Mr Thomas Grant

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

THOMAS GRANT (043723I)

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Present:

Emma Boothroyd (Legally Qualified Chair)
Stuart Carr (PCC Architect Member)
Martin Pike (PCC Lay Member)

_______________

 

 

The Architects Registration Board (“the ARB”) was represented by Mr Ryan Ross (“the Presenter”) instructed by Kingsley Napley LLP.

Mr Thomas Grant (“the Registered Person”) did attend the hearing and was not represented.

The Professional Conduct Committee (“the Committee”) determined that the Registered Person is guilty of Unacceptable Professional Conduct (“UPC”). It did so, having found the following particulars of the Allegation proved: 1.      The Registered Person did not provide adequate terms of engagement contrary to Standard 4.4 of the Architects Code; 2.      The Registered Person did not carry out work without undue delay, contrary to Standard 6 of the Architects Code(s) in that he: a)     Failed to submit a building warrant Application and/or Completion Certificate in a timely manner and b)     Did not take adequate steps to ascertain the status and/or progress of applications in 2(a) above. and that by doing so, he acted in breach of Standards 4.4 and 6 of the Architects Code: Standards of Conduct and Practice 2017 (“the Code”). The sanction imposed is a Reprimand.

 

Allegation

1. The Registered Person faces a charge of unacceptable professional conduct (“UPC”) based on two particulars as set out below:
   1. The Registered Person did not provide adequate terms of engagement contrary to Standard 4.4 of the Architects Code;
   2. The Registered Person did not carry out work without undue delay, contrary to Standard 6 of the Architects Code(s) in that he:

a) Failed to submit a building warrant Application and/or Completion Certificate in a timely manner; and/or

b) Did not take adequate steps to ascertain the status and/or progress of applications in 2(a) above.

 

Background

2. This case arises out of a complaint made by Mr J Wilson (“the Referrer”) with regard to the professional services carried out by the Registered Person in respect of the Referrer’s property.
3. The Referrer and his wife purchased the property in 2010. The property had previously been used as a hotel and was in poor condition. The Referrer instructed a Contractor to undertake renewal of the electrics and plumbing.
4. The Registered Person was recommended to the Referrer by the Contractor, as someone who could undertake re-design work in relation to the property to create two holiday cottages that the Referrer wanted to construct. On 5 April 2012 the Registered Person wrote to the Referrer and set out his proposed fees in relation to the work. Planning permission for this project was applied for in April 2012 and granted on 6 July 2012.
5. The Registered Person was instructed to prepare drawings for a Building Warrant Application, submit to the Council and obtain consent as part of the initial instruction. Construction work began in around July 2012 before the Registered Person had completed the submission. On 24 August 2012 the Registered Person sent draft Building Warrant drawings to the Referrer and stated that it was his intention to lodge the drawings with the Council once he had heard from the structural engineer.
6. Works continued and were completed in approximately June/July 2013. Following completion of the works the Referrer stated that he contacted the Registered Person informally via telephone calls to find out what was happening with the Building Warrant application. The Referrer states that he was reassured that matters were in hand and he did not chase matters. In around early March 2020, the Referrer stated that he was told by the Registered Person that the application would be submitted that week. The Referrer chased the Registered Person on 7 August 2020. On 27 August 2020 the Registered Person submitted an application for a “Late Completion Certificate without Warrant”.
7. This application was rejected by the Council on 15 September 2020 and a list of outstanding matters were provided to the Registered Person as the reasons for rejection.
8. In January 2022 the Referrer requested an update from the Council and discovered that the application had been rejected and no further information had been submitted. The Referrer emailed the Registered Person on 24 January 2022 requesting that the application be progressed as it was affecting his ability to let the cottages.
9. On 14 February 2022 further information was submitted by the Registered Person in support of the application. The Council rejected the application again on 16 February 2022 and further information was submitted by the Registered Person on 2 March 2022. On 26 April 2022 the Council sent a letter via email to the Registered Person with a schedule of outstanding items that required attention before the application could be accepted. On 5 December 2022 the Referrer sent an email to the Registered Person to request an update as he had been informed by the Council that there had been no response to the letter dated 26 April 2022. There was a telephone call between the Referrer and the Registered Person on 7 December 2022 and the Registered Person said that he had left a voicemail for the Referrer in April 2022. The Registered Person said he was awaiting information and would update the Referrer. On 4 January 2023 the Referrer sent an email to the Registered Person to provide an update and did not receive a response.
10. Further information was submitted to the Council and the application was rejected again on 5 May 2023. There were four reasons for rejection which required addressing – one of which required drawings from the Registered Person and the other matters were addressed by the Referrer.
11. On 16 May 2023 the Referrer submitted a complaint to the ARB about the Registered Person.
12. The drawings were submitted by the Registered Person on 3 August 2023 and the completion certificate was issued on 7 August 2023.

