Mr Andrew MacSwayed
In respect of the charge against ANDREW MACSWAYED, Registered Architect:
The Respondent, Andrew Macswayed:
a. accepts the facts and matters set out below and consents to the Consent Order Panel of the Professional Conduct Committee making a disciplinary order against him in the terms set out below;
b. confirms that he has been offered the opportunity to appear before a Hearing Panel of the Professional Conduct Committee to present his case, but does not wish to do so.
The Architects Registration Board (“the Board”) accepts the facts and matters set out below and consents to the Professional Conduct Committee making a disciplinary against Andrew Macswayed in the terms set out below:
1. The Allegations:
The allegations are that the Respondent is guilty of unacceptable professional conduct in that he failed to provide the Complainant with adequate terms of engagement, failed to adhere to terms agreed at the outset, failed to carry out work without delay, failed to communicate adequately with the Complainant, withheld drawings until the Complainant had agreed to new terms and conditions, and issued inaccurate and /or unjustified invoices. It is said that his actions were in contravention of Standard 4.4 of the Architects Code, as well as Standard 4.6, 6.2, 6.3 and 1.1.
2. Statement of agreed facts:
The Respondent is a registered architect who practises at Clearly Architects (“the company”). The Respondent is one of two directors of the company and is the sole architect. He works alongside his business partner who is said to be responsible for marketing and business development, and an administrator.
The Complainant, Mr N, had engaged the Respondent in January 2014 to enable the build of a new residential property on a plot of land owned by the Complainant next to his existing property. Terms and conditions were discussed verbally and on 30 January 2014 the Respondent sent an email to the Complainant detailing what had been discussed; no formal letter of engagement was issued and, accordingly, the Complainant was not provided with any provision for the suspension or termination of the agreement, any details of the Respondent’s professional indemnity insurance, any information about the constraints or liabilities of the parties, or of the Respondent’s complaints handling procedure. The Respondent failed to provide confirmation that he is registered with the Board.
The Respondent was instructed to complete detailed drawings and to lead on the project, managing the development of the property. The Transport for London (“TFL”) Limehouse Link Tunnel ran under part of the site and therefore, the Respondent was made aware by the Complainant that TFL would have to approve any final designs. In addition, the Respondent was instructed to enable the build to be completed in line with the Complainant’s budget, by including changes to the original designs, prepared by a previous firm.
Between May and September 2014 the project experienced significant delays due to the approval required from TFL and the need for the implementation of successful trial pits ahead of the build. The Respondent did not seek this approval expeditiously, causing a delay to the progress of the project. Further, he failed to adequately communicate that delay to the Complainant.
Moreover, there were ongoing issues between the Respondent and the Complainant with regards to charging and invoicing, during the life of the relationship. Specifically, that there were occasions where the Respondent invoiced the Complainant for additional fees without informing him that such fees had been incurred; additionally, that the Respondent failed to invoice the Complainant in accordance with fee rates that had been agreed, and that he quoted an hourly rate which was different from that which had been agreed; finally, that interim invoices were issued by the Respondent to the Complainant despite the fact that they were for work which had not yet been completed.
The Complainant submitted a complaint to the Board in January 2015 as a result of his dissatisfaction with the work carried out for his build at 40 Miligan Street, London, E14 8AU. The Board instructed the company to try to resolve the issue internally and an internal investigation was subsequently carried out. However, this failed to resolve matters and the Complainant wrote again to the board on 08 June 2015, requesting that an investigation be undertaken. By that time the Respondent had proposed new terms and conditions for the project; the Complainant failed to agree to those terms and the Respondent withheld drawings for the project in the absence of such agreement.
The Respondent’s response
In his first response to the Board the Respondent admitted that he had not provided the Complainant with adequate terms of engagement, due to the lack of administrative resource at the time the project started. The Respondent also accepted that there had been some delay in some aspects of organising the TFL trial pits; he accepted responsibility for three months of the six month delay.
With regards the invoices, the Respondent stated that there was a mathematical error on one of the five invoices issued; the company’s internal investigation had found that the billing and invoicing for this matter had been chaotic and unsatisfactory.
