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Mr Anthony John Pettorino

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

Mr Anthony John Pettorino 061227H

Held on 6-10 January 2020

At

International Dispute Resolution Centre

70 Fleet Street

London

EC4Y 1EU

———-

Present

 Julian Weinberg (Chair)

 Roger Wilson (PCC Architect Member)

Jules Griffiths (PCC Lay Member)

———–

 

In this case, the Board is represented by Ms Kathryn Sheridan of Kingsley Napley.

Mr Anthony Pettorino has attended this hearing but is not legally represented.

 

The Professional Conduct Committee (“PCC”) found Mr Pettorino guilty of Unacceptable Professional Conduct (“UPC”) in that he:

1. Did not provide adequate terms of engagement contrary to Standard 4.4 of the Architects Code;

2. Did not manage a conflict of interest appropriately;

3. Acted dishonestly and/or without integrity by using client monies for his own benefit;

4. Did not return money for goods/services not delivered;

5. Did not have adequate and appropriate insurance in place to meet a claim contrary to Standard 4.4 of the Architects Code;

6. Did not provide an effective service and/or work to fit the brief in a timely manner;

7. Did not adequately manage the project in that he:
i. Did not maintain and/or provide adequate records of costs;
ii. Did not manage the purchase of materials effectively;

8. Did not communicate adequately, including by not responding to correspondence or returning telephone calls in a timely manner;

9. Did not manage his business appropriately and/or report the liquidation of his company to the Architects Registration Boardcontrary to Standard 9.2 of the Architects Code.

and that by doing so, he acted in breach of Standards 1, 1.3, 4, 4.4, 6, 7, 9 of the Architects Code: Standards of Conduct and Practice 2010 and Standards 4, 6, 8.1, 9.2, 10 of the Architects Code: Standards of Conduct and Practice 2017 (“the Code”).

The sanction imposed is erasure.

 

Charge and allegations

  1. In this case, the Board is represented by Ms Kathryn Sheridan. Mr Pettorino (“the Respondent”) has attended this hearing but is not represented. Mr Pettorino faces a charge of unacceptable professional conduct (“UPC”) based on nine allegations in relation to breaches of the Architects Code: Standards of Conduct and Practice 2010 (“the 2010 Code”) and the Architects Code: Standards of Conduct and Practice 2017 (“the 2017 Code”). It is alleged that:

    1. The Respondent did not provide adequate terms of engagement contrary to Standard 4.4 of the Architects Code;

    2. The Respondent did not manage a conflict of interest appropriately;

    3. The Respondent acted dishonestly and/or without integrity by using client monies for his own benefit;

    4. The Respondent did not return money for goods/services not delivered;

    5. The Respondent did not have adequate and appropriate insurance in place to meet a claim contrary to Standard 8.1 of the Architects Code;

    6. The Respondent did not provide an effective service and/or work to fit the brief in a timely manner;

    7. The Respondent did not adequately manage the project in that he:

    i. Did not maintain and/or provide adequate records of costs;

    ii. Did not manage the purchase of materials effectively

    8. The Respondent did not communicate adequately, including by not responding to correspondence or returning telephone calls in a timely manner;

    9. The Respondent did not manage his business appropriately and/or report the liquidation of his company to the Architects Registration Board, contrary to Standard 9.2 of the Architects Code.

 

Preliminary issues

  1. At the commencement of the hearing, Ms Sheridan informed the Committee that the Notice of Hearing was sent to the Respondent on the 20 December 2019, some 46 days before the hearing. She reminded the Committee that Rule 6 of the Professional Conduct Committee Rules 2019, required 49 days’ notice be given. The Respondent did not object to short notice being given. The Committee, mindful of its powers under Rule 16(a)(i), concluded that in the circumstances, there was no unfairness or injustice to the Respondent in the hearing taking place today.

