Mr Toyin Adetola Oduse
THE ARCHITECTS REGISTRATION BOARD
PROFESSIONAL CONDUCT COMMITTEE
In the matter of
Mr Toyin Adetola Oduse [074507C]
Held as a video conference
On 16-18 June 2020
Paul Housego (Chair)
David Kann (PCC Architect Member)
Martin Pike (PCC Lay Member)
In this case, ARB is represented by Kathryn Sheridan of Kingsley Napley LLP.
Mr Oduse has attended this hearing but is not legally represented.
|The Professional Conduct Committee “PCC”
found Mr Toyin Oduse guilty of unacceptable professional conduct (“UPC”) in that he:
and that by doing so, he acted in breach of Standards 2.1 and 6.2 of the Architects Code: Standards of Conduct and Practice 2017 (“the Code”).
The sanction imposed is a Penalty Order of £2,000 payable within 28 days.
1. The Respondent was charged by the Architects Registration Board (“ARB”) with unacceptable professional conduct (“UPC”). The Professional Conduct Committee (“the Committee”) is responsible for deciding whether the allegation is found proved, or not, and if proved what sanction to impose.
2. The Committee applies the civil standard of proof when finding facts (which is that something is more likely than not to have occurred). The burden of proving facts lies upon ARB. For a finding of UPC there must be a significant falling short of professional standards, such that it is serious. There is no burden or standard of proof for that decision, and this is a matter for the judgment of the Committee. Article 6 of the European Convention of Human Rights applies to the case, and the Article 8 rights of the Respondent are engaged.
3. The matters asserted by ARB to have occurred and which it is said amount (if proved) to UPC are set out below.
4. The allegation against the Respondent is that he is guilty of Unacceptable Professional Conduct in that he:
1. Did not provide his client with adequate advice in relation to planning;
2. Did not deliver a professional service to his client without undue delay.
5. The Architects Code 2017 (“the Code”) applies. ARB says that Standards 2 and 6 were breached by the Respondent. The relevant parts are:
1. You are expected to be competent to carry out the professional work you undertake to do, and if you engage others to do that work they should be competent and adequately supervised.
You should carry out your professional work conscientiously and with due regard to relevant technical and professional standards
1. You are expected to carry out your work with skill and care and in accordance with the terms of your engagement.
2. You should carry out your professional work without undue delay and, so far is reasonably practicable, in accordance with any time-scale and cost limits agreed with your client.
3. You are expected to keep your client informed of the progress of work you undertake on their behalf and of any issue which may significantly affect its quality or cost.”
Summary of basis of allegation
6. The Complainant had a 2 bedroomed home, and an expanding family. In 2014, through another architect, he obtained planning consent for 2 more bedrooms and other new accommodation to extend the home. He had not the funds to do so at the time. Almost 3 years later, in January 2017, he contracted with the Respondent for the Respondent’s company (SE2 Creatives Ltd) to build the extension, for a fixed price with a time estimate of 4 months. It was agreed a short time later that there would be an extra payment for the extension to be 1m longer at the rear, and wider, to extend to the boundary to the adjoining property. Work started in January 2017. Neighbours objected. A Council planning investigations officer visited in March 2017. On 12 April 2017 the Respondent submitted a planning application to regularise the position. Work continued on site. The planning application was refused on 06 July 2017, and work stopped immediately. An appeal lodged on 31 July 2017 by a planning consultant was refused on 27 November 2017, and a new planning application (made on 08 June 2018 by the original architect) was approved on 07 December 2018. By September 2019 the work was not finished, the Complainant had paid £44,950 to the Respondent against a fixed price of £35,000 (plus £2,400 for the larger extension), and the Complainant instructed solicitors and complained to ARB.
7. The hearing was conducted remotely, through proprietary virtual meetings technology. ARB’s Hearings Officer had engaged with the Respondent and with the Complainant to ensure that they were familiar with the way the technology functioned. The Respondent did not object to the hearing being conducted in this way. Additional time was taken to ensure that everyone was comfortable with each stage of the process.
