Mr Steven Johnson
THE ARCHITECTS REGISTRATION BOARD
PROFESSIONAL CONDUCT COMMITTEE
In the matter of
Mr Steven Johnson (048692B)
Held on 2 and 3 September 2019
Architects Registration Board
8 Weymouth Street
Mr Paul Housego (Chair)
Ms Judy Carr (PCC Architect Member)
Mr Stephen Neale (PCC Lay Member)
In this case the Board is represented by Mr Mark Millin of Kingsley Napley.
Mr Johnson has not attended this hearing and is not legally represented.
- did not enter into a written agreement with the client which adequately covered the terms of engagement as set out in standard 4.4 of the Architects Code;
- did not carry out an adequate tender process;
- did not carry out work in relation to Building Regulations with due skill and care in that he failed to provide adequate detail in Building Regulations drawings; and
- did not undertake his role as Contract Administrator competently.
and that by doing so, he acted in breach of Standards 4 and 6 of the Architects Code: Standards of Conduct and Practice 2010 (“the Code”).
The sanction imposed is a suspension order for a period of 12 months.
1. Mr Johnson (“the Respondent”) was asked to appear before the Professional Conduct Committee (“the Committee”) of the Architects Registration Board (”the ARB”) to respond to a charge of Unacceptable Professional Conduct (“UPC”).
2. The ARB say that the following particulars amount to UPC:
1. The Architect did not enter into a written agreement with the client which adequately covered the terms of engagement as set out in standard 4.4 of the Architects Code;
2. The Architect did not carry out an adequate tender process;
3. The Architect did not carry out work in relation to Building Regulations with due skill and care in that he failed to provide adequate detail in Building Regulations drawings; and
4. The Architect did not undertake his role as Contract Administrator competently.
3. The provisions of the Architects Code 2010 (“the Code”) said to have been breached are 4.2, 4.4, 6.1 and 6.3.
4. The preamble to the Code states that any failure to comply with the provisions of this Code is not of itself to be taken as constituting UPC or serious professional incompetence, but it shall be taken into account in any disciplinary proceedings before the Committee.
5. It also states that architects are expected to be guided in their professional conduct and professional work by the spirit of the Code as well as by its express terms. The fact that a course of conduct is not specifically referred to in the Code does not mean that it cannot form the basis of disciplinary proceedings.
6. Each case is judged on its facts, and there may be circumstances in which UPC is found even where there has been no clear breach of the express terms of the Code. Not every shortcoming, or failure to meet the Standards expected by the Code, will necessarily give rise to a finding of UPC.
7. The relevant provisions of the Code are:-
Competent management of your business
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 contracting 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 provisions for suspension or termination of the agreement;
• a statement that you have adequate and appropriate insurance cover as specified by the Board;
• your complaints-handling procedure (see Standard 10), including details of any special arrangements for resolving disputes (e.g. arbitration)
You should carry out your professional work faithfully and conscientiously and with due regard to relevant technical and professional standards
3 You are expected to keep your client informed of the progress of work undertaken on their behalf and of any issue which may significantly affect its quality or cost.
4 You should, when acting between parties or giving advice, exercise impartial and independent professional judgment. …
8. The Respondent was engaged by a client to assist with the refurbishment and extension of an empty house which she had bought. She already had planning permission for what she wanted to do. The Respondent was to obtain Building Regulations approval and assist with the implementation of the project. This did not go well. There was a big issue about the stone to be used for the extension as the client thought this was to be reclaimed stone, randomly sized, but new stone of one size, dyed to look aged, arrived on site. There were issues with the quality of the work, such as a cavity wall with uneven width of cavity and the burial of debris beneath a new floor instead of it being taken away in a skip. The client ended the relationship with both the Respondent and the contractor. It is said that there were issues with the way the Respondent handled the project which individually or cumulatively are so serious that it amounts to UPC.
Burden and standard of proof
9. The ARB is required to prove the allegations to the civil standard; that it is more likely than not that any event occurred. That is a single unwavering standard of proof, though the more unlikely an allegation the more cogent the evidence required to prove it. There is no requirement for the Respondent to prove anything. The Committee has in mind throughout its deliberations that the right to practise a profession is involved in these proceedings and proceeds upon the basis that the Human Rights Act 1998 will apply. In particular the Respondent has the right to a fair trial and to respect for his private and family life under Articles 6 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as incorporated within UK law by that Act. The question of whether or not any facts found proved amount to UPC is a matter for the Committee’s judgment, and there is no burden of proof. A finding of UPC requires the Committee to judge that conduct to be a serious falling short of professional standards such that there is moral opprobrium.