 

Preliminary Issues

Application to admit the production statement and associated exhibits of Ms Lily Matthews-Cook as hearsay.

13. The Presenter submitted that it was fair to admit the statement and associated exhibits of Ms Matthews-Cook as hearsay. The Presenter explained that the statement exhibited the factual emails from the Council and he submitted that this was not the sole and decisive evidence in relation to the allegation as the ARB relied on the evidence of the Referrer. In addition, it was understood that the Registered Person did not challenge the factual content of the emails and had accepted them. He submitted that the source of the evidence suggested it was demonstrably reliable and there was no evidence to suggest that ARB had any motive to fabricate these emails or mislead the Committee. In all the circumstances he submitted it was fair to admit such evidence.

 

14. The Registered Person confirmed that he did not seek to challenge the content of those emails and accepted that the Council had no record of any application for a Building Warrant prior to 2020.

 

15. The Legally Qualified Chair advised the Committee that it could decide to admit hearsay evidence pursuant to rule 19 of the Professional Conduct Committee Rules, where it considered it was fair and relevant to do so. She reminded the Committee of the principles as set out in the case of Thorneycroft v NMC [2014] EWHC 1565 (Admin) and El Karout [2019] EWHC 28 (admin). The Legally Qualified Chair reminded the Committee that it should carefully consider the application and first determine whether it would be fair to admit the evidence, and this should not be determined solely on the basis of the weight to be attached.

 

Decision in relation to hearsay application

16. The Committee accepted the advice of the Chair and first considered whether it would be fair to admit the evidence. The Committee noted that this was not the sole and decisive evidence in relation to the allegation which was supported by contemporaneous email exchanges and evidence from the Referrer. The Committee noted that the emails were consistent with the other evidence and there was no evidence that the emails contained anything other than a factual analysis of what had been submitted. There was no evidence that the Council had any motive to fabricate that information.

 

17. The Committee took into account that the Registered Person did not challenge the factual content of the emails. The Committee did not consider that there was any unfairness to the Registered Person in allowing this evidence to be admitted as hearsay.

 

Admissions

18. At the outset of the hearing the Registered Person was asked for his position with regard to the factual particulars. He responded that he partially accepted that his terms of business letter was not fully compliant but that this was because of the nature of the relationship between himself and the Contractor and that he was not undertaking his usual role. He also agreed that there had been delay and he was responsible for some of that delay but he submitted that there were mitigating circumstances and reasons for that delay. He also did not accept that all of the delay was his responsibility and it had been caused by a number of factors outside his control. He did not accept that he was guilty of UPC. As a result, the Committee indicated that it would proceed on the basis that ARB were required to prove its case in relation to the factual particulars. UPC remains a matter for the Committee.

 

19. Whilst the Committee were deliberating on facts it received notification that there was a bundle of emails that the Registered Person had located overnight and he wished to place these before the Committee. The Presenter on behalf of ARB submitted that he had no objection to these emails being admitted.

 

20. The Committee noted that the Registered Person was unrepresented and had been specifically asked by the Chair if he was able to locate emails or other contemporaneous records which would support his case during the hearing. It considered that there was no unfairness in allowing the evidence to be admitted at this stage.

 

Decision on facts

21. In reaching its decisions, the Committee has carefully considered the submissions made by the Presenter and the submissions of the Registered Person, together with the documentary evidence presented to it which consisted of the Report of the ARB’s Solicitor and the main ARB bundle. The Committee has also considered the Registered Person’s submissions document.