8. The Respondent attended the hearing, and was not represented. The Committee made efforts to ensure that the hearing gave him every opportunity to present his defence, including lengthy breaks for him to assess matters as the case was heard, ensuring he was made fully aware of the process, and explaining to him in simple English all relevant legal concepts and principles which would guide the Committee.
9. In relation to the allegation about planning, the Respondent’s defence is that:
(a) He was not the architect who drew the plans. He was the contractor only.
(b) It was the Complainant who suggested the alteration to the works, and who instructed him to build it as he did.
(c) He did not advise about planning.
(d) He had no obligation to do so. The previous architect had told the Complainant about compliance with planning.
(e) When the Council’s planning investigations officer and building control officer visited in March 2017 they had told the Complainant of the risk of continuing so he had no need to give advice.
(f) His contract was for building not planning advice, and expressly excluded “major works” not specifically stated in the contract. Architectural and planning advice was not specified and so was excluded from his responsibility.
(g) He had told the Complainant that planning approval was required and that there ought to be neighbourhood consultation.
(h) The Complainant was and is not truthful.
10. The Committee perused the report of ARB’s solicitor with accompanying documents running to some 300 pages. ARB called oral evidence from the Complainant. The Respondent gave evidence, and made submissions to the Committee. He provided a bundle of documents prior to the hearing, of 33 pages. The Respondent did not provide a formal witness statement, but submitted a statement dated 25 May 2020 which sets out his position. He endorsed the representations he had made to ARB during the course of the investigation and after the charge was laid, in particular the letters of 29 July 2017 and 01 August 2019. He also provided some additional documents during the hearing.
11. The report set out ARB’s case fully. The Complainant’s evidence had been clear and consistent, and not shaken in lengthy cross examination. The Respondent had suggested a 1 metre increase to the extension, and it was significant that the Respondent gave the planning consultant who prepared the appeal detail of nearby properties to use as examples.
12. The Respondent laid stress on being an engineer and building contractor and not the architect for this project, but he was an architect, and his company’s notepaper contained the letters “RIBA” prominently, and he had volunteered in his oral evidence that he was appointed by the Complainant partly because he was a registered professional subject to regulation and so not a “cowboy”. He had prepared drawings for the amended extension. He had offered no (or inadequate) planning advice to the Complainant, and even taking the case of the Respondent at its highest, if it was the Complainant’s idea and instruction, he, as an architect, had the obligation to spell out to the Complainant the risk that he was running. He did not do so.
13. The Respondent had said before the hearing that he had not advised the Complainant at all, but in cross examination admitted that he had given some advice that neighbourhood consultation was going to be needed. He should have given full advice, and he did not. It was not credible that the Complainant thought that the architect who obtained the consent in 2014 was advising (in 2017) about the increase to the build.
14. It was a matter for the Committee whether they accepted that the architectural drawing dated 12 January 2017 showing a 4 metre extension was in fact prepared for the planning application of April 2017 and misdated, or was prepared on the date it bore.
15. In March 2017 the Respondent was instructed to submit a planning application, which he did on 12 April 2017. This was acting as an architect. Yet he continued to work on the building, which did not have planning consent, until 06 July 2017 (when that application was refused), and he gave no advice as to the risks. His defence to that point could not apply to the period after the planning application was commissioned in March 2017.
16. During the project the Complainant had, and in writing, complained that the Respondent had given him wrong advice, but in lengthy responses he had not denied that he had advised the Complainant.
17. Whether or not the Complainant knew about planning, no architect acting as a contractor could professionally start to build something significantly outside a planning consent without spelling out the risk to the client, and he had not done so. This was a significant falling short.
