Ms Beatriz Torres Aviles

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

BEATRIZ TORRES AVILES (092056H)

Held via video conference on

15-26 April 2024

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Present:

Martin Winter (Legally Qualified Chair)
Stuart Carr (Committee Architect Member)
Jules Griffiths (Committee Lay Member)

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The Architects Registration Board (“the ARB”) was represented by Mr Tom McEntegart of Anderson Strathern LLP (“the Presenter”).

Ms Beatriz Torres (“the Registered Person”) attended the hearing and was not represented

The Allegations

1. The Charge made against the Registered Person is that she is guilty of:

 

1. Unacceptable Professional Conduct (“UPC”) in relation to Property A. The particulars of the Charge are that the Registered Person:

 

(i) Failed to provide Referrer A with adequate terms of engagement contrary to Standard 4 of The Architect’s Code

(ii) Failed to ensure that variations to the initial agreement were recorded in writing contrary to Standard 4 of The Architects Code

(iii) Failed to adequately define her role as project manager for the construction stage of the project

(iv) Produced inadequate drawings for Referrer A’s building warrant submission

(v) Allowed work to commence on site without the appropriate approvals

(vi) Failed to identify defective work on site during her inspections.:

(vii) Failed to disclose the conflict of interest which arose during the project in accordance with Standard 1.3 of The Architect’s Code

 

2. The Registered Person’s actions in respect of 1(vii) above:

(i) were dishonest

(ii) lacked integrity

 

3. Unacceptable Professional Conduct (“UPC”) in relation to Property B. The particulars of the Charge are that the Registered Person:

 

(i) Failed to provide Referrer B with adequate terms of engagement contrary to Standard 4 of The Architects Code

(ii) Failed to ensure that variations to the initial written agreement were recorded in writing contrary to Standard 4 of The Architects Code

(iii) Issued inadequate drawings and information for construction purposes

(iv) Allowed works to commence on site without the appropriate approvals

(v) Failed to identify key structural elements on site which were missing

(vi) Failed to identify defective works on site during her inspections

(vii) Received payment from the contractor during the construction stage, without disclosing this to the client.

 

4. The Registered Person’s actions in respect of 3(iv) above:

a. were dishonest

b. lacked integrity

 

5. The Registered Person’s actions in respect of 3(vii) above:

a. were dishonest

b. lacked integrity

 

2. The Charges come before the Professional Conduct Committee (Committee) further to its jurisdiction under the Architects Act 1997, sections 14(3) and 15(1)(a) to determine whether an architect is guilty of UPC; and if so, to determine whether a disciplinary order ought to be made in consequence thereof; and if so, what order should be imposed.

 

Background

 

3. The Registered Person faces two separate charges of UPC relating to two projects that she was involved with between 2019 and 2021. Property A belonged to Mrs Susan Fleming (Referrer A) and property B belonged to Mr Garry Chu (Referrer B).

 

4. The Registered Person and both Referrers were members of the same local business networking organisation known as “BNI”. Through presentations made by the Registered Person at the regular BNI meetings the Referrers became aware that the Registered Person could assist them in their respective home development projects.

 

Background – Referrer A

 

5. Referrer A initially instructed the Registered Person to provide drawings to obtain building warrant approval for a loft conversion but a few weeks later added to that a request for drawings for a single storey extension at the rear of the property. Referrer A received a recommendation from the Registered Person for a local building contractor, Mr JH. The Registered Person stated that she would provide additional services to assist the project if Mr JH was employed.

 

6. A letter of engagement dated 20 December 2019 confirmed the engagement of the registered person in the project and Mr JH was instructed by Referrer A directly.

 

7. Building work commenced in September 2020 notwithstanding that the building warrant that the Registered Person applied for had not yet been granted. Referrer A states that the Registered Person knew that building work had commenced because she had made regular visits to the site and produced weekly reports on the progress of the work undertaken.

 

8. Referrer A became concerned as to the standard of the work being undertaken by Mr JH. By January 2021 Referrer A had lost confidence and had contacted building surveyors and an architectural technician to carry out an assessment of the project and the work undertaken. A number of issues were identified leading Referrer A to instruct a new architect and make a fresh application for a building warrant.

 

9. Throughout the duration of the project Referrer A and her family had remained living within the building. She describes how the poor quality of the building work led to the building not being watertight or windproof making the building extremely cold to live in and, at times, being without running water.

 

10. The Inquirer’s report into Property A contained a number of alleged failings on the part of the Registered Person. These included deficiencies in the terms of engagement provided to Referrer A in correspondence dated 20 December 2019. Further, the e-mail from the Registered Person offering her services as a project manager was not followed up in writing as a variation of the initial terms of engagement.

 

11. It is also alleged that the drawings provided by the Registered Person for the building warrant application were inadequate as they lacked the necessary detail to be compliant with building regulations guidance. These drawings were also said to be unsuitable for construction purposes because of a lack of detail.

 

12. The Inquirer also suggested that the Registered Person’s awareness that work had commenced prior to the grant of a building warrant suggests tacit approval of that situation. The Registered Person also failed to identify critical defects in the work and significant deviations from the drawings despite frequent and regular site visits.

 

13. Further criticism was raised in relation to the Registered Person acting as both architect for the client and project manager for the contractor within the same project. Aside from the potential financial gain that the Registered Person might have made from recommending the contractor, the Inquirer also questioned the way in which the Registered Person managed this apparent conflict of interest.

 

14. Referrer A submitted her complaint to the ARB on 13 May 2021.

 

Background – Referrer B

 

15. Referrer B also needed the services of an architect in 2019 to assist in a loft space conversion and extension of the ground floor of his home, Property B. At that time, Referrer B was unaware that Referrer A had also instructed the Registered Person. Terms of engagement were confirmed in correspondence with the Registered Person on 7 June 2019. This contained the full terms of engagement that were absent from the evidence relating to Referrer A. The Registered Person was instructed to prepare drawings and apply for a building warrant.

 

16. The Registered Person also recommended Mr JH as the builder who should undertake the project. Referrer B alleges that it was at a meeting at the property that the Registered Person told him that she would be the project manager as she had undertaken this role with Mr JH on other projects. Referrer B was happy for this to take place but did not receive any paperwork to reflect that the role of project manager would be undertaken by the Registered Person.

 

17. Referrer B asserts that the Registered Person told him that the building warrant she had applied for would be in place in time for the commencement of building work scheduled to take place in October 2020. Work commenced as planned and the Registered Person attended the project regularly and provided reports on a near weekly basis.

 

18. On 12 December 2020 Referrer B states that he and his wife found out that the building warrant was not yet in place. This caused considerable concern as the building work was in an advanced state. By this stage matters had started to concern the Referrer in relation to the quality and progress of the work. He describes how the Registered Person was acting as a go-between with the contractor but the many issues that were raised were not being resolved. Referrer B instructed an architectural technician to assess the progress of the work undertaken. A report was provided which raised issues with the adequacy of both the Registered Person’s drawings and the construction taking place on site.

 

19. The contractor stopped work and told Referrer B that much of the money that had been paid to him had gone to the Registered Person.

 

20. The Inquirer provided a report in relation to Property B. The terms of engagement were analysed and considered to be deficient when compared to Standard 4.4 of the Architects Code in that they failed to include references to a complaint-handling procedure and did not state that the Registered Person was registered with the ARB and subject to the Architects Code. Also, where there had been variations to the initial agreement, such as acting in the role of project manager, these variations had not been recorded in writing in breach of Standard 4.5 of the Code.

 

21. The Inquirer expressed his concerns that the Registered Person appeared to be acting in the role of project manager but that the role was poorly defined and was not contained in a written variation of the initial terms of engagement. The Registered Person appeared to be acting in accordance with the role of a project manager by undertaking frequent site visits and providing reports upon those visits. However, the Inquirer suggests that the evidence did not support that the Registered Person was carrying out this role as fully as would be expected.

