THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

Mr Scott Michael Waddell (089163K)

Held as a video conference

On

14 – 15 November 2022

Present

Ms Emma Boothroyd (Chair)
Mr Stuart Carr (PCC Architect Member)
Ms Rachel Childs (PCC Lay Member)

———–

In this case, the ARB is represented by Mr Tom McEntegart of Anderson Strathern LLP
(“the Presenter”).

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

 

Allegation

The Respondent faces a charge of UPC based on six particulars as set out below:

1.      Failed to issue the client with adequate terms of engagement in respect of the project at 15 Cathkin Crescent, Carrickstone, Cumbernauld, G68 0FD, contrary to Standard 4.4 of the Architects Code;

2.      Failed to adequately communicate with his client in respect of the project at 15 Cathkin Crescent, Carrickstone, Cumbernauld, G68 0FD;

3.      Failed to respond to the client’s complaint in respect of the project at 15 Cathkin Crescent, Carrickstone, Cumbernauld, G68 0FD;

4.      Failed to co-operate fully and/or promptly with ARB in respect of a complaint despite requests of 18 March 2021, 25 Mach 2021 and 1 April 2021;

5.      Failed to provide the ARB with evidence of his professional indemnity insurance when requested to do so on 19 February 2021;

6.      Failed to ensure that he had professional indemnity insurance which extended to professional work undertaken outside his main employment contrary to Standard 8.2 of the Architects Code.

 

Background

1.        This case arises out of a complaint made by the Complainant in respect of the professional services carried out by the Respondent in respect of the Complainant’s property at 215 Cathkin Crescent, Carrickstone, Cumbernauld, G68 0FD (‘the property’).

2.        The background to this case is that the Complainant approached the Respondent to assist with a small domestic extension. The Complainant’s wife was a friend of the Respondent’s mother, and it appears that the initial contact was made in around July 2017. The Respondent sent his initial fees estimate via email on 19 July 2017. Planning permission for this project was applied for in August 2017 and granted in October 2017. The Complainant then decided to place the project on hold because of family circumstances.

3.        In around May 2019 the Complainant decided to re-start the project and building work commenced in August 2019 and completed fairly quickly after that. After the build was concluded the Complainant tried to contact the Respondent in September and October 2019. The Complainant states that he needed the Respondent to meet with the builder and the structural engineer to “sign off” the build ahead of the final inspection by the Building Inspector from the Council. The Complainant states that despite numerous telephone calls, text messages and emails he was unable to get a satisfactory response from the Respondent. In October 2019 the builder visited the Respondent personally to attempt to resolve matters, but no progress was made.

4.        On 13 January 2020 the Complainant wrote to the Respondent raising a complaint about the lack of progress. In this letter the Complainant set out that the Complainant was unhappy that the Respondent had not taken all the necessary steps to complete the paperwork despite assuring the builder that this would be done. On 15 January 2020 the Respondent responded via email and apologised for the delay, he stated that he would resolve matters with Building Control, and he anticipated that this would take a few weeks. The Respondent confirmed that he would keep the Complainant updated regarding progress.

5.        No further communication was received from the Respondent and the Complainant wrote again to the Respondent on 4 August 2020. Within that letter the Complainant requested that the matter was concluded no later than 18 September 2020. The Respondent did not reply to that letter. On 6 October 2020 the Complainant raised his complaint with ARB.

6.        On 24 November 2020 ARB wrote to the Respondent via his work email address and enclosed a copy of the complaint. ARB requested that the Respondent deal with the complaint directly and respond to the Complainant as soon as possible. It was set out clearly within that letter that this was as an alternative to a disciplinary investigation. The Respondent did not reply to either ARB or the Complainant and in January 2021 the disciplinary process at ARB began.

7.        A letter detailing the allegations was sent to the Respondent on 19 February 2021. The letter set out that the Respondent was required to respond to the allegations by 5 March 2021. Within that letter was a request to include evidence of the Respondent’s professional indemnity insurance and confirmation about whether they had been notified about this complaint.

8.        On 8 March 2021 the Respondent replied via email to ARB as follows, “Will get this sorted. I will clear up anything outstanding this week.” On 18 March 2021, 25 March 2021 and 1 April 2021 ARB wrote to the Respondent chasing his response as nothing had been received. No reply was forthcoming, and ARB submitted the complaint to the Investigations Panel. Additional allegations were raised by the Investigations Panel regarding the lack of insurance and the Respondent was invited to comment.

9.        On 11 June 2021 the Respondent emailed ARB and stated that the Council required hard copy documents to be posted which would be done immediately to bring matters to a conclusion and then there would be nothing more to be resolved aside from a completion certificate. He asked ARB to put a hold on escalating matters. ARB replied that this could not be done and urged the Respondent to reply to the allegations.