 

22. The Committee heard oral evidence from the Referrer who confirmed the content of his witness statement and was asked questions by the Registered Person.

 

23. 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. It has drawn no adverse inference from the decision of the Registered Person not to give evidence and noted that he has made qualified admissions in relation to the factual allegations.

 

Particular 1 – Found Proved

1. The Registered Person failed to provide adequate terms of engagement contrary to Standard 4.4 of the Architect’s Code.

 

24. The Committee accepted the uncontested evidence that the letter dated 5 April 2012 was the terms of business sent by the Registered Person in relation to the project. The Registered Person agreed that the letter did not cover all of the requirements of the Code but pointed out that it did include information about the fees and the scope of works.

 

25. The Committee considered that the information contained within the letter of 5 April 2012 was insufficiently detailed and did not cover all of the requirements of Standard 4.4 of the 2010 Code. In particular, the Committee noted that the document did not adequately cover;

 

i. the responsibilities of the parties,

ii. any constraints or limitations on the responsibilities of the parties,

iii. the provisions for suspension or termination of the agreement,

iv. a statement that the Registered Person had adequate and appropriate insurance cover,

v. that the Registered Person had a complaints handling procedure available.

 

26. The Committee was satisfied that the Registered Person had not provided adequate terms of appointment which covered all of the required elements as required by Standard 4.4 of the 2010 Code. Although the Registered Person had adequately set out the fees the letter did not fully address the other matters which were applicable to this project and should have been contained within the letter to the client. The Committee accepted that the Registered Person considered that this was a less “formal” appointment by virtue of his longstanding relationship with the Contractor. However, in the view of the Committee this did not absolve the Registered Person of his responsibilities to the Referrer as his client to provide all of the information as required by the Code. If the Registered Person considered that he was acting on a very limited basis then in the view of the Committee he was required by the Code to make that clear at the outset.

 

Particular 2 – Found Proved

 

2. The Registered Person did not carry out work without undue delay, contrary to Standard 6 of the Architects Code(s) in that he:

(a) Failed to submit a Building Warrant Application and/or Completion Certificate in a timely manner; and/or

(b) Did not take adequate steps to ascertain the status and/or progress of applications in 2(a) above.

 

27. The Committee noted that the Registered Person had agreed in his initial letter of engagement of 5 April 2012 that he would be responsible for the application for a Building Warrant and that he would issue a final invoice when it was approved. On 17 April 2012 the Registered Person sent the Referrer an invoice which contained the fee of £980 for the Building Warrant Application. On 24 August 2012 the Registered Person wrote to the Referrer enclosing the draft Building Warrant drawings and confirming it was his intention to submit them to the Council once he had received information from the structural engineer.

 

28. The Committee took into account the evidence presented by the Registered Person which showed he had worked on the application on 22 December 2012 and that the engineer’s fee was received in January 2013 which suggested he was waiting for information from the engineer before submitting the application. The Registered Person also speculated that as the work had started on site the fee would have been doubled and he had not been aware of that when the initial invoice for the fee was submitted.

 

29. It was clear to the Committee that for whatever reason, the Registered Person did not submit the application for the Building Warrant in December 2012. There was no evidence that the Registered Person took any steps to inform the Referrer that there were any difficulties or inform him that the application could not be submitted for any reason. There is no evidence that the Registered Person made any attempt to check whether the Council had received the application, or took any other steps to deal with the matter again until 2020 when he applied for a “Late Completion Certificate without Building Warrant”. The Committee considered that the Registered Person had failed to submit the Building Warrant application and had failed to take any steps to progress that application.

 

30. Following the Registered Person making the application for a Completion Certificate on 27 August 2020 the Committee noted that the Council rejected the application on 15 September 2020. There was no evidence that the Registered Person took any steps to address the reasons for rejection until he was chased by the Referrer on 24 January 2022. The Committee could identify no evidence that the Registered Person had notified the Referrer that he was awaiting information from third parties in order to deal with the outstanding matters.