 

22. The Inquirer assessed the drawings provided by the Registered Person and considered that they were insufficient for construction purposes. They lacked the information or detail necessary for a builder to properly carry out building work and were not fully coordinated with the structural engineer’s drawings. Although it was noted that the Registered Person had not been instructed to provide drawings for construction, the Inquirer believed that the Registered Person ought to have advised Referrer B that further design work was required prior to any work starting on site.

 

23. Furthermore, as the Registered Person was aware that the building warrant had not been granted, she would have been aware that commencing building work was in breach of a legal requirement. No warning appears to have been provided to Referrer B that it was not permissible for work to commence without a building warrant.

 

24. The Inquirer identified that several key structural items were missing from the construction that ought to have been identified in the regular site visit reports. The Registered Person ought to have identified those missing elements and other defective work and reported these within her site visit reports.

 

25. Further, the Registered Person ought to have notified Referrer B that she had received payment from the contractor and this was a breach of Standard 1.4 of the code.

 

26. On 23 March 2021 Referrer B made his complaint to the ARB.

 

Preliminary matters

 

27. There were no preliminary matters.

 

28. The Registered Person, upon the Charge having been read to her, denied all the particulars of the allegations save for particular 3(vii) which she admitted.

 

Evidence

 

29. The Committee had regard to the evidence presented by ARB in the witness statements of Referrer A and Referrer B and contained in the reports from Mr Geddes, the Inquirer. The Committee noted that the responses from the Registered Person to the allegations raised during the investigation were also contained within the ARB bundle.  The Committee also heard oral evidence from Referrer A, Referrer B and the Inquirer as part of the case for ARB. The Registered Person gave oral evidence in support of her defence to the allegations.  The Committee had regard to the documentary material presented with the Report to the Committee and during the hearing. The Presenter and the Registered Person made oral submissions on the evidence.

 

Evidence of Referrer B

 

30. Referrer B adopted his written statement as his evidence. The Committee found his evidence to be cogent and credible.

 

31. Referrer B confirmed that he met the Registered Person through the local business group. He received a design quote on 27 May 2019 and the first invoice was received on 7 June 2019 alongside the terms of engagement. On 8 August 2019 a more detailed project quote was received which he believed related to the Registered Person planning and managing the home improvement project at his address.

 

32. The Registered Person recommended Mr JH should be the builder for the project as he had expertise in loft conversions. Mr JH subsequently attended the property before starting work. It was Mr JH who told the Referrer that the Registered Person would be engaged as project manager. When this was mentioned, the Registered Person was standing next to Mr JH and said nothing. There was no updated terms of engagement regarding the project manager role. The Referrer was also not told what the project manager role would entail.

 

33. The Registered Person had been engaged to obtain a building warrant for the proposed alterations and extension. As the date approached when building work should start, the Referrer called the Registered Person to ensure matters were on track. He recalled being told that the warrant should be ready in time. There was no further mention of the progress of the building warrant and so he assumed that it had been dealt with. He had no recollection of the Registered Person telling him that work could not commence until the warrant had been granted. On 19 October 2020 the building work commenced.

 

34. Referrer B was aware that there had been another meeting at his home address at which he was not present. His wife had attended and, after that meeting, he had been told there was no discussion about the progress of the building warrant. He received an e-mail later the same day from the Registered Person and there was, again, no mention of the building warrant.

 

35. Referrer B was shown a report that had been sent to him by the Registered Person after the site visit that took place on 5 November 2020. Referrer B confirmed that the report made no mention of any deficiency in the drawings that the Registered Person had prepared at that time. By December 2020 the Referrer and his wife were so concerned by the quality of the building work that they instructed a structural engineer to assess the project. The engineer, Mr GB, produced a report that set out a long list or structural concerns. A further report was prepared by architectural technician Mr RM and this further confirmed a number of deficiencies in the construction. Referrer B confirmed that the Registered Person had not raised any of these issues with him.

 

36. The Referrer confirmed that the financial arrangement between the contractor and the Registered Person had never been discussed with him. It was during a WhatsApp chat between the contractor and his wife that the payments from the contractor to the Registered Person were first mentioned.

 

37. In cross examination Referrer B was asked whether he could recall the Registered Person giving a presentation at the business networking meetings during which she stated that starting building work without a building warrant was prohibited. He could recall the meetings, but he could not recall the discussion. However, he confirmed that he understood a warrant was needed to be in place prior to work commencing and that he had asked the Registered Person if it would be in place on time and he assumed that everything was in order. It was not until the conversation of 12 December 2020 on WhatsApp that it became clear the building warrant had not been obtained.

 

38. He could not recall being told by the Registered Person that he had been told by her that limited cleaning and stripping work could be undertaken before the building warrant was granted. He understood the warrant must be in place before work could be undertaken and he assumed that the silence from the Registered Person as to the progress of the warrant application meant that everything was in order. He was unaware that there was a distinction between cleaning or stripping out and starting the full construction work. He denied that there were any face-to-face conversations with the Registered Person during which she warned him of the absence of the building warrant.

 

39. In response to questions from the Committee, Referrer B confirmed that he read the terms of engagement, but he might have “glossed over them” and not read them in full. He stated that he reads a lot of contracts and often will skim over the detail.

 

40. Clause 3.10 of the terms of engagement sets out that the contractor is responsible for the carrying out of works in compliance with the contract. He had not considered whether the Registered Person being appointed as project manager was in conflict with that clause. He had assumed that when the Registered Person took on that role that she was the project manager and that the scope of her original agreement had changed beyond simply providing design advice and drawings for building warrant approval.

 

Evidence of Referrer A

 

41. Referrer A adopted her written statement as her evidence. The Committee found her evidence to be measured and credible. At the outset of her evidence, she referred the Committee to letters from the Registered Person alleging defamation. This related to a review that Referrer A had posted on social media about the Registered Person’s involvement with her project. The review included an allegation that the Registered Person had stolen £50,000. The Registered Person had instructed lawyers to write to her requesting that the review was taken down and claiming a sum in compensation. Referrer A confirmed that she did not respond to these letters.

 

42. Referrer A stated that she met the Registered Person through the local business network group. Initially she was seeking assistance for a loft conversion but later decided to seek additional building warrant approval for an extension at the rear of her property. She had been told by the Registered Person that planning permission was not required and the assistance of the Registered Person would not extend beyond obtaining building warrant approval.

 

43. She believed that she accessed the Registered Person’s terms of engagement through the Registered Person’s website. However, she could not recall whether she read the terms of engagement before or after “everything went wrong”.

 

44. Referrer A confirmed that she had not been involved in a building project like this before and had been looking at a number of different building contractors. She received an e-mail on 26 May 2020 from the Registered Person offering to be the project manager if she chose to instruct Mr JH over the other builders. On the basis of the Registered Person’s offer, she agreed to instruct Mr JH and thereafter received regular reports from the Registered Person in accordance with her indication that she would act as project manager. The Registered Person did not provide any written confirmation that she would be acting as project manager but Referrer A believes that there was a verbal confirmation.

 

45. The Registered Person confirmed to Referrer A that she would oversee the build from start to finish. This would include liaising with Mr JH and keeping him on track to ensure that the construction took place in accordance with her drawings.

 

46. Referrer A was shown the correspondence with Fife Council Building Control setting out the deficiencies in the drawings provided by the Registered Person which prevented the building warrant from being granted. Referrer A confirmed that the Registered Person did not succeed in obtaining a building warrant for this project.

 

47. By 4 January 2021 Referrer A took matters into her own hands and contacted the relevant officer at Fife Council. Referrer A had already instructed an architectural technician, Mr CM, who had undertaken a site visit on 18 December 2020. The report that followed this site visit confirmed her fears that the building work was defective.

 

48. Building work had commenced on 19 September 2020 and it was anticipated that the building warrant application would have been approved by that date. The Registered Person had never warned Referrer A that work could not start until the building warrant had been granted. She could recall the Registered Person telling her that the building warrant would be approved by the anticipated start date in September 2020.

