THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

MR ZEYA KYAW THU WIN (070690F)

Held on 16 – 19 May 2022

Via video conference

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Present:

Emma Boothroyd (Chair)
Robert Dearman (PCC Architect Member)
Martin Pike (PCC Lay Member)

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In this case, the Architects Registration Board (“ARB”) was represented by Mr Greg Foxsmith of Kingsley Napley LLP.

Mr Zeya Win (“the Respondent”) did not attend the hearing and was not legally represented.

 

 Allegation

1. In this matter, ARB was represented by Mr Greg Foxsmith. The Respondent did not attend and was not represented.

2. The Respondent faces the following allegation:That he is guilty of unacceptable professional conduct (“UPC”) based on the following particulars:

1. 1. The Respondent did not provide adequate terms of engagement to the Complainant contrary to Standard 4.4 of the Architects Code. 
   2. The Respondent negotiated and/or agreed to receive commission and/or uplift payments that had not been disclosed or agreed with the Complainant, in respect of:
      (a) MGI Impact;and/or
      (b) Sash Windows;and/or
      (c) Tom Howley Kitchens.
   3. The Respondent requested that the Complainant pay an invoice for flooring and:
      (a) Did not discuss and/or agree with her that he could order flooring for his own property at a potentially reduced cost to both parties; and/or
      (b) Paid the flooring company £3654.40 and did not refund the Complainant with the remaining funds from her payment of £5,000 until confronted by the Complainant.
   4. The Respondent sold the Complainant’s appliances and:
      (a) Told her that the property had been gutted and that everything had been thrown away, or words to that effect, when that was not the case; and/or
      (b) Did not advise the Complainant that he and/or his wife has sold the appliances for £400 and had kept the funds himself.
   5. The Respondent did not keep the Complainant’s money in a designated interest-bearing bank account (a client account) contrary to Standard 7.2 of the Architects Code;
   6. The Respondent did not:
      (a) adequately advise the Complainant that a Building Regulations Application was required and/or
      (b) submit a Building Regulations application.
   7. The Respondent’s actions at particular 4(a) were misleading;
   8. The Respondent’s actions at particulars 2(a), and/or 2(b) and/or 2(c) and/or 3(a) and/or 3(b) and/or 4(a), and/or 4(b) lacked integrity and/or were dishonest. 

Preliminary Matters

3. As a preliminary issue, the Committee considered whether to adjourn matters or proceed in the absence of the Respondent. The Committee took into account the proceeding in absence bundle submitted by ARB. In making that decision the Committee took account of the representations made by Mr Foxsmith which, in summary, stated that the rules on service had been complied with, there was no compelling reason to adjourn proceedings, and there was a public interest in matters proceeding. Mr Foxsmith referred to the relevant case law and set out the factors to which the Committee should have regard. He submitted that there was no suggestion that the Respondent would attend any adjourned hearing and an adjournment would serve no useful purpose. He further submitted that the Respondent had not engaged in this process for some time and the Committee could conclude he had voluntarily waived his right to attend. 
4. The Committee accepted the advice of the Chair and had regard to the relevant factors as outlined in the case of R v Hayward, Jones & Purvis in the Court of Appeal [2001] EWCA Crim 168 and approved in the House of Lords and also the case of GMC v Adeogba and Visvardis [2016] EWCA Civ 162. 
5. The Committee noted that the relevant Notice of Hearing and supporting documentation was served on the Respondent at his registered email address on 25 March 2022. In addition, the bundle was posted to his registered business address on 28 March 2022. The Committee had regard to Rule 6 and 10 (a) of the Professional Conduct Committee Rules 2019 (The Rules) and Part 3 and Part 4 S24 of the Architects Act 1997. The Committee was satisfied that the Respondent has been properly served with the required notice of this hearing both via email and post. The Committee noted that the postal notice was sent 49 days before the hearing. The Committee considered that the Architects Act did not require that service of documents was required to be via post. It noted that the wording of the Act was that it “may” be served by post. In the circumstances, the Committee considered that where the Respondent had been communicating with ARB via email and had provided an email address for entry in the Register, service of the Notice of Hearing via such an email address was valid service. The Committee noted that the email had not been returned as undelivered. In the circumstances the Committee was satisfied that the Respondent had been given an adequate opportunity to appear before the Committee. 
6. The Committee then went on to consider whether to proceed in the absence of the Respondent pursuant to Rule 14 a of the Rules. The Committee took into account all of the circumstances put forward by Mr Foxsmith on behalf of ARB. In particular, the Committee also considered whether there was any reason why the hearing would be unfair if it proceeded. 
7. The Committee has exercised great care and caution in reaching its decision and has carefully considered the overall fairness of the proceedings. The Committee was satisfied that the Respondent has been given an adequate opportunity to appear before the Committee to argue his case and that he had chosen not to do so. He was made aware of the hearing and the Committee noted the extensive attempts the Hearings Officer had made to email and telephone the Respondent to encourage him to engage. The Committee concluded that he had chosen to voluntarily absent himself and there was no realistic prospect that the Respondent would attend any adjourned hearing. The Committee could identify no good reason to adjourn. There were two witnesses ready to give evidence and any delay or adjournment would be inconvenient and possibly have an effect on recollections of events. The allegations against the Respondent are serious and the Committee determined it is in the public interest that they are dealt with expeditiously. 
8. The Respondent has not requested an adjournment and there is no reason to suppose he will engage at any future hearing. Although there may be some disadvantage to the Respondent if he is unable to present his case in person, he has been made aware and nevertheless chosen not to attend. In balancing the interests of the Respondent against the public interest in the expeditious disposal of matters it considered that it was fair and proportionate to proceed in the absence of the Respondent.