 

Background

  1. At the material time, the Respondent was practising as a registered Architect and was the owner of Pettorino Design Ltd (“PDL”). In October 2018, Ms P M and Dr M T (“the Complainants”), submitted a complaint to the ARB in relation to the Respondent’s professional services having been instructed to design and contract manage the Complainants’ renovation of their property.
  1. Following initial correspondence, which included some terms of engagement, the Respondent provided a Construction Management Agreement (“CMA”). Whilst the original has been lost, a copy of a similar CMA has been produced. Apart from that, it is alleged that the Respondent failed to provide code compliant conditions to the Complainants.
  1. A contractor, Mr K C (“the Contractor”), recommended by the Respondent, was appointed. The start of the project was delayed, and then was further delayed and interrupted because the Contractor was working at the Respondent’s home. It is alleged that the reason for the delay was because the Contractor’s other project was at the Respondent’s home. This, the Board alleges, amounted to a conflict of interest which the Respondent did not adequately manage.
  1. As the works progressed, it is alleged that a number of problems arose. In addition, the relationship between the Contractor and the Respondent became difficult as the Contractor became unable to progress the works because he had not been put in funds to buy materials This obligation, it is alleged, fell to the Respondent under the terms of the CMA. As a result, it is alleged that the works progressed very slowly. There are still remedial works outstanding.
  1. It is the Board’s case that the Contractor invoiced PDL and the Respondent then invoiced the Complainants. However, it was difficult to reconcile the invoices and the Complainants were confused about what work had in fact been paid for.
  1. In November 2016, the Respondent emailed the Complainants about financial difficulties he was having, and it was proposed that from that time, all future payments should be made directly to the Contractor. It is alleged that the Respondent repeatedly failed to respond to the Complainants’ queries, for example regarding costs information. In addition, the Complainants sought a refund of monies due from the Respondent.
  1. It is alleged that, because of the Respondent’s financial position, he had used funds the Complainants had provided for the project, which were in the Respondent’s bank account, to pay his company salaries and thereby ease his cash flow difficulties. This, the ARB allege, was dishonest and demonstrative of a lack of integrity.
  1. In March 2017, the Complainants were advised that PDL had gone into voluntary liquidation, which fact the Respondent had not notified to the ARB within the required 28 days, or at all. The Complainants instructed solicitors who sought details of the Respondent’s insurers, but it is alleged that the Respondent did not have effective and appropriate insurance cover. The Respondent had opened another practice, AJP Architects, but their insurance cover would not cover the liabilities of the Respondent’s former company, PDL.
  1. Allegations 1, 5, 6, 7ii, 8 and 9 are admitted. The remaining factual allegations are denied. The Respondent accepts that based on the Complainants’ experience, his conduct in respect of the admitted matters amounts to UPC.
  1. In reaching its decisions, the Committee has carefully considered the live evidence, the documentary evidence presented to it in the Report of the Board’s Solicitor and the 252 pages of statements and exhibited documents and an audio recording and transcript of a telephone conversation between the Respondent and the Complainants in July 2017. The Committee has also had sight of the Respondent’s statement, and has also heard his live evidence. The Committee has accepted the legal advice given by the Legally Qualified Chair which is a matter of record. It has had regard to the fact that the burden of proof is on the Board and that the civil standard applies, namely proof on the balance of probabilities. The Committee is mindful that the more serious the allegation, the more cogent should be the evidence to find it proved. 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, irrespective of the Respondent’s admission.
  1. In considering the credibility of the Board’s evidence, the Committee found the Complainants’ evidence to be measured, credible, reliable and consistent both in relation to each other’s evidence but also with the documentary evidence before the Committee.
  1. The Respondent also gave evidence. Notwithstanding that he was willing to admit a number of factual allegations and accept those failings, in contrast to the Board’s evidence, the Committee found the Respondent’s evidence to be less credible. The Committee identified a number of factors that undermined his credibility generally:

i. At times, he was evasive, for example, in not recognising that, having used money received from the Complainants to settle his company’s payroll commitments when in financial difficulties, this would amount to a benefit for him;

ii. He stated that he had made payments to Lewis Properties to make good any defects, but he was unable to produce any supporting documentation to confirm what payments were made and what they represented;

iii. He was at times vague in that he was unable to provide a satisfactory explanation why he had not provided compliant terms of engagement, why he did not have a separate client account or why he failed to respond to correspondence from the Complainants, most notably, their ‘letter before action’ dated 2 February 2017;

iv. He sought to rely on a supposed erroneous double-counting of money received from the Complainants that he only identified in 2019, to justify his decision in 2016 to pay his company salaries from the Complainants’ money;

v. In his written response to the Investigation Panel’s preliminary decision, he stated that “Detailed cost reports were issued at least fortnightly”. However, in response to questions put to him, he accepted that that was incorrect.

  1. For the reasons stated above, the Committee considered that the Respondent’s evidence in a number of respects lacked credibility and reliability. This led the Committee to conclude that where there was a conflict between his evidence and that of the Board’s witnesses, the Board’s evidence was to be preferred.