 

49. The main areas of concern for Referrer A was the structural metal beams that were sitting on bits of brick and slate and that the windows had big gaps around the frames. Eventually all of the construction had to be taken down.

 

50. The Registered Person had provided weekly reports and some of the defects had been mentioned within these reports. Also Referrer A could recall the Registered Person raising some of these concerns with Mr JH and that emails were exchanged on that subject.

 

51. The contractor had not been on site since two weeks before Christmas 2019. The structural engineer, Mr RP, had been contacted in early January because of the concerns relating to the poor construction.

 

52. When asked if Mr JH had made any payments to the Registered Person, Referrer A stated that she could not remember whether the payments had been made but she had a vague recollection that something had been mentioned at some point. She could not recall whether the Registered Person ever told her that she was being paid by the contractor. However, she did believe that the Registered Person was providing services to the contractor that involved liaison to review the drawings and to change them when required.

 

53. Referrer A described the emotional impact on her and her family and the financial cost of remediation relating to the project. She confirmed that she provided a review online describing what had happened. The review mentioned both the contractor and the Registered Person. She felt that they had acted together and had taken her money without good cause. She was surprised to receive letters on behalf of the Registered Person alleging defamation in light of the financial loss that she had suffered as a result of the failed project.

 

54. In response to questions put by the Registered Person in cross-examination, she denied that she had been provided with any warning not to commence work prior to the building warrant being put in place. It was suggested by the Registered Person that this advice had been given during the business network meetings when the Registered Person had addressed the members. Referrer A stated that the Registered Person had led her to believe that building work could commence in September 2020. Referrer A drew attention to the WhatsApp messages within the bundle for 27 August 2020 in which the Registered Person indicated that the start date of 15 September 2020 was when they would “go ahead as planned”.

 

55. Referrer A accepted the suggestion from the Registered Person that she had advised that the contractor should not be paid any further money until the work was completed, but she clarified that this was in December 2020 and that it was too late by that stage as almost all of the money had been handed over to the contractor.

 

56. The Registered Person questioned Referrer A in relation to the adverse reviews that had been posted online. Referrer A confirmed that she “felt that I had been robbed” and that the police had been notified. Subsequent inquiries made by the presenter confirmed that the police are investigating the contractor but there is no evidence that the Registered Person is also a suspect in that investigation.

 

57. In response to questions from the Committee, Referrer A confirmed that the Registered Person did raise some concerns with the contractor but that nothing came of this. Nothing was rectified and the contractor appeared to ignore the Registered Person when she advised him of outstanding work yet to be completed.

 

58. She confirmed that she was assured that there was sufficient public indemnity insurance cover, but had been told by the Registered Person that the cover was only there to protect the Registered Person and not her as the client. She confirmed that she had not been able to pursue a claim as she did not have sufficient details to make such a claim against the Registered Person.

 

59. Referrer A confirmed that she had some concerns that the warrant had not been granted as the start dating September 2020 approached. However, messages from the Registered Person led her to believe that it was close to being granted and that they could continue with the anticipated start date. She denied that she carried on without the warrant because of pressure and she said that she had asked about the progress of the building warrant application.

 

60. The Committee asked what contact she had with Referrer B. She confirmed that she was aware that Referrer B had also complained about the Registered Person. He had contacted her around November 2020 and that is when she became aware that the contractor was working on both projects alongside the Registered Person. She then realised that she and Referrer B were “in the same boat”. However, she was unaware that he had made a complaint until after she had submitted her own.

 

Evidence of Mr Euan Geddes (the Inquirer)

 

61. The Inquirer adopted his reports relating to Property A and B as his evidence. The Committee found the Inquirer to be reliable, authoritative and knowledgeable, but also balanced and fair in his approach to his evidence.

 

62. The Inquirer confirmed that his assessment of the evidence established that the terms of engagement provided to the Referrers did not comply with standard 4.4. He conceded that if the terms of engagement that were evidenced in relation to property B were also applicable to property A, then both lacked any reference to the Registered Person being registered with ARB and did not refer to a complaint handling process being available on request.

 

63. The Inquirer confirmed that project management services were not set out in the initial quote dated 20 December 2019 but did appear in the e-mail dated 26 May 2020. He stated that project management obligations involved a higher degree of supervising than would be expected of an architect, who would be expected to carry out a degree of monitoring only. He stated that this variation to the initial agreement should have been notified, in writing, to the Referrer. This was a requirement of standard 4.4 of the Architects Code.

 

64. Furthermore, the Inquirer stated that this arrangement between the Registered Person and the contractor would also raise the potential of a conflict of interest that ought to have been declared to the Referrer in accordance with standard 1.3 and 1.4 of the code. Also, that the absence of any written confirmation of this arrangement would likely result in confusion about the role the Registered Person had in the project.

 

65. The Inquirer stated that the drawings prepared by the Registered Person for property A were clearly inadequate for the purpose of the building warrant application as the building control department had provided multiple letters setting out deficiencies in the information provided which needed to be addressed. He stated that it was quite normal to receive some responses from the building control officer, but the number of outstanding issues that persisted for such a period of time was unusual.

 

66. He also stated that the drawings were inadequate for construction purposes. He noted that the original agreement did not impose a requirement on the Registered Person to provide drawings for construction purposes, but he suggested that the Registered Person should have warned Referrer A that the drawings needed to be improved in order to be sufficient for the construction phase. Furthermore, he stated that the Registered Person should have provided up-to-date progress reports on the building warrant application. Failure to do so was a breach of Standard 6.3 of the Code.

 

67. The Inquirer stated that allowing the construction phase to commence in the absence of a building warrant was contrary to the criminal law for which both the builder and Referrer could be liable. The Inquirer stated that the Registered Person knew, or ought to have known, work had started and her failure to address this issue may suggest tacit approval of commencing building work without a building warrant. Construction work had taken place over a period of 14 weeks without a building warrant.

 

68. In relation to property B, the Inquirer repeated his criticism of the terms of engagement that had been provided by the Registered Person. Also, he would have expected to see a written variation to reflect the Registered Person’s appointment as project manager. Again, this appointment would raise the possibility of a conflict of interest as the Registered Person would, in his view, appear to have had “different masters” on the same project.

 

69. The Inquirer referred to the structural elements that were missing from the construction and other items of defective workmanship that had been identified. In his opinion the Registered Person ought to have readily identified all of these issues and reported them, in writing, to Referrer B. He also criticised the adequacy of the drawings for building purposes He stated that, even if the Registered Person was not contracted to provide construction drawings, she ought to have warned her client of the inadequacy of the drawings alongside a warning that the building warrant had not been granted.

 

70. The Inquirer repeated his concerns about the potential conflict of interest that arose from the Registered Person accepting payments from the contractor on the same project. Again, in his view, this arrangement ought to have been confirmed in writing as a variation of the initial agreement and ought to have been disclosed to the client in accordance with Standard 1.3 and 1.4.

 

71. In cross examination the Registered Person suggested that her role was more consistent with that of a consultant rather than a project manager. The Inquirer stated that it was difficult to describe with precision the role she had undertaken as it was never confirmed in writing. He pointed out that the correspondence evidence suggested the role was clearly that of a project manager. He went on to explain that the Registered Person carried out some of the roles expected of a project manager which also supported the position that it was the role she had undertaken. The Registered Person appeared to be undertaking the role of project manager, at least in part, and appeared to be carrying out that role both for the benefit of the contractor and the benefit of both the Referrers.

 

72. The Inquirer conceded that the payments from the contractor to the Registered Person might not have been referral fees but could have been payments for services. In any event, he asserted, such payments required disclosure in accordance with Standard 1.4 and the arrangement required disclosure to the client in accordance with Standard 1.3. Neither took place.