 

Background

9. The Respondent is a registered architect and owns his own practice “Zeya Win Architects Ltd”. The Respondent was a close family friend of the Complainant and her husband. The Complainant is based in the USA and she and her husband own a flat in London which had been rented for some time. In early 2019 the Complainant decided that she wanted to refurbish the flat when the current tenancy ended and asked the Respondent to assist.
10. The Respondent agreed and proposed a flat fee of £70 per hour for his time dealing with the project. Between March 2019 and April 2020, the Respondent invoiced the Complainant for around £25,000 for his fees in dealing with the project.
11. The Complainant had an initial budget of £60,000 to £80,000 for the works but she accepted that costs might rise, and she expected to pay around £100,000 in total. The flat was a small two bedroomed property and the Complainant stated that the Respondent agreed her budget was realistic.
12. The Respondent introduced the Complainant to the Contractor, Mr V, in around November 2019. The Complainant was in the UK and met with the Contractor and the Respondent. The Complainant was impressed with the Contractor’s portfolio and trusted the recommendation given by the Respondent. An initial quote from the Contractor was received on 2 December 2019 for a total of £120,528 including VAT. In January 2020 following receipt of updated drawings and specification the price was agreed as £124,000 not including VAT. The Complainant agreed to instruct the Contractor and paid a deposit of £74,400 by 30 January 2020.
13. Work started at the property in early February 2020. No formal contract was agreed before work started. On 25 February 2020 the Contractor advised that additional costs would be incurred and sent the Complainant a costs variation schedule. A further revised estimate was sent on 13 March 2020 which showed the total price would be £159,469.50 excluding VAT. The Complainant was becoming increasingly concerned about rising costs, especially since she had paid the Respondent to complete drawings, specifications and schedules and had been led to believe that these things were included in the price. 
14. The Complainant was asked to pay for windows, which she had been led to believe were included and was shocked to discover that there was an ever-increasing list of things that were not included. In the meantime, the Respondent continued to invoice the Complainant for his own fees. The Complainant and her husband were forced to re-finance the flat to pay for the works.
15. In June 2020 the Complainant received an email from the Contractor who explained that the Respondent was becoming increasingly difficult to work with and was demanding money. The email set out that a £10,000 commission payment had been made by the Contractor from the Complainants deposit. The Contractor explained that his initial quote was £30,000 less but the Respondent was demanding £30,000 and that this was to be concealed within his prices. 
16. The Complainant asked the Respondent about the payment and he confirmed he had received a commission of £10,000. Following this, the Complainant terminated the Respondent’s involvement in the project and set about investigating what had happened.
17. The Complainant was told by the Contractor that he had been asked to inflate his costings to essentially hide a commission to the Respondent. The Contractor had paid the Respondent £10,000 but the prices had continually been adjusted upwards in order to extract a further £30,000. The Contractor subsequently reduced his quote by £30,000 and completed the work.
18. The Complainant also discovered that the Respondent had negotiated a £3000 commission in relation to the windows which had never been disclosed to her and was added on to the price. In relation to the flooring, the Complainant discovered she had overpaid as she had been sent an invoice which included the Respondent’s own flooring. The Respondent later refunded this overpayment and returned the commission to the window company. The Respondent discovered that the kitchen company had agreed to pay the Respondent £500 as a commission which had not been disclosed to her. 
19. The Complainant employed someone to oversee the Contractor and try and work out the updated costings. The Complainant discovered that the Contractor was not as experienced as the Respondent had made out and had been working refurbishing local authority properties. The Complainant discovered that no application had been made pursuant to the Building Regulations and she was required to obtain retrospective permission which added costs and delay to the project.
20. The Respondent sent an email to the Complainant via a mutual friend in July 2020 which set out his explanations for what had happened. Within that email the Respondent disclosed that he had sold items from the Complainants flat and kept the money. The Complainant received a transfer from the Respondent’s wife for £400 on 9 July 2020. The Complainant was unaware that these items had been sold as the Respondent had told her that everything had been thrown away. 
21. The Complainant considered that she needed to keep the Contractor on board as she had significantly overpaid and she needed him to complete the work. The Complainant complained to ARB in January 2021.
22. In April 2021 the Respondent submitted representations to ARB, and in August 2021 the Respondent indicated that his health had impacted on his actions and was a continuing issue.