Findings of Fact

  1. The Committee makes the following finding of facts:

Allegation 1

  1. The Respondent having admitted the facts alleged, the Committee finds the facts proved.
  1. In addition, the Committee has also accepted the evidence of the Complainants who stated that, in relation to being provided with written terms of engagement by the Respondent, they received a CMA, a blank copy of which has been produced. The Committee has also had sight of the Respondent’s email to the Complainants of 12 December 2014 which includes some additional information about costs. However, those documents do not contain all the information required by the 2010 Code.
  1. Standard 4 of the 2010 Code states:

Competent management of your business

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).

  1. In all the circumstances, the Committee therefore finds that the Respondent did not provide adequate terms of engagement and acted in breach of Standard 4.4 of the 2010 Code.
  1. The Committee therefore finds the facts alleged proved.

Allegation 2

  1. The Committee finds the facts alleged proved for the following reasons.
  1. The Committee first considered whether there was a conflict of interest. The Committee accepts the evidence of the Complainants that they were not informed by the Respondent that, whilst working at their property in May 2016, the Contractor was also working at the Respondent’s home address. They stated, and the Committee accepts, that they were only made aware of this fact by the Contractor and his workers who, on several occasions, left their property to work at the Respondent’s property. It is accepted by the Respondent that there were a number of days when the Contractor should have been working at the Complainants’ property, yet they attended the Respondent’s address as his property was “uninhabitable and needed some urgent quick fix decorating and tidying up before our furniture could be moved in”. Having balanced the credibility of the Respondent’s evidence against that of the Complainants, the Committee rejects the Respondent’s evidence that he informed the Complainants that the Contractor was working at his address. The Complainants were clear, consistent and unequivocal that the Respondent did not inform them of the true position but that the information came from the Contractor’s staff.
  1. The Respondent does not accept that there was a conflict of interest. However, the Committee finds that prioritising work at his own address at the expense of that of the Complainants, posed a conflict of interest between the Respondent’s need to secure the Contractor’s workmen to carry out work at his home address and the need, as Contract Manager, to ensure that the Complainants’ project was progressed in a timely manner. Such a conflict should have been disclosed in writing and written consent obtained, but this was not done.
  1. Standard 1 of the 2010 Code states:

1.3 Where a conflict of interest arises you are expected to disclose it in writing and manage it to the satisfaction of all affected parties. You should seek written confirmation that all parties involved give their informed consent to your continuing to act. Where this consent is not received you should cease acting for one or more of the parties.

  1. The Committee is therefore satisfied that, having found the facts of this allegation proved, that the Respondent acted in breach of Standard 1.3 of the 2010 Code.

Allegation 3

  1. The Committee finds the facts alleged proved for the following reasons.
  1. The Respondent accepted that he did not have a separate client account for holding clients’ money and that he used a single account to manage all incoming and outgoing payments for all projects and his business expenses. It is also not in dispute that the Complainant’s paid the Respondent about £11,000 on account to be used to pay the Contractor for work and materials. It was a term of the CMA that the Respondent would be responsible for procurement of materials and labour on behalf of the Complainants. That money was not placed into a separate client account.
  1. It is the Board’s case that the Respondent used some of that money for his own benefit by paying his staff salaries.
  1. The Committee has had sight of the Respondent’s email dated 1 November 2016 in which he stated:

the problem I have is financial, and it is not a small one. Without going into detailed reasons, one project, just before yours started went badly and left Ken and myself with big losses. I have today just managed to get the payroll sorted within a margin of less than £100…..Taking into account uninvoiced fees for technical drawings etc you are in credit a few thousand pounds, but this is not reflected in my bank account. This is something we will have to resolve separately”.

  1. The Committee has also taken into account the contents of the Complainants’ email dated 21 November in which they state:

you have also failed to give us an update on our account situation. We are in the third week since you informed us that you had allocated our project money to pay salaries for other projects you are working on and to cover other expenditures that you have incurred. This involves drawing up an agreement and contract for re-payment of the debt”.

In addition, the Committee has heard a recording of a telephone conversation between the Complainants and the Respondent in July 2017. During that call MT raises the issue of “money you used to pay salaries”. The Respondent replied stating “I’m very aware of that one, yeah”.

