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Ms Joana Luisa Da Silva Cipriano

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

Ms Joana Luisa Da Silva Cipriano

Held as a video conference

On
17-20 November 2020 and 06 January 2021
———-

Present

Emma Boothroyd (Chair)
Roger Wilson (PCC Architect Member)
Jules Griffiths (PCC Lay Member)

———–

In this case, ARB is represented by Ms Kathryn Sheridan of Kingsley Napley LLP.
Ms Da Silva Cipriano has attended this hearing and is legally represented by Ms Genevieve Woods of Three Raymond Buildings.

The Professional Conduct Committee (“PCC”) found Ms Da Silva Cipriano guilty of unacceptable professional conduct (“UPC”) in that she:

1. The Architect did not supervise staff members and/or those carrying out work for Studio 47 Architects adequately and/or at all;
2. The Architect did not ensure the honest promotion of services at Studio 47 Architects in that she allowed unregistered staff members to refer themselves publicly as ‘architects’ when they were not;
3. The Architect’s actions at particular (2) above were misleading and/or dishonest and/or lacked integrity.

and that by doing so, he acted in breach of Standards 1.2, 2.1, 3.1, 3.4 and 4 of the Architects Code: Standards of Conduct and Practice 2017 (“the Code”).

The sanction imposed is a six month suspension order.

Background:

1. This case arises out of a complaint made by Mr W and Ms G in respect of the professional services carried out by Studio 47 Architects (“Studio 47”). In October 2019 Mr W complained via ARB’s online form that he was unhappy with the services of his architect Mr Hassan at Studio 47. Enquiries by ARB revealed that Mr Hassan was not a registered architect. Mr W did not want to pursue a complaint against Studio 47 and did not participate in the investigation or agree to attend these proceedings.

2. In November 2019 ARB received an enquiry from Ms G via the online web chat that her architect Mr Hassan was not responding to her and she wanted to check he was an architect. Ms G was told that Mr Hassan was not a registered architect and she was advised to submit her complaint to Ms Cipriano (“the Respondent”) as the registered architect at Studio 47.

3. Ms G submitted her complaint to Studio 47 and agreed to provide a witness statement to ARB together with some documents in support of her initial complaint. Ms G did not want to attend these proceedings to give evidence.

4. ARB carried out an investigation into the website of Studio 47 and it is alleged that the website referred to two unqualified individuals as architects.

5. On 28 February 2020 ARB wrote via email to the Respondent to explain that it had received concerns from two clients of Studio 47. The letter enclosed a copy of the complaints and set out the three particulars of the allegation that are before the Committee but excluding the word ‘misleading’ in particular 3.

6. The Respondent responded via email on 2 March 2020 and explained that her English was poor and she did not fully understand the legal aspects. The email stated, “I don’t have control about anything in the company, about my colleagues actions and I barely speak to any clients, I am not aware of the complains you mentioned….Therefore I’m adding Ali Hassan, my boss and the owner of the company to this email…”

7. A few hours later the Respondent sent a further email to ARB stating, “I hadn’t seen the files on WeTransfer before I sent the last email, I found them now, I didn’t get involved with this projects at all and I was indeed unaware of both of this complains, I also didn’t know that Ali and Viviane were labelled as architects on the website…”

8. On 4 March 2020 an Investigations Officer of ARB asked the Respondent to confirm that she had signed the Section 25 form which stated that all of the work of Studio 47 was under the control of the Respondent as the only registered person at the practice. The Respondent responded on the same day to confirm that she had signed the form and stated the following, “Please can you discard my last email at the time I panicked when I received your email I did not read it properly due to my English is not good I thought the complaint was regarding my previous employment at pinnacle architecture ltd sorry for the confusion I will be sending my letter in regards of this current matter.”

9. On 11 March 2020 the Respondent responded that she did supervise staff members, that Mr Hassan and Ms Freitas do not represent themselves as architects to clients and the website was a genuine error which had been rectified. The letter concluded that further documents could be provided if required to support the response.