18. As to the second part, the chronology spoke for itself. This was to be a fixed price contract over 4 months. Even discounting the period January to November 2017, by the time the complaint was made to ARB, 22 months had passed. The only caveat the Respondent had given in the contract as to time was that there might be issues with the roof, which was not a reason for this delay. Work had not stopped when the planning investigation officer visited in March 2017, yet by 06 July 2017 (5 months later) when work stopped the project was nowhere near complete. The additional 1 metre was not said to have increased the time to be taken significantly.
19. A multitude of reasons were advanced to justify the delay, none of which held water. It was not credible that there had been 2 people working there 5 days a week. It was not credible that rainy days meant no one was there to account for the absences. There was a series of texts at the time setting out how unhappy the Complainant was about the way the project was being managed, not answered by the Respondent. This was strongly corroborative.
20. The Respondent cited an electrical issue, and an unsupported chimney breast, as reasons why he was unable to return to site, but this was not sustainable as on 06 June 2019 he had agreed with the Complainant’s solicitor to return to site without mentioning these as issues.
21. He had last worked on the project on 25 July 2019, and despite promising to do so had not returned to site by October 2019 (when he did not reply to a letter from the Complainant who had then given up with him) and he offered no excuse or reason why not.
22. Standard 2.1 was not met, as this was a level of incompetence that was serious enough to be UPC. None of the requirements of Standard 6.2 were met. There was undue delay, and a fixed time scale and cost was not met. It was not correct, or appropriate, to lay responsibility for the problems and delay at the door of the Complainant. The Respondent had received almost all the money from the Complainant – some £45,000 for a contract at £37,400 – and it was not credible that the increase was for extras. There was no documentation to show what it was for. He had taken the money and not finished the job. The cost in time money and hardship was high. Each element was serious enough to amount to UPC.
Submissions by the Respondent
23. The reasons the Respondent gave, prior to the hearing, for denying the allegations are set out above, and he maintained them in his submissions.
24. The Respondent stated that prior to any problem arising he was never involved as an architect and so had no obligation so far as planning advice was concerned. Another architect had obtained the consent, and he thought was continuing to advise the Complainant. His contract did not refer to planning. He was only ever involved as agent for building control matters, not planning. He had been approached for his skills as a structural engineer, and had then been contracted to build what someone else had designed. He had not suggested changing the design – that was an instruction from the Complainant. The contract increasing the cost did not refer to planning. He owed the Complainant no duty in that regard. The Complainant was not truthful about his allegation that he, the Respondent, had suggested the enlargement of the construction. The Complainant earned his living in sourcing property for investors, and it was inconceivable that he did not know the risk he was running. It was not for him to tell the Complainant what he already knew. When the Complainant had a problem he, the Respondent, was instructed to, and did, submit the planning application, to try to solve the problem for which he bore no responsibility.
25. The planning refusal (06 July 2017) meant work had to stop, and this was not resolved until 07 December 2018. There were a multitude of reasons for delay, such as a problem with a water leak, and finding that a first floor chimney breast was unsupported, the ground floor chimney breast below it having been removed in the past. There had been requirements from building control about foundations approved by a previous building control officer. There had been difficulty in getting men to site as on occasion the Complainant had locked them (and him) into site to stop them leaving, and they were reluctant to return. His men always returned to Romania for several months in the summer. He could not do the bathroom until the shower was finished, because that would leave a family of 7 with no washing facilities, and he could not finish the shower because of the earthing problem.
26. He had not been able to continue to work on the project because of its planning problems so he had obtained other work, and that had meant that his resources for this project were stretched. He had been consulted about the appeal against the refusal to grant permission, citing local examples and approving the written submission made by the planning consultant who prepared it.
27. It was the Complainant who had suggested and asked for the extra work. The Respondent had suggested a price of £4,500 in an email, but when the Complainant had not responded he had contacted the Complainant, who had reduced the price to £2,400. This was typical of the Complainant who shopped around a lot and was wanting all the time to cut the cost.
28. At no time had he said to the Complainant that consent would be given for the work he was doing on site. The Complainant was fully aware of the risks, and he was told of them by the building control officer and the planning investigation officer in March 2017. There was in any event, and for that reason, no need for him to tell the Complainant that there was risk in continuing.
