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Dr Marcella Bellistri

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

Dr Marcella Bellistri (082601D)

held on

26 February 2016

at

Architects Registration Board

8 Weymouth Street

London

W1W 5BU

—————–

Present:

Mr Julian Weinberg (Chair)

Mrs Barbara Saunders (PCC Lay Member)

Mrs Judy Carr (PCC Architect Member)

Mr Stephen Battersby (Clerk to the PCC)

—————–

Mr Iain Miller of Bevan Brittan appeared on behalf of the Board

Dr Bellistri attended the hearing and was represented by Mr Jonathan Goldring

 

 

1.      In this case, the Board is represented by Mr Iain Miller. Dr Bellistri has attended this hearing and is represented by Mr Jonathan Goldring, Counsel, briefed by Bankside Law Solicitors. She also has the benefit of an Italian interpreter. Dr Bellistri faces a charge of unacceptable professional conduct based on four allegations in that she:

 

a.                  Failed to set out her terms of engagement in writing;

b.                  Charged VAT to her client when she was not VAT registered;

c.                   Undertook work as an architect without having in place adequate and appropriate professional indemnity insurance; and

d.                  Declared to the ARB that she held professional indemnity insurance when she did not

 

and that by doing so, the Respondent acted in breach of Standards 1.2, 4.4, 4.6, 8.1, 8.4 and 9.1 of the Architects Code: Standards of Conduct and Practice 2010 (“the Code”);

 

2.      This case arises out of a complaint made by Mrs Margaret Chambers (“the Complainant”) in respect of the professional services carried out by the Respondent who at the material time was trading under the name Marcella Bellistri Architect.

 

3.      The allegations that form the background to this case are that in early 2015, the Respondent was instructed to prepare drawings for an extension of the Complainant’s property. The Respondent and the Complainant met in February 2015 when they verbally agreed the price, scope and stages of the works. It is alleged that, although the Respondent did send the Complainant a written estimate of costs and stage payments, written, code compliant terms and conditions were not provided by the Respondent to the Complainant,.

 

4.      It is further alleged that the Respondent sent the Complainant two invoices, in February and April 2015. The earlier invoice expressly included a figure for VAT. No VAT was included on the later invoice. The Complainant questioned why VAT was not charged on the second invoice when it had been on the earlier one. The Respondent was not VAT registered. Following an email exchange, the amount of the invoices including the VAT element, was repaid to the Complainant in June 2015.

 

5.      During the course of ARB’s investigation, the issue of the Respondent’s professional indemnity insurance was raised. It is the Board’s case that the Respondent had no such insurance, despite declaring on her application form to be registered as an architect in the UK, that that she held such insurance. It is alleged that by making such a declaration, the Respondent acted recklessly.

 

6.      The factual allegations are admitted. It is further admitted that those factual allegations amount to unacceptable professional conduct (“UPC”) although the Committee recognises that any such finding is a matter for the Committee’s independent professional judgment, to which no burden of proof applies.

 

7.      In reaching its decisions, the Committee has carefully considered the written evidence presented to it in the Report of the Board’s Solicitor, the 98 pages of documents exhibited to it which includes the Respondent’s written responses to the allegations together with its exhibits. The Committee has also had sight of the Respondent’s defence bundle including its 52 pages of exhibits. No live evidence has been called.

 

8.      The Committee has accepted the legal advice given by the clerk. It has had regard to the fact that, in reaching its findings of fact, the burden of proof is on the Board, and that the civil standard applies, namely proof on the balance of probabilities.

 

9.      The Committee makes the following finding of facts:

 

Allegation 1.1:

 

In light of the Respondent’s admission, the committee finds the facts proved.

 

Standard 4 of the Code states:

 

4.4       You are expected to ensure that before you undertake any professional work you have entered into a written agreement with the client which adequately covers:

the contracting parties;

the scope of the work:

the fee or method of calculating it;

who will be responsible for what;

any constraints or limitations on the responsibilities of the parties

the provisions for suspension or termination of the agreement;

a statement that you have adequate and appropriate insurance cover as specified by the Board;

your complaints-handling procedure (see Standard 10), including details of any special arrangements for resolving disputes (e.g. arbitration).

 

4.6       You are expected to ensure that your client agreements record that you are registered with the Architects Registration Board and that you are subject to this Code; and that the client can refer a complaint to the Board if your conduct or competence appears to fall short of the standards in the Code.

 

10.  The Committee has borne in mind that terms of engagement must be in writing and contain all the necessary terms. The onus is on the Architect to send them to the client before any professional work is carried out by an architect. It is accepted by the Respondent that she did not do this.

