Mr Toby Howell
THE ARCHITECTS REGISTRATION BOARD
PROFESSIONAL CONDUCT COMMITTEE
In the matter of
Mr Toby John Howell (076899E)
Held on 3 and 4 October 2019
International Dispute Resolution Centre
70 Fleet Street
Mr Julian Weinberg (Chair)
Mr Roger Wilson (PCC Architect Member)
Mr Martin Pike (PCC Lay Member)
In this case, the Board is represented by Ms Hannah Eales of Kingsley Napley.
Mr Howell has attended this hearing and is represented by Mr Richard Beaty of Counsel, briefed by Kennedys Law.
- It is alleged that at the material time, the Respondent was practising as the sole Architect and a partner at Mitchell Evans Architects (“the Practice”). This case arises out of a complaint made by Mr H (“the Complainant”) in relation to extension works at the Complainant’s property.
- The Complainant and his wife contacted the Practice in early 2015 and a number of initial meetings took place with Mr M of the Practice. Mr M is an Architectural Technician and was the senior and founding partner at the Practice. Contrary to the Complainant’s belief, Mr M is not an Architect.
- Terms of engagement were issued, drawings were prepared, and a planning application was submitted.
- During the process, Mr B became involved in the project. Mr B is also an Architectural Technician, but not an Architect.
- Following discussions with Mr M, a contractor recommended by Mr M was appointed, having advised that a competitive tender process was not necessary. Works commenced in September 2016 which were due to be completed by February 2017. During this time, the Complainant’s main point of contact was Mr B. However, on returning to the property in April 2017, it became apparent that there was an extensive list of outstanding work.
- It is alleged that the Complainant first became aware of, and had contact with the Respondent in May 2017, when he attended the property to cover annual leave of Mr M.
- Concerns regarding uncompleted works remained, and on 5 July 2017, the Practice issued a Certificate of Non-Completion. The Complainant appointed Mr D, an independent Quantity Surveyor to try and move matters forward and it was he who advised the Complainant that neither Mr M nor Mr B were Architects, and that the works ought to have been overseen by an Architect.
- Mr D wrote to the Respondent who replied stating that he was not involved in the project and that correspondence should be directed to Mr M. Mr D then wrote again to the Respondent asking for the name of the supervising Chartered Architect responsible for the project to which the Respondent did not reply.
- Having been informed in October 2017 that a complaint would be made to the ARB if he did not become involved in the project, the Respondent suggested a meeting to try and resolve matters. The Respondent carried out a site inspection in November 2017 but concerns about the building works remained. A final defects list was issued on 6 April 2018.
- Having been unable to resolve matters to his satisfaction at a meeting in June 2018, the Complainant asked the Respondent to issue a notice under Clause 2.30 of the JCT contract requiring the contractor to stop working and to have the works completed by another contractor. A corresponding deduction could then be made from money owed to the original contractor.
- In due course, the Complainant appointed another builder at his own expense.
- It is alleged that the Respondent’s failure to ensure that the architectural work was under his management or control is a serious failure and amounts to UPC because his earlier involvement could have prevented the difficulties that arose.
- The factual allegation as set out below, and UPC, is admitted.
- In reaching its decisions, the Panel has carefully considered the documentary evidence presented to it in the Report of the Board’s Solicitor and the 393 pages of exhibited documents. The Panel has also had sight of the Respondent’s written reply, his witness statement of 12 September 2019 together with its exhibits. The Panel has accepted the legal advice given by the Legally Qualified Chair which is a matter of record. It has had regard to the fact that the burden of proof is on the Board and that the civil standard applies, namely proof on the balance of probabilities. Whether the conduct alleged amounts to UPC is a matter for the Panel’s independent judgment to which no burden of proof applies, irrespective of the Respondent’s admission.
Findings of Fact
- The Panel makes the following finding of fact:
- The Respondent having admitted the facts of allegation 1, the Panel finds the facts alleged proved. The basis of the Respondent’s admission was that he accepted the facts alleged in respect of the period from May 2017 until October 2017. However, he did not accept the allegation in respect of the period from May 2015 till May 2017. Ms Eales accepted the basis of plea on behalf of the Board.