29. There had been no delay to July 2017. The project was then almost finished. It was the extra work the Complainant had requested that meant it was not finished by July 2017.
30. He had not delayed for the year December 2017 – December 2018. He had taken other work, and had promised to “squeeze in” the Complainant, and he had done so, to do what was possible.
31. After the planning consent was granted on 07 December 2018 he had not delayed. The Complainant had refused to address issues with unearthed electrics and an unsupported chimney breast, which he had uncovered, and that made it unsafe for him to return to site. It was the Complainant who was insisting on carrying on in an unsafe way, such as by using an unsafe cooker. From 2018 he had been in communication with a new building control officer, whose views differed from the previous building control officers. The allegation should be dismissed.
Findings of fact
32. The summary above sets out the basic facts. The planning permission which was the basis of the contract with the Respondent was obtained on 28 April 2014.
33. The original permission contained a condition (1) that development must commence no later than 3 years from the date of the permission (and so by 27 April 2017).
34. Condition 3 was that a side space of 1 metre was to be provided between the north wall of the property and the boundary. The house is semi-detached and so is attached to the house to the south. It had a garage which was built up to the boundary to the north. A policy (H9 of the Unitary Development Plan) provided that any building of 2 storeys should have such a gap. The permission permitted the demolition of the garage and a 2 storey extension over part of that space, leaving the required 1 metre side space.
35. Condition 6 was that “The development hereby permitted shall not be carried out otherwise than in complete accordance with the plans approved under this planning permission unless previously agreed in writing with the local planning authority.”
36. After a gap of some years, the Complainant and his wife were expecting their 5th child, and the property had only 2 bedrooms. They engaged the Respondent’s company to build it for them.
37. The Respondent obtained his architectural qualification in Italy. He has an academic qualification in structural engineering as well. The company he owns carries out building work, and he does the structural engineering calculations. His company relies exclusively on Eastern European labour, who tend to return home for an indeterminate period in the summer.
38. The contract is not in any standard form. It is dated 31 December 2016, though perhaps was signed on 09 January 2017. Nothing turns on that. It states that “this contract is for works to be carried out at the above address regarding rear and side extension project as per architectural drawings approved by the council.”
39. It also states that “The company, in total autonomy, will act as client’s agent and will coordinate and manage the delivery of the project described above and bearing in mind the price is the essence of the project, will choose the appropriate base contract type materials suitable for the budget price…”. In summary, this was being built as cheaply as possible and there would be extra cost if higher level materials and fittings were used.
40. The contract stated that “OTHER MAJOR WORKS NOT LISTED IN THE SCOPE OF WORKS ARE EXCLUDED.” This is a reference to building work only, and planning or other architectural work was not referenced by this clause.
41. The contract states:
“The special discounted and fixed price for all the above works is UK £35,000, including the professional and management fees.”
42. The contract also provides:
“The estimated duration for all the above works is approximately four months. Practical experience has shown that some roof space might require more time so the four months is hereby given with reserve and might be more, due to the roof works because the roof has not been fully inspected as there is no scaffolding erected on site to inspect the roof cladding.”
Accordingly the only caveat to the 4 month period was problems with the roof which the Respondent had not been able to inspect at the time he prepared the contract.
43. The Respondent then agreed to build otherwise than to the approved plans. It would now project 4 metre back from the rear wall of the house, not 3 metre as in the planning permission, and the garage was to be replaced with a 2 storey extension extending right to the boundary, so not giving a 1 metre side space.
44. The Respondent says that the Complainant asked for this, and that he did not advise about it. He says that the previous architect had advised the Complainant about planning, and he did not, and that it was outside his remit. He says that the Complainant well knew about the need to consult neighbours and to obtain a new permission, and instructed him to go ahead anyway. He says that the Complainant works in the world of property and would have known anyway. It was the Complainant who was simply instructing him to prepare and to build a bigger extension, and so he had no responsibility. He accepted that in conversation with the Complainant he had told the Complainant that a new consent was needed.