 

11.  The Committee therefore finds the facts of this allegation proved and that the Respondent acted in breach of standards 4.4 and 4.6 of the Code.

 

12.  Allegation 1.2:

 

In light of the Respondent’s admission, the committee finds the facts proved.

 

13.  The Committee has had sight of an email dated 16 February 2015 from the Respondent in which she attached an invoice which included an additional 20% for VAT. The Complainant was also asked to pay a second instalment on 23 April 2015 for £464.40 which sum “incl. tax”. The Complainant raised her concern about an additional sum being charged for VAT, stating that the Respondent could only claim VAT if she was registered for VAT. She therefore requested a refund of the VAT claimed. The Respondent stated in correspondence that claiming VAT was a mistake but the Complainant nevertheless stated that that amount would have to be refunded. In an email sent on 23 April 2015, the Respondent confirmed that “I will refund you soon, don’t worry”. Despite ongoing correspondence, the refund was not made until 16 June 2016 when she reimbursed her entire fee to the Complainant.

 

14.  The Respondent stated that, having previously practised abroad, she was unfamiliar with the English tax system and its differences from the way tax is claimed in her home country.

 

15.  Standard 9 of the Code states:

 

9.1       You should ensure that your professional finances are managed responsibly.

9.2       You are expected to conduct yourself in a way which does not bring either yourself or the profession into disrepute.

 

16.  In the circumstances, the Committee finds the facts of this allegation proved and that the Respondent acted in breach of standards 9.1 and 9.2 of the Code.

 

17.  Allegation 1.3:

 

In light of the Respondent’s admission, the Committee finds the facts proved.

 

18.  The Registrant stated that she had practised in Italy since 1999 and that she had come from a completely different system with different rules. She stated that once she knew that she had to get PII, she contacted a number of insurance companies, but they would not cover her retrospectively for this project. She stated in correspondence that she “wasn’t aware of the UK regulation” (despite having applied for registration with ARB), and that this was her first project as an architect in the UK.

 

19.  Standard 8 of the Code states:

 

8.1       You are expected to have adequate and appropriate insurance cover for you, your practice and your employees. You should ensure that your insurance is adequate to meet a claim, whenever it is made. You are expected to maintain a minimum level of cover, including run-off cover, in accordance with the Board’s guidance.

8.2       …….

8.3       …….

8.4       You are expected to provide evidence that you have met the standards expected of this Standard in such form as the Board may require.

 

20.  The Committee therefore finds the facts of this allegation proved and that the Respondent acted in breach of standards 8.1 and 8.4 of the Code.

 

21.  Allegation 1.4

 

In light of the Respondent’s admission, the Committee finds the facts proved.

 

22.  The Registrant stated to the ARB that she “did not know how came (sic) that I chose that wrong option from the form, declaring that I had PI” and that “this was not intentional and I did not and do not want to deceive or offend the ARB….This was a genuine mistake and I am very sorry”. She accepted that she had been naïve as “this is a mistake made without any intention or purpose”.

 

23.  Standard 1.2 of the Code states:

 

1.2  You should not make any statement which is contrary to your professional opinion or which you know to be misleading, unfair to others or discreditable to the profession.

 

24.  In the circumstances, the Committee finds that by acting as alleged, the Respondent declared to the ARB that she held professional indemnity insurance when she did not, and that her declaration was made recklessly. By doing so, the Committee finds that the Respondent acted in breach of standard 1.2 of the Code.

 

25.  Having found the allegations proved the Committee went on to consider whether the Respondent’s conduct amounts to UPC. This is defined as conduct which falls short of the standard required of a registered person. In reaching its finding, the Committee has carefully considered all the evidence presented to it, all submissions made and has accepted the advice from the Clerk. The Committee recognises that not every shortcoming on the part of an Architect, or 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 Committee notes that the Respondent accepts that her conduct does amount to UPC. However, as previously stated, this is a matter for the Committee’s independent professional judgment.

 

26.  The Committee has considered the authority of 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”.

 

27.  Any person who retains an Architect should be informed in writing about the scope of the work that will be done by the Architect, the fee or method of calculating it for which they will be liable, what they will be responsible for, and other important matters. This information is of crucial importance to the parties, so that in advance of the engagement of the Architect, the client knows and agrees to these terms. Setting out compliant terms of engagement identifies each parties responsibilities and obligations and ensures certainty for both parties. This is a core obligation of an Architect. In the circumstances, the Committee finds the Respondent’s failure to comply with standard 4 to be a substantial falling short of the standard expected of a registered Architect.