10.    On 15 June 2021 the Respondent emailed ARB and stated that he was on holiday without access to IT. However, he confirmed that this project was undertaken outside his normal employment, and he did not have relevant indemnity cover. In addition, he stated that his attempts to contact the complainant had gone unanswered and so he had not been able to resolve matters. The Respondent concluded that he was hopeful that he could resolve the issue and “conclude the warrant completion.”

11.    On 17 June 2021 ARB requested a copy of the Respondent’s indemnity insurance for his employment; this was provided via email on 24 June 2021 and confirmed that the Respondent was insured only in relation to his employment and not for projects undertaken outside his employment.

12.    In September 2021 the Complainant signed a statement which confirmed that the issue was still outstanding and that he had not heard from the Respondent since January 2020. The Complainant stated that he is unable to sell or insure his property without the completion certificate.

 

Admissions of Fact

13.    At the outset of the hearing the Respondent admitted all of the factual particulars and accepted that all of the particulars amount to UPC. As a result, the Committee announced that the facts were found proved on the basis of the admissions. UPC remains a matter for the Committee.

14.    In reaching its decisions, the Committee has carefully considered the submissions made by the Presenter and the submissions of the Respondent, together with the documentary evidence presented to it which consisted of the Report of ARB’s Solicitor and the main ARB bundle. The Committee has also considered the Respondent’s completed acknowledgement of service containing his admissions.

15.    The Committee has accepted the legal advice given by the Legally Qualified Chair. It has had regard to the fact that whether the conduct alleged amounts to UPC is a matter for the Committee’s independent judgment to which no burden of proof applies. The Committee recognises that not every shortcoming on the part of an architect, nor failure to comply with the provisions of the Code, will necessarily result in a finding of UPC. However, a failure to follow the guidance of the Code, whether in one’s professional or private life, is a factor that will be taken into account should it be necessary to examine the conduct or competence of an architect.

16.    The Committee has considered the authority of 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”.

 

Relevant Standards

17.    The Committee considered the following standards were engaged in this case Standards 4.4, 6.3, 8.1, 8.2, 8.4, 10.1, 10.2 and 11.1 of the 2017 Code.

18.    By reason of the facts found proved, the Committee finds that the Respondent acted in breach of Standards 4,6, 8, 10 and 11 of the Code.

 

Unacceptable Professional Conduct

 

19.    It is the Committee’s finding that the facts found proved, and corresponding breaches of the Code, both individually and collectively, are serious and adversely impact both on the reputation of the Respondent and the profession generally.

20.    In relation to particular 1 the Committee considered that the failure to provide the Complainant with adequate terms and conditions was a serious failing because it left the Complainant without essential information relating to the project. Further, when things went wrong the Complainant was not in possession of information relating to the Respondent’s insurance, regulation by ARB or the Respondents’ complaint processes. The Code requires this information to be provided to all clients in writing at the outset of their project so that they can make informed decisions. A failure to provide that information can properly be considered to be UPC.

21.    In relation to particulars 2 and 3 the Committee considered that this was a serious falling short of the standards required. The Complainant had a right to expect the Respondent as a professional to deal with his concerns and complaints promptly and respond to his reasonable enquiries about progress. The Respondent did not respond adequately to the complaint, did not update the Complainant about the steps needed to achieve a completion certificate and did not respond to his complaint such that the Complainant was left with no alternative but to escalate matters to ARB. The Committee considered that this could properly be characterised as UPC.

22.    With regard to allegations 4 and 5 relating to the failure to respond to ARB and to provide his indemnity insurance information the Committee considered that this was a serious failing. In order to regulate effectively and for the public to have confidence in the profession ARB expects registered professionals to provide information when requested and to co-operate with investigations. The Committee considered that the correspondence demonstrated that the Respondent did not respond to ARB within the required timescale and did not provide a copy of his insurance document when required without any good reason. The Committee considered that although the Respondent may have overlooked the request for a copy of his insurance in the letter dated 19 February 2020 he still failed to respond substantively to that letter within the timescale.

23.    With regard to allegation 6 the Committee considers that failing to have adequate indemnity insurance was a particularly serious failing. The Committee considered the Respondent had demonstrated a thoughtless and reckless approach to insurance cover which potentially left his clients at risk should something go wrong with the project. The public would expect architects to have adequate insurance.

24.    The Committee therefore finds that each particular individually and collectively does amount to UPC.

 

Sanction

25.    At this stage in the proceedings there was no further evidence adduced.

26.    The Presenter set out ARB’s submissions in relation to sanction and drew the Committee’s attention to ARB’s Sanctions Guidance. The Presenter submitted that the Committee should have regard to the relevant aggravating and mitigating factors when assessing the level of sanction. The Presenter confirmed that the Respondent had no previous regulatory history with ARB in a lengthy career. He submitted that there were three aggravating factors; namely the substantial risk of harm to the Complainant, the failure to engage in the disciplinary process constructively and the failure to take remedial steps to resolve the issue with the Complainant. It was suggested that taken in the round this conduct was so serious that a period of suspension was the appropriate and proportionate sanction.