 

Decision on Facts and UPC

23. In reaching its decisions, the Committee has carefully considered the submissions of Mr Foxsmith, together with the documentary evidence presented to it in the Report of ARB’s Solicitor, together with the submissions made by the Respondent to the Investigations Panel. The Committee heard live evidence from the Complainant and Ms G of the Reclaimed Flooring Company (RFC).
24. 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 Board and that the civil standard applies, namely proof on the balance of probabilities. It has had applied the relevant test in relation to dishonesty/ lack of integrity matters as outlined in the case of Ivey v Genting Casinos  (UK) Ltd [2017] UK SC67 and Wingate and Evans v SRA and SRA v Malins [2018] EWC8 Civ 366.
25. Whether the conduct alleged amounts to UPC is a matter for the Committee’s independent judgment to which no burden or standard of proof applies.
26. UPC is defined as conduct which falls short of the standard required of a registered person. In reaching its findings on UPC, 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 give rise to disciplinary proceedings or 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. Architects are expected to be guided by the spirit of the Code as well as its express terms, and the fact that a course of conduct is not specifically referred to does not mean that there can be no finding in disciplinary proceedings even if there has been no clear breach of the express terms.

Particular 1 – Found proved

1. The Respondent did not provide adequate terms of engagement to the Complainant contrary to Standard 4.4 of the Architect’s Code.

27. The Committee accepted the evidence of the Complainant that she was only ever sent an email on 1 March 2019 with confirmation that the Respondent would charge £70 per hour, and she received no other document regarding terms of appointment or fees. In his representations dated 13 April 2021, the Respondent stated, “I should have been rigorous and checked the procedures and I should have issued a formal appointment letter as mentioned in the ARB code 4.4.”  The Committee were therefore satisfied that the Respondent had not provided adequate terms of appointment as required by Standard 4.4 of the Code.

Particular 2 – Found Proved

2. The Respondent negotiated and/or agreed to receive commission and/or uplift payments that had not been disclosed or agreed with the Complainant, in respect of:
   (a) MGI Impact;and/or
   (b) Sash Windows;and/or
   (c) Tom Howley Kitchens.