 

28.  The Committee makes a similar finding in respect of the Respondent’s conduct found proved in respect of allegations 1.2, 1.3 and 1.4. Charging a client VAT when not authorised to do so amounts to conduct falling substantially below the standard expected of a registered Architect. Failing to have appropriate professional insurance places both the client, and the Architect, at material risk. Clients should be entitled to expect that a registered Architect has sufficient insurance cover in place in the event that a claim is made against them. The Respondent’s failure in this regard is a serious failing on her part as is the false declaration regarding insurance that the committee has found she made recklessly to her regulator given the explicit requirement in the application form to carry appropriate PII cover for professional work.

 

29.  It is therefore the Committee’s finding that the facts found proved and corresponding breaches of the Code, both individually and collectively, are serious. They adversely impact both on the reputation of the Respondent and the profession generally. They represent a standard of conduct falling substantially below the standard expected of a registered Architect.

 

30.  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.

 

31.  Having heard from Mr Goldring in mitigation on the Respondent’s behalf at the resumed hearing, the Committee then considered whether to impose a sanction, and if so, which one. The Committee has had regard to the public interest, which includes the need to protect the public, to maintain confidence in the profession and the Board and to declare and uphold proper standards of conduct and behaviour. The Committee has carefully considered all the evidence and submissions made during the course of this hearing. It has heard and accepted the advice of the Clerk. It has borne in mind that the purpose of imposing a sanction is not to be punitive although it may have a punitive effect. It has taken into account the Respondent’s interests, the indicative sanctions guidance and the need to act proportionately. It has taken into account any aggravating and mitigating factors in this case and it has exercised its own independent judgement.

 

32.  The Committee has identified the following mitigating factors:

 

– that she has no adverse regulatory history, albeit that her experience within the United Kingdom is very limited;

– she has fully engaged in the regulatory process, admitted the allegations against her and has repeatedly apologised for her actions;

– she has demonstrated insight into her failings to the extent that he has taken remedial steps to reduce the risk of a similar failing recurring in future by subsequently securing professional indemnity insurance. The Committee also notes that the Respondent has undertaken CPD training courses;

– she made no financial gain and, to her credit, repaid her fees in full to the Complainant;

– the contents of several exemplary references from individuals who were aware of the allegations the Respondent faces provided to the Committee;

 

33.  The Committee has identified the following aggravating factor:

 

–          notwithstanding the language difficulties and even taking into account the differences between the UK and Italian requirements for registration, the Respondent paid scant regard to her professional obligations on transferring her practice to the United Kingdom. Language difficulties and limited knowledge of the profession’s regulatory requirements does not obviate the need for compliance with professional obligations which are designed to protect the public and the reputation of the profession. The Committee has borne in mind standard 2.3 of the Code which states “you are expected to ensure that the necessary communication skills and local knowledge are available to you to discharge your responsibilities”. The Committee has noted Mr Goldring’s submission that the Respondent came to the UK when there was no requirement in Italy for her to hold PII for private client work and, that at the time the Respondent completed her application form for registration, she was not working. However, once she undertook a commission, she would have had to have taken out PII cover, yet she did not as she was wholly unaware of her professional obligations.

 

34.  Taking into account all the aggravating and mitigating circumstances and looking at all the facts in the round, the Committee is of the view that the risk of repetition of the UPC found proved is low.

 

35.  However, the Committee notes that the matters found proved are serious to the extent that Dr Bellistri’s failings diminish both her reputation and that of the profession generally. The Committee is mindful of its role to declare and uphold proper standards of conduct and behaviour. The importance of complying with the professional obligation to supply fully compliant terms and conditions to clients, cannot be overstated. Charging clients VAT when not entitled to do so is undoubtedly serious, even in circumstances where the Respondent misunderstood the tax position in the UK and its differences from Italy. The Committee has reminded itself as to its findings regarding the seriousness of the matters found proved. Having done so, the Committee concluded that the Respondent’s conduct was sufficiently serious for it to require the imposition of a sanction and has considered them in ascending order of severity.

 

36.  The Committee first considered whether to impose a reprimand. However, having considered the Indicative Sanctions Guidance and the factors detailed above, the Committee considered that the nature of the UPC found proved was too serious for such a sanction to be considered appropriate or proportionate.

 

37.  The Committee next considered whether to impose a penalty order and considered that in all the circumstances, such an order was the proportionate and proportionate sanction to impose to protect the public and the public interest. The Committee therefore imposes a penalty order in the sum of £500 which is proportionate given her current financial position. This sum should be paid within 28 days. A failure to satisfy the order may lead to it being replaced by a suspension order or erasure.

 

38.  The Committee considered whether to impose a suspension order but considered that such a sanction would be disproportionate given the suitability of a penalty order.

 

39.  That concludes this determination.

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