10. On 13 March 2020 the Investigations Officer acknowledged the Respondent’s email and stated that the response would be considered and then sent to the Investigations Panel for consideration. On 5 May 2020 the Respondent was informed that the case had been considered by the Investigation Panel and the case had been referred to the Professional Conduct Committee (“PCC”).

11. At the outset of the hearing the Respondent denied all of the charges.

Application to exclude evidence of Mr W

12. Before the charges were read as a preliminary matter Ms Woods on behalf of the Respondent applied to exclude the evidence of Mr W on the basis that it was hearsay and it was unfair to admit it.

13. Ms Woods produced a skeleton argument prior to the hearing and made submissions, in summary, that Mr W’s evidence was multiple hearsay, he had declined to assist with the investigation or make a statement and had resolved his complaint with Studio 47. Ms Woods submitted that it was not fair to admit this evidence as Mr W could not be cross-examined and in important respects that were relevant to the charges his evidence could not be challenged.

14. Ms Sheridan on behalf of ARB opposed the application and submitted that Mr W’s evidence was not the sole or decisive evidence in support of the charges and ARB had taken all reasonable steps to secure his attendance. Ms Sheridan submitted that the fact that Mr W had submitted a complaint about Mr Hassan supported the inference that he considered Mr Hassan was an architect and he had no knowledge of the Respondent.

Decision

15. The Committee accepted the advice of the Legally Qualified Chair who reminded it of Rule 15a of the Professional Conduct Committee Rules. The Committee also had regard to the relevant case law in this area referred to by both counsel NMC v Ogbonna [2010] EWCA Civ 216, R(Bonhoeffer) v GMC [2012] IRLR 37, Thorneycroft v NMC [2014] EWHC 1565 (Admin) and the additional case of El Karout [2019] EWHC 28 (Admin).

16. The Committee considered that the evidence of Mr W was unsatisfactory as it was contained in an online form, unsupported by a signature or statement of truth. Mr W’s complaint was primarily about matters unrelated to the particulars that the PCC were considering. Mr W had explicitly refused to produce a statement dealing with any of the matters currently before the PCC and despite extensive efforts on the part of ARB had refused to attend any hearing or take any part in proceedings. ARB submitted that an inference could be drawn from the fact of the complaint, and the statement that Mr W made that Mr Hassan was his architects that Mr W had no knowledge of the Respondent and that she had allowed Mr Hassan to hold himself out as an architect. In these crucial respects Mr W could not be cross-examined and the Committee considered that this was unfair to the Respondent.

17. The Committee considered that it was desirable that all relevant evidence was before it. However, in these circumstances the relevance of Mr W’s evidence as it was currently before the PCC amounted to inference and a cumulative effect when added to the complaint of Ms G. On balance the Committee decided that it would be unfair to the Respondent to admit this evidence which the ARB would seek to use in support of an inference without her having an opportunity to challenge it in cross-examination. The Committee considered that the prejudicial effect outweighed the probative value and it would be unfair to the Respondent to include this evidence.

No Case to Answer

18. At the conclusion of ARB’s case Ms Woods submitted that there was no case to answer. Ms Woods submitted that the evidence put forward by ARB was tenuous and unreliable and a significant proportion of the of the evidence was in the form of unsubstantiated and unreliable hearsay evidence from Ms G. Ms Woods submitted that significant time had passed between the initial complaint and the making of Ms G’s witness statement which added to the initial complaint and was inconsistent with other evidence in a number of material respects.

19. Ms Woods submitted that ARB had not carried out a thorough investigation by obtaining documents or interviewing staff and could not now rely on the absence of evidence to support the charge that the Respondent had failed to supervise projects.

20. Ms Woods submitted that, in relation to the website, ARB had produced no evidence that the Respondent was aware of the issue prior to it being brought to her attention. There was no evidence before the Committee that this was a deliberate act on the part of the Respondent and there was no evidence of an intention to mislead or to be dishonest. Ms Woods pointed to other evidence which demonstrated that Mr Hassan and Ms Freitas were using correct titles in emails to clients. There was no reliable evidence that individuals had been misled. Ms Woods submitted that there was evidence that the Respondent took steps to correct matters as soon as it was brought to her attention. Ms Woods submitted that on this evidence this particular would not amount to a serious falling short of professional standards and could not amount UPC.