10. The Respondent did not attend the hearing. The Committee checked that the provisions as to service set out in Rule 6 had been complied with, and they had been.
11. The Committee next considered whether to proceed in the absence of the Respondent. Rule 14 permits the Committee to proceed in the absence of the Respondent. The Committee bore in mind the case of R-v-Jones  UKHL 5, which Tait v The Royal College of Veterinary Surgeons (RCVS)  UKPC 34 states is also applicable to professional conduct proceedings. The Committee also bore in mind the guidance in General Medical Council v Adeogba  EWCA Civ 162, to the effect that a Committee such as this should proceed unless there is good reason not to do so.
12. The Committee noted that the Respondent was aware of the hearing, for he had written to the ARB about it stating that he would not attend it. He did not ask for an adjournment. There was no suggestion that illness was a factor in the Respondent’s decision not to attend. The ARB had written to him on two occasions setting out in considerable detail the possible consequences of non-attendance, and sent to him its guidance note prepared precisely for the purpose of informing respondents who evince an intention not to attend of the likely consequences. In his emails to the ARB the Respondent had stated, in terms that he expected the hearing to proceed in his absence. The Committee did not think it likely an adjournment would lead to the attendance of the Respondent, who had expressed a firm resolve not to attend the hearing. Two witnesses had attended. There is an expectation on members of a profession to attend to account for themselves if required to do so by their professional body. For these reasons the Committee decided to proceed in the absence of the Respondent.
13. The Committee indicated to the ARB’s solicitor that it would follow the guidance in Held v GDC  EWHC 669 (Admin) and McDaid v Nursing and Midwifery Council  EWHC 586 (Admin), that there is a duty on the Committee to take reasonable steps to expose weaknesses in the case advanced by the ARB and to make such points on behalf of the absent defendant as the evidence permits, but that this does not extend to a duty to cross examine witnesses.
14. The Committee noted that the ARB had sent its guidance note as to the drawing of inferences against an absent respondent. The case of Kuzmin, R (On the Application Of) v General Medical Council  EWHC 2129 (Admin) set out guidance at paragraph 61 about when an adverse inference may be drawn. The Committee indicated that it would decide whether to draw such an inference after hearing all the evidence. The precursor to the drawing of such an inference was met, as the Respondent had been told, in terms, that this was something the Committee might do.
15. In his extensive written submissions the Respondent accepted that he did not provide terms of engagement. He apologised for this, and said that this was in part because an important member of staff had personal problems at the time and was not efficient, and that at the time he was somewhat distracted by illness in his own family. He accepted that the tender documents he provided could have been fuller, but that many of the matters where there was complaint were obvious to any tenderer, or related to structural engineering that would be required (and it was plain that this would be needed from detail on the drawing), or related to Building Regulations requirements that all of the contractors asked to tender would know about (as he knew them all) and that as this was a tender by negotiation the details would have emerged in the negotiations. He denied that the Building Regulations drawing was seriously deficient, while accepting that it could have been better. Partly this was the failing of his technician, and while he accepted that he should have checked the technician’s work, he had been distracted by personal matters and his staff member’s own personal difficulties had impaired her performance at the time. He denied any failing as contract administrator. There were issues, but that was because the client had paid the contractor direct without telling him, the contractor’s work had been deficient, for which he was not responsible, and nor was he responsible for the contractor failing to notify the building inspector at the appropriate time.
16. The Committee studied the report of the ARB’s solicitor with accompanying documents. The Respondent had provided two witness statements and supporting documents and the Committee paid careful attention to those representations and that documentation. The ARB called evidence from the client and from its Inquirer, who had prepared a lengthy report. The Respondent’s witness statement critiqued this report extensively, and when the Committee heard oral evidence from the Inquirer it put the points raised by the Respondent to the Inquirer. The Committee asked questions of the client, putting to her the challenges the Respondent made to the allegations. The Committee found the evidence of the client to be reliable. She was fair in her observations about what had happened, and was even handed. This was her first project, and so she had no experience to rely upon. She had not realised that a written contract between her and her architect was to be expected: she had appointed an architect in order to rely on his help.
