

 

  1. The Committee noted that the interior designer was also making design suggestions in conjunction with the Referrer and a final walk-through video was not provided to the Registered Person until 21 November 2022.

 

  1. The Committee noted that the kitchen design was not approved until 20 November 2022. The kitchen designer was asked by the Referrer in an email dated 20 November 2022 to send detailed drawings/plans to the Registered Person “ASAP”.

 

  1. In addition, the Referrer accepted in his evidence that there was a change to the layout of the master bathroom and that this required revisions to the drawings and adjustments to the works already carried out on site. This change was made on site in November 2022 and amended drawings were issued by the Registered Person and approved by the Referrer on 30 November 2022.

 

  1. In these circumstances the Committee was not satisfied that the ARB had proved to the required standard that the Registered Person had failed to produce construction drawings without undue delay in the period prior to the end of November 2022. The Committee considered that there was evidence, in the form of contemporaneous emails, that the Referrer was still making design decisions regarding significant items and that drawings that had previously been issued to the Contractor now needed revision to reflect these design decisions.

 

  1. The Committee considered that there was contemporaneous evidence that the Registered Person had issued drawings and information to the Contractor, both prior to works starting on site, and subsequently. However, as a result of decisions made by the Referrer as works developed these drawings were now subject to change and could not be used for construction. The Committee considered that this was particularly the case in the period from late September to the end of November 2022 when the interior designer was working with the Referrer.

 

  1. The Committee considered that following the site meeting on 7 December 2022 it became clear that many of the outstanding design issues had now been decided upon, including the kitchen and electrical schedules. The Committee accepted the evidence of both the Referrer and the Registered Person that some of these revisions would require Listed Building Consent and amendment to the Licence for Alterations. The Committee noted that the Registered Person did issue a number of drawings in early January to the Contractor particularly in relation to the kitchen and bathroom. The Registered Person stated in an email to the Contractor dated 17 January 2023 that he was meeting with the client that day to resolve outstanding details but also forwarded a number of drawings relating to finishes. No further drawings were issued to the Contractor.

 

  1. The Committee considered that matters crystallised at the meeting on 31 January 2023. The Committee noted that by this stage the Contractor’s position was as set out in an email of 20 January 2023 which stated that there were a number of queries relating to the updated drawings and that these would need to be addressed before the works could be re-costed. Further the Contractor stated that they required full details for dressing room 1 & 2 and cloakroom.

 

  1. The Committee considered that the evidence of the Referrer in relation to this meeting and what was outstanding was plausible and credible and consistent with the documentary evidence. The Committee considered that it was more likely that following this meeting it was agreed that the Registered Person would produce a complete drawing package to enable the Contractor to re-cost and re-schedule the works. This is consistent with the subsequent emails from the Referrer chasing the updated drawing package as a matter of urgency to retain the Contractor.

 

  1. The Committee rejected the explanation put forward by the Registered Person that the Contractor had all the information required to re-cost and re-schedule the works on 17 January 2023 and he had only subsequently agreed to produce design drawings. This is entirely inconsistent with the contemporaneous emails sent by the Referrer, the Registered Person and the Contractor during this period. As set out above, the Contractor had specifically stated on 20 January 2023 that there were outstanding queries and updated drawings were required.

 

  1. On 9 February 2023 the Registered Person emailed the Referrer and stated, “…the drawing package is being converted to PDF format now…I will forward the files to you in the morning.”

 

  1. On 21 February 2023 the Referrer sent an email to the Registered Person which stated,

 

“If I don’t receive word from [the Contractor] that he has received all the drawings he needs by Monday, I will engage a solicitor. I suggest you send him, and me, the drawings that so far are completed so he can start to work on them, and ensure the rest get done on time, no matter what it takes…”

 

The Registered Person also received an email from the Contractor on 22 February 2023 which stated,

 

“Tried calling you and left a voicemail. We have to now advise you that due to no further information being received since our last site meeting on 24 January, we have unfortunately missed the opportunity to re-employ our site manager… As you know, this was the only way we could have considered returning to site in the near future, pending receipt of all the outstanding information and agreement to our revised prices.” 