21. Ms Woods submitted that particular 2 required proof of dishonesty given the wording and therefore similar arguments applied in relation to the evidence in support of particular 3. Ms Woods submitted that particular 3 was redundant on the basis of the dishonesty required to be proved for particular 2. Ms Woods submitted that there was no evidence that the Respondent knew about the issue with the website and on that basis there was no evidence to find dishonesty or lack of integrity. Ms Woods submitted there was no evidence indicating any individual had been misled, and the evidence of Ms G was that she had used a different website when deciding to instruct Studio 47 which correctly showed that the Respondent was the only registered architect.

22. In response Ms Sheridan referred the Committee to the test as set out in the criminal case of R v Galbraith [1981] 1 WLR 1039. Ms Sheridan submitted that the proper approach to take was to establish whether ARB’s case taken at its highest was such that there was a possibility that the Committee could find the facts proved and that they amounted to UPC. Ms Sheridan submitted that where the matter required assessment of the credibility of a witness or resolution of a disputed fact, as in this case, the Committee should allow the case to go forward.

23. The Committee has accepted the legal advice given by the Legally Qualified Chair who reminded it of the test and the approach to be adopted as set out in the case of R v Galbraith;

“(1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case.
(2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury…. There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge.”

24. The Chair set out that this was a limb 2 test and the approach to be taken by the Committee was to assess all of the evidence that had been presented and decide whether there was sufficient evidence to provide a realistic prospect of a finding of fact and whether those facts, if proved, could amount to UPC.

Decision

25. The Committee considers that there is a case to answer on particulars 1 and 2 and the misleading element of particular 3 and UPC. The Committee has considered the submission of the parties and adopted the approach as set out in Galbraith.

26. With regard to particular 1 the Committee considered that this was based not only on the evidence of Ms G but on the emails sent by the Respondent in March 2020 when ARB notified her of the allegation. There was evidence within those emails that the Respondent stated she did not have any involvement in Ms G’s project and was unaware of her complaint. This was consistent with Ms G’s evidence that she did not have any knowledge of the Respondent. There were drawings in the evidence bundle before the Committee for Ms G’s project which were marked as drawn by Ms Freitas and checked by Mr Hassan. In addition, in her March 2020 emails the Respondent made more general statements about her role at the company and her lack of involvement in the management of the company which she later explained were incorrect and she thought related to her previous employment. The Committee considered that this was a conflict in her accounts which should properly be considered.

27. In these circumstances, the Committee finds that there is sufficient evidence before it upon which it could find that the the Respondent had not properly supervised staff members. If found proved, the Committee considers that this could be described as a serious falling short of the standards required and could amount to UPC. The Committee has reminded itself that in any event, the question of whether or not UPC can be established is a matter for the Committee’s judgment.

28. Looking at particular 2 the Committee considered that this was based on the alleged failure to “ensure the honest promotion of services”. Giving the words of the charge their ordinary meaning the Committee considered that there was no requirement that ARB needed to prove dishonesty on the part of the Respondent. What was required was evidence to demonstrate that she did not ensure the services of Studio 47 were promoted honestly. The Committee considered that the evidence of the website screenshots which referred to unregistered individuals as architects were sufficient evidence upon which it could find that the Respondent had not ensured that Studio 47’s services were promoted honestly.

29. The Committee considered the account of the Respondent’s involvement in the website and the steps she had taken when matters were raised with her, but reminded itself that she had not given evidence in relation to this aspect and there was no independent documentary evidence before the Committee to corroborate her account. The Committee considered that a failure to ensure that unregistered individuals did not promote themselves publicly as architects, if found proved, could be described as a serious falling short of the standards required and could amount to UPC. The Committee has reminded itself that in any event, the question of whether or not UPC can be established is a matter for the Committee’s judgment.