Findings of fact
17. The client had bought a cottage, which had long lain empty and was in need of complete refurbishment. She had not undertaken such a project before. She had previously engaged an architect who obtained planning consent for her proposed alterations. She had not wished to continue with that architect. She visited a public park which had a café designed by the Respondent, and this impressed her such that she instructed him to bring her project to fruition. The limit of the Respondent’s correspondence with the client about his retainer was to tell her that his fee would be £5000 inclusive of VAT and expenses.
18. She had a contractor in mind. The Respondent had worked with that contractor before and his experience was that the contractor priced very low to get the job, but what with alterations and extras the end result was that a much higher price was paid. He wanted her to seek tenders from four contractors with whom he had worked, in addition.
19. The Respondent prepared one drawing (F50) and sent a letter to the four contractors (F46). This stated that it would be a negotiated tender and that there would be a contract using the JCT Minor Works Contract 2016. The basis of that contract would be negotiations between the client, the Respondent and the contractor, those negotiations to be based upon the drawing.
20. Ultimately one contractor was selected. The Respondent made no notes of the discussions between in the client and the contractor, and the final quote did not contain any detailed specification, being only three pages (D92-94) with a list of prices next to a list of headings.
21. Work started on 15 August 2016. The contract was not signed on 17 August 2017. The client was not given a copy of it until very much later when she was finally given one after multiple requests. The contract is the JCT Minor Works Contract 2016. It is completed by hand, and the handwriting is that of the Respondent. It clearly states that the architect/contract administrator is the Respondent. The next section, of principal designer, for the purposes of the CDM regulations, is struck through, as is the subsequent section stating that the contractor would be the CDM regulations principal contractor. It can only be the Respondent responsible for that role, in these circumstances.
22. The Respondent indicated in his witness statement that he had not intended to be contract administrator, but that in the absence of anyone else that was what he ended up being. That is not any diminution of his responsibility in that regard. The client was absolutely clear that he had said he was to be project manager. This is a very common misunderstanding, and the Committee is satisfied that the Respondent had not undertaken such a role. Again, the reason the client misunderstood was a failure by the Respondent to explain what his role would be.
23. On 17 August 2016 the client attended the office to sign the contract which she left with to the Respondent by hand and spoke to him when doing so. Although there was little work done, the contractor had (entirely wrongly) delivered an invoice directly to the client for £10,000. She wanted to retain the goodwill of the contractor and had already paid it, immediately on receipt. The Committee accepts her evidence that she made an observation to the Respondent to the effect that “This has been an expensive day” and told him that she had paid the contractor £10,000. That invoice and two later invoices were emailed by the contractor to the client with the Respondent cc’d in. The Respondent says he never received those emails, and despite searching for them in his inbox and computer system still cannot find them. The Committee takes him at his word, but it was plain that the Respondent knew that the client had paid a substantial sum to the contractor direct, and he took no action as a result. Plainly he should have issued a certificate at that point and made clear that further payments should not be made without such certification. In fact the client went on to make two further payments to the contractor with no certification.
24. The Committee notes that the contract provided for certification at two weekly intervals, and that the first was due, according to the contract (F57) on 19 August 2016 and then every two weeks, so that the Respondent should immediately have taken action. He did not certify any work in the period 16 August 2016 to 16 September 2016, when the client terminated the contracts.
25. The property was stone built, and was to have an extension. The client was keen to have stone which matched the existing, and so to have reclaimed stone. She is adamant that this was to be reclaimed stone to match the existing structure such that it would be first old, and so a similar colour to the existing, and of random sizes, as was the stone in the existing structure. The Committee accepts that she so stated, as she has always been consistent in this account, and gave it as a reason for dissatisfaction immediately when stone was delivered to site. The contractor had taken her to a reclamation yard at one point and the only reason for doing so was in connection with reclaimed stone. The Respondent says that the client had a limited budget and that reclaimed stone is much more expensive. He says he always had in mind the standard size dyed stone. If so he failed to communicate that to the client.