 

73. The list of missing structural elements and defective works were reconsidered following questions by the Registered Person. He accepted that some of the defective items were raised by the Registered Person in an e-mail dated 13 November 2020. The Inquirer confirmed that the defective work concerning the steel beam at property A had been identified by the Registered Person. However, he described there being a catalogue of other critical defects that were not identified.

 

74. The Inquirer confirmed that, in respect of property B, the Registered Person had identified some defects but not all. The Registered Person asserted that she had addressed these in person, but had not made a written record. The Inquirer stated that the Registered Person should have identified all defects in writing and should have confirmed that work was commencing in breach of the building warrant regulations. That was the minimum that a competent architect should have done. The Inquirer produced an advisory note from RIAS that suggested to architects that they should write to their clients in relation to any potential breach of building warrant regulations. Furthermore, if the work did not stop then the architect should consider terminating their agreement rather than tolerating further breaches of the law.

 

Evidence of the Registered Person

 

75. The Registered Person, in her oral evidence, adopted her written responses to ARB that she had provided during the investigation stage.

 

76. She asserted that she had informed both referrers that they should not proceed with building work in the absence of a building warrant. This had been explained during the 60-second speeches that she made to the membership of the local Business Network group. She confirmed that she would have repeated this warning to her clients verbally, but had not confirmed it in writing.

 

77. The Registered Person confirmed that she recommended the contractor to both referrers, but she had recommended that they seek alternative quotes from other builders. At the time that she was recommending the contractor, she was unaware of any problems with the quality of his workmanship.

 

78. These two cases were the first where the Registered Person had become involved beyond the design process. She stated that she would not normally get involved in the construction phase. The arrangement with the contractor was that they would agree a lump sum payment to the Registered Person, and she would provide assistance to the contractor that was not limited by time. She now realises that this raised a potential conflict of interest and that it should have been confirmed in writing. She stated that her motivation was never dishonest, and she believed that all parties would benefit from the arrangement. She described herself as acting as a “bridge” between the client and the builder by answering questions on their behalf. She confirmed that she now realises she wrongly used the term of project manager to describe her role.

 

79. The registered person agreed that she undertook some project management tasks but that most were not done by her. She now realises the importance of providing clarity as to the extent of the role that she was accepting when she entered into the arrangement with the contractor.

 

80. In relation to property B she stated that she was unaware of the payments that had been made by Referrer B directly to the contractor. She had urged payments to stop when it became clear that much work had yet to be completed.

 

81. She explained that the delays in obtaining a building warrant for property B were largely due to the changes that she made to the design drawings at the request of the client. She explained that building control had helped her find information regarding fire protection with which she was unfamiliar. This caused some delay.

 

82. Both clients had booked the contractor for a fixed start date and the Registered Person believed that they were under pressure to commence for financial reasons. The registered person believed that all parties were aware that the building warrant had not been granted but wanted works to commence nevertheless. She stated that she had only confirmed that some preparatory work could be undertaken whilst awaiting building warrant approval. Tasks such as cleaning and stripping-out were permissible but no more than that.

 

83. She stated that it was only when she undertook a site visit at property B that she became aware that work had exceeded that which was permissible without a building warrant. She stated that she was shocked at what she saw. Not only had work commenced but she became aware that the quality was unsatisfactory. Rainwater was getting into the property and she felt frustrated because she could do nothing to help.

 

84. The Registered Person stated that the same occurred at property A. When she undertook a site visit she could see that the contractor had started work without the building warrant application being granted. She felt that she could not stop anything and did not know who was responsible for commencing work. She felt overwhelmed at this stage. She conceded that she realised that she was not ready to manage such a situation.

 

85. She stated that she completed her site visit reports to minimise the impact on her clients. The contractor was asking the clients for more money at a time when the Registered Person could see that he had not completed the work that had already been paid for. In relation to both projects she was unaware of the direct payments being made by the client to the contractor.

 

86. During cross examination the registered person denied that she offered the free service of project manager in order to encourage clients to instruct the contractor. She did not know whether her clients would have instructed the contractor without the incentive that she had provided.

 

87. She confirmed that she did not write to Referrer A to explain the nature of her role as project manager as she had provided that information face to face. She conceded that she should have written to her client reminding her of those conversations and should have set out the tasks that she would have undertaken for that project.

 

88. The Registered Person accepted that she had not dealt with all of the issues raised by building control in relation to the building warrant application for property A. However, she stated that many of the issues were resolved during telephone conversations. There were no written records of these conversations but some amendments are reflected on the design drawings and contained within text “clouds”.

 

89. The Registered Person was challenged about the information that she had provided to Referrer A about what type of work could be undertaken before the building warrant application had been granted. She was referred to a text message dated 21 September 2021 in which she had stated to Referrer A “starting the works are good to go (unofficially)”. The Registered Person stated that official work would have been that which required the building warrant and unofficial work would have been preparatory work that did not require the building warrant. She was unable to identify any other correspondence within which she made that distinction or used that terminology.

 

90. The Registered Person acknowledged that the terms of engagement that she was using at the relevant time did not fully comply with Standard 4.4 of the Code in that they did not contain a statement that she was registered with the ARB and that she was subject to the Code or that she had a complaints handling procedure available on request.

 

91. When questioned about her weekly site visits and identifying defective works the Registered Person confirmed that she inspected the work, but when asked whether she checked the quality of the work responded, “could be”. She explained that this was not the main aim of her presence and that she assumed the quality would be acceptable due to the previous projects of the contractor. She stated that she was not looking for faults. She confirmed that she issued basic reports provided to Referrer A and the contractor. These reports did not identify any defective works. However, the Registered Person did identify emails within which defective work had been mentioned.

 

92. The Registered Person drew attention to emails that followed site visits on 19 November 2020 and 26 November 2020. These emails expressed concerns about the damp proof membrane and padstone supports to a steel beam. She accepted that she was not “tough” enough with the contractor and that there were better ways in which she should have raised her concerns.

 

93. When questioned about property B, the Registered Person agreed that the client had been led to believe that she would act as project manager even though that was not her intention. She agreed that she should have set out in more detail what she would be undertaking as part of the project. When challenged as to the extent of the warning that she had provided to Referrer B not to commence building work before the building warrant was granted, she stated that she had provided verbal warnings but nothing had been committed to writing. She also stated that the client would have heard her give the same warning at the business network meetings.

 

94. The Registered Person confirmed that following a site visit on 19 October 2020 it was apparent that construction work had commenced before the building warrant application had been granted. She was shown text messages dated 12 December 2020 within which it appeared that the client had only just become aware that the building warrant had not been granted. The Registered Person denied this was the case and stated that the clients were aware that building warrant approval had not yet been resolved.

 

95. When questioned regarding missing elements from the construction, including a steel ridge beam, the Registered Person accepted that her reports did not mention any of these items but, she stated, they had been raised on site with the contractor or his employees.

 

96. The Registered Person was asked whether she thought that her drawings were suitable for construction purposes. She stated that on her previous projects, where her drawings had been submitted for building warrant approval, the designs had gone on to be constructed. She assumed, therefore, that the drawings must have been suitable. She added that she believed all of her drawings contained a note stating that they were for building warrant permission only and therefore not suitable for construction purposes.

 

97. She agreed that her written reports did not contain sufficient reference to defective or missing elements of the construction. She repeated that these items were raised verbally with the contractor and not confirmed in writing.

 

98. In response to questions from the Committee, the Registered Person confirmed the history of her professional activities and her transition from sole trader to limited company. She conceded that she was not entirely familiar with the terms of engagement that she had been issuing to her clients. She accepted that the terms of engagement were inconsistent in relation to whether VAT was charged or not and that one of her terms stated that any verbal communication must be confirmed in writing to be effective.