  1. In response to questions put to him by way of cross examination, the Respondent accepted, and the Committee finds, that he had used the Complainants’ money to pay his staff salaries at a time of financial difficulty, and that by doing so, there was a benefit to him.
  1. When asked by the Committee how he would account to the Complainants for those monies he had used to pay his staff, he stated that it “would all work out” and that it would balance itself out as he often used his own money to make payments on behalf of clients. However, by July 2017, the Committee finds, in light of the phone call referred to above, that that money had not been credited back to the Complainants.
  1. The Committee first considered whether the Respondent’s actions found proved amounted to a lack of integrity. The meaning of ‘integrity’ was considered in the case of Wingate and another v SRA [2018] EWCA Civ 366 where it was referred to as

a useful shorthand to express the higher standards which society expects from professional persons and which the professions expect from their own members. The underlying rationale is that the professions have a privileged and trusted role in society. In return they are required to live up to their own professional standards…..Integrity connoted adherence to the ethical standards of one’s own profession. That involves more than mere honesty…..The duty of integrity does not require professional people to be paragons of virtue. In every instance, professional integrity is linked to the manner in which that particular professions professes to serve the public. 

  1. The Committee finds that the Respondent used client funds, intended for procurement of goods and Contractor services, for the payment of his staff salaries. He neither sought nor obtained express consent for those moneys to be used for any purpose other than the one for which the funds were handed over, the Committee concluded that the Respondent acted without integrity.
  1. The Committee then considered whether the Respondent acted dishonestly. It has applied the test for dishonesty as set out in Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67.

When dishonesty is in question the fact-finding tribunal must first ascertain subjectively the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the objective standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.”

  1. In considering whether the Respondent acted dishonestly, the Committee notes that the Respondent, in giving live evidence, accepted the following:

i. That he used client money intended for payment of goods and services to settle his staff payroll at PDL;

ii. That he knew that he was not entitled to use that money for that purpose as he knew that the money would have to be repaid.

  1. The Committee does not accept that matters that only came to the Respondent’s knowledge in 2019, in that he may have double-counted money paid on account, could have any bearing on his state of mind in November 2016. The Committee concluded that he was aware that his company was under financial pressure. He expressly stated so in his email 1 November 2016 and further suggested that the Complainants, rather than his company, make future payments directly to the Contractor. In the circumstances, in applying the first limb of the Ivey test, the Committee finds that the Respondent knew that he was using client money for a purpose other than that for which he was entitled, namely to pay his staff to mitigate the then financial pressure on his company. From all the evidence before it, the Committee finds that the Respondent knew that he had neither sought nor obtained the Complainants’ consent to use their funds for this purpose. The Committee finds that ordinary, decent people would consider such conduct to be dishonest.
  1. Standard 1 of the 2010 Code states:

Honesty and Integrity

1.1 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.

  1. Standard 7 of the 2010 Code states:

Trustworthiness and safeguarding clients’ money

7.2 You should keep such money in a designated interest-bearing bank account, called a “client account” which is separate from any personal or business account

7.4 You should ensure that money is not withdrawn from a client account to make a payment unless it is made to or on behalf of a client on the client’s specific written instructions.

  1. Standard 9 of the 2010 Code states:

Maintaining the reputation of Architects

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.

  1. In the circumstances, the Committee finds the facts proved and that the Respondent acted in breach of Standards 7 and 9 of the 2010 Code, and without integrity and dishonestly in breach of Standard 1 of the 2010 Code.

Allegation 4

  1. The Committee finds the facts alleged proved for the following reasons.
  1. As set out in its reasoning in respect of allegation 3, the Committee has found that the Respondent had inappropriately used the Complainants’ money to pay his staff salaries, and that the Respondent accepted that that money had to be repaid. The Committee has also had sight of the Complainants’ letter before action letter dated 2 February 2017, requesting repayment of “money misappropriated” and further sums to cover procurement issues and poor project management. For example, they requested the return of £1338 for incorrect roof glass that had been ordered. Whilst the Committee accepts that there remain ongoing remedial works at the property, the Committee has not seen any evidence that those sums were repaid. The Respondent does not assert that the money has been repaid but stated that he was out of pocket as he covered the cost of remedial work carried out by a different contractor. The Committee saw no evidence of any payments made in this respect and accepted the Complainants’ account that the remedial work has still not been satisfactorily completed. As a matter of fact, the Committee finds that the Respondent has not returned money for goods / services not ordered.
  1. Standard 6 of the 2010 Code states:

You should carry out your professional work conscientiously and with due regard to relevant technical and professional standards

6.1 You are expected to carry out your work with skill and care and in accordance with the terms of your engagement.

6.2 …..