26. The Committee finds that the confusion, if such there was, and the misunderstanding, which plainly occurred, is entirely down to the absence of any clear record of the discussions that took place between architect and client and between architect and client on the one hand and contractor on the other.
27. The client was unhappy at the state of a floor in one of the rooms which was concreted in which she described as “wavy“. After the contractor was removed from site she had a hole dug in the floor, and found that all the debris from internal reconstruction had been dumped below that floor right down to the earth beneath. The Committee accepts the evidence of the Inquirer and of the client that the likely consequence of this would be future problems, such as damp rising. Ultimately the floor had to be removed and all the debris taken away in skips, which removal had been priced into the original contract. The Respondent stated that the client’s father had asked for this to be done to save the cost of skips. The client denied this, and stated that she had paid for skips, which evidence the Committee accepted.
28. After ending her association with the Respondent and the contractor, the client instructed a completely different contractor, who had to start from the beginning, including excavating the debris buried beneath the house. The effect was the client lost the money paid to the first contractor, incurred a delay of a year or so, suffered much stress, and then had a legal dispute involving solicitors which was also stressful and expensive.
29. In making its findings of fact the Committee did not draw any adverse inference against the Respondent from his non-attendance. He had accepted much of the factual basis of the allegations. In so far as there was conflict between his account and that of the client, the Committee considered, after probing that evidence, that the client’s account was to be relied upon.
30. Having set out the facts of what occurred the Committee turns to the allegations themselves.
31. There was no written agreement with the client covering the points set out in standard 4.4 of the code. This particular of the charge is admitted and is proved.
32. At inception the tender process was not necessarily a flawed exercise. To produce a working drawing (even an inadequate one), and to invite discussion based upon it, and through negotiation to arrive at a tender price with detailed specifications and schedules of work is a possible route to a satisfactory contract between client and contractor. The difficulty with the exercise undertaken by the Respondent is the way it was undertaken. First, the drawing has multiple omissions. These are identified in the Inquirer’s report, and in his response the Respondent largely accepted the factual analysis of the Inquirer. The omissions are also relevant to the allegation about the Building Regulations application. Details of structural works are omitted, and there is no specific reference to the need for a structural engineer at all. The foundations are not specified and there is no reference to mass concrete, or the requirement to find a firm bearing. The type of thermal insulation is not described, although its depth is given. The description of the construction of the roof to the extension is sparse. For the walls to be constructed details such as wall ties are omitted and while the inner leaf was to be load bearing its strength was not specified. The insulation value of the blocks to be used was not given. The way the roof and roof spaces were to be ventilated was not specified. Whether windows were to be opening or non-opening, and whether internal glass was to be toughened or not, was not specified. The sound insulation requirement for internal walls was not specified. Drainage layout was not specified, nor sanitary pipework. While a new central heating boiler was required there was no detail of the specification of the system. The electrical layout, including in wet areas, was not detailed. There was to be a fire detection and alarm system, but no indication as to the level of sophistication required. The details of air extraction were not given.
33. The Respondent responded in detail in his second witness statement and, as indicated earlier, accepted that factually all these points are correct. His explanations are that as pad stones are required it was clear that the contractor would have to arrange for a structural engineer. For the foundations of the extension a section might be helpful but was not necessary. He agreed that the maximum U-value for thermal insulation should have been given. For structural timbers the contractor would obtain a structural engineer’s input. He accepted that the necessary description of wall ties was omitted. He agreed there was no mention of vapour control layer specified in the roof spaces, and explained what he had in mind for the construction (none of which was recorded in attendance notes). He accepted there was no reference to U values for windows and that these should have been shown, and that the requirement for toughened glass should have been specified. He considered that internal sound insulation was a matter for the builder. He agreed that the notes should have been added to clarify the basic specification of the drainage system, and that the drainage was not shown, but that it was alongside an existing extension. Information about sanitary pipework would have been added later when the bathrooms were fully designed. Sanitary ware had not yet been decided upon and so was left off. He did not suggest that a PC sum should have been added. He agreed that requirements for energy conservation should have been on the drawing. The electrical layout was omitted because the layout of the rooms had not been agreed and he would have added those later (though he never did). The contractor could choose the fire detection and alarm system. He agreed that the specific requirements for mechanical extracts for bathroom and kitchen should have been added. The overall pattern of the windows was described in the elevation drawings, although not marked to show hinge points. He accepted that there was no description of the requirement for trickle vents. None of the small changes made in his drawing compared to the planning consent were significant, although he accepted that he had not had these changes formally approved by the planning officer as non-material amendments, relying only on a telephone call to them. This meant, he said, that there was little risk of any future issue.