45. The Complainant says that the Respondent and he discussed having a bigger extension, and that the Respondent said that it would not be a problem, as they could make a planning application later. This change was the product of a discussion, not an unquestioned direction from the Complainant.
46. Had the Committee accepted the Respondent’s case that it was first raised by the Complainant and a direction to build it, the Committee would still have found this allegation proved on the facts. The Respondent is an architect. He knew about the planning permission and its terms (he agreed this was so, and expressly contracted to build according to the drawings in that consent). If a client proposes to do something highly risky (such as to build otherwise than in accordance with a planning consent and in direct contravention of a clear policy requiring 1 metre separation between a 2 storey extension and the boundary) then an architect acting as contractor has a professional obligation to spell out exactly what the risks are. This is the more so in this case where the Respondent stated that one of the reasons he was the chosen contractor was precisely because he was an architect.
47. The Committee does not accept that the Complainant was ignorant of the probable issues and risks of building outside the consent. This is only common sense, as if you need permission to build something that means it cannot be done without permission: so that the grant of retrospective consent is not certain, and one possible outcome is refusal to agree to what will already have been built.
48. It is the more so, as the Respondent points out, because the Complainant is a property professional himself. It is not credible that the Complainant was totally reliant on the Respondent. The Complainant knew exactly what risks he was running. What the Respondent did not do is offer the Complainant professional advice and counsel about the wisdom, or otherwise, in proceeding as he intended.
49. Instead of doing so, the Respondent wrote an email on 27 January 2017. This stated:
“As agreed with you this morning, you have instructed extra works asking us to build ground floor area extension with 4 m depth instead of 3 m in the darwings (sic). The agreed price for this work is £4500 to be paid in three instalments…”
50. There was no advice about risk, or how the planning situation was to be resolved. Whether or not the Complainant had discussed this possibility with another architect 3 years before is not to the point at all. The Respondent had a professional responsibility to the client for whom he was preparing the plans to set out the planning consequences that might follow. That is the case whether or not the client knew the risk already.
51. It is not in dispute that the Respondent knew he accepted a contract to build, and which he commenced to build, and did so from 28 January 2017 until 06 July 2017 something which did not have planning consent. He failed to spell out to his client what consequences might follow (as a deliberate decision: he does not say it was oversight, for he says that the Complainant knew, and had chosen to run, the risks involved in doing so).
52. Work commenced on 28 January 2017.
53. As the walls rose from the ground, and work was done to the garage (rather than demolishing it) neighbours objected to the Council. In March 2017 a planning investigation officer visited and spoke to the Complainant. The Complainant told the Respondent about this, so the Respondent knew of the planning difficulty. The Respondent nevertheless carried on working on site in contravention of the planning consent, and he gave his client no advice about the possible consequences of doing so.
54. The contract between the Respondent and the Complainant expressly stated that the Respondent would act as agent for the Complainant. The Respondent states that this was solely for building regulation reasons, and gave rise to no obligation or responsibility as a planning agent. If there was to be such limitation it should have been spelled out. When the Respondent did act as planning agent by submitting (on 12 April 2017) a planning application there was no variation to the contract (though a fee was paid).
55. However it is not correct that the Respondent was solely involved in building regulation matters, as he was actively involved in the execution of works for which no consent had been obtained, and agreed that he had spoken to the Complainant about the need for a (retrospective) consent to be obtained. There was no suggestion that the previous architect would be instructed to obtain it.
56. The Respondent’s evidence was that he thought there would be a subsequent planning application. It may be so, or it may be that the Complainant hoped no-one would notice, but whichever it was, the Respondent had a professional obligation to ensure that there was advice given by him to the Complainant as to a means of addressing the issue.