 

31. The Committee had careful regard to the Registered Person’s submissions that he did make calls and send emails during this period. He had been unable to produce any documents in support of his submissions and stated that he had asked the Contractor to send him copies of emails that he had sent to him. The Registered Person stated that his record keeping was “not good” during this time and that the file was “very thin”. The Committee was therefore not able to attach any weight to his assertions that he was actively progressing this matter and was awaiting information from others during this period. There was nothing in the contemporaneous documents produced by the Referrer which would support that the Registered Person had done anything. In his emails to the Referrer the Registered Person does not offer any explanation for the delay or set out what he had been doing during the period between September 2020 and January 2022. The email bundle produced by the Registered Person contained no emails or any other records that would suggest that the Registered Person carried out any work during this period.  The Committee was therefore satisfied that the Registered Person had failed to progress the application for a Completion Certificate in a timely manner during this period. 

 

32. The second period of delay relied upon by ARB was between 26 April 2022 and 7 December 2022. The Committee noted that the Council had written to the Registered Person on 26 April 2022 and rejected the application for a number of reasons that were set out in a schedule. There was no contemporaneous evidence before the Committee that the Registered Person responded to that letter or took any steps to deal with the matter until he was chased by the Referrer on 7 December 2022. The Registered Person’s own time sheet shows no activity on the matter during this period.

 

33. The Committee noted that the Registered Person stated he left a voicemail for the Referrer in April 2022. The Referrer did not accept this in his evidence. Even if the Registered Person had left a voicemail in April 2022 the Committee did not consider that this was sufficient if he required information. The Committee would have expected the Registered Person to follow this up with further telephone calls or emails to request the information. In the absence of any response the Referrer should have been advised that the application could not proceed without the information.

 

34. In the emails produced by the Registered Person the Committee noted that on 7 December 2022 in an email to the Contractor the Registered Person stated, “I called on various occasions the firm that seem to have supplied the conservatory (ULTRAFRAME) but they cannot find any information from their records and were quite unhelpful. You said you could possible (sic) get the information from the supplier so this would help to answer the question.” The Committee considered that this in part, supported the Registered Person’s assertion that during the period April 2022 to December 2022 he was attempting to obtain the information regarding the conservatory roof. However, the Committee considered that this could not reasonably account for a delay of over 5 months. There is no evidence that the Registered Person took steps to progress any of the other matters contained within the rejection letter. The email of 7 December 2022 to the Contractor contains requests for further information that could reasonably have been obtained much earlier. Whilst the Committee accepts that it is likely that the Council required all of the information “in one go” there is nothing to suggest that this was speedily progressed and it was only the information relating to the conservatory roof that was causing the delay.

 

35. The Committee considered that the period between 26 April 2022 and 7 December 2022 amounted to undue delay.

 

36. The Referrer had made it very clear that he was frustrated by the delay in obtaining a service he had paid for and that this was affecting his business and exposed him to liability if he continued to rent his cottages. The Registered Person took no steps to progress the matter despite the increasing urgency and the already protracted delay.

 

37. The Committee accepted that the Council raised a number of issues that, given the passage of time since construction, caused difficulty for the Registered Person to address. The Committee accepted that the Registered Person was reliant on others to provide some information. However, these were matters that could and should have been addressed at the time with the original Building Warrant application. The Committee did not accept that as the Referrer had undertaken additional work which the Council now wished to include in the application that this was the significant reason for the delay. The Registered Person did not undertake his responsibilities in a timely way which was the cause of further delay when attempting to resolve the matters retrospectively so long after construction had been completed. The Committee was satisfied that the Registered Person had not taken adequate steps to progress the application for a Building Warrant or to ascertain the status of it. Further the Registered Person had also failed to take adequate steps to progress the application for a Completion Certificate or to ascertain the status of it.

 

Unacceptable Professional Conduct

38. 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.

 

39. 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

40. The Committee considered the following standards were engaged in this case: Standard 4.4 of the 2010 code and Standard 6.2 of both the 2010 and the 2017 Code. By reason of the facts found proved, the Committee finds that the Registered Person acted in breach of those Standards.