 

99. The Registered Person set out her knowledge of the contractor prior to these projects commencing. She stated that he had been involved in a church conversion project and was also working for people that she knew. She indicated that other projects in which the contractor was involved also ended with difficulties. In total 4 clients of hers had used the services of the contractor. An arrangement had developed between the Registered Person and the contractor in that he would ask her questions about projects. She was very busy and it was agreed that the contractor would pay the Registered Person for her time. The Registered Person produced an invoice relating to property A that showed she expected payment of £4,350 for her involvement with the contractor.

 

100. The Registered Person agreed that in the text correspondence dated 12 December 2020 (where her client had expressed surprise that the building warrant had not been granted despite work commencing some weeks earlier) that she had stated that it was “common practise” to start work before the building warrant had been granted. However, she stated that she was referring to starting preparatory work and not full construction work.

 

Findings of fact

 

101. In reaching its decision the Committee carefully considered the submissions made by both parties together with the evidence presented to it. The Committee also had regard to the advice of the Legally Qualified Chair that, in respect of disputed issues of fact, the onus of proof was on ARB and that the standard of proof was the civil standard of the balance of probabilities. In determining the facts, the Committee considered the evidence in the round and noted that it was entitled to draw reasonable inferences from established facts, but that it was not to speculate.

 

Particular 1(i) Failed to provide Referrer A with adequate terms of engagement contrary to Standard 4 of The Architect’s Code: Found Proved.

 

102. The Committee is satisfied on the balance of probability that the terms of engagement that would have been available to Referrer A would have been identical to those that were provided to Referrer B. The letter to Referrer A dated 20 December 2019 provided a link to the Registered Person’s website and the Registered Person stated in evidence that she believed the terms of engagement would have been the same as sent to Referrer B. The Registered Person did not suggest to the Committee that the terms of engagement would have been any different. As such, the Committee is satisfied that the terms of engagement would have lacked information that the Registered Person had a complaints-handling procedure available on request or that the Registered Person was registered with the Architects Registration Board and was therefore subject to the Code. This was not compliant with Standard 4.4 of the Code as alleged.

 

Particular 1(ii) Failed to ensure that variations to the initial agreement were recorded in writing contrary to Standard 4 of The Architects Code: Found Proved.

 

103. The Committee has considered whether the initial agreement was, in fact, varied by the Registered Person offering to act as a “project manager”. The Committee is satisfied on the evidence that the Registered Person continued to have a role, whatever the description, that continued her professional relationship with Referrer A considerably beyond that which was set out in the original agreement of 20 December 2019. In her email of 26 May 2020 the Registered Person offered to provide project management services “with no extra cost”. The only proper inference to draw from this offer to Referrer A is that the project management service was for the benefit of Referrer A and so was a material variation to the professional relationship that had existed until that point. The Registered Person did not explain that the project management service was of no “extra cost” to Referrer A only because it was being paid for by the contractor, Mr JH.

 

104. The variation to the initial agreement created by the email of 26 May 2020 was not properly recorded in writing in a way that accurately described the true effect of the variation.

 

Particular 1(iii) Failed to adequately define her role as project manager for the construction stage of the project: Found Proved.

 

105. The Committee is satisfied that there is almost no explanation from the Registered Person as to her role as project manager. The 26 May 2020 email provided that the Registered Person would provide “all the paperwork required during the works and revise and specification/drawing if it is required as per the site.” The Registered Person’s evidence was that she never meant to suggest that she would be a project manager and used the wrong terminology to describe herself as such.

 

106. The Registered Person explained that she did not carry out many of the items expected of a project manager as set out in the RIBA Job Book, but the Committee was satisfied that many tasks in that same list were carried out by her and would have been expected by Referrer A to have been carried out. In any event, the Registered Person did not apply her mind to this role at the relevant time. She carried out site visits and reported to Referrer A with her observations and gave instructions to the contractor. These are all consistent with the Registered Person acting in the role of project manager but the detail of this role was never sufficiently defined by the Registered Person at any stage.

 

Particular 1(iv) Produced inadequate drawings for Referrer A’s building warrant submission: Found Not Proved.

 

107. The Committee noted that the drawings prepared by the Registered Person evolved during the period of the building warrant (BW) application process. The Committee is satisfied that this is not unusual in BW applications, and this was conceded, in part, by ARB. It is often described as an iterative process. The Registered Person was unable to provide any written evidence of the detail of her responses and explained that she usually liaised by telephone with the building standards officer.

 

108. It appeared that the Registered Person was making progress dealing with the observations made by the building standards officer, but this was taking a long time and some tasks appear not to have been addressed at all, or, were not addressed to the satisfaction of the building standards officer.

 

109. The Committee noted that the responses from local authority building standards often contained the same observations of failings in the design drawings. These appear to have persisted despite the Registered Person apparently responding to earlier requests for revisions.

 

110. Eventually the Registered Person was not in a position to complete the BW application as she was dismissed by Referrer A. The Inquirer stated that it was, in his experience, “unusual” for there to be 6 letters from building control and still have unresolved issues. The Committee noted that this was taking place during the Covid 19 pandemic, but it is unclear whether this was a factor.

 

111. The Committee were satisfied that the Registered Person was taking a long time to resolve the matters raised by building control and agree with the Inquirer’s assessment that this was “unusual”. However, the Committee is not satisfied on the balance of probabilities that this was so unusual that it could be properly said that the drawings were “inadequate”.

 

Particular 1 (v) Allowed work to commence on site without the appropriate approvals: Found Proved.

 

112. The Committee is satisfied that the works at Property A commenced around September 2020 before the building warrant application had been approved.

 

113. The Committee was not satisfied that the Registered Person was in a position to “allow” the work to commence at all in the sense that she had ultimate control over the work taking place. However, she knew it was happening and that it should not be taking place before the building warrant was granted. She stood by and watched the work develop beyond merely preparatory work. On 21 September 2021 she sent a message to Referrer A stating “starting the works is good to go (unofficially)”. The Registered Person sought to explain that “unofficially” was a term she used to describe work that could take place before a building warrant was granted. This terminology was not repeated elsewhere and the Committee was not persuaded that this was a proper interpretation.

 

114. The Committee is satisfied on the balance of probability that the evidence confirms that the Registered Person gave every impression to Referrer A that the work could progress without explaining the restrictions that would have been obvious to her when she knew that the building warrant was not yet in place.

 

115. The Registered Person gave evidence that she gave warnings of the perils of starting work before a building warrant was granted during her presentations at the weekly business networking group meetings. There is no evidence that Referrer A was present at these meeting or heard these warnings. The Registered Person confirmed in evidence that she provided no written warning to Referrer A, even when it became obvious that building work had commenced. All warnings, she said, were given in verbal communications only and were not confirmed in writing thereafter, even though this conflicted with her terms of engagement at clause 1.5 which stated that communications that were not in writing would have no effect unless confirmed in writing.

 

116. The Registered Person became aware the extent of the building work that had taken place during the first site visit on 9 October 2020. The Registered Person did state in a message to Referrer A later the same day that work on the roof structure should not take place as the building warrant had not been granted yet. However, by 23 October 2020 the Registered Person had undertaken a further site visit and taken images of building work that was far more substantial. There is no evidence that the Registered Person provided any further warning to the Referrer A that this was not permitted. Again, in evidence, the Registered Person stated that all her warnings were verbal and not confirmed in writing.

 

117. The Committee is satisfied that the Registered Person allowed the work to be started without a building warrant but only in the sense that she tolerated the commencement of work without raising any adequate or appropriate warning of the risks.

 

118. The Committee accepts that there was some pressure to commence works and to have the works completed before Christmas of that year. However, this does not provide an excuse for tolerating the commencement of work. The Registered Person now accepts that she ought to have been more careful and confirmed any advice she gave in writing. The Committee are not satisfied that the Registered Person gave any form of proper warning even when it became obvious that work was taking place without a building warrant in place. In this regard the Committee prefers the evidence of Referrer A and accepts that no warning was given.

 

119. The Committee is satisfied that the Registered Person allowed work to commence in the sense that she tolerated and acquiesced to the work taking place without issuing any form of warning when it was her professional duty to provide a written warning to Referrer A.