6.3 You are expected to keep your client informed of the progress of work you undertake on their behalf and of any issue which may significantly affect its quality or cost.

  1. Standard 7 of the 2010 Code states:

7.1 You are expected to keep proper records of all money held by you which belongs to a client or other third party, and to account for it at all times.

  1. In the circumstances, the Committee finds the facts of this allegation proved and that the Respondent acted in breach of Standards 6 and 7 of the 2010 Code.

Allegation 5

  1. The Respondent having admitted the facts alleged, the Committee therefore finds the facts proved.
  1. The Committee noted the contents of the ARB’s document, ‘PII Guidance 2014’ which sets out an Architect’s obligations to ensure that they have adequate PII cover, including run off cover. It states:

You need to be aware that the terms and conditions of PII policies differ, and you should therefore make proper enquiries to satisfy yourself that the policy on offer matches all your requirements…This is why it is important that you ensure that you have in place adequate ‘run-off’ cover when you cease practice, whether it because of retirement or the closure of a business to cover work previously undertaken. ARB recommends you ensure that you acquire a minimum of 6 years’ worth of run-off cover, and continue to monitor any risk you have of a claim being made against after this time…’.

  1. The Committee has also noted the contents of an email from the Respondent to the Complainants dated 3 July 2017 in which he wrote:

I had it confirmed definitively on Friday that neither the old PI policy for Pettorino Design Ltd or the AJP Architects policy will cover this. It is due to the insolvency of PD Ltd, the fact that the policy expired at the beginning of April, that the claim was not maid [sic] prior to that and that I can not [sic] get another insurer to pick up the liabilities of the old company”.

This was despite the fact that he formed AJP Architects before PDL went into liquidation.

  1. The Committee notes that PDL went into voluntary liquidation and that the ARB’s guidance on insurance in the event of insolvency does not apply. The Committee therefore concluded that the Respondent was under an obligation in accordance with Standard 8 of the 2017 Code to maintain appropriate insurance including run off cover. The Respondent accepted that he had not taken any steps to arrange continuation of cover after PDL went into liquidation despite his assurance in his email of 14 March 2017 to the Complainants that “You are right that my obligations to you have been transferred to now mew company….”. Failing to have insurance cover may prevent the Complainants securing compensation for any claim made by them against the Respondent.
  2. Standard 8 of the 2017 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 remains 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 ARB’s guidance.

  1. In the circumstances, the Committee finds the facts of this allegation proved and that the Respondent acted in breach of Standard 8.1 of 2017 Code.

Allegation 6

  1. The Respondent having admitted the facts alleged, the Committee therefore finds the facts proved.
  1. The project, for which the Respondent was appointed as Construction Manager, was expected to last some 12-14 weeks, yet despite having commenced in 2016, remains unfinished approximately some three and a half years later, with remedial works remaining outstanding.
  1. In addition, as considered in respect of allegation 7, the Complainants were insufficiently informed about costs, in that they were unable to reconcile money paid against work done. The Complainants repeatedly wrote to the Respondent regarding their concerns but their correspondence went unanswered.
  1. Standard 6 of both the 2010 and 2017 Codes state:

6.1 You are expected to carry out your work promptly and with skill and care and in accordance with the terms of your engagement.

6.2 You should carry out your professional work without undue delay and, so far is reasonably practicable, in accordance with any time-scale and cost limits agreed with your client.

  1. In the circumstances, the Committee finds that the Respondent did not provide an effective service and / or work to fit the brief in a timely manner. As such, the Committee finds that the Respondent acted in breach of Standard 6 of the 2010 and 2017 Codes.

Allegation 7 and 7i

  1. The Committee finds the facts alleged proved for the following reasons.
  1. The Committee accepts the evidence of the Complainants that they found the Respondent’s management of costs chaotic and exhausting. The Committee has had sight of the Complainants’ email of 4 April 2017 requesting a breakdown of costs associated with each activity in relation to project management. The Complainants wrote: “Given that we have paid you to manage the project within budget and to time, you are required to clearly demonstrate work activities and costs. The information you have provided so far, fails to do this”.
  1. The Committee has also had sight of invoices from the Contractor, but many of these fail to identify which work was undertaken / items purchased, to justify the amount sought. The Respondent’s invoices also fail to particularise the work covered. In addition, detailed costs reports were not issued at least fortnightly as asserted by the Respondent in his response to the Investigation Panel’s preliminary decision. They were intermittent and irregular, the Committee noting just three costs plans between March and August 2016. The last one, in the Complainants’ evidence, was not given to them until October 2016. A number of receipts were provided to the Complainants but the Committee accepts that they were unable to reconcile them with the work that had been done.
  1. In addition, notwithstanding the Respondent’s assertion that he has incurred costs of £25,356.79 in respect of Lewis Properties Ltd, there is no evidence before the Committee to corroborate that figure. The fact that the Respondent states that in January 2019 he then considered that he had double-counted a payment on account of over £10,000, further suggests that the Respondent did not maintain an adequate record of the project finances.
  1. In the circumstances, the Committee finds that the Respondent did not adequately manage the project in that he did not maintain and/or provide adequate records of costs.