30. The Committee therefore finds that there is a case to answer in respect of particular 2.

31. So far as particular 3 is concerned, the Committee has borne in mind that allegations that a professional has acted dishonestly and without integrity are serious and require cogent evidence in support. There is no evidence produced by ARB that would, in the Committee’s view be capable of supporting a conclusion that the Respondents actions were dishonest or lacked integrity. This requires knowledge and intention on the part of the Respondent or a reckless disregard for her obligations. There is no evidence before the Committee that the Respondent was aware or deliberately allowed unregistered individuals to describe themselves as architects on the website. ARB’s evidence at its highest is that an inference can be drawn that the Respondent must have known about the misuse of the architect title because the company is small and she must have thoroughly checked her own website. ARB has produced no evidence about the Respondent’s involvement in the creation of this website or that she was aware of the misuse of the title architect before it was brought to her attention.

32. In the circumstances, the Committee finds that there is no sufficient evidence before it upon which it could find that the Respondent’s conduct in particular 2 was either dishonest or lacking in integrity.

33. In relation to the misleading element of particular 3, the Committee considers there is evidence upon which it could find that the Respondent’s alleged failure to ensure services were promoted honestly could be considered to be misleading. The description of Mr Hassan and Ms Freitas on the website as Architects is factually inaccurate. The Committee considered that if it were to find the failure in particular 2 proved it could also find on the basis of the inaccurate description that this was misleading. The Committee considers that this could amount to UPC and this should be considered after the Committee has heard all the evidence. The Committee therefore considers that there is therefore a case to answer in respect of this aspect of the particular.

Decision on Facts

34. In reaching its decisions, the Committee has carefully considered the submissions of the parties, together with the documentary evidence presented to it in the bundles. The Committee heard live evidence from the Respondent.

35. The Committee took into account the language difficulties faced by the Respondent and it also took into account that the process was stressful and difficult. However, the Committee considered that the Respondent’s oral evidence was at times evasive and inconsistent with the documentary evidence in a number of important aspects. The Committee considered that some of the explanations that she gave were neither credible nor reasonable and did not align with any sensible interpretation of the facts.

36. The Committee has approached the statement of Ms G with caution given that she has not attended to give evidence. It has sought to corroborate her account with the documentary evidence and the account given by the Respondent.

37. 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 ARB and that the civil standard applies, namely proof on the balance of probabilities. It has had regard to the good character of the Respondent’s.

38. 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. 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. The Architect is 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.

“The Architect did not supervise staff members and/or those carrying out
work for Studio 47 Architects adequately and/or at all”;

39. The Respondent said in her oral evidence that Ms Freitas was closely supervised by her as they were in direct proximity at the office. This supervision was conducted essentially by the Respondent sitting next to Ms Freitas and looking over her shoulder at work. There was no paper record of this supervision as there was no need for drawings to be sent and checked. In her oral evidence the Respondent said that when she was not physically present, Ms Freitas only answered the telephone and did not conduct any architectural work. The Committee was mindful that there was no evidence from Ms Freitas about the supervision she received.

40. The Committee asked the Respondent about the supervision Ms Freitas received in relation to Ms G’s project. The Respondent had repeatedly stated that she was aware of this project and had oversight of it. The Respondent confirmed in answer to questions that she had never visited the site personally and had only seen it via the internet. The Respondent also confirmed that Ms Freitas had visited the site alone to take measurements. The Respondent stated that she was aware of the emails sent to Ms G setting out the terms of appointment.

41. The Committee considered that the Respondent did not have overall responsibility or oversight of this project and was unaware of it until ARB contacted her in March 2020. The Committee considered that the Respondent’s oral evidence to this Committee was inconsistent with allowing Ms Freitas to attend a site and take measurements unsupervised. The Committee noted that the Respondent was not copied in to any emails on Ms G’s project by Ms Freitas, by contrast Mr Hassan was copied in to emails about the project and both Mr Hassan and Ms Freitas had visited the site.

42. The Committee looked at the drawings that were prepared by Ms Freitas. In the box marked “Checked by” – Mr Hassan’s name appears. There is nothing on the face of the drawings or in any other document that would suggest the Respondent had checked, or even seen them. The Committee rejected the Respondent’s explanation that because Mr Hassan checked the planning submission his name was on the drawing as not credible or reasonable.