57. There was a building control letter at the end of March 2017 stating that the Complainant continued at his own risk. This does not have the significance accorded it by the Respondent, as it required building regulation plans, and had standard wording at its end about the possibility of alteration or removal of works not approved – but for building regulation reasons. It is not a planning letter at all.
58. On 12 April 2017 the Respondent submitted an application for amendments to the planning permission, to 4 metres and to maintain the footprint of the existing garage.
59. On 06 July 2017 that application was refused, and work ceased that day.
60. On 31 July 2017 the Complainant appealed, using a planning expert.
61. On 14 November 2017 the appeal was dismissed.
62. There was then a period when the Council’s building control department was involved, as they had concerns over the structure.
63. No progress having been made, on 10 May 2018 a Breach of Condition notice was served, requiring removal of what had been built.
64. On 06 June 2018 the Complainant objected to the Respondent that he had paid £44,950 to him, and required him to finish the job.
65. The Complainant then instructed the architect who had obtained the original planning consent, and on 08 June 2018 (date from grant of permission) that other architect submitted another application, partly retrospective. After some objection and revision this was approved on 07 December 2018. It permitted a 2 storey side extension to the boundary, inset at first floor level (so with no 1 metre separation at ground floor level).
66. After December 2018 the Respondent was not at the project for some time. For the period 06 July 2017 to 07 December 2018 it was not possible for any work to be carried out which did not conform with the planning consent. It was implicit that work would largely cease while the planning issues were dealt with. The Respondent was not working at the project from July 2017 – December 2017.There was a limited amount that could be done, but the Respondent did not attend to it, as set out below.
67. After the consent was obtained on 07 December 2018 the Respondent did not return to site until June 2019. The Complainant was repeatedly asking him to do so. This is 6 months delay.
68. Throughout the period after the appeal was refused on 27 November 2017 to 07 December 2018 (when planning consent was obtained by another architect) there was, during much of 2018, a history evidenced in emails and text and WhatsApp messages of the Complainant asking the Respondent to attend site to do what could be done, and of the Respondent failing to do so. For example on 16 March 2018 the Respondent messaged the Complainant on WhatsApp:
“Further to your WhatsApp msg of 14 feb 2081 (sic) and other face-to-face conversation there after and our long coversation (sic) today with you and your wife, I would like to assure you that I have no intention to delay your work.”
Plainly this was very much a live issue and a matter of ongoing complaint by the Complainant which the chronology supports.
69. The Complainant had engaged solicitors, and on 28 May 2019 they wrote to the Respondent recording that it was agreed that work would resume on 06 June 2019. The Respondent did not accept that it should, as the Complainant required, be finished by 19 July 2019, but he offered no alternative date.
70. Only on a few days did workmen return to site (on 06 June 2019 the Respondent agreed in an email to the Complainant’s solicitor to return, saying men would be on site that day). Work ceased on 25 July 2019. The Respondent said that his workers had returned to Romania for the summer break.
71. On 15 August 2019 the Complainant’s solicitor wrote to the Respondent pointing out that there had been only attendance (by one worker) 2 days a week from 06 June 2019 – 23 June 2019, and only 1 day a week since then (until 25 July 2019).
72. It was not until 17 September 2019 that the Respondent emailed to state that his foreman would return the following week, and that he planned to increase to more than 2 days a week work at the house.
73. However it was 10 October 2019 before the Respondent emailed to say that the foreman was now back in the UK. By December 2019 the Complainant accepted that the Respondent was no longer going to deal with the project.
74. As to costing, there was no evidence of any substantial extras to the contract, other than steelwork for a raised patio but this was not quantified by the Respondent.
75. The Committee did not accept that a water leak caused any significant delay. An invoice for materials to fix it showed nothing but standard plumbing work. Nor does the Committee accept that the building control officers caused significant delay. The chimney breast and wiring matters were raised by the Respondent at the time, but he later agreed to return to site without referring to them. Accordingly these were not reasons for delay.
76. The Committee did not find it proved, on the balance of probabilities, that in January 2017 the Respondent prepared the planning drawings used in April 2017.