Allegation 7ii

  1. The Respondent having admitted the facts alleged, the Committee therefore finds the facts proved.
  1. The Committee has also accepted the evidence of the Complainants in stating that the Contractor was often unable to progress the work as they were waiting to be put in funds by the Respondent who was responsible under the CMA for the cost of procurement of materials.
  1. Standards 4 of both the 2010 and 2017 Codes state:

4.1 You are expected to have effective systems in place to ensure that your practice is run professionally and that projects are regularly monitored and reviewed.

  1. In the circumstances, the Committee finds that the Respondent did not adequately manage the project in that he did not manage the purchase of materials effectively. The Committee finds the facts of this allegation proved and that the Respondent acted in breach of Standards 4 and 6 of the 2010 and 2017 Codes.

Allegation 8

  1. The Respondent having admitted the facts alleged, the Committee therefore finds the facts proved.
  1. The Committee has had sight of the correspondence between the Complainants and the Respondent. It noted that the Responded failed to meaningfully respond to the Complainants’ letter before action dated 2 February 2017 or their chase up email of 13 March, their letter of 6 November 2017 which also raised a number of concerns and seeking a repayment of money, or their email of 8 March 2018 regarding timetable for completion of outstanding work.
  1. Standard 6 of the 2017 Code states:

You should carry out your professional work faithfully and conscientiously and with due regard to relevant technical and professional standards

6.3 You are expected to keep your client informed of the progress of work you undertake on their behalf and of any issue which may significantly affect its quality or cost.

  1. Standard 10 of the 2017 Code states:

Deal with disputes or complaints appropriately

10.2   Complaints should be handled courteously and promptly at every stage, and as far as practicable in accordance with the following time scales:

a) an acknowledgement within 10 working days from the receipt of a complaint; and

b) a response addressing the issues raised in the initial letter of complaint within 30 working days from its receipt.

  1. In the circumstances, the Committee finds the facts of this allegation proved and that the Respondent acted in breach of Standards 6 and 10 of the 2017 Code.

Allegation 9

  1. The Respondent having admitted the facts alleged, the Committee therefore finds the facts proved.
  1. The Committee has had sight of a letter dated 21 March 2017 from Shaw Gibbs Insolvency stating that on 20 March 2017, Pettorino Design Ltd was placed in creditor’s voluntary liquidation and that they were appointed as liquidator. The Respondent accepted that he did not inform the ARB of the liquidation and that it was a “regretful oversight” on his part.
  1. Standard 9 of the 2017 Code states:

Maintaining the reputation of architects

9.2 You are expected to conduct yourself in a way which does not bring either yourself or the profession into disrepute. If you find yourself in a position where you know that you have fallen short of these standards, or that your conduct could reflect badly on the profession, you are expected to report the matter to ARB. You should notify the Registrar within 28 days if, for example, you:

……..;

are a director of a company which is wound up or placed in administration or a CVA (other than for amalgamation or reconstruction purposes);

  1. In the circumstances, the Committee finds that the Respondent acted in breach of Standard 9.2 of the 2017 Code.

Finding on Unacceptable Professional Conduct

  1. Having found all the allegations proved, the Committee went on to consider whether the Respondent’s conduct amounts to UPC. UPC is defined as conduct which falls short of the standard required of a registered person. The Committee notes that the Respondent accepts that his conduct amounts to UPC, recognising that this is a factor to take into account but is not determinative of the issue. Any finding of UPC remains a matter for the Committee’s independent judgment.
  1. In reaching its findings, the Committee has carefully considered all the evidence presented to it, all submissions made and has accepted the advice from the Legally Qualified Chair. 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 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.
  1. The Committee recognises that any failing should be serious, such that it would attract a degree of opprobrium. The Committee has borne in mind the case of Spencer v General Osteopathic Council [2012] EWHC 3147 (Admin) and 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 (The Queen on the Application of Dr Malcolm Noel Calhaem –v- General Medical Council [2007] EWHC 2606 (Admin). 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”.