 

Particular 1 (vi) Failed to identify defective work on site during her inspections: Found Proved.

 

120. Defects were highlighted in the evidence of Referrer A and followed her concerns about the packing of a steel beam using odd pieces of state. This caused her to instruct other building professionals to inspect the work. She engaged an Architectural Technician, CM. CM refers to nine specific defects in the builder’s work which he had identified from his inspection. These defective works were:

 

i. No works appear to have been carried out for any form of solum treatment.

ii. It is not clear on site what has been formed at foundation level. It appears unlikely that any form of oversized/eccentric foundation has been formed to the boundary wall, the foundation may therefore extend beyond the boundary, into the neighbouring property.

iii.Underbuilding has been carried out using single leaf blockwork construction.

iv. No allowance has been made for solum vents.

v. There is no continuous wall plate to the underbuilding, with timber packers supporting the timber kit in some parts.

vi. The joist installation would not appear to allow the extension floor to run through at the same level as the existing floor.

vii. The kit has been built to the edge of the existing house, any timber lining to the extension will project beyond that point.

viii. The kit does not appear to have been adequately constructed, particularly with cripple stud, lintel and dwang provision.

ix. The steel beams to the slappings to the rear external wall are supported on random pieces of broken blockwork and slate packers. These should be properly supported on padstones, built from solid jambs

 

121. A further list of defects was prepared at the request of Referrer A in the report of KW, a building surveyor, dated 8 February 2021 following his site visit on 21 January 2021. The defects identified were;

 

i. No inner leaf wall had been constructed and therefore no cavity with concrete infill to DPC level exists at any part of the solum.

ii. The top of the outer leaf wall head at the rear, was approximately 35mm off the level from one end to the other and the timber kit was wedged up at the east to compensate.

iii. No wall plate had been fitted below.

iv. Solumn walls have not been fitted by Furfix starter bar to the existing structure.

v. Timber floor joists had been fitted in the new extension however the lack of wall plate means that the joists are not fitted to the solumn walls.

vi. The finished levels of the new extension floor once the new chipboard is fitted, will not be at the same level as the existing house floors and a step of approx. 70mm will be required at the lounge. The new patio door threshold will also require a 120mm step.

vii. The fixings used to tie the timber joist bridle supporting the new floor joists on the existing structure are of an inadequate size and depth (50mm grip into the existing wall).

viii. The bridle is split at the centre joint bridle end where the fixings have been forced into the timber.

ix. No perimeter support dwangs nor chipboard flooring have been fitted.

x. No cripple studs have been fitted at the doors or window openings.

xi. The timber lintels over the window opening have only 40mm rest as opposed to at least 100mm and are not spiked together.

xii. The timber lintels over the patio doors have no rest whatsoever.

xiii. No mid dwangs have been fitted to the timber kit.

xiv. The uprights at each of the kit corners are absent.

xv. The fixings used to tie the kit to the existing structure are of an inadequate size and depth (50mm grip into the existing wall).

xvi. The two triangular parts of the timber kit at each gable of the extension have not been fitted and therefore the extension is not wind and watertight allowing rain water onto the internal timbers.

xvii. The existing brick work below the steel beams were all cut vertically in a rough manner and have not been tied together to form a brick supporting peer for the beams.

xviii. The new shower room floor was off the level by approximately 40mm from one end to the room to other over 2.8 metres east to west.

xix. The new joists below the new shower room were packed up on the existing sleeper wall.

xx. The end joist next to the perimeter wall was jacked up on timber stilts resting on boulders in the solum soil with one of the stilts resting on a small car jack.

 

122. The Registered Person did not challenge that the defects were present and had been correctly identified. During cross examination the Registered Person pointed out that she had raised some concerns regarding defective work in her emails to the contractor and/or Referrer A dated 20 November 2020 and 30 November 2020. These concerns identified defects with the DPM, the padstones supporting a steel beam and vents in the wall to ventilate the floor area. In respect of other defects, the Registered Person stated that she raised these with the contractor or his employees during site visits. Again, the Registered Person did not make a written record of any if these conversations and so could not provide any evidence of these conversations beyond her own recollection.

 

123. The Committee did not find it credible that the Registered Person could have identified most or all of the defects and then select only some of the defects to be raised in writing and to only mention the remainder to the contractor, his employees or Referrer A in conversation.

 

124. The Committee is satisfied that the list of defects as set out by ARB are defects that the Registered Person ought to have identified during her site visits and should have reported in writing. Aside from those defects that were identified by the Registered Person in her emails of 20 November and 30 November 2020, the Committee is satisfied that the Registered Person failed to identify the remaining defects. To that extent this particular is proved.

 

Particular 1 (vii) Failed to disclose the conflict of interest which arose during the project in accordance with Standard 1.3 of The Architect’s Code: Found Proved.

 

125. Having found particular 1(iii) proved and being satisfied that the Registered Person took on the role of project manager, the Committee was satisfied that the admitted fact that the Registered Person received a fee from the contractor is relation to this role presented an obvious conflict of interest. This arrangement ought to have been disclosed in full to Referrer A. It is a clear requirement of Standard 1.3 of the Code. The Committee finds that this arrangement would compromise her ability to act with impartiality when liaising between the contractor and Referrer A.

 

126. The Registered Person, belatedly, has acknowledged in her evidence that she should have identified this conflict of interest and did not dispute that, with hindsight, she agreed that a conflict of interest arose because of the financial arrangement with the contractor. Very late in the hearing the Registered Person disclosed the invoice that she sent to the contractor showing that she expected £4350 for her involvement with the contractor. This sum is significantly more that she was paid by Referrer A for the design drawings. It is a fact that she did not disclose this arrangement to Referrer A.

 

Particular 2(i) The Registered Person’s actions in respect of 1(vii) above: Found Proved.

 

127. The Committee applied the test for dishonesty as per the Ivey The first stage of the test was to satisfy ourselves what the Registered Person genuinely believed to be the facts. The Committee found that she knew that she had a financial arrangement with the contractor during the project and also that she had an existing professional relationship with Referrer A. Further, she knew that she had provided information to Referrer A in the email of 26 May 2020 and that throughout the project she had not disclosed the full nature of her relationship with the contractor, particularly that she had invoiced the contractor £4,350 in September 2020.

 

128. The Committee then considered the second stage of the Ivey test, whether an ordinary decent person would think this conduct was dishonest. The Committee finds that the Registered Person could have told Referrer A the truth of the relationship with the contactor, but she chose not to disclose the full details of the financial relationship. The email of 26 May 2020 sets out the Registered Person describing how she would be project manager “with no extra cost” which was not the whole truth. The Registered Person knew that she was to be paid by the contractor for this service and, indirectly, Referrer A was paying for this through the construction price. An ordinary decent person would assess this statement as misleading to Referrer A as it hides the actual relationship between the Registered Person and the contractor.

 

129. The Registered Person might have convinced herself that what she was doing did not need to be disclosed to Referrer A and was proper conduct. However, she chose not to provide Referrer A with the details of the truth of the arrangement with the contractor at any stage in the project. It was a continuing decision by the Registered Person to hide from Referrer A that she was making an undisclosed financial gain from the same contractor she had actively encouraged Referrer A to employ. The Committee finds that a ordinary decent person would consider that this was dishonest conduct.

 

Particular 2 (ii): The Registered Person’s actions in respect of 1(vii) above lacked integrity: as this is alleged in the alternative, the Committee makes no finding in this particular.

 

Particular 3 (i) Failed to provide Referrer B with adequate terms of engagement contrary to Standard 4 of The Architects Code: Found Proved.

 

130. The Committee approached particular 3(i) with reference to its finding in respect of particular 1(i). In this case the Committee has seen the terms of engagement that were provided to Referrer B and can assess their compatibility with Standard 4.4. The Committee accepts the opinion of the Inquirer that these terms of engagement failed to include that the Registered Person had a complaint-handling procedure available on request and that the Registered Person was registered with the Architects Registration Board and was therefore subject to the Code. As such, this particular is proved on that basis.