 

41. 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 Architect and the profession generally.

 

42. In relation to particular 1 the Committee considered that the failure to provide the client with adequate terms and conditions was a serious failing because it left the Referrer without essential information relating to the project, particularly who was responsible for certain aspects of the project. Further, when difficulties arose, the Referrer was not in possession of information relating to the Registered Person’s insurance or the Registered Person’s 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.

 

43. In relation to particular 2 the Committee considered that each of these elements amounted to a serious falling short of the standards required. The Referrer had a right to expect the Registered Person as a professional to deal with his application for a Building Warrant promptly. This was a service he had paid for in 2012 and engaged the Registered Person to provide. There was a failure to submit that application at the time in 2012 and then an ongoing failure to regularise the situation until 2022. The Registered Person then failed to properly progress the application for a late Completion Certificate which resulted in lengthy delays. The Registered Person did not update the Referrer about the steps needed or that he was in difficulty obtaining information and the Referrer was understandably very concerned about the impact on his business that the lack of a Completion Certificate would have. There were significant periods of inactivity with no legitimate reason. The Committee considered that this could properly be characterised as UPC

 

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

 

Decision on Sanction

45. 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 sanction was a matter for the Committee 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. The Presenter also submitted that the Committee may consider the following as mitigating factors, that the Registered Person had made early admissions, was present at the hearing, had constructively engaged with ARB, was apologetic and contrite, there were no previous disciplinary findings, his conduct was not deliberate or wilful and there was no evidence of financial gain.

 

46. The Registered Person gave further submissions to the Committee at this stage. He expressed his regret at the situation and set out that he was now taking steps to record all tasks and other relevant information regarding a project in a diary and ensuring it was followed up and communicated to his clients. He told the Committee that this experience had been a lesson and he would not repeat his failings. He told the Committee that he blamed himself for the situation and that he took full responsibility for his failings. He repeated his apology to the Referrer, the ARB and the Committee. He stated that he cherished the title architect and wanted to continue to be able to use the title. He stated that he had never intended to work against the interests of his client and that he had hoped that the matter could have been amicably resolved. He told the Committee that he had never had any complaints about his work in his career and many of his clients were now friends.

 

47. 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 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.

 

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

 

49. The conduct encompassed more than one period of delay and persisted over a period of time.

 

50. The Committee has identified the following mitigating factors:

 

i. The Registered Person has no adverse regulatory history in a lengthy career.

ii. The Registered Person did take steps to put matters right and did eventually obtain the Completion Certificate for the Referrer.

iii. This was an isolated incident relating to one project.

iv. The Registered Person has apologised and taken some corrective steps to prevent repetition.

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

 

51. The Committee considered that the Registered Person had shown genuine remorse and has developed insight. The Committee considered that it was to his credit that the Registered Person made some admissions and accepted responsibility for his failings. The Committee was in no doubt that these proceedings have had a professional and personal impact upon the Registered Person. The Committee noted that the letter written by the Contractor suggested that the Registered Person was held in high regard by his clients and has a good reputation.

 

52. 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.

 

53. The Committee first considered whether to impose a Reprimand. The Committee considered that the Registered Person did demonstrate the factors that would make this sanction appropriate including insight into failings and some corrective steps taken. The Committee considered that the Registered Person had developed his insight and he did appreciate the impact of his failings on the Referrer. The Committee accepted that the Registered Person had learned a salutary lesson from the hearing process and that he was not at risk of repeating his failings. The Committee noted that the Referrer obtained the Completion Certificate from the Council and there was no substantial or lasting harm. The Committee considered that the failings were at the lower end of the spectrum.

 

54. The Committee considered that a reprimand would be the appropriate and proportionate sanction.

 

55. Having determined that a reprimand was the appropriate and proportionate sanction the Committee considered a penalty order. It noted that this sanction is appropriate where the offence is too serious to warrant a reprimand or where the architect has benefitted financially. It considered that the offence was at the lower end of the scale and there was no evidence that the Registered Person had benefitted financially and indeed had undertaken considerable additional work without payment.

 

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

 

57. That concludes this determination.