 

  1. There was nothing before the Committee that suggested that the Registered Person ever informed either the Referrer or the Contractor that it was his view that the drawing package was complete to enable the Contractor to re-quote and return to site. If this were the case, then there would have been no need for the Registered Person to undertake to produce further drawings presumably adding further expense and delay. The Committee considered that it was clear on the basis of the contemporaneous documentary evidence together with the evidence of the Referrer that the Contractor did not have everything required and that the Registered Person delayed in issuing the information following the site visit on 31 January 2023.

 

  1. The Registered Person accepted in his oral evidence that he delayed in issuing the drawings following the site meeting on 31 January 2023, but it was his view that the Contractor “declined” to quote and speculated that that he had already decided to leave the job. The Committee considers this is inconsistent with the evidence and it considers that the Contractor abandoned the site in February 2023 after the Registered Person did not provide the required drawings.

 

 

 

Particular 2 – Found Proved

 

  1. The Registered Person failed to keep the client adequately updated in relation to the progress of the works, contrary to Standard 6.3 of the Code.

 

  1. The case put forward by the ARB contained within the Report in relation to this particular was that the Registered Person had failed to tell the Referrer that the Contractor had “walked off site” in November 2022 and again in December 2022. The Referrer’s evidence was that he was unaware that the Contractor had not been on site between his visit to the site on 7 December 2022 prior to his holiday and his return to the site on 17 January 2023. The Referrer stated that he was advised by the Registered Person on 17 January that there were no workers because they were finishing another job so they could consolidate more workers on his project. The Referrer stated that he only found out that there had been no workmen on his project after 7 December 2022 when he telephoned the builder directly on 17 January 2023. The Referrer stated that he also discovered during this call that there had been a previous suspension of works in November 2022 because of a lack of information from the Registered Person.

 

  1. The Registered Person stated in his oral evidence that the Referrer was “well aware” of the situation and that following the site meeting on 7 December 2022 there was a meeting between the Referrer and the Registered Person in a coffee shop in which the Registered Person explained to the Referrer the impact of the design changes and updated him about the progress of the works and the delay that had been incurred.

 

  1. It was submitted on behalf of the Registered Person that the Contractor had not abandoned the site and was continuing to undertake works throughout November and early December 2022. It was submitted that “fire-stopping” and works to the suspended ceilings were undertaken in December 2022 although the Contractor did not invoice for those works. It was suggested that as the Referrer admitted in cross examination that he did not know what “fire-stopping” works were, he was unable to recognise that they had been done between his visits in December 2022 and January 2023. It was submitted that further drawings were issued for the Contractor to return to site in early January 2023 and that the electrician was on site during that time.

 

  1. The Committee had regard to the contemporaneous documentation sent by the Contractor via email to the Registered Person on 10 November 2022. The Committee noted that the email was entitled “Delay Notice” and set out that the work was suspended “…until we have a completed set of revised drawings and finishes information to enable works to continue.” The Committee noted that this email was not copied to the Referrer and there is no information that the Registered Person ever made the Referrer aware of the situation. Whilst it was clear that there were ongoing design discussions and revisions to the design there was no contemporaneous written evidence that the impact of these changes in relation to the work being undertaken on site was ever explained by the Registered Person to the Referrer.