 

Particular 3 (ii) Failed to ensure that variations to the initial written agreement were recorded in writing contrary to Standard 4 of The Architects Code: Found Proved.

 

131. By email of 21 May 2020 the Registered Person had put Referrer B in touch with the contractor, who she recommended and described as having worked with before. The Committee accepts the evidence of Referrer B that there was a meeting at Property B between the Referrer B, the Registered Person and the contractor during which the contractor described that the Registered Person would be acting as project manager. The Committee accepts the evidence of Referrer B that the Registered Person acquiesced to this suggestion and thereafter appeared to be acting in that role, at least in part.

 

132. The Committee is satisfied that this amounts to a variation of the initial agreement between the Registered Person and Referrer B and ought to have been recorded in writing in accordance with Standard 4 of the Code.

 

Particular 3 (iii) Issued inadequate drawings and information for construction purposes: Found Proved.

 

133. The Committee notes that the Inquirer agrees that the Registered Person was not instructed to produce drawings for construction purposes. The criticism is that the Registered Person ought to have drawn Referrer B’s attention to this before building work commenced. The Registered Person gave evidence that she had limited experience of being involved in the construction phase of her previous projects and had assumed that her drawings were sufficient for construction. This assumption is not supported by any real experience or evidence. It is the Commitee’s view that the drawings were inadequate for construction purposes but the Registered Person had not produced the drawings for that purpose.

 

Particular 3 (iv) Allowed works to commence on site without the appropriate approvals: Found Proved.

 

134. The Committee accepts the evidence of Referrer B that he was given every impression by the Registered Person that building work could commence around October 2020. Referrer B was always aware that a building warrant was necessary before work could commence and relied upon the Registered Person to provide the assurance that the work was compliant. This could well have included warnings given by the Registered Person before work commenced, but these are undocumented. In evidence, the Registered Person stated that she provided some form of warning during her presentations to the business network club at which Referrer B might have been one of the persons present. This is not an acceptable method of providing Referrer B with a warning.

 

135. The Committee is satisfied that work commenced before the building warrant application had been resolved and that the Registered Person would have become aware of that during her site visits. The reports that were sent to Referrer B indicate that the Registered Person was fully aware of works taking place without the warrant being in place. There are no warnings provided by the Registered Person to Referrer B within these reports.

 

136. The Committee considered that the WhatsApp messages from Referrer B’s wife in December 2020 demonstrated that the Registered Person had not provided sufficient warnings and appeared to show a casual approach by the Registered Person who referred to it being “common practice” for work to start before the warrant was granted.

 

137. The Committee is satisfied that the Registered Person allowed work to commence in the sense that she tolerated and acquiesced to the work taking place without issuing any form of warning when it was her professional duty to provide a written warning to Referrer B.

 

Particular 3 (v) Failed to identify key structural elements on site which were missing: Found Proved.

 

Particular 3 (vi) Failed to identify defective works on site during her inspections: Found Proved.

138. The Committee considered particulars 3(v) and 3(vi) together. The Committee was not convinced the Registered Person discussed the missing structural elements or defective works with the contractor or his employees as she had stated in evidence. If the Registered Person did have such conversations the absence of a written note means that, even if these issues were noticed, they were not formally identified to either Referrer B or the contractor such that any proper remedial action could be taken.

 

139. The structural elements that were missing ought to have been obvious and of concern to the Registered Person as they featured in the structural engineer’s drawings. These were:

i. The steel ridge beam;

ii. The steel beam at first floor level;

iii. The strengthening to the rafters supporting the dormer cheeks;

iv. The strengthening to the joists; and 

v. The trimming to the stair.

 

She should have been aware of and alarmed at these missing elements and reported them in writing.

 

140. The defective works were;

i. Incorrect dormer cheek construction. 

ii. Additional joists having not been installed before chipboard.

iii. Flat roof joists incorrectly sized.

iv. Flat roof joists not sitting on wallhead.

v. Dormers basic construction. 

vi. Basic frame of the attic partitions.

 

141. If, as the Registered Person suggested in evidence, the contractor was resistant to hearing from her, she should have confirmed all her concerns in writing and taken a more robust approach. The Registered Person demonstrated a lack of appreciation of the seriousness of these issues and also demonstrated that she lacked the capability to deal with and manage the contractor for the benefit and protection of Referrer B. This inability to take effective action against the contractor is, in the view of the Committee, linked to the lack of impartiality created by the undisclosed financial arrangement she had with the contractor.

 

142. The Committee notes the suggestion of the Inquirer, to which the Registered Person appears to agree, that she was out of her depth. The confusion the Registered Person had created as to her project management role appears to also have been part of the explanation for the absence of a proper report of obvious defects. The Committee is satisfied that the Registered Person failed to identify both the structural elements and the defective works.

 

Particular 3 (vii) Received payment from the contractor during the construction stage, without disclosing this to the client: Found Proved.

 

143. The Registered Person admitted in her responses to ARB that around October 2020 she received approximately £1,200 from the contractor and that this was not disclosed to Referrer B. The Registered Person was also able to provide invoices and correspondence to the contractor confirming that she had this financial arrangement and was expecting further payments for this project. As such, the Committee is satisfied this particular is proved.

 

Particular 4 (a) The Registered Person’s actions at 3(iv) were dishonest: Found Proved.

 

144. The Committee considered the test for dishonesty as set out in the Ivey First, the Committee assessed what was the genuinely held belief of Registered Person as to the facts when she allowed works to start on site without building warrant approval. The Committee finds that the Registered Person knew that the warrant application had not been approved and that building works had commenced that required the warrant. The Committee also finds that she knew that Referrer B was aware of the need for a warrant before works could commence. The Committee also finds that the Registered Person was aware that the situation was improper and that works should not proceed until the warrant application had been approved as she had lectured the networking group to this effect.

 

145. The Committee’s findings in relation to particular 3(iv) described the Registered Person as tolerating the commencement of work. The Committee does not find that she positively encouraged the commencement of work without a building warrant, but she did little to stop it. She did not positively suggest that the warrant had been granted and so had not been untruthful in that sense. However, her inaction contributed to this unacceptable state of affairs continuing. The Committee accepts that her intention was, largely, to assist the progress of the project, but she was wrong in the way she approached this issue.

 

146. The Registered Person says that Referrer B was aware of the lack of a building warrant and was also tolerating the building work commencing, the Committee does not accept this and prefers the evidence of Referrer B. The Registered Person demonstrated that she was not candid with Referrer B and was tolerating a situation that could have potentially amounted to a criminal offence for Referrer B and the contractor. The Registered Person might not have been entirely honest with herself and had convinced herself that remaining silent was a permissible approach. An ordinary decent person would not see this in the same way and would, in the view of the Committee, consider this conduct to be dishonest.

 

Particular 4 (b) The Registered Person’s actions at 3(iv) lacked integrity : this particular is alleged in the alternative to the above so no decision is required.

 

Particular 5 (a) The Registered Person’s actions at 3(vii) were dishonest: Found Proved.

 

147. The Committee has applied the same reasoning as set out in our finding in respect of particular 2(i). The arrangement that the Registered Person had with the contractor with respect to Property B was near identical to that in respect of Property A and the Committee could not distinguish the cases such as to justify a different decision.

 

148. The arrangement with the contractor amounted to a clear and obvious conflict of interest. In respect of Property B, the ARB were able to prove the receipt of a payment from the contractor. The Registered Person has accepted in evidence that there was a financial reward that she expected from both projects.

 

149. The Committee applied the test for dishonesty as per the Ivey The first stage was to satisfy ourselves as to what the Registered Person genuinely believed to be the facts. The Committee found that she knew that she had a financial arrangement with the contractor during the project and that she had an existing professional relationship with Referrer B. Further, during the project she had not disclosed the full nature of her relationship with the contractor, particularly that she had invoiced the contractor around October 2020.