- The Panel noted that the scope of the allegation as set out at paragraph 39 of the Board’s Solicitor’s report was that it is alleged that the Respondent’s failure extended from 2015 until 2018. The Respondent in his detailed response to the allegations expressly accepted the basis of the allegations as set out at paragraphs 47 to 51 of the report and stated that the Respondent had not had any involvement in the project until May 2017. This position was therefore at odds with the Respondent’s basis of plea. Mr Beaty submitted that the Respondent’s reply to the allegations was intended to reflect that the Respondent had no direct day to day control or day to day management of the project, but that there was appropriate management and control until May 2017.
- The Panel invited representations from the parties regarding whether, despite the admissions made, a separate determination was required in respect of the facts for the period May 2015 till May 2017 pursuant to Rule 20.c of the Professional Conduct Committee Rules 2019. Ms Eales submitted that an adverse finding against the Respondent would make no difference to any sanction that might be imposed and that therefore the basis of plea should be accepted and no further determination was required.
- Mr Beaty made no specific submissions.
- The Panel nevertheless concluded that it was appropriate to make a determination on the facts in respect of the period May 2015 till May 2017 for the following reasons:
i. That period represented a substantially longer period of time than that admitted and;
ii. The Respondent in his written submissions in respect of sanction (in the event that the case reached the sanction stage), made extensive representations regarding his insight into his failings.
- Given those facts, the Panel concluded that an adverse finding against the Respondent in respect of the period prior to May 2017 could impact on any sanction the Panel might impose. In the circumstances, the Panel concluded that it was appropriate for a determination to be made on the facts in respect of the period from May 2015 until May 2017.
- Ms Eales confirmed that she did not propose calling any live evidence. The Complainant had stated in his written statement that he was unable to comment on the level of the Respondent’s management or control of the architectural work on the project prior to May 2017.
- The Respondent gave live evidence. He gave credible evidence that until May 2017, he had exercised an appropriate level of management and control. He stated that the office was open plan, and that colleagues were free to discuss projects with each other. In addition, he stated that monthly meetings were held to discuss projects being undertaken and that during those meetings, he was informed that the project in question was proceeding satisfactorily and that there were no particular issues or triggers that might suggest that intervention on his part would be required. He stated that he relied on what he was told by Mr M and Mr B, who between them, had approximately 80 year’s experience. Mr M, the Respondent stated, had run a very successful architectural practice. In the circumstances, it was appropriate to rely on what he had been told and adopt what was in practice, a light touch approach to supervision. The Respondent accepted that, once it became evident that there were problems with the project in May 2017, he failed to effectively manage the situation, instead deferring to Mr M to resolve, hence the basis of his admissions. He accepted he showed too much deference to Mr M and that this was a mistake on his part for which he apologised.
- Notwithstanding that the Respondent was unable to produce any written evidence of those meetings, or what was discussed in them, the Panel nevertheless accepted the Respondent’s evidence as credible.
- Standard 3 of both the 2010 and 2017 Codes state:
Honest promotion of your services
3.4 If you are a principal in a practice you are expected to ensure that all architectural work is under the control and management of one or more architects, and that their names are made known to clients and any relevant third party.
- Standard 4 of both the 2010 and 2017 Codes state:
Competent management of your business
4.1 You are expected to have effective systems in place to ensure that your practice is run professionally and that projects are regularly monitored and reviewed.
4.2 You should ensure that you are able to provide adequate professional, financial and technical resources when entering into a contract and throughout its duration. You should also, where appropriate, ensure you have sufficient suitably qualified and supervised staff to provide an effective and efficient service to clients.
- The Panel concluded that in the circumstances, the Respondent had ensured that the architectural work was under the management and control of an Architect from May 2015 until May 2017. However, the Panel notes that an Architect’s obligations under Standard 3.4 of the 2010 and 2017 Codes extend to ensuring that the name of the Architect managing and controlling the work is made known to clients. In that regard, the Complainant stated that he was not given that information, and the Respondent accepts that this was not done, even when he was in due course, specifically requested to provide that information by Mr D in correspondence. The Respondent could not provide any explanation for this failure and accepted that he had made a mistake.