 

  1. The Committee accepted that there was clearly work being undertaken on the site in November 2022 and this was supported by the invoice submitted for payment. However, the Committee considered that it was clear from the tone and nature of the email from the Contractor on 10 November that this was important information regarding the progress of the work on site and as such should have been communicated to the Referrer. The Committee did not accept the proposition that as the Contractor had not formally abandoned the site and could effectively “make up the time” at the end of the project, and this was a routine letter, so the Referrer did not need to be notified of it. It was clear from the email that the Contractor was stating that the works were currently 3 weeks behind schedule and that delay was continuing as works could not be progressed in line with the construction programme. Within the email there is, in the view of the Committee, a clear risk that the Referrer was likely to incur further costs. In that email the Contractor describes matters as being “untenable” and “unsustainable” with, as a consequence an extension of time request being likely. The Committee considered that this was important information regarding the progress of the works that the Referrer needed to be made aware of.

 

  1. There is no evidence that the Referrer produced any response to this email or sought to bring to the attention of the Referrer the current and future delay to the progress of the works on site. The Committee did not accept that the Referrer was “well aware” of this matter as there was nothing in the contemporaneous emails that indicated that he was aware that the project was not progressing because of a lack of information during this time. The Committee accepted the Referrer’s oral evidence that when he was told that his suggested revisions would add cost and cause delay, he then had a discussion with the Registered Person about whether to continue or abandon them. He accepted that he altered the bathroom design, and he was aware this required extra costs and similarly he decided not to proceed with ideas that were explained to him as too costly or difficult to achieve. The Committee considered that the Referrer would have been unlikely to have persisted with significant design changes if he had been advised that it could lead to a complete stopping of works and a significant risk that the Contractor would be unable to complete the project.

 

  1. The Committee considered that as a matter of fact there was no work of any substance undertaken between the site meeting on 7 December 2022 and the Referrers subsequent visit to the site on 17 January 2023. The photographs that demonstrate the “fire-stopping” works are dated 7 December 2022 and there is no evidence that the Contractor claimed for any work undertaken after 7 December 2022.

 

  1. The Committee took account of the document produced by the Registered Person on 6 July 2023 which set out a chronology of relevant events and included some contemporaneous messages. The Committee considered it could attach little weight to the aspects of this document which were not supported by contemporaneous notes or emails. The Referrer told the Committee that the document was complied with reference to his notebook, emails and partly relied on his memory of events. However, the contemporaneous notes have not been produced and in particular the Committee was not persuaded that the Registered Person’s account of the advice given to the Referrer following the site meeting on 7 December 2022 was accurate and could be relied upon.

 

  1. The Committee preferred the Referrers evidence that he was not told by the Registered Person that there was any issue with the progress of the works such that the Contractor had suspended work or had previously issued a “delay notice” either at the meeting on 7 December 2022, or subsequently. The Referrer’s account is consistent with the contemporaneous documentation which confirms that work did not progress after 7 December 2022 because of a lack of information. The Committee considered that this was also consistent with the conversation that the Referrer had with the Contractor who stated on 17 January 2023 that no work had been undertaken.

 

  1. The Committee noted that there was no evidence that the Registered Person advised the Referrer that the works on site had been delayed from 7 December 2022 because the Contractor considered there was a lack of information and drawings to progress the works. The Committee considered that this was vital information that ought to have been communicated at the earliest opportunity. The project was significantly behind the agreed schedule and the costs needed to be re-negotiated by this point as a result of the variations. In addition, the Contractor had indicated as early as November 2022 that this lack of information was having an impact on their ability to deliver the project. By 31 January 2023 the situation had become critical. At the meeting on 31 January 2023 between the Registered Person and the Referrer, who had now been made aware of the issues by the Contractor, the Committee considered the Registered Person did undertake to provide the drawings to attempt to get the Contractor back. If, as he suggested in his evidence, he was of the view that at that point the Contractor had no intention of returning to site and there was no more information he could provide, there was no evidence before the Committee that he explained this to the Referrer. Instead, he offered to produce the outstanding drawings to try to persuade the Contractor to return which was the only logical explanation for why the Referrer continued to chase the Registered Person to provide drawings to the Contractor during February 2023 and why the Contractor emailed on 22 February 2023 confirming they could not now return given the absence of information.