34. The Committee concludes that without any record of the conclusions arrived at between architect, client and any one contractor it is impossible for the client to know that each of the people were tendering or pricing for the same level and quality of work. In the event, the other contractors dropped out so that it was just the one contractor left; but here the client had no detail or specification of what work was to be undertaken for the contract sum. This is an uncertainty which has the inbuilt likelihood of misunderstanding and dispute, or overcharging, or a project at a lesser specification than was paid for.
35. Further, it does not accord with the terms of the contract which the Respondent prepared which contains as its second recital that the employer – the client – “has had the following documents prepared which show and describe the work to be done”. There are three items set out. The first is the drawing, numbered 1430 – 3. That was all that was provided. There are two other documents also set out in the contract as provided to the contractor, a specification and work schedules (F54). There was no specification. There were no work schedules. This is not satisfactory. Responsibility is solely that of the Respondent.
36. The essence of the Respondent’s defence is that all these matters are minor and that even cumulatively they are not serious enough to amount to UPC. The Committee considers UPC after assessing all the four factual elements put forward by the ARB.
37. Thirdly there is the Building Regulations approval defects in the plan prepared. The same points apply to this as to the tender drawings. It is really not satisfactory to expect the contractor to know and properly to apply all the requirements of the Building Regulations. The client paid the Respondent £4,800 (including VAT) (D121-122) and she was entitled to expect from him that it was he that ensured that the I’s were dotted and the T’s were crossed, and not for the architect to pass the buck to the contractor to do the work in accordance with Building Regulations, or to rely on a building inspector to identify non- compliance. These mischiefs eventuated.
38. Fourthly, the Committee considered the allegation that the Respondent did not undertake his role as contract administrator competently. The Committee accepts that the role of contract administrator does not require the same level of involvement as being project manager. It is not the architect’s fault if the contractor fails to give notice at appropriate times to the building inspector. The contract administrator cannot prevent defective workmanship, and if it is done between visits may not have the opportunity to identify it. However, the poor construction of the extension, and the variance in the cavity (which varied from 50 mm to 100 mm) would have been obvious on the most perfunctory of observations. The biggest difficulty for the Respondent is the absence of any form of certification of work in the one month the contractor was on site, despite the contractual requirement for two weekly certifications, and despite the Respondent knowing of the payment of substantial sums of money by the client direct to the contractor.
Consideration of facts and particulars of allegation
39. The requirement to provide written terms and conditions is absolutely clear in the Code. It is a basic, simple and fundamental requirement of every professional person when accepting instructions from a member of the public that he or she sets out, with clarity, exactly what he or she is to do (and not do), what will be the cost of doing it, the timeframe within which it is likely to be carried out, and any other matter important to the relationship between member of the public and member of the profession.
40. The reason for the requirement is that the client understands these things and so the client’s expectations are clearly set out. The room for misunderstanding is greatly diminished, or entirely removed, and the potential for disagreement thereby minimised or obviated. This provision of the Code has been present for many years. The members of this Committee have been undertaking this function for a decade, and on every occasion when there has been a dispute between client and architect and there has been such a breach of 4.4 of the Code there has been a finding of unacceptable professional conduct. The Respondent puts forward some personal mitigation of the “eye off the ball” type. That does not mean that this is otherwise than UPC and the Committee so finds.
41. The difficulties with the tender could be considered to be incompetence rather than conduct, and the Committee explored this fully in challenging the submissions made to it by the ARB’s solicitor. There is no allegation of lack of competence. After considering the matter carefully, the Committee concluded that the extent and range of the omissions and inadequacies in the preparation of the tender, including the complete absence of specifications and work schedules, is a conduct issue, not a matter of competence. This was not a mistake made in the performance of a professional task, but a systemic attitude to the task in hand. In this case the ARB is correct in categorising this as a conduct issue rather than a competence issue.