- The Panel therefore found the facts proved in respect of the period May 2015 until May 2017 to the extent that the Complainant had not been notified of the name of the Architect with management and control of the work.
- In the circumstances, the Panel finds that the Respondent acted in breach of standards 3.4 of the 2010 Code for the period 2015 – 2016, and in breach of standards 3.4 and 4.1 of the 2017 Code for the subsequent period.
Finding on Unacceptable Professional Conduct
- Having found the factual allegation proved, the Panel went on to consider whether the Respondent’s conduct amounts to UPC. UPC is defined as conduct which falls short of the standard required of a registered person. Any finding of UPC is a matter for the Panel’s independent judgment, noting that the Respondent’s admission of UPC, whilst a factor to take into account, is not determinative of the issue.
- In reaching its finding, the Panel has carefully considered all the evidence presented to it, all submissions made and has accepted the advice from the Legally Qualified Chair. The Panel 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.
- The Panel recognises that any failing should be serious, such that it would attract a degree of opprobrium. The Panel has borne in mind the case of Spencer v General Osteopathic Council  EWHC 3147 (Admin) and 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” (The Queen on the Application of Dr Malcolm Noel Calhaem –v- General Medical Council  EWHC 2606 (Admin). Misconduct, which is akin to UPC, was defined in the case of Roylance v GMC  1 AC 311 as, “a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances”.
The Panel also recognises that any failing must be serious (Vranicki v Architects Registration Board  EWHC 506 Admin).
- The Panel has taken into account all the evidence before it together with both Ms Eales’ and Mr B’s submissions. The Panel notes that the concerns in relation to completing the building works continued from May 2017 until October 2017 (and are ongoing) without being efficiently or satisfactorily managed or controlled by the Respondent who deferred his responsibility to Mr M, who whilst experienced, was not a registered Architect.
- In the circumstances, the Panel finds that the Respondent’s failing represents conduct falling substantially below the standard expected of a registered Architect. Compliance with Standards 3 and 4 are essential obligations to ensure that the public can have confidence in the profession by being satisfied that architectural work is being supervised and overseen by a registered Architect.
- The Panel therefore concluded that the matter found proved represents a serious departure from the standard expected of a registered Architect. That failing, the Panel has concluded, is sufficiently serious to amount to unacceptable professional conduct, which finding the Panel therefore makes.
- So far as the Respondent’s failing in relation to the period May 2015 till May 2017, the Panel has reminded itself that this was limited to the Respondent’s failure to notify the Complainant of the name of the Architect with management and control. Whilst this represents a breach of Standard 3.4 of the 2010 Code, the Panel did not consider that, given that the Respondent was exercising management and control, albeit, minimal, that the Respondent’s failing in respect of this aspect of the case, is not sufficiently serious so as to amount to UPC. The Panel does not therefore make a finding of UPC in respect of this failing.
- Mr Beaty made submissions to the Panel in mitigation on the Respondent’s behalf and referred the Panel to the documents submitted in support of the Respondent including a detailed skeleton argument.
- He submitted that, whilst acknowledging the Respondent’s failings, he had restructured and changed the management of his practice following the retirement of Mr M. The Respondent had implemented and overseen a programme of internal management reforms, including new procedures and safeguards to ensure that there would be no repetition of his failings.
- He reminded the Panel that the Respondent had acknowledged his failings in a candid and forthright manner and had expressed regret for any distress and inconvenience caused to the Complainant and that the Respondent had strived to broker a compromise with the contractor to resolve the dispute.
- He stated that that the Respondent accepts the details of his previous disciplinary history, in that on 16th November 2016, a PCC made a finding of UPC in relation to the Respondent’s failure to ensure an ongoing dispute was satisfactorily resolved and further that the Respondent had made a statement that was inaccurate, misleading and dishonest. He was made the subject of a £2500 penalty order. However, he submitted that the matters now before the Panel were not of an identical nature and in particular, the Respondent did not face an allegation of dishonesty or a lack of integrity. He emphasised that the present complaint arises from events that occurred prior to the implementation of remedial measures undertaken by the Respondent.