 

  1. For these reasons the Committee was satisfied that the Registered Person had failed to keep the Referrer adequately updated about the progress of the works.

 

Particular 3 – Found Proved

 

  1. The Registered Person failed to respond to a dispute and/or complaint adequately and/or in a timely manner; contrary to Standard 10.2 of the Code.

 

  1. The Committee noted the full admission of the Registered Person in relation to this particular. The Committee found this Particular proved on the basis of that admission which was supported by the documentary evidence. In these circumstances the Committee was satisfied that the Registered Person had failed to adequately respond to the Referrer’s complaint in a timely manner as he was required to do by the Code.

 

Unacceptable Professional Conduct (UPC)

 

  1. The Committee went on to consider whether the conduct of the Registered Person amounted to UPC. In making this decision the Committee had regard to the submissions of Mr Greaney who submitted that both individually and cumulatively the failings of the Registered Person were serious and amounted to UPC.

 

  1. Mr Greaney submitted that the conduct of the Registered Person had significant consequences for the Referrer and fell seriously short of the standards required.

 

  1. Mr Wygas submitted that with regard to Particulars 1 and 3 of the Allegation it was accepted that these amounted to UPC. With respect to Particular 2 of the Allegation Mr Wygas submitted that the Referrer was aware by 7 December 2022 that the progress of the works was delayed and that Practical Completion would not now be achieved before March 2023 as originally contracted for. Mr Wygas submitted that this was the critical information that was important to the Referrer and it was communicated to him by the Registered Person in December 2022. He submitted that the Referrer accepted in his evidence that he was aware of delay to the progress of the work and he was not unduly concerned that the project was delayed at that stage.

 

  1. The Committee accepted the legal advice of the Chair. The Committee noted that UPC is a matter for its professional judgement. The Committee noted the Standards applicable at the time under the 2017 Code.

 

  1. UPC is defined as conduct which falls short of the standard required of a registered person. In reaching its findings on UPC, the Committee recognises that not every shortcoming on the part of an architect, nor failure to comply with the provisions of the Code, will necessarily give rise to disciplinary proceedings or a finding of UPC. The failure must be serious. However, a failure to follow the guidance of the Code, whether in one’s professional or private life, is a factor that will be taken into account should it be necessary to examine the conduct or competence of an architect. The architect is expected to be guided by the spirit of the Code as well as its express terms and the fact that a course of conduct is not specifically referred to does not mean that there can be no finding in disciplinary proceedings even if there has been no clear breach of the express terms.

 

  1. In deciding whether the facts found proved amount to UPC the Committee had regard to Spencer v General Osteopathic Council [2012] EWHC 3147 (Admin). It has borne in mind in reaching its decision that for a finding of unacceptable professional conduct 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” was required. Any failing should be serious. The Committee accepts that “mere negligence does not constitute misconduct” and that “a single negligent act or omission is less likely to cross the threshold of misconduct than multiple acts or omissions….a single instance of negligent treatment unless very serious indeed, would be unlikely to constitute deficient professional performance”.

 

  1. The Committee considered that the failure to provide the drawings following the meeting on 31 January 2023 in a timely manner was a serious falling short of Standard 6.2 of the Code. The Referrer was entitled to expect that the drawings would be received in a reasonable timescale and this was particularly important given the implications for the continuation of the project. The Registered Person failed to provide any adequate reason for the delay and the Referrer was chasing the Registered Person for a number of months. As a result of the failure to produce the drawings within a reasonable timeframe the Contractor was no longer able to continue with the project which had a significant impact for the Referrer.