28. The Committee accepted the evidence of the Complainant that she had appointed the Contractor on the basis of the recommendation of the Respondent. The Complainant was clear that at no time was she told by the Respondent that he had arranged a commission or uplift with the Contractor. The Complainant stated that the first time she became aware of the payment was following an email she received from the Contractor in June 2020 after work had already commenced. The email stated, “£10,000 has been payed to Zeya Our quote to do the works at the property was £30,000 less and we’ve agreed to include what Zea [sic] wanted on top of our price which formed the price your received.” 
29. The Complainant stated that she wrote a one-line email to the Respondent on 8 June 2020 which stated, “Can you explain why Georgi paid you 10,000 GBP?” the Respondent replied in an email dated 9 June 2020 that this was a “commission”. In his response to the ARB dated 13 April 2021, the Respondent stated that he and the builder, “…mutually agreed 10K” as a commission. The Respondent stated that he did not check whether this was an uplift in the costs charged to the Complainant. The Respondent stated that this money had now been returned to the Complainant. The Committee was satisfied that on the evidence the Respondent had negotiated a £10,000 commission with the Contractor that was never disclosed to the Complainant.
30. In respect of the quote from Sash Windows, the Committee noted the evidence of the Complainant. She explained that she began exploring with all suppliers whether the Respondent had negotiated any commissions following her discovery of the £10,000 commission that had been paid from the Contractor. The Complainant explained that she discovered that the quote she had received from Sash Windows had been uplifted by £3,000 which was to be paid to the Respondent. The Committee had regard to the witness statement of the managing director of Sash Windows who stated that the quote included a £3000 uplift which was to be paid to the Respondent. This amount was not detailed on the quote and was incorporated into the global total. When the Complainant contacted Sash Windows and explained that she was unhappy with the Respondent receiving, this uplift the quote was reduced by £3000.
31. The Respondent in his responses to the ARB dated 13 April 2021 confirms that the £3000 commission was discussed and mutually negotiated. The Respondent was paid half of the commission when the deposit was paid, and this was returned to Sash Windows following the breakdown of the relationship with the Complainant. The Respondent states, “I tried to hide from the client and deny initially that I had received this commission…hoping this commission would not be discovered in addition to what had happened.”
32. In these circumstances the Committee was satisfied that the Respondent had negotiated a commission with Sash Windows that he had not disclosed to the Complainant.
33. In relation to Tom Howley Kitchens, the Complainant explained in her evidence that she was told by Tom Howley Kitchens that they had agreed a discretionary marketing fee of around £500 to be paid to the Respondent for the introduction of business. This was removed from the price at the Complainant’s request. The Respondent confirmed in his representations dated 13 April 2021 that Tom Howley had told him they would offer him a discretionary marketing commission that would be “circa £500”.
34. The Committee was satisfied on the evidence that the Respondent had agreed to receive this commission from Tom Howley Kitchens and had not disclosed this to the Complainant.

Particular 3 – Found Proved

3. . The Respondent requested that the Complainant pay an invoice for flooring and:
   (a) Did not discuss and/or agree with her that he could order flooring for his own property at a potentially reduced cost to both parties; and/or
   (b) Paid the flooring company £3654.40 and did not refund the Complainant with the remaining funds from her payment of £5,000 until confronted by the Complainant.