42. The Committee has carefully considered whether the Respondent’s explanations mean that this is not serious enough to be considered UPC. The Committee considers that it is not appropriate to take each of these omissions and failings individually, and consider serially the Respondent’s submissions that each is not serious enough to amount to UPC. The matter must be viewed holistically. The catalogue of errors and omissions in the tender documents, and the absence of any specification or work schedules, or even an audit trail of the negotiations and conclusions as to the extent of the project, indicates firmly that this is serious enough to be UPC. The Committee so finds.
43. The same considerations apply to the Building Regulations matters. In respect of this allegation, the Respondent says that he telephoned the planning office at the Council who assured him that there was no difficulty with these minor amendments to the planning consent. This is not an answer to the allegation. (The Committee notes that in any event this is not acceptable. There should have been a formal application and a fee paid. There was no exchange of letters or emails to go on the client’s file, nor even a telephone attendance note. However that point does not form part of this allegation, and the Committee does not take it into account.) The omissions in the drawing as to Building Regulations are very substantial. It is not a mistake of omission, but a lamentable approach to the task. It is not an excuse to say that the technician should have dealt with this. The Respondent’s name was on the plan, and he should not have sent it out in this form. Again, this is not a simple mistake (a competence issue) but an attitude to work which the Committee finds to be UPC.
44. The contract administrator’s functioning was not carried out effectively. The most fundamental and basic task of the contract administrator is to inspect the work, to certify the value of that work and to approve the invoices tendered by the contractor, so that the client pays an appropriate amount to the contractor for the stage reached in the construction. The contract provided for two weekly valuations, and the Respondent carried out none. That might not have been an issue, save for the contractor, but the Respondent was told by the client that she had paid the contractor direct, £10,000. He did nothing with that information. He should immediately have inspected and certified whatever level of work should have been paid. He should have ensured that the client knew that she should not pay any invoices without consulting him, and he should have told the contractor to send invoices only to him and not direct to the client. The consequence of this was that the client paid out about £30,000 to the contractor and nearly £5,000 to the Respondent, only to end up instructing a completely different contractor and starting all over again, effectively losing all that money and adding a year to the process. Again, this is not a mistake and an issue of competence, but a way of working which is UPC.
45. Each of these four elements has the potential to cause the client great difficulty, upset, and expense. Each, the Committee finds, amounts to UPC. In their totality they most certainly do so. This client was not well served by her architect because of the way he approached the task, from beginning to end, and for which he was paid a substantial sum of money.
46. Accordingly the Committee finds the allegation of UPC proved.
47. The primary purpose of sanctions is not to be punitive (though this may be their effect) but to protect members of the public, to maintain the collective reputation of the profession (and the ARB as its regulator), and to declare and uphold proper standards of conduct and competence. Sanctions also help ensure that the profession better understands the importance of professional standards.
48. The Committee has considered the Indicative Sanctions Guidance. Appearance before this Committee is in itself salutary. The Act does not require the Committee to impose a sanction in every case where a guilty finding is reached, so the Committee may choose to make no disciplinary order. If it decides to impose a sanction, the Committee commences at the lowest sanction, and only if it decides that sanction is not appropriate does it move to the next level of sanction. Having arrived at a sanction that it is minded to impose the Committee then reviews the next sanction above so as to satisfy itself that this would be too severe a sanction before arriving at a final conclusion. If the Committee decides on a fine, it is limited by the Architects Act 1997 to £2500.
49. The Committee bears in mind the need for proportionality in the imposition of sanction.
50. The Respondent had supplied a series of testimonials from long standing clients. However these are “To whom it may concern” letters and the authors do not say that they know of the matters leading to this hearing.
51. The Respondent accepted many of the matters of inadequacy: he differed on their seriousness, but had given a truthful account.
52. It is no mitigation to say that members of staff should have attended to matters or reminded him.
53. He had engaged with the regulator throughout, save for attendance at this hearing.
54. There was no allegation of a lack of integrity.
55. The Committee was informed that the Respondent was the subject of a previous sanction, a penalty order of £1,000 imposed on 29 April 2013 by another division of this Committee (and of which this division was unaware until asking its Hearings Officer whether there was any previous matter, after handing down its finding of UPC). That was a similar matter of failing adequately to set out terms and conditions and not advising a client of changes in the charges to be incurred (and not safeguarding client money).