43. Ms G says in her statement that the first time she spoke to the Respondent was following the complaint to ARB in January 2020. Ms G says that during that conversation the Respondent told her that she had nothing to do with her project. The Committee is mindful that Ms G has not given oral evidence and so it has looked to the documents for consistency. However, there is nothing in the documents which were sent by Studio 47 that would alert Ms G to the fact that the Respondent had any involvement in this project. The Respondent’s name does not appear in any email and Ms G was not told that the Respondent was the qualified architect with overall responsibility at any stage. The Respondent is not identified as the supervising architect in the terms of engagement sent to Ms G. From the Respondent’s answers to questions put by the Committee she had no involvement in Ms G’s engagement of Studio 47. It appears to the Committee that it is more likely that Ms G’s account is correct and she was unaware of the existence of the Respondent because she was not taking any role in this project.

44. The Committee considered that it was likely that the Respondent did comment that she was not involved in this project given the content of her email to the ARB on 2 March 2020. The letter sent via email to the Respondent clearly set out that it was alleged by the ARB that she had failed to supervise staff at Studio 47. It was addressed to the Respondent at Studio 47. The Respondent’s response was that she was not aware of the complaints. The email went on to state that although she was a director of the company she had little knowledge of the company management and didn’t have any control and barely spoke to clients because of her poor English. The Respondent copied in Mr Hassan to her response with the following, “…I’m adding Ali Hassan, my boss and the owner of the company to this email so he can advise about this issues [sic]”

45. The Committee considered this email had the ring of truth and was consistent with the documentary evidence that Mr Hassan was copied into to emails relating to this project and that he had checked the drawings. The Committee did not accept the Respondent’s later explanation that she had panicked when she read this email and thought it related to a different company, as credible.

46. The letter attached complaint files which specifically set out that the complaint related to Ms G’s project. The Respondent confirmed in an email later that same evening that she had now read the complaint file and didn’t get involved with this project at all. The Respondent’s response again re-iterated that ARB should send everything to Mr Hassan to deal with. The Committee considered that this email also had the ring of truth and in fact the position was that Ms Cipriano had no oversight or management of others within Studio 47 and had had conducted no supervision in relation to Ms G’s project. In fact, it was Mr Hassan who was overseeing matters and the Respondent had no meaningful supervision of Ms Freitas or Mr Hassan.

47. The Respondent has provided no evidence of any supervision records relating to Ms Freitas or Mr Hassan. Neither Ms Freitas or Mr Hassan have given any evidence to the Committee about the supervision arrangements. The Respondent has stated that because Ms G’s project was small she was limited to informal supervision. The Respondent has provided evidence of being copied in to emails and states that this is evidence that she was undertaking effective supervision. The Respondent states that as the company is small and they all work closely together this is an informal arrangement with no records.

48. The Committee does not consider that the Respondent was undertaking adequate supervision. It considers that her first response to ARB is more likely to have been the true account of her position at Studio 47. In her email of 2 March 2020 the Respondent said, “I don’t have control about anything in the company, about my colleagues [sic] actions and I barely speak to any clients.” The Committee therefore considers it is reasonable to infer that the lack of any records of effective supervision or any documentation showing the Respondent’s involvement in supervising any projects is likely to be because she was not undertaking that supervision as set out in her email of 2 March 2020.

49. This is further evidenced by the Respondent’s account of what occurred relating to the website. The Respondent stated that Mr Hassan engaged the web designer and that she had no input into the instructions. The Respondent stated her name was spelled incorrectly and for a significant period of time she had no working email address at Studio 47. The Respondent stated that when problems came to light with the website she had no way of contacting the web designer and was wholly reliant on Mr Hassan to do so. The Respondent stated that she had to repeatedly chase Mr Hassan to correct the website after ARB contacted her to advise that there were still problems. The Committee considers that this is consistent with the Respondent’s initial stated position that Mr Hassan was her “boss” and in fact she had no meaningful supervision or control and her duties went no further than drafting.