35. The Committee noted the evidence of the Complainant and Ms G of the Reclaimed Flooring Company. Ms G explained that initially the Respondent had asked for a quote for 120 square metres of flooring. It appears that this was to include flooring for the Complainant’s project and an additional amount for the Respondent’s property. As a result of the quantity ordered, the salesman offered a discounted price of £69 per square metre. The total quote was £10,230 and an invoice was issued for half of this amount on the 4 February 2020 for £5,115 when the Respondent accepted the order. Ms G told the Committee that on the 3 March 2020 the Respondent emailed the flooring company to advise that he would not be proceeding with the flooring for his property and asked for the quantity and invoice to be amended. Ms G explained that the discounted price could no longer be honoured because of the reduction in quantity and a new invoice was issued on the 3 March 2020 for a deposit payment of £3653.40, which was half of the total new price.
36. On the 2 March 2020 the Complainant stated that the Respondent asked her to pay £5,000 as a 50% deposit for the flooring. The Complainant’s bank statements confirm that she made this immediate payment on 2 March 2020. On the 4 March 2020 the Respondent emailed the Complainant and attached a copy invoice which the Complainant states was for £5,115. This was 50% of the original quote which included the Respondent’s flooring. The email states, “Pls see below invoice for 50% which has now been paid. Will re credits the difference once I know how much the glue would cost.” [sic]
37. The Respondent stated that he incorrectly attached the first invoice, and it was only after looking at the invoice did he realise the issue and ask for a revised invoice and he was holding the balance because of glue.
38. It was clear to the Committee as a matter of fact, that the Respondent never discussed the fact that his own flooring was included in the initial quote he received and never discussed the pricing issues with the Complainant. The Committee accepted the Complainant’s evidence that she never discussed or agreed with the Respondent that his own flooring was included.
39. It is further evident from the email correspondence and bank statement that the payment of £5,000 was made by the Complainant on the 2 March 2020, and only £3653.40 was paid by the Respondent to the flooring company. The balance was not refunded by the Respondent until 12 June 2020.

Particular 4 – Found Proved

4. The Respondent sold the Complainant’s appliances and:
   (a) Told her that the property had been gutted and that everything had been thrown away, or words to that effect, when that was not the case; and/or
   (b) Did not advise the Complainant that he and/or his wife has sold the appliances for £400 and had kept the funds himself.

40. It appears from the email correspondence that the Respondent has admitted this particular. The Complainant explained in her evidence that she was not aware that the Respondent had received any money for her appliances until she received a repayment of £400 from the Respondent’s wife together with an email from the Respondent which states, “…at the beginning of the strip-out I said to Cherine that I could try and get some money from the sale of the Highgate appliances along with ours. These included your fireplace, fridge, oven and dishwasher. Cherine agreed and we received £400 for everything.”
41. The Committee was satisfied that the Respondent had sold the Complainant’s appliances and had kept the money for himself.

Particular 5 – Found Proved

5. The Respondent did not keep the Complainant’s money in a designated interest-bearing bank account (a client account) contrary to Standard 7.2 of the Architect’s Code;

42. The Committee noted that as a result of the Respondent’s failure to refund the Complainant, the overpayment made for the flooring he was technically holding client money. The same could be said for the £400 received from the sale of the appliances. These amounts were client money for the purposes of Standard 7.2 and should have been held in an interest-bearing bank account. It is clear from the evidence that these funds were kept by the Respondent in his own personal account and he had not set up a business bank account as required. In his response to ARB dated 13 April 2021, the Respondent states that he used his personal account throughout the project and did not consider he was holding client money.
43. The Committee considered that it was clear that the Respondent did not hold client money correctly as required by the Code.

Particular 6 – Found Proved

6. The Respondent did not:
   (a) adequately advise the Complainant that a Building Regulations Application was required and/or
   (b) submit a Building Regulations application.

44. The Committee accepted the evidence of the Complainant who stated that she asked the Respondent about planning matters and whether any “permits” were required. The Complainant stated that she was told that no planning or other permissions were required. The Complainant explained that she was shocked to discover that an application should have been made pursuant to Building Regulations. On 17 June 2020 the Complainant emailed the Respondent and asked if the relevant approvals were obtained. The Respondent replied on the 18 June 2020 and stated, “No, an application has not been sent yet…..it should be sent to BC as soon as possible” [sic]. In his response to ARB dated 13 April 2021 the Respondent stated that he had initially contacted the local authority and left his details but he did not hear back from them. The Respondent stated, “After I was dismissed from the project I did not realise that this was outstanding and Building Regulations should have begun to be taken in hand before the works began. Not having done it at the beginning could have potentially resulted in problems and extra costs and complications and this was utterly neglectful of my duties on this project.”
45. The Committee considered that it was clear from the evidence that the Complainant was not adequately advised about the need to submit an application pursuant to Building Regulations and that no such application was ever made by the Respondent.