56. There was considerable impact on the client both in terms of cost delay and stress.
57. There was an absence of any apology, and only limited insight as the Respondent minimised the impact of his failures. In fact he stated at 5.1 in his first witness statement that “the lack of written terms of engagement has not had any adverse impact on the complainant” This is not so, and does not demonstrate insight.
58. While saying he accepted it was his personal responsibility, he nevertheless heaped responsibility on two other members of staff.
59. In his first witness statement at paragraph 2.3 the Respondent wrote “…this is the only complaint to the ARB in regard to the quality of service”. This is at best disingenuous.
Decision on sanction
60. Failure to provide terms and conditions is not a mere technicality. It is the foundation of all that is done by architects for their clients. It is important, and for the benefit of the architect as well as the client. In all the particular circumstances of this case the Committee considers that a sanction is appropriate because of the need to declare and uphold professional standards, and because this is a second finding of UPC.
61. The Committee considered first whether a reprimand, the lowest sanction, was appropriate. A reprimand may be used in relation to those offences at the lower end of the scale of seriousness, where it would be appropriate to mark the conduct or competence as being unacceptable.
62. This sanction may be considered where the following factors are present (this list is not exhaustive):
• Evidence that the conduct or competence has not seriously affected clients/the public
• Insight into failings
• Genuine expression of regret
• Corrective steps taken
• Previous good disciplinary history.
63. The Respondent does not have a previous good disciplinary history, and while the last matter was in 2013, the events leading to this appearance were only 3 years later. A reprimand is not appropriate.
64. The Committee next considered a penalty order. It may be used in relation to those offences too serious to warrant a reprimand, or where a lack of remorse or understanding is displayed.
65. A penalty order may be considered where the following factors are present (this list is not exhaustive):
• Offence is too serious to warrant a reprimand
• Limited or lack of remorse
• Architect has benefitted financially from the offence
66. The Committee will specify the period within which the sum must be paid, and a failure to satisfy the order may lead to it being replaced by a suspension or erasure order. A penalty order is published for two years after the date of sanction.
67. The Committee is very concerned at the repetition of a similar matter. Plainly the previous matter had little effect on the Respondent. To impose a financial penalty would trivialise the extent of the Committee’s concerns, and the impact on the client.
68. Suspension orders: a suspension order may be imposed by the Committee for serious offences, but not so grave as to warrant erasure from the Register. Suspensions are for a maximum period of two years and the architect is automatically reinstated to the Register at the end of the suspension period. Any individual suspended from the Register cannot use the title ‘Architect’ in business or practice.
69. This sanction may be considered where the following factors are present (this list is not exhaustive):
• An offence so serious that a reprimand or penalty order would be insufficient to protect the public or the reputation of the profession
• Behaviour that is not fundamentally incompatible with continuing to be an architect
• No evidence of entrenched integrity issues
• The PCC is satisfied that the behaviour is unlikely to be repeated
• Conduct capable of being rectified
• Non-payment of a previously imposed penalty order
70. A suspension order is publicised for the period of suspension and a subsequent two years from the date of reinstatement.
71. The Committee considers that many of these criteria are met. The last time the Respondent appeared he indicated that he had revised his procedures and was now compliant: even if he had a client care letter it is disappointing, to use a neutral word, that he did not use it. It is not acceptable to blame subordinates. A suspension order is the minimum appropriate sanction.
72. Before coming to its conclusion the Committee considered whether an erasure order was disproportionate. An erasure order may be imposed by the Committee for those offences that are so serious that only a permanent removal from the Register will protect the public and/or the reputation of the profession. The Committee did consider erasure disproportionate, bearing in mind the criteria:
• A serious criminal offence
• Behaviour that is fundamentally incompatible with continuing to be an architect
• The Committee lacking confidence that a repeat offence will not occur
• Dishonesty or a severe lack of integrity
• A persistent lack of insight into the seriousness of actions or consequences
• Non-payment of a previously imposed penalty order
73. The Committee assessed the harm and considered the circumstances in full as set out above. It concluded that the proportionate and appropriate period of suspension was 12 months.
Decision on sanction
74. The Respondent is suspended from the Register of Architects for 12 months from today.