- He reminded the Panel that the public interest would not be damaged by the Respondent’s actions in all the circumstances. He also submitted that the Panel should be slow, despite its findings, to suspend or end the career of the Respondent in all the circumstances. He invited the Panel to conclude that the Respondent had no entrenched integrity issues and that there was no prospect of his UPC being repeated. He reminded the Panel of the need to act proportionately. He therefore invited the Panel, if minded to impose a sanction, to impose the least severe sanction possible, namely a reprimand.
- In considering the question of sanction, the Panel has had regard to the public interest, which includes the need to protect the public, to maintain confidence in the profession and the Board, and to declare and uphold proper standards of conduct and behaviour. The Panel 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 indicative sanctions guidance and the need to act proportionately. It has taken into account any aggravating and mitigating factors in this case. The Panel has exercised its own independent judgement.
- In reaching its decision, the Panel has identified a number of factors, that, whilst not strictly amounting to aggravating or mitigating factors in respect of the UPC found proved, are of concern to the Panel:
i. The Respondent has volunteered reference to the previous disciplinary finding of the PCC in relation to the finding of dishonesty. It appears to the Panel that the Respondent has yet to develop insight into his dishonest conduct. Rather than accepting responsibility for his own dishonest actions, he considers that “he was the victim of deliberate deceit” and that “preventing the actions of dishonest employees is….notoriously difficult” and thereby seeking to deflect blame on to others and away from himself;
ii. Whilst not amounting to UPC, he has not implemented a system complying with his obligation to notify clients of the name of the supervising Architect in accordance with Standard 3.4 which the Respondent is found to have breached. This is despite the Respondent maintaining that he has remedied his failings. This is a simple matter which could have been put in place immediately.
- Having taken all the evidence and submissions before it into account, the Panel has identified the following aggravating factor:
i. The Respondent has a previous regulatory finding and the facts the subject of the Panel’s finding of UPC, occurred after the previous disciplinary finding when the Respondent should have been more alive to his regulatory obligations. The Panel considered this to be of particular significance.
- The Panel has identified the following mitigating factors:i
i. The Respondent has engaged in the regulatory process and he has cooperated with the Board, making early admissions to both the factual allegation and UPC;
ii. he has recognised and expressed regret for his failings and apologised for them and their impact on the Complainant;
iii.he has tried to resolve the situation with the Complainant, working at no cost to the Complainant, and he has stated that he has waived fees otherwise owing;
iv. he has not personally gained financially from his failings;
v. since the restructuring of his practice, he has taken some steps to address his failings and there has been no repetition of any unacceptable professional conduct to the extent that he has introduced quality management forms to try to ensure effective management of projects. However, notwithstanding the time that has elapsed, even providing for the fact that it is subject to constant review, the Respondent accepts that this process has not been completed and that all necessary changes have not been fully implemented. As such the Panel concluded that there remains an ongoing risk of his UPC being repeated to the detriment of the public and the public interest.
- The Panel first considered whether to impose a sanction, and if so, which one. The Panel notes that the matters found proved are serious to the extent that Mr Howell’s failings diminish both his reputation, and that of the profession generally. Effective management and control of architectural projects by a registered Architect is essential to maintain the public’s confidence in the profession. The Panel has 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.
- The Panel first considered whether to impose a reprimand. The Panel considered that such a sanction was neither appropriate nor proportionate given that it did not consider the Respondent’s UPC to be at the lower end of the scale given the aggravating factor identified. The Panel concluded that the UPC found proved was too serious to warrant a reprimand.
- The Panel then considered whether to impose a penalty order and concluded that such a sanction was appropriate and proportionate to protect the public and the reputation of the profession. The Panel therefore imposes a penalty order in the sum of £2500 which the Panel considers reflects the seriousness of the UPC found proved given all the circumstances of this case. That sum must be paid within 28 days. Failure to pay that sum within that time frame may lead to the order being replaced with a suspension or erasure order.
- The Panel considered whether a suspension order was appropriate. Having carefully considered the Indicative Sanctions Guidelines, the Panel concluded that such a sanction would be disproportionate and unduly punitive given the suitability of a penalty order.
- That concludes this determination.