 

  1. The Committee considered that failing to adequately update the Referrer about the progress of the works was a serious failing. The Committee considered that whilst the Referrer was aware that the works were delayed by December 2022 he was not made aware by the Registered Person of the reasons for the delay in the progress of the works nor the implications that the delay had for completion of his project by the Contractor. The Committee considered that the nature and extent of the suspension of the works on site during November 2022 was important information which should have been communicated to the Referrer by the Registered Person. This information impacted not only the current progress but the anticipated future progress of the work and the failure of the Registered Person to explain these matters to the Referrer left the Referrer in the dark about the possibility that the Contractor could not continue which would cause further delay and cost.

 

  1. The Committee considered that the failure to advise the Referrer about the fact that there had been no progress with work between 7 December 2022 and 17 January 2023 was also a significant falling short of the standards required. The Committee considered that the position of the Contractor, which was that they did not have sufficient information to progress the work and had effectively not returned to site was important information which ought to have been communicated clearly to the Referrer at the latest by 17 January 2023. The Committee considered that the fact that the Contractor had not been working on the Referrer’s project during a period when he clearly expected them to be on site, together with the reasons why they had not been on site, was important information about the progress of the works that the Registered Person ought to have provided in compliance with his obligations under Standard 6.3 of the Code. Further, the Registered Person was aware following the site meeting on 24 January 2023 that there was a possibility the Contractor would not return to site to complete the works.

 

  1. The Committee considered that the failure to deal with the complaint adequately or in a timely manner was a serious falling short of the responsibilities of an architect. A client is entitled to expect that an architect will respond to complaints and concerns professionally and timeously. A client should have confidence that an architect will address issues when they arise. In this case the Registered Person failed to provide a response to the complaint within the timeframe required in breach of Standard 10.2 of the Code.

 

  1. In the Committee’s view, the Registered Person’s conduct constituted a breach of Standards 6.2, 6.3 and 10.2 of the 2017 Code.

 

  1. It is the Committee’s finding that the facts found proved and the corresponding breaches of the Code are serious and adversely impact both on the reputation of the Registered Person and the profession generally. They represent a standard of conduct falling significantly and materially below the standard expected of a registered architect. They have also had a significant financial and personal effect on the Referrer.

 

  1. In all the circumstances and for the reasons set out above, the Committee finds that the conduct of the Registered Person does amount to unacceptable professional conduct in respect of all the particulars both individually and cumulatively.

 

 

Sanction

 

  1. The Registered Person gave further evidence to the Committee at this stage. He expressed his remorse and set out that he was now taking steps to record all variations, minutes of meetings and other relevant information regarding a project and ensuring it was communicated in writing to his clients. He told the Committee that this experience had been a sobering lesson and he would not repeat his failings. He explained to the Committee that as soon as he received notification of the referral to the ARB he made changes to his practice.

 

  1. Mr Greany set out ARB’s submissions in relation to sanction and drew the Committee’s attention to ARB’s Sanctions Guidance. Mr Greany submitted that the Committee should have regard to the relevant aggravating and mitigating factors when assessing the level of sanction. Mr Greany confirmed that he was not instructed to “bid” for any sanction but he submitted that the Committee should take into consideration the aggravating features it had found when determining UPC and highlighted that the Registered Person’s failings could not be said to be isolated, were deliberate and he had shown limited insight.

 

  1. Mr Wygas addressed the Committee in mitigation on behalf of the Registered Person and took the Committee to the relevant factors as set out in the Sanctions Guidance. Mr Wygas submitted that the Registered Person’s failings were not at the upper end of the scale of seriousness and he drew the Committee’s attention to other decisions of the PCC and submitted that these involved more serious failings than those found proved in this case.

 

  1. Mr Wygas submitted that the Registered Person had made an early admission to Particulars 1 and 3 and had co-operated fully with the regulatory process which had required considerable time and effort. Mr Wygas submitted that these failings should be seen within the context of one project and with no other adverse regulatory history. Mr Wygas submitted that the failings were not deliberate and they were not at the higher end of the spectrum of seriousness. Mr Wygas submitted that the Registered Person had fully appreciated the seriousness of matters and had taken steps to put matters right at an early stage such that the conduct will not be repeated.