In a further statement (undated but received by the Board on 06 May 2016), the Respondent points out that whilst he did not deal with any day to day fee agreements, billing or invoicing issues, he assumes overall responsibility for the process. Further, the company has changed its procedures since this complaint was raised to ensure that the Respondent now signs each invoice.
The Respondent highlights the fact that two of the allegations have arisen as a consequence of the inadequacy of the original fee agreement, and that he was not the person who drafted those agreements; however, he again takes responsibility for them as the sole Architect involved.
In an additional statement of mitigation (undated but received by the Board on 01 June 2016), the Respondent addresses the issue of the delay with the trial pits and says ‘I personally apologised to Mr N.., the apology was accepted and we continued working in good faith.’ He points out that the delays relating to the trial pits represent the sole example of unacceptable conduct in relation to non-financial matters.’
With regards to the allegation that drawings were withheld until the Complainant agreed to new terms, the Respondent states that this ‘…by the time the practice was being pressed by the Complainant to release final drawings we had not been paid for approaching a year and he was refusing to sign a fee agreement and formalised all previous fragmented discussions on fees and duties. This was not on less favourable terms to either party. The drawings were in any case not complete and as the PCC’s enquiry recognises, drawings reflecting design changes were continually being issued to the client right up to within a few days of the practices appointment being terminated.’
The Respondent explains that he has been qualified since 1986 and has never before been the subject of a complaint. He states that he has ‘no wish to go over old ground and so I am simply referring to the findings of the PCC in their decision issued on 2nd of December. I should start by apologising to all and sundry that this matter has taken the path it has.’
3. Statement as to unacceptable professional conduct:
The ARB and the Respondent agree that the Respondents actions as per those allegations set out above, constitute unacceptable professional conduct, defined as conduct which falls short of the standard expected of a registered person, pursuant to Section 14(2)(b) of the Architects Act 1997.
The Respondent’s actions are in breach of Standards 1, 4, and 6 of the Architects Code. Standard 1 is headed “Honesty and Integrity”. Paragraph 1.1 states “You are expected at all times to act with honesty and integrity and to avoid any actions or situations which are inconsistent with your professional obligations. This standard underpins the Code and will be taken to be required in any consideration of your conduct under any of the other standards.” Whilst there is no suggestion that the Respondent has been dishonest, issuing incorrect and / or unjustified invoices casts doubt on his integrity.
Standard 4 is headed “Manage your business competently”. Paragraph 4.4 states “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). Paragraph 4.6 states “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.”
Standard 6 is headed “Carry out your work faithfully and conscientiously”. Paragraph 6.2 states “You should carry out your professional work without undue delay and, so far as reasonably practicable, in accordance with any time-scale and cost limits agreed with your client.” Paragraph 6.3 states “You are expected to keep your client informed of the progress of work undertaken on their behalf and of any issue which may significantly affect its quality or cost.”
The Board and the Respondent agree that the matter amounts to unacceptable professional conduct as it represents a breach of the relevant standards of the Architects Code: Standards of Conduct and Practice and a disciplinary order is necessary under section 15(1)(a) of the Architects Act 1997.
The Consent Order Panel of the Professional Conduct Committee, with the consent of the parties and having taken account of its responsibilities to protect the public and maintain the reputation of the profession, makes the following disciplinary order:
A penalty order of £2,000, pursuant to section 15(2)(b) of the Architects Act 1997.
The reasons are that a penalty order is the proportionate sanction which properly marks the unacceptable professional conduct in question, adequately meets the public interest in this case and safeguards the reputation of the profession.
While previous decisions of the Professional Conduct Committee do not set precedent, the imposition of a penalty order of £2,000 would reflect consistent decision making on the part of the Committee.
Taking into account the Indicative Sanctions Guidance, a penalty order is the appropriate sanction. It is necessary to mark the conduct of the Respondent as being unacceptable, and it has had a serious impact on the architect’s client. The imposition of a Reprimand would fail to mark the gravity of the numerous admitted failings, but there is evidence of insight into failings and a previous good disciplinary history. There is no evidence of entrenched integrity issues or likelihood of repeat misconduct, so a suspension order would be unduly punitive.