77. The Complainant’s account was accepted by the Committee to be factually correct in all material particulars. Accordingly ARB has succeeded in proving the facts asserted to the required standard of proof.
78. Having set out a narrative history of events the Committee considered the allegations.
79. Planning: the decision not to give the client any proper advice about the risk that he, the Complainant, was running – and then to blame the Complainant – is serious to the extent required by case law, and having a moral opprobrium that amply meets the definition of UPC.
80. The Respondent had a professional obligation to spell out the risks being run, whether or not the Complainant knew of those risks. He was himself building what was not permitted. It is not professional to rely on a contractual omission of obligation. The obligation was a professional obligation, not a contractual obligation. At the very least (and that may not be enough) he had an obligation to say that what he was now contracted to build was not permitted and that he was not acting as an architect, and that he (the Complainant) ought to take professional advice about proceeding.
81. Professional service without undue delay: there were a series of delays. Some of the period is not the responsibility of the Respondent – from the refusal of the application in July 2017 to the grant of planning consent in December 2018 there was no planning consent for what was being built. That delay is not wholly down to the Respondent, as he did some (presumably permitted) work from December 2017 onwards.
82. However this was a 4 month contract not completed by 06 July 2017, nearly 5 months later when it was far from complete. Planning was not the reason for it not being finished by 06 July 2017, as work had continued regardless of planning difficulty.
83. From July 2017 until consent was granted on 07 December 2018 the Respondent did not (as the findings of fact set out) do enough to move the work forward as far as planning constraints permitted.
84. The biggest delay was from the grant of consent on 07 December 2018 until the Complainant gave up on the Respondent in October 2019. It took letters from a solicitor to get the Respondent to return in June 2019. The chronology above shows how little was then done. There were a few workmen who visited (sporadically) for a few weeks, then no-one after 25 July 2019 until October 2019 when the Complainant accepted that he would not return.
85. The Committee has considered whether these delays as a builder, not as an architect, are a breach of the Code. The Committee is clear that they are. First, the Code applies to actions in a professional’s private life as well as professional life. There is no limitation on the application of the Code to architectural work. Secondly, the Respondent volunteered in his oral evidence that a major reason he was chosen for the work was precisely because he was an architect and subject to professional regulation. That was part of the privilege of being a member of a profession. There is the concomitant burden of being subject to regulation. Public confidence in the profession would be damaged if it were possible to escape regulation for work which was carried out by an architect, on the basis that it was not architectural but construction work.
86. Accordingly the Committee finds that the Respondent was guilty of UPC, as alleged, and for the reasons advanced by ARB. The facts have been made out, and the failings are serious enough to be in each of the two particulars to be (and are) UPC. The effect on the Complainant and his family has been very great. They have spent far more than ever they could have imagined, and three years on they still do not have a home fit to live in.
ARB Submissions on Sanction
87. The issue of sanction was a matter for the Committee, which would be guided by its Sanctions Guidance. The primary purpose of sanctions was the protection of the public. It was to the Respondent’s credit that he had an unblemished record.
88. The Respondent asked for more time to consider his response to the decision. After 45 minutes he said that after careful consideration of the decision he could see and accept that the Committee had pointed out matters where he had not met professional standards, for which he apologised. He had not recorded matters better, and he saw how he could and should have dealt with matters. He felt he had learned a lot from the hearing. He had satisfied clients from whom much of his work came, though had brought no testimonials.
89. 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 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.
90. The Committee has considered the Sanctions Guidance (“SG”). 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.
91. The Committee considered that a sanction is appropriate because of the need to protect the public and to declare and uphold professional standards.
92. The Committee identified the following mitigating and aggravating factors.
93. The Respondent has no previous finding against him, and was admitted to the register on 13 November 2008, 12 years ago. This was not a vulnerable client, but a sophisticated property professional, and while the Respondent failed in his professional duties regarding planning, the Complainant was someone who was not, in the Committee’s judgment, unaware of the risks being run. The delays were in some measure attributable to the risks eventuating.