The Committee also recognises that any failing must be serious (Vranicki v Architects Registration Board [2007] EWHC 506 Admin).

  1. The Committee has taken into account all the evidence before it together with both Ms Sheridan’s and the Respondent’s submissions.
  1. The Respondent’s failings embrace several areas of the Respondent’s practice over a substantial period of time. Providing compliant terms and conditions is essential to ensure that both the Architect and the client understands their respective rights and obligations. Failure to provide such terms has the potential to lead to confusion, the breakdown of the professional relationship between architect and client and detrimentally impacts on the confidence the public can have in the profession. In this case, the Respondent’s failings were aggravated by mismanagement of the project and its finances, a failure to manage a conflict of interest, poor communication with his clients, and a failure to report relevant matters to his regulator when required to do so once his company had gone into liquidation.
  1. A failure to have in place adequate and appropriate insurance places a client at risk of any claim against an architect not being met and is a fundamental obligation on an architect. This is particularly relevant in this case given that the Complainants sent the Respondent a letter before action in February 2017, yet the Respondent made no arrangements for run off cover prior to his company going into voluntary liquidation just one month later.
  1. Compliance with Standard 1 goes to the heart of what it means to be a professional. Dishonesty constitutes a breach of a fundamental tenet of the profession: GMC v Igwilo [2016] EWHC 524. In considering the level of seriousness of dishonesty, the Committee had regard to the case of Patel v GMC Privy Council Appeal No.48 of 2002, which determined that dishonesty was to be considered as being at the top end of the spectrum of the gravity of misconduct. The Committee is mindful that the nature of the dishonesty found proved should be contextualised. However, failing to act honestly and with integrity, particularly in circumstances where the Respondent has dishonestly used client funds for his own benefit, amounts to a serious falling short of an Architect’s core obligations at the higher end of the seriousness spectrum.
  1. The Committee therefore concluded that the matters found proved and the corresponding breaches of the Code represent serious departures from the standard expected of a registered Architect. Those failings, the Committee has concluded, both individually and collectively, are sufficiently serious to amount to UPC, which finding the Committee therefore makes.

Sanction:

  1. Ms Sheridan informed the Committee that there are no previous adverse regulatory findings recorded against the Respondent. She made no other representations.
  1. The Respondent made submissions to the Committee in mitigation. He submitted that engaging in this hearing had been a harrowing experience for him without the benefit of representation. He nevertheless accepted the Committee’s findings.
  1. He stated that he had sought to be open and honest with the Complainants about having used their funds to settle his firm’s payroll and expressed regret that the situation and circumstances that brought him before this Committee happened at all and that he should have parted company with the Contractor much earlier.
  1. He stated that his UPC would not happen again as he would not undertake building contract management work again but would only carry out a more traditional architect role. He stated that he had learned the lessons from this experience. The risks, he stated, were too high.
  1. He stated that he was the only registered Architect at the practice and that his income maintains the family household. He also stated that he has actively supported architectural education and, in a wider context, he had supported others in apprenticeship and mentoring programmes through Oxford Brookes University.
  1. He invited the Committee to take all these factors into account when deciding which sanction to impose.
  1. The Committee then considered whether to impose a sanction, and if so, which one. The Committee has had regard to the public interest, which includes the need to protect the public, to maintain confidence in the profession and the Board, and to declare and uphold proper standards of conduct and behaviour. The Committee has carefully considered all the evidence and submissions made during the course of this hearing. It has heard and accepted the advice of the Legally Qualified Chair which again, is a matter of record. It has borne in mind that the purpose of imposing a sanction is not to be punitive although it may have a punitive effect. It has taken into account the Respondent’s interests, the ARB’s sanctions guidance and the need to act proportionately. It has taken into account any aggravating and mitigating factors in this case and the Committee has exercised its own independent judgement.
  1. In considering the appropriate sanction in a case involving dishonesty, the Committee has taken care to balance all the relevant issues. It is important to understand the context in which the dishonest acts took place and to make a decision considering the key factors. “The effect of dishonesty by professionals, as far as public confidence in the public is concerned….is a primary consideration for a Fitness to Practise panel” (Siddiqui v GMC [2013] EWHC 1883). In the case of the case of PSA v Nursing and Midwifery Council, Mr D Wilson [2015] EWHC 1887 (Admin) where it was held that the public interest outweighs the Registrant’s interest, and the effect of sanction on a registrant was very much of secondary importance. In that case, Mrs Justice Laing stated: “The overriding factor … was the public interest in maintaining the reputation of the profession. The [NMC] and the public are entitled to the highest standards of honesty and integrity from the Registrants…” The Committee has borne in mind that there is a spectrum of seriousness of dishonesty (Watters v NMC [2017] EWHC 1888 (Admin)), and has considered where, on a properly nuanced scale of dishonesty, the UPC falls (Lusinga v NMC [2017] EWHC 1458 (Admin)). The Committee has also borne in mind Bolton v Law Society [1994] 1 WLR 512 in reminding itself in that the collective reputation of the profession is more important than the fortunes of the individual and that expulsion from the profession is appropriate for serious lapses.
  1. Having taken all the evidence and submissions before it into account, the Committee has identified the following aggravating factors:

i. The Respondent’s dishonesty was deliberate and related to improper use of client money. Clients must be able to have trust and confidence in Architects such that funds paid to them will be used only for the purpose for which those sums were paid. That is an essential element of what it means to be a professional. As a result, the Committee considers the Respondent’s dishonesty to be at the more serious end of the scale;

ii. In considering insight, and whilst noting the Respondent’s regret for his actions, the Committee notes the lack of demonstrable evidence of insight in relation to his personal responsibility for his actions as well as how they impact on the reputation of the profession;

iii. In the light of that, even though the Respondent has stated that he will not undertake a building contract management role in the future, the Committee considers that he has failed to fully appreciate his professional obligations or his failings which could nevertheless occur outside the context of building contract management. The Committee therefore considers that there is an ongoing risk of his UPC being repeated;

iv. The breadth of failings as set out in the Committee’s determination on UPC which continued over a considerable period of time;

v. The Committee notes that in relation to allegations 2 and 3, the Respondent put his own interests before that of his clients;

vi. The Respondent’s failure to ensure that he had adequate run-off insurance cover following the voluntary liquidation of PDL (particularly when he was aware of a potential claim and sought to reassure the Complainants that his obligations to them would continue) exposed the Complainants to substantial loss for which they may not receive compensation;

vii. His actions have caused considerable delay to the project, which remains uncompleted, and which caused continued substantial distress and inconvenience to the Complainants.

  1. The Committee has identified the following mitigating factors:

i. that the Respondent has no adverse regulatory history in a career of approximately 20 years in the UK;

ii. the Respondent made a number of admissions at the start of the hearing and recognised that his admitted conduct amounted to UPC;

iii. the Committee recognises his contribution to the greater profession by engaging in external professional education programmes;

iv. he has engaged in the regulatory process;

v. he has expressed regret for his failings, and has considered the experience a salutary lesson in compliance;

vi. at various stages of the project, he accepted some of his failings and offered to make good on them, but the Committee noted however, that in practice, he did not do so;

vii. he stated that he will not undertake any more building contract management projects.

  1. The Committee notes that the matters found proved are serious to the extent that Respondent’s failings diminish both his reputation and that of the profession generally. Honesty is a core quality that any member of the public should be able to expect from a professional. The Committee has 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.
  1. The Committee first considered whether to impose a reprimand. The committee considered that such a sanction was neither appropriate nor proportionate given that it did not consider the Respondent’s UPC to be at the lower end of the scale given the aggravating factors identified.
  1. The Committee then considered whether to impose a penalty order and also concluded that such a sanction was neither appropriate nor proportionate to protect the public or the reputation of the profession. The UPC found proved is too serious for the imposition of a penalty order.
  1. The Committee next considered whether a suspension order was appropriate. Having carefully considered the Sanctions Guidelines, the Committee considered that such a sanction would be insufficient to protect the public or the reputation of the profession. Given the breadth of his failings, the identified risk of repetition, the serious dishonesty in relation to client money, and his limited insight, it has led the Committee to conclude that, taken in the round, the Respondent’s failings are fundamentally incompatible with continuing to be an Architect.
  1. The Committee considers that the matters found proved are so serious that only erasure from the register would protect the public and / or the reputation of the profession. The Committee therefore directs that the Respondent’s name be erased from the register. The Committee recommends that the Respondent shall be entitled to apply for restoration to the register in no less than two years’ time which the Committee considers proportionate in the circumstances.
  1. That concludes this determination.

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