 

150. For the reasons previously set out, the Committee finds the failure to disclose this arrangement to Referrer B would be considered dishonest by an ordinary decent person.

 

Particular 5 (b): this particular is alleged in the alternative to the above so no decision is required.

 

Decision on Unacceptable Professional Conduct (UPC)

 

151. Having found the particulars of the allegation set out above proved, the Committee went on to consider whether the Registered Person’s conduct amounted to Unacceptable Professional Conduct (UPC).

 

152. The Committee heard submissions from ARB and the Registered Person and accepted the advice of the Legally Qualified Chair. The Committee reminded itself that a finding of UPC is a matter for its own independent judgment having regard to any facts found proved. There is no burden or standard of proof.

 

153. The Committee noted that UPC is defined in section 14(1)(a) of the Architects Act 1997 as conduct which falls short of the standard required of an Architect.

 

154. The Committee further noted that misconduct, which is akin to UPC, was defined in the case of Roylance v GMC [2000] 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”.

 

155. In the Registered Person’s case the standards required to be followed by the Registered Person are contained in The Architects Code: Standards of Conduct and Practice 2017.

 

156. The Committee recognised 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.

 

157. The Committee had regard to the case of Spencer v General Osteopathic Council [2012] EWHC 3147 (Admin) and noted that for a finding of UPC 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” is required.

 

158. The Committee also recognised that any failing must be serious as was confirmed in the case of Vranicki v Architects Registration Board [2007] EWHC 506 (Admin).

 

159. The Committee considered whether any of the facts as found proved did not amount to UPC in relation to any particular. The Committee finds that particular 3(iii) did not amount to UPC. It is a proved fact the Registered Person provided drawings that were inadequate for construction purposes, but she was not contracted to do so. The Committee considers that this failing was not serious enough to amount to UPC. Subsequent failings in connection with the construction phase are dealt with in other proved particulars.

 

160. In the Committee’s view, the Registered Person’s actions in respect of particulars 2(i), 4(a) and 5(a) were the most serious as they were findings of dishonesty. The Committee are certain that these particulars are clear breaches of Standards 1.1, 1.3 and 1.4.

 

161. The Committee is satisfied that the Registered Person recommended the contractor to both Referrers knowing that she stood to gain from the recommendation. This was an obvious conflict of interest which she did not disclose to either Referrer. Further, the Registered Person mislead Referrer B by not providing full information as to the progress of the building warrant application when she knew work had commenced far beyond that which was permissible.

 

162. These particulars also breach Standard 6.3 as the Referrers were not kept informed as to the progress of the building warrant application and Standard 6.4 in that the Registered Person failed to exercise impartial advice as a consequence of the undisclosed conflict of interest. Particular 1(v) also related to the Registered Person allowing work to start without building warrant approval but was not alleged to have been dishonest. The Committee finds that this particular amounts to a breach of Standard 6.3.

 

163. This conduct, taken as a whole, was dishonest and a serious departure from proper standards of behaviour. It clearly amounts to UPC.

 

164. The Committee then considered the particulars at 1(vi), 3(v) and 3(vi) as these all related to the Registered Person failing to identify missing structural elements or defective work. The Committee finds that these particulars all breach Standard 2.1. The Registered Person undertook to carry out the role of project manager and she was not competent to do this. By her own admission she took on this role when she was not experienced or skilled enough and the results prove that she was incompetent in carrying out this role. The result was a chaotic construction phase in both projects which contributed to the serious consequences for the Referrers, both emotionally and financially.

 

165. The public is entitled to expect that Architects will not undertake work beyond their capabilities or competence. The failings of the Registered Person in this respect are very serious. The potential for serious harm to a client is an obvious risk and, in these cases, materialised for both Referrers. The Committee finds UPC is proved.

 

166. The Committee then considered particulars 1(i), 1(ii), 1(iii), 3(i) and 3(ii) as these all related to the way in which the Registered Person defined her role and her terms of engagement.

 

167. The Committee is satisfied that the Registered Person breached Standard 4.4 in that her terms of engagement, for both projects, failed to include all the items that are prescribed by the Standard. The Committee was not satisfied that this breach alone could be described as so serious as to amount to UPC. However, the Committee considered the lack of a written variation of the terms of engagement to reflect that the Registered Person was taking on the project manager role was a serious breach of Standard 4.5. The absence of a written variation was a factor in the confusion that persisted in both projects. Clarity is an essential requirement in establishing the responsibilities of the Registered Person and the public is entitled to expect Architects to be competent and professional in the management of their business. These breaches are serious and amount to UPC.

 

Decision on Sanction

 

168. Having found the Registered Person’s actions amounted to Unacceptable Professional Conduct (UPC) the Committee then went on to consider what, if any, sanction to impose in this case. The Committee heard submissions on behalf of ARB and the Registered Person.

 

169. The Committee accepted the guidance of the Legally Qualified Chair and considered the following case law; Fuglers & Others v Solicitors Regulation Authority [2014] EWHC 179, Rashid and the General Medical Council [2006] EWHC 886 (Admin).

 

170. The Committee took careful note of the ARB sanctions guidance 2022. The Committee first assessed the seriousness of the finding of UPC with reference to the facts found proved during the hearing and by considering the competing aggravating and mitigating factors.

 

171. The Committee considered that there were the following aggravating factors that applied in this case.

i. The case involved a finding of dishonesty towards her clients

ii. Her actions contributed to substantial harm being caused to her clients both financially and emotionally

iii. Her actions allowed her clients to be at risk of criminal liability

iv. The findings amounted to a pattern of poor conduct over an extended period of time and relating to both projects A and B

 

172. The Committee considered the following mitigating factors applied in this case.

i. The Registered Person has no previous disciplinary findings

ii. The Registered Person has taken some remedial steps to address the shortcomings in her ability to be involved in project management of the construction phase of a project

iii. The Registered Person has demonstrated sincere regret and offered apologies to the Referrers and their families

iv. The Registered Person has developed insight into her shortcomings and sought remedial training and thereafter realised that she was unsuited for the project management area of architecture

 

173. Taking all these factors into account and assessing them against the allegation found proved, the Committee assesses that the seriousness of this matter is at a high level. The Committee acknowledges that, although the Registered Person contributed to the loss and suffering of the Referrers, she was not the main cause and that the contractor bears the majority of the blame for the poor construction of both projects.

 

174. The Committee considered that imposing no sanction would not be appropriate and would fail to adequately mark the seriousness of the failings. The Committee therefore considered each available sanction in order from the least to the most serious.

 

175. A Reprimand may be imposed in relation to offences which fall at the lower end of the scale of seriousness. This matter is not of that description and so a reprimand would not reflect the serious nature of the findings.

 

176. In accordance with the guidance provided to the Committee, the next sanction in order is a penalty order. The Committee finds that the case is too serious to merit a penalty order as it involved findings of dishonesty and a financial benefit to the Registered Person by her conduct.

 

177. The Committee next considered a suspension order. This is suitable for serious cases, but only where, for example, the conduct is not fundamentally incompatible with continuing to be an architect. The Committee is satisfied that the dishonesty findings and putting her interests before those of her clients was a serious departure from proper conduct.

 

178. The Registered Person was practising perfectly well albeit in a limited field before venturing into the area of project management for which she was inexperienced and unsuited. The issues continued for a protracted period. The Committee believes that it is unlikely that the conduct will be repeated in light of the insight and rehabilitative steps already undertaken.

 

179. However, the seriousness of the findings of dishonesty make a suspension order inappropriate. The conduct is fundamentally incompatible with continuing to be an architect and only an order for erasure would maintain public confidence in the profession.

 

180. The decision of the Committee is to impose an Erasure Order. The Committee concluded that the Registered Person should not be permitted to apply to rejoin the Register for a period of 2 years.