94. The aggravating factors are that the Respondent had little or no insight until he had read and considered the Committee decision. He had accepted no responsibility for the very difficult and expensive situation the Complainant and his family (7 people in all) have suffered for 3 years. The emotional and financial impact on the Complainant and his family was very great. The Respondent tried to avoid all responsibility, and also blamed the Complainant for the issues, accusing him of being untruthful. However, on reading the decision he had not disagreed with it, but reassessed matters and accepted that he had fallen short, and the Committee noted his clear statement that he had learned a lot from the 3 days of the hearing.
95. The mitigating factor that the Complainant was aware of the risks he was running does not address the public interest in architects following the spirit and letter of planning legislation, which the Respondent did not do.
96. The SG states that where the Committee decides that it is appropriate to impose a sanction in relation to a guilty finding, a reprimand is the lowest sanction that can be applied. If this is considered not appropriate the Committee may impose a penalty order, or suspend an architect from the Register for a fixed period (at the expiry of which period the architect is automatically restored to the Register), or erase an architect from the Register. The SG states that 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.
97. None of the mitigating factors set out in the Sanctions Guidance applied to the Respondent (and there were no others). No testimonials were provided. As to the planning matter, the Committee was firmly of the view that the Complainant was not unaware of the risks he was running. To that extent the problems he and his family faced were not wholly the Respondent’s responsibility. The delays which led to the second allegation stemmed in part from that risk occurring.
98. Of the aggravating factors set out in the SG, this was deliberate action over a period. The Respondent showed no insight, regret or apology until after the Committee’s findings were set out for him. The actions continued over a time, there was a refusal to accept responsibility, and a substantial effect on the Complainant and his family.
99. The aggravating factors set out in the SG that were not present are that the Complainant was not a vulnerable person, there was no concealment and the Respondent co-operated with ARB in the process. It was not criminal, nor dishonest.
100. The Respondent met none of the indicators for a reprimand, other than a previous good history. Accordingly the Committee did not consider a reprimand to be an appropriate sanction.
101. The Committee next considered a penalty order. The matter was too serious for reprimand. The Respondent showed no insight or remorse until after the Committee had found the allegation proved. He had not benefitted financially from the matters found proved. His own means were not set out for the Committee, and there was no financial reason relevant to sanction.
102. Before considering whether a penalty order was the appropriate and proportionate sanction the Committee considered the guidance relating to suspension. The parameters in the Sanction Guidance are that the matter is so serious that a penalty order is insufficient, but where the actions are not necessarily incompatible with continuing to be an architect and where there is no entrenched integrity issue. It is appropriate to suspend where there is a lack of insight calling into question an ability to practice appropriately, but where the Committee is satisfied that the behaviour is unlikely to be repeated, and is capable of being rectified.
103. ARB does not assert that there is an entrenched integrity issue, and the actions are not such that they are incompatible with the Respondent continuing to be an architect. There was a marked lack of insight. The behaviour is capable of being rectified. The risk of repetition implicit in a lack of insight is reduced by the Respondent’s submissions when addressing the Committee in mitigation. A key point is the Committee’s assessment of how serious the matters are, as that assessment is part of the Sanctions Guidance on all sanctions, and proportionality.
104. The Committee handed down its full decision on liability at 12:45, and heard mitigation at 14:15. Accordingly the Respondent had opportunity to weigh the Committee’s findings. It is to his credit that while (naturally) he felt that there was more to the history than can be encompassed in a short ex tempore decision he accepted entirely the criticisms the Committee made of his actions, and stated that he had learned a lot from the process.
105. Bearing in mind all these factors the Committee decided suspension was disproportionate and that a Penalty Order was the appropriate and necessary sanction, and determined upon a figure of £2,000.
106. Accordingly the Committee found that the Respondent was guilty of UPC, and imposed upon him a Penalty Order of £2,000 payable within 28 days.