 

  1. Mr Wygas invited the Committee to impose a Reprimand and submitted that this was the appropriate sanction to meet the public interest and would strike a proportionate balance. Mr Wygas submitted that a Penalty Order would add nothing to the sanction and would be disproportionate in these circumstances.

 

  1. The Committee then considered whether to impose a sanction, and if so, which one. The Committee has had regard to the public interest, which includes the need to protect the public, to maintain confidence in the profession and the ARB and to declare and uphold proper standards of conduct, behaviour and competence. The Committee has carefully considered all the evidence and submissions made during the course of this hearing. It has heard and accepted the advice of the legally qualified chair. It has borne in mind that the purpose of imposing a sanction is not to be punitive although it may have a punitive effect. It has taken into account the interests of the Registered Person, the Sanctions Guidance and the need to act proportionately. It has taken into account any aggravating and mitigating factors in this case. The Committee has exercised its own independent judgement.

 

  1. Having taken into account the submissions, the Committee has identified the following aggravating factors:

 i. The conduct encompassed a number of failings in the Registered Person’s professional responsibilities and persisted over a period of time.

ii. The failings added delay and additional expense to the Referrer’s project which caused significant distress and disadvantage to the Referrer.

 

  1. The Committee considered that it was clear from the findings of fact, that the delay in providing drawings by the Registered Person in February 2023 was a significant factor in the Contractor’s decision not to return to site.

 

The Committee has identified the following mitigating factors:

i. The Registered Person has no adverse regulatory history since joining ARB’s register.

ii. The Registered Person has apologised and taken some corrective steps.

iii. The Registered Person has constructively engaged with these proceedings and made admissions.

 

  1. The Committee considered that the Registered Person had shown remorse and has developed his insight. The Committee considered that it was to his credit that the Registered Person made admissions and accepted that his conduct amounted to UPC. The Committee was in no doubt that these proceedings have had a professional and personal impact upon the Registered Person.

 

  1. The Committee notes that the matters found proved and the corresponding breaches of the Code are serious to the extent that the Registered Person’s failings diminish both his reputation, and that of the profession generally. The Committee therefore concluded that the Registered Person’s conduct was sufficiently serious for it to require the imposition of a sanction and has considered them in ascending order of severity.

 

  1. The Committee first considered whether to impose a Reprimand. The Committee considered that the Registered Person did demonstrate some of the factors that would make this sanction appropriate including insight into failings and some corrective steps taken. The Committee considered that although the Registered Person had developing insight he did not fully appreciate the impact of his failings on the project or the Referrer. The Committee accepted that the Registered Person had learned a salutary lesson from the hearing process, however, this was not, in the view of the Committee, sufficient of itself to uphold proper professional standards. The Committee considered the failings too serious for such a sanction to be either appropriate or proportionate.

 

  1. The Committee then considered whether to impose a Penalty Order. The Committee considered that this was the appropriate and proportionate sanction to uphold proper professional standards. The Committee considered that although the Registered Person’s conduct was not at the lower end of the spectrum to justify the imposition of a Reprimand, a penalty order would reflect the seriousness of the matters found proved. The Committee accepted that this was an isolated period relating to one client and one project. The Committee noted that there was no evidence that this was conduct that was likely to be repeated and the Committee considered that the conduct is not incompatible with the Registered Person continuing to be a registered architect which would justify any removal from the Register.

 

  1. The Committee noted that there was no evidence of financial benefit to the architect in relation to the conduct and there were mitigating features which the Committee has identified above. In these circumstances the Committee considered that the maximum amount of £2500 was not justified. The Committee considered that the amount of the financial Penalty Order to reflect the seriousness of the matters found proved and uphold proper professional standards was £1000. In the view of the Committee this amount was sufficient to mark that the conduct was serious and was the appropriate and proportionate amount.

 

  1. That concludes this determination.