50. For all these reasons the Committee considered that the Respondent was not adequately supervising staff members or those carrying out work for Studio 47 Architects.

Particular 2 – Found Proved

“The Architect did not ensure the honest promotion of services at Studio 47 Architects in that she allowed unregistered staff members to refer to themselves publicly as “architects” when they were not”;

51. The Respondent has explained the circumstances in which the website was created. She stated that she relied on Mr Hassan to deal with this aspect and she effectively delegated the task to him.

52. ARB advised the Respondent in its letter of 28 February 2020 that there was an issue with the website. In her full response to ARB sent under cover of an email dated 11 March 2020 the Respondent stated, “I have however now been made aware since your correspondence that our website is incorrect, and I can only apologise for this and can confirm that I have taken immediate action to rectify this error. The website no longer lists Mr Hassan or Ms Freitas as Architects.”

53. The Committee accepts the Respondent’s account that she was not involved in the detail relating to the initial construction of the website and this was managed by Mr Hassan. Notwithstanding this, she did not ensure the honest promotion of services as she took no steps to properly ascertain what was on the website.

54. In March 2020, the Respondent was clear in her response to ARB that she understood the issue and had taken action to rectify the error. However in June 2020 Ms Freitas remained on the website as “Assistant Architect”.

55. The Committee considers that the Respondent failed to ensure that the website was accurate, after the issue had been brought to her attention and she stated she had taken steps to rectify it. The Committee considers that it was the Respondent’s responsibility to ensure that the website was accurate and in particular that the services of Studio 47 were honestly promoted with the correct titles of staff displayed. This was particularly so, when the issue had been highlighted to her by ARB.

56. The Committee considered that the Respondent didn’t properly check the website to ensure it was correct and that the services of Studio 47 were being honestly promoted.

Particular 3 – Found Proved

“The Architect’s actions at particular (2) above were misleading.”

57. It has been submitted on behalf of the Respondent that there is an overlap between particulars 2 and 3, and that simply because the website is in fact inaccurate, this should not lead automatically to a finding that the Respondent’s actions were misleading. In the skeleton argument filed on behalf of the Respondent it is suggested that this aspect can only be found proved if the Respondent was aware of the errors on the website and allowed them to persist.

58. The Committee considers that in March 2020 the Respondent was fully aware of the seriousness of allowing unregistered staff to be using the title “Architect” on the website. The Respondent stated that she asked Mr Hassan to correct matters and relied on his assurances that it had been done. The Respondent stated that she did not check and acted in good faith that Mr Hassan had corrected matters. It is submitted on behalf of the Respondent that no-one was in fact misled by this error.

59. The Committee considers that the letter to the ARB sent by the Respondent on the 4 March 2020 is clear, “I can confirm I have taken immediate action to rectify this error. The website no longer lists Mr Hassan or Ms Freitas as Architects.” The Committee considers that the implication is that the Respondent had checked the website. If the Respondent was relying on Mr Hassan’s assurances and had not checked, the Committee considered that it would have been reasonable for the letter to have set this out. The letter is a clear statement that it was the Respondent who had taken steps to correct the error and confirmed that the website was now accurate.

60. In these circumstances, the Committee considers that the Respondent’s conduct was misleading. Whilst technically correct that the website no longer listed Mr Hassan and Ms Freitas as “Architects”, Ms Freitas was now described as an “Assistant Architect”. The Respondent misled ARB that the website was correct and potentially misled members of the public who saw the website by her failure to take any steps to ensure that the website was corrected or to highlight that she had not checked the website for herself.

Finding of Unacceptable Professional Conduct

61. 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”.

62. The Committee considered that the lack of effective supervision was a serious falling short of the standards required of a registered architect. The Committee considered that the Respondent had breached Standards 2.1, 3.4 and 4 of the Code and had not ensured that Ms G’s project was regularly reviewed or that Ms G was made aware that the Respondent was the architect with supervising responsibility for the project. The Committee considered that this lack of supervision was typical and not isolated to one project. The Committee considered that at the relevant time the Respondent had failed to familiarise herself with her professional obligations in this regard and in fact was not in effective control of the business. The Committee considered that this was more than an isolated lapse and was so serious as to amount to UPC.