Particular 7 – Found Proved

7. 7. The Respondent’s actions at particular 4(a) were misleading;

46. 46. The Committee accepted the evidence of the Complainant that she was told by the Respondent that everything from the strip-out had been thrown away. It was clear to the Committee that the purpose of telling the Complainant that there was nothing remaining was to conceal the fact that the Respondent had sold items of value and had kept the money. The Committee was satisfied that the Respondent had intended to mislead the Complainant about what had happened to her items.

Particular 8 – Found proved

8. 8. The Respondent’s actions at particulars 2(a), and/or 2(b) and/or 2(c) and/or 3(a) and/or 3(b) and/or 4(a), and/or 4(b) lacked integrity and/or were dishonest. 

47. The Committee approached each particular separately and considered firstly whether the Respondent’s actions amounted to dishonesty. In relation to 2a the Committee was in no doubt that the Respondent’s actions amounted to dishonesty.  The Respondent had negotiated a secret commission with the Contractor which he deliberately did not disclose to the Complainant because he knew and understood it was wrong and dishonest. The Committee considered that the Respondent was fully aware that his conduct was dishonest and would be considered dishonest by ordinary, decent people. It follows that the Respondent’s actions lacked integrity.
48. In relation to particular 2b the Committee considered that for the same reasons the Respondent’s conduct was dishonest. He had negotiated a secret commission which he knew was wrong and he had kept that information from his client so that he could keep the money for himself. The Committee considered that there was no doubt that the Respondent knew his conduct was dishonest and his action in returning the commission after he was aware the Complainant was looking into matters was a further attempt to conceal what he had done. The Committee considered that the Respondent’s actions would be considered dishonest by ordinary decent people and also amounted to a lack of integrity.
49. The Committee considered that the Respondent’s own emails and representations demonstrated that the Respondent was aware he was going to be paid a commission by Tom Howley and he knew it was in the region of £500. The Committee considers that the Respondent’s failure to disclose this to his client was dishonest and designed to conceal the commission from her so he could keep the money for himself. The Committee was satisfied that this would be considered dishonest by the standards of ordinary decent people and also amounted to a lack of integrity.
50. The Committee considered particulars 3a and 3b together, and took into account the Respondent’s explanation that he had inadvertently sent the wrong invoice and planned to hold on to the balance for glue. The Committee noted that the Respondent asked the Complainant for £5000 before the amended invoices were sent. He was well aware he had received this amount from the Complainant. It follows that he must also have known that this amount was half the total from the quote which included his flooring. After this payment was received, but before the invoice was paid, the Respondent asked for amended invoices from the flooring company which did not have his flooring included. The Respondent then paid the lower invoice amount. The Committee considered that the Respondent concealed the fact that the initial quote contained his flooring and asked for the £5,000 deposit in order to extract a higher amount from the Complainant and keep the difference. The Committee did not accept the explanation that the Respondent made an error with the invoice as it was clear to him that he had received more than he had paid to the flooring company and did not refund the difference.  The Committee did not accept that this was for glue and considered that this was an attempt to mislead the Complainant about what had happened.
51. The Committee considered that the Respondent’s actions were dishonest and deliberately misleading in order to conceal that he had obtained more money than he had paid out. The Committee considered that the Respondent knew he had been paid too much and did not explain about his own flooring in order to keep hold of the difference. The Committee considered that the Respondent knew this was dishonest and would be considered dishonest by ordinary people. It follows that this also amounts to a lack of integrity.
52. The Committee next considered whether the Respondent’s actions in relation to Particular 4a and 4b lacked integrity and or were dishonest. The Committee noted that the Respondent had told the Complainant that the items had been thrown away and it had already found that this was misleading. The Committee considered that the Respondent had deliberately told the Complainant that her items had been thrown away in order to conceal the fact that he had sold them and was keeping the money received. The Committee had no doubt that the Respondent knew this was dishonest and that ordinary decent people would consider it to be dishonest. It follows that this also amounts to a lack of integrity.
53. In deciding whether the facts found proved amount to UPC, the Committee had regard to 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”.
54. The Committee considered that the dishonest conduct of the Respondent which involved misleading his client in order to obtain a financial benefit for himself was a serious falling short of the standards expected. This was a serious breach of trust which caused a significant financial detriment to the Complainant.
55. The Committee considered that the failure to advise and obtain permission for the works under the Building Regulations was a serious falling short of the responsibilities of an architect and caused delay, expense and upset to the Complainant in attempting to put matters right retrospectively.
56. Although failing to hold client money in a designated account could be considered a technical breach, in the context of the dishonesty and the failure to protect the Complainant’s money the Committee considered that this was very serious and amounted to UPC. The Complainant trusted the Respondent to keep her money safe and pass it on to suppliers and he failed to keep her money separate from his own.
57. The Committee considered that the Respondent’s failure to send adequate terms of business meant that she was unclear about the Respondent’s fees for the project and was not provided with all of the information required by the Code to enable her to make an informed choice. The Committee considered that this was a very serious falling short and led to the Complainant paying a significant amount of fees that were not explained to her at the outset.
58. In the Committee’s view, the Respondent’s conduct constituted a breach of Standards 1.1, 1.2, 1.4, 4.4, 6.1 and 7.2 of the 2017 Code. The Committee has found that the Respondent did not act with honesty and integrity and sought to obtain payments for his own gain to the detriment of the Complainant.
59. The Committee considered these failings to be very serious. They have impacted on the reputation of the profession and had a profound financial and personal effect on the Complainant and her family.
60. The Committee took into account its findings in relation to honesty and integrity and considered that The Respondent’s conduct was a significant falling short of the standards required of an architect. Members of the public and the profession would be shocked that an architect had taken commissions and referral fees without telling the client which had resulted in increased costs. In addition, members of the public and the profession would be shocked to learn that an architect had, in essence, kept money that belonged to his client and been dishonest about payments and invoices.
61. It is the Committee’s finding that the facts found proved and the corresponding breaches of the Code are serious and adversely impact both on the reputation of the Architect and the profession generally. They represent a standard of conduct falling significantly and materially below the standard expected of a registered architect.
62. In all the circumstances and for the reasons set out above, the Committee finds that the Respondent’s conduct does amount to unacceptable professional conduct in respect of all the particulars both individually and cumulatively.
63. Mr Foxsmith set out ARB’s submissions in relation to sanction and drew the Committee’attention to ARB’s Sanctions Guidance, 1 April 2022. Mr Foxsmith submitted that the Committee should have regard to the relevant aggravating and mitigating factors when assessing the level of sanction.
64. In terms of aggravating factors, he asked the Committee to remind itself of its findings in relation to UPC take into account the following:

1. The very serious effect of the failings of the Respondent on the Complainant;
2. This was a sustained episode of dishonesty encompassing multiple areas over a significant period of time;
3. The Complainant was vulnerable by reason of her trust in the Respondent and wholly reliant on him as she was based overseas and unable to travel;
4. The Respondent had not demonstrated any insight into his actions;
5. The Respondent had not provided any evidence of corrective steps taken to reassure the Committee that his failings will not be repeated.

65. As for mitigating factors, Mr Foxsmith informed the Committee that there were no adverse regulatory findings against the Respondent. He had, to a limited extent, provided responses to the ARB even though he had not participated in the hearing process. There was some evidence from the Respondent that he was suffering from a period of ill health and difficult personal circumstances at the time of the incidents. Mr Foxsmith acknowledged that there had been some apology and a return of the money.

Decision on Sanction

66. 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 the Board, and to declare and uphold proper standards of conduct and behaviour. The Committee has carefully considered all the evidence and submissions made during the course of this hearing. It has heard and accepted the advice of the Legally Qualified Chair. It has borne in mind that the purpose of imposing a sanction is not to be punitive although it may have a punitive effect. It has taken into account the respondent’s interests, the ARB Sanctions Guidance and the need to act proportionately. It has taken into account any aggravating and mitigating factors in this case, and it has exercised its own independent judgement. 
67. The Committee has identified the following aggravating factors:

1. The Respondent’s failings have had a very serious effect on the Complainant and her family. In addition to the gross breach of trust, the Complainant has had to deal with significant expense and delay in completing her project. The Complainant has been put to considerable stress, upset and expense as a result of the Respondent’s conduct;
2. The Respondent has not provided any evidence of any real insight into the seriousness of these failings and has not provided any evidence that he has learned from his mistakes and reassurances that they will not be repeated;
3. The Respondent’s dishonesty involved a number of aspects of this project and persisted for a significant period of time. The Respondent was dishonest for his own financial gain. When the Complainant began investigating the Respondent tried to cover up what he had done;
4. The Respondent took advantage of his friendship with the Complainant and the fact that she was based overseas to systematically obtain money for his own benefit at her expense.

68. The Committee has identified the following mitigating factors:
    1. The Respondent has no previous adverse regulatory history;
    2. The Respondent has apologised to the Complainant and returned the money;
    3. The failings relate to one project;
    4. There is some evidence that the Respondent was experiencing difficult personal circumstances at the time.

69. Taking into account the aggravating and mitigating circumstances and looking at all the facts in the round, the Committee considered there was a risk of repetition given the lack of appreciation of the issues and the failure to provide evidence of any remedial steps undertaken.
70. The matters found proved are serious to the extent that the Respondent’s failings diminish both his reputation and that of the profession generally, and exposed his client to substantial detriment and financial loss. The public would expect to rely on an architect to be honest and truthful and to protect their interest. The Committee is mindful of its role to declare and uphold proper standards of conduct and behaviour. The Committee has reminded itself as to its findings regarding the seriousness of all the matters found proved.
71. The Committee had regard to Paragraph 8 of the Sanctions Guidance and considered that the Respondent’s dishonesty was at the higher end of the scale involving premeditated, systematic deception for personal financial gain and an attempt to cover up that dishonesty. The Respondent had manipulated a close personal friendship and taken advantage of the trust placed in him. The Committee considered that it was difficult to imagine a more serious case of dishonesty.
72. The Committee 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.
73. The Committee has balanced the Respondent’s own interests with those of the profession and the public and has borne in mind the need to act proportionately.
74. The Committee first considered whether to impose a reprimand. However, having considered the Sanctions Guidance and the factors detailed above, the Committee considered that the nature of the UPC found proved was too serious for such a sanction to be considered appropriate or proportionate. The Committee reminded itself of the findings it had made in relation to UPC and did not consider that the Respondent’s conduct, in particular the dishonesty, was at the lower end of the scale.
75. The Committee next considered whether to impose a penalty order and considered that, for the same reasons, such an order was neither appropriate nor proportionate. The UPC is too serious for the imposition of a penalty order.
76. The Committee then considered whether to impose a suspension order. Having carefully considered the Sanctions Guidance, the Committee concluded that such a sanction would be insufficient to uphold the reputation of the profession or protect the public. Given the seriousness of the UPC and the identified risk of repetition together with the lack of any meaningful insight, the Committee concluded that a suspension order would not be sufficient to uphold the public interest. The Committee has taken into account the Respondent’s unblemished career and the fact that this was a failing in relation to one project. However, the failings are so serious and so fundamental that the Committee considers these are incompatible with continuing to be an architect. The Committee considered that the seriousness of the matters found proved were at the higher end of the scale and damaged the trust that the public places in the profession and fell far short of what is expected.
77. The Committee considered that given the seriousness of the matters found proved the only appropriate and proportionate sanction to uphold the reputation of the profession and protect the public is erasure. The Committee has had regard to the impact of such a sanction on the Respondent but considers that the public interest outweighs his interests.
78. The Committee therefore directs that the Respondent’s name is erased from the register. The Committee recommends that the Respondent shall be entitled to apply for restoration to the register in no less than three years, which the Committee considers is proportionate in the circumstances.
79. This would mean that should the Respondent wish to return to practice as an architect, he would have to demonstrate that he is fit to do so by satisfying ARB that he had addressed the failings that gave rise to the findings of this Committee before returning to practice as an architect. The Committee considered that this was an essential safeguard for the public and to ensure that the reputation of the profession is upheld.
80. That concludes this determination.