27.    The Respondent addressed the Committee in mitigation. The Respondent submitted that he had understood the seriousness of the findings of the Committee and expressed remorse and regret.  The Respondent submitted that this was an isolated matter which occurred on one project which was undertaken for very little remuneration for a family friend. The Respondent stated that he had not advertised or sought this work and he understood that it was initially taken on in good faith. He submitted that this project was not reflective of his conduct as a professional. The Respondent stated that he had undergone a period of reflection and had learned from this process and would never again act in this way for family members or friends. He explained that he was the main wage earner and had a young daughter. He stated that it was his intention to remain working as a project manager for his employer and he would not take on anything of this nature again. The Respondent stated that although he was not legally represented, he wanted the Committee to appreciate that he was remorseful.

28.    The Committee then considered whether to impose a sanction, and if so, which one. The Committee has had regard to the public interest, which includes the need to protect the public, to maintain confidence in the profession and ARB and to declare and uphold proper standards of conduct, 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 Respondent’s interests, the sanctions guidance and the need to act proportionately. It has taken into account any aggravating and mitigating factors in this case. The Committee has exercised its own independent judgement.

29.    The Committee has identified the following to be aggravating factors:

30.    The Respondent’s failings had the potential to have a significant impact on his Complainant should there have been any issues with the work undertaken by the Respondent. In addition, the failure to address the issue of the outstanding completion certificate had the potential to have serious consequences for any future sale of the property. The Committee was mindful that it had no up to date information on this aspect and it noted that the Complainant had disengaged from ARB and had not given any detail about this aspect either in his statement or his complaint about what was outstanding and the steps needed to complete matters. The Committee also considered that it was an aggravating factor that the Respondent’s failure to respond to both the Complainant and to ARB persisted over a significant period of time and encompassed multiple failures to respond.

31.    The Committee has identified the following to be mitigating factors:

32.    The Respondent has no adverse regulatory history in his career. The Committee noted that the Respondent was admitted to the Register in April 2017 and he was instructed on this project in July 2017. The failings occurred on one project which was outside the Respondent’s normal scope of practice and was taken on to assist a family friend for very little remuneration.

33.    The Respondent has engaged in the Committee hearing and had made full and frank admissions at the outset of that hearing. There is some evidence before the Committee that he has taken on board the learning from this process. The Respondent has confirmed that he will no longer act outside his employment and that this conduct will not be repeated. The Respondent has expressed genuine remorse and some insight.

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

35.    The Committee first considered whether to impose a reprimand. The Committee considered that the Respondent did demonstrate some of the factors that would make this sanction appropriate including previous good disciplinary history, genuine expression of regret and some insight into failings. However, the Committee considered that this information was limited and not supported by any evidence that the Respondent had put into practice any of the learning from his failings on this project. The Committee considered that this behaviour would be unlikely to be repeated if the correct steps were taken by the Respondent to ensure he did not take on projects outside his area of expertise, and if he were to do so, that he was aware of all of the requirements of the Code relating to terms of business, complaints handling and insurance arrangements. However, given the seriousness of the UPC found proved, and the effect on the Complainant and the reputation of the profession the Committee considered the Respondent’s failings too serious for a reprimand to be either appropriate or proportionate.

36.    The Committee then considered whether to impose a penalty order. It noted that this sanction is appropriate where the offence is too serious to warrant a reprimand. It considered that this was the appropriate and proportionate sanction. The Committee noted the Respondent’s full and candid admissions at the outset of this hearing and gave the Respondent significant credit for taking full responsibility for his conduct and not seeking to make excuses or deny that he had made mistakes. The Committee considered that the Respondent had taken on board the lessons learned from this project and the ARB process as a whole. The Committee considered that the hearings process had been challenging for the Respondent and he had not had the benefit of any legal assistance. Nevertheless, the Respondent had engaged constructively. The Committee was persuaded that this conduct was an isolated incident and not reflective of the Respondent’s attitude generally or suggestive of an underlying disregard for his professional obligations.

37.    The Committee considered that a penalty order, together with its findings in relation to UPC, would be sufficient to mark the conduct as unacceptable and uphold the reputation of the profession.

38.    Having determined that a penalty order was the appropriate and proportionate sanction the Committee considered a suspension order. The Committee did consider carefully whether the public interest required a suspension. The Committee did not consider that the Respondent lacked sufficient insight to be able to practise appropriately or that he was a risk to the public and posed a risk of repeating this conduct. The Committee considered that the Respondent had been naïve and had not appreciated the gravity of the situation. In these circumstances the Committee considered that a penalty order was sufficient to protect the public interest and it considered that preventing the Respondent from practising as an architect for a period was unduly punitive.

39.    The Committee therefore imposes a penalty order in the sum of £1,500. The Committee considers this to be an appropriate amount to reflect the seriousness of the Respondent’s failings. This amount should be paid within 28 days.

40.    That concludes this determination.