63. The Committee considered that the website should have been within the Respondent’s control and she failed to ensure it was accurate on two separate occasions. The Committee considered that the failure to check the website and to ensure that the services were being honestly promoted is a breach of standard 3.1 of the Code and amounts to a serious falling short of the standards expected of a registered architect.

64. In advising that the website was corrected and failing to ensure that it was in fact correct, the Committee considered that the Respondent’s conduct was misleading and in breach of Standard 1.2 of the Code.

65. The Committee considered these failings to be serious. They have impacted on the reputation of the profession. Members of the public and the profession would be shocked that an architect was not in effective control of the work of staff and that they had allowed misleading descriptions on the website.

66. 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. Cumulatively and individually they represent a standard of conduct falling significantly and materially below the standard expected of a registered architect.

67. 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.

Sanction

68. Ms Sheridan set out ARB’s submissions in relation to sanction and drew the Committee’s attention to ARB’s Sanctions Guidance. Ms Sheridan submitted that the Committee should have regard to the relevant aggravating and mitigating factors when assessing the level of sanction. Ms Sheridan confirmed that the Respondent had no previous regulatory history with ARB. She submitted that the Committee might be minded to consider the following aggravating factors:

• This was a repeated lack of supervision both in relation to Ms G’s project and other projects more generally which persisted over a period of time;
• The Respondent has demonstrated limited insight and remediation in relation to her conduct and there has been a reluctance to acknowledge failings.

69. Ms Sheridan submitted that the corrective steps taken in relation to the revised terms of business letter were of concern as the letter was still not compliant with Standard 4 of the Code. Ms Sheridan submitted that the Committee may be concerned that there was still a risk of repetition.

70. Ms Woods addressed the Committee in mitigation on behalf of the Respondent and confirmed that an additional bundle of references and testimonials had been submitted. Ms Woods confirmed that the Respondent had read the decision of the Committee in relation to facts and UPC and apologised to the Committee and ARB for the failings identified. Ms Woods submitted that the Respondent had understood the seriousness of matters and had taken steps to put matters right at Studio 47 Architects such that the conduct will not be repeated.

71. Ms Woods submitted that the issue with the website had been inadvertent and the Respondent had not set out to mislead. As soon as the problem was notified the Respondent did take steps to correct matters, albeit that these were not ultimately successful. Ms Woods submitted that there had been little harm to clients and the use of the correct business cards and email signatures had mitigated any false impression. Ms Woods stated that there was no evidence that any client was actually misled. Ms Woods said that going forward, a new process had been implemented which involved two people checking the content of the website.

72. Ms Woods referred to the amended terms of business and confirmed that this now identified the Respondent as the architect with supervisory responsibility. Ms Woods stated that this was not the only document sent to clients and additional information was provided which was compliant with the Code.

73. Ms Woods explained that Studio 47 Architects as a business has been on furlough as a result of the pandemic for a significant proportion of 2020 with no work being undertaken. This has had an impact on the Respondent’s income and she has earned significantly less this year than in previous years. Further, this has had an impact on the level of enquiries that the business has had for future work. This has meant that some of the proposed revised working arrangements have not yet been implemented. Ms Woods submitted that once matters returned to face-to-face working it was proposed that an administrator would be recruited to assist with record keeping and ensuring supervision meetings were minuted.

74. Ms Woods submitted that a reprimand was the appropriate sanction to meet the public interest and would strike a proportionate balance. Ms Woods submitted that a penalty order would have significant consequences for the Respondent but she submitted that it was preferable to any period of suspension; this would mean that the business would fold and that all employees would be out of work. Ms Woods submitted that this would be unduly punitive for those employees and their families.

75. Ms Woods submitted that the Respondent had “learned her lesson” as a consequence of these lengthy and costly proceedings and she was a good architect. There was limited client harm as a result of her conduct and she had expressed a willingness to comply with requirements in the future.

76. 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, behaviour and competence. The Committee has carefully considered all the evidence and submissions made during the course of this hearing. It has heard and accepted the advice of the legally qualified chair. It has borne in mind that the purpose of imposing a sanction is not to be punitive although it may have a punitive effect. It has taken into account the Respondent’s interests, the sanctions guidance and the need to act proportionately. It has taken into account any aggravating and mitigating factors in this case. The Committee has exercised its own independent judgement.

77. Having taken into account the submissions, the Committee has identified the following mitigating factors:

i. The Respondent has no adverse regulatory history since joining ARB’s register in 2017;
ii. There was no direct financial gain to the Respondent;
iii. The Respondent has apologised and demonstrated some recognition of her failings.

The Committee has identified the following aggravating factors:

i. The Respondent’s failings in relation to supervision persisted over a period of time;
ii. The issue in relation to the website was not properly corrected even after it had been pointed out and the Respondent had accepted it was her responsibility;
iii. The Respondent has not demonstrated an understanding of her failures in relation to supervision and did not acknowledge them until the hearing today;
iv. The Committee considers that the Respondent has not taken effective corrective steps to demonstrate that she understands the extent of her professional responsibilities with regard to supervision.

78. The Committee considered that the information before it suggested that the Respondent still did not fully understand the requirements of effective supervision. The client care letter does not fully comply with the Code but there was no documentary evidence before the Committee of how the Respondent ensures that clients are provided with all relevant information and what checking responsibilities she carries out. There was no evidence confirming the current supervision arrangements or records of supervision for the period that Studio 47 Architects has been operating. The Committee was not confident that the Respondent had fully implemented any corrective steps to prevent a repetition of the UPC identified.

79. The Committee notes that the matters found proved are serious to the extent that the Respondent’s failings diminish both her reputation and that of the profession generally. The Committee therefore concluded that the Respondent’s conduct was sufficiently serious for it to require the imposition of a sanction and has considered them in ascending order of severity.

80. The Committee first considered whether to impose a reprimand. The Committee considered that the Respondent did not demonstrate the factors that would make this sanction appropriate including insight into failings and early corrective steps taken. Without these the Committee considered that this behaviour was likely to be repeated. It considered that although the Respondent had a previous good disciplinary history, this was over a very short career. Although it accepted that the Respondent considered that the hearing process had been a salutary lesson this was not sufficient of itself to uphold proper professional standards. The Committee considered the Respondent’s failings too serious for such a sanction to be either appropriate or proportionate.

81. The Committee then considered whether to impose a penalty order. For the same reasons as set out above it considered that this was not the appropriate and proportionate sanction to uphold proper professional standards. The Committee considered that the Respondent’s conduct was not at the lower end of the spectrum and encompassed multiple failures of supervision over a period of time. The Committee considered that the Respondent’s conduct in failing to supervise non-architects and ensuring that the business was accurately promoted had the potential to cause significant harm to clients and the reputation of the profession. Taken together with the lack of insight and effective corrective steps and the significant risk of repetition the Committee considered that a penalty order would not reflect the seriousness of the UPC found proved.

82. The Committee next considered whether to impose a suspension order. The Committee considered that this would address the seriousness of the UPC found proved. The Committee considered that the conduct is capable of being remedied and it is not incompatible with the Respondent continuing to be a registered architect. The Committee considered that the Respondent is developing her insight and has expressed an intention to comply in the future. The Committee does not consider that the Respondent is unable to appreciate the nature of her failings such that she should be erased from the Register. The Committee therefore decided that a period of suspension for 6 months was the appropriate and proportionate order. This period was sufficient to protect the public and to uphold the reputation of the profession.

83. The Committee acknowledged that the order was likely to have a significant impact on the Respondent and her business and took into account the circumstances. However, it considered that it was appropriate to temporarily remove the Respondent from the register for this period in order to uphold proper professional standards. The Committee considered that this would also allow the Respondent the opportunity to develop a fuller understanding of her professional obligations.

84. That concludes this determination.

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