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Mr Dean Smith

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

Mr Dean Smith 077300J

Held as a video conference

on 27 and 28 July 2020

———-

Present

Julian Weinberg (Chair)
David Kann (PCC Architect Member)
Steve Neale (PCC Lay Member)

———–

In this case, the ARB is represented by Kathryn Sheridan of Kingsley Napley LLP.
Mr Smith has not attended the hearing and is not legally represented.

The Professional Conduct Committee (“PCC”) found Mr Smith guilty of unacceptable professional conduct (“UPC”) in that he:

1. did not appropriately manage a conflict of interest in respect of:
(a) Property A; and/or (b) Property B;
2. did not supervise and/or ensure that work was carried out at Property B in accordance with Health and Safety Regulations;
3.acted contrary to the requirements of Standard 9 of the Architects Code in that Companies C and D, both of which he was a director of, were each subject to separate Employment Tribunal judgments and;(a) He failed to pay the financial orders as instructed by those judgments in respect of:(i) Employee E; and/or (ii) Employee F;(b) He failed to notify the Registrar of the judgments within 28 days.

and that by doing so, he acted in breach of Standards 1.3, 2.1, 6.1 and 9.2 of the Architects Code: Standards of Conduct and Practice 2017 (“the Code”).

The sanction imposed is suspension order for a period of 2 years.

Charge and Allegations

1. In this case, the ARB is represented by Ms Kathryn Sheridan. Mr Smith (the “Respondent”) has neither attended this hearing nor is he represented. The Respondent faces a charge of unacceptable professional conduct (“UPC”) based on three allegations in relation to breaches of the Architects Code: Standards of Conduct and Practice 2017 (“the Code”). It is alleged that:

1) The Respondent did not appropriately manage a conflict of interest in respect of:
a) Property A; and/or
b) Property B
2) The Respondent did not supervise and/or ensure that work was carried out at Property B in accordance with Health and Safety Regulations;
3) The Respondent acted contrary to the requirements of Standard 9.2 of the Architects Code in that Companies C and D, both of which he was a director of, were each subject to separate Employment Tribunal judgements and
a) He failed to pay the financial orders as instructed by those judgements in respect of:
i) Employee E; and/or
ii) Employee F;
b) He failed to notify the Registrar of the judgements within 28 days.

Service of Notice

2. As the Respondent has not attended the hearing, the Committee firstly heard from Ms Swanston regarding service of the relevant notice. Notice of the hearing was sent to the Respondent by registered post on 3 June 2020, more than 49 days before the date of this hearing as prescribed by sections 24(1) and (2) of the Architects Act 1997 (“the Act”) and Rules 6 and 14c of the Professional Conduct Committee Rules 2019 (“the Rules”). The Notice contained the prescribed information and was sent to the Respondent at the address he agreed in his email dated 12 May 2020 to Ms Swanston.

3. The Committee has heard and accepted the advice of the Legally Qualified Chair. In the circumstances, the Committee is satisfied that service has taken place in accordance with the Rules.

Application to Proceed in Absence

4. Ms Sheridan submitted that the hearing should proceed in the Respondent’s absence. She referred the Committee to the Respondent’s signed Acknowledgement of Notice of Hearing From dated 23 June 2020 in which the Respondent confirmed, by ticking the appropriate box, that he did not intend to appear at the hearing and that he would not be represented.

5. She also referred the Committee to an email from the Respondent to the ARB dated 23 July timed at 17.13 in which he stated: “I am unable to attend the hearing as I’m having to work following time off during covid and no furlough”. The Respondent was informed that he could apply for an adjournment, but at 19.16 the same day, he sent a further email in which he stated: “My statement has been submitted and in my view my attendance will not further support my case”.

6. Having accepted the advice of the Legally Qualified Chair, the committee has applied Rule 14 of the Rules, the principles set out by the Court of Appeal in R v Jones (Anthony William) [2003] 1 AC 1 and the factors set out in Tait v The Royal College of Veterinary Surgeons [2003] UKPC 34 and GMC v Adeogba and Visvardis [2016] EWCA Civ 162. The Committee noted that its primary objective is the protection of the public and of the public interest, and that the “fair, economical, expeditious and efficient disposal of allegations made against medical practitioners is of very real importance”. As stated in Adeogba, “where there is good reason not to proceed, the case should be adjourned; where there is not, … , it is only right that it should proceed….there is a burden on…all professionals subject to a regulatory regime, to engage with the regulator, both in relation to the investigation and ultimate resolution of allegations made against them. That is part of the responsibility to which they sign up when being admitted to the profession.”

7. The Committee has borne in mind the following:

I. The nature and circumstances of the Respondent’s absence, and in particular whether his absence may be deliberate and voluntary. In this regard, the Committee notes the Respondent’s written confirmation that he will not be attending the hearing;
II. Whether an adjournment might result in the Respondent attending at a later date: the Committee notes that the Respondent has made written submissions for the Committee to consider in anticipation of the hearing taking place having indicated that he would not be attending this hearing. He has not indicated that he wanted the hearing adjourned or that if it were adjourned, he would attend any future hearing date.
III. The extent of the disadvantage to the Respondent in not being able to give evidence having regard to the nature of the case: the Respondent has provided written submissions for the Committee’s consideration in anticipation of proceeding in his absence. In any event, he is afforded the safeguard under Rule 14d of the Rules. This permits a Respondent to apply for a rehearing where the case is heard in his absence, subject to satisfying the Professional Conduct Committee that he has not had an adequate opportunity to appear before the Hearing Panel to argue his case and that it is just to do so. In those circumstances, a rehearing can be directed on such terms as may be appropriate;
IV. General public interest and in particular the interests of any victims or witnesses, that a hearing should take place within a reasonable period of time to which it relates. The Committee has borne in mind that three witnesses have attended this hearing to give evidence;
V. The effect of delay on the memory of the three witnesses who have made themselves available to give evidence at this hearing.

8. The Committee has exercised the utmost care and caution in reaching its decision, and has carefully considered the overall fairness of the proceedings. In considering this application, it has balanced the potential impact on the Respondent’s livelihood and reputation in hearing the matter today in his absence, as against the public interest in proceeding with the hearing in a timely manner. It has also had regard to the ARB’s Guidance on “Proceeding in a respondent’s absence”. Having done so, the Committee is satisfied that the Respondent has been given an adequate opportunity to make arrangements to appear before it to argue his case in person and that he has chosen to voluntary absent himself which he has confirmed by his completion of the Notice of Hearing from and in his email of 23 July 2020.

9. Taking all these factors into account, the Committee has concluded that it is fair and in the interests of justice to hear the case in his absence.

Preliminary applications

10. Ms Sheridan made an application for the statements of RDL and SK to be tendered in evidence as it was not the ARB’s intention to call those witnesses. She referred to Rule 15a of the Professional Conduct Committee Rules 2019 which states:

“the Hearing Panel shall not be bound by the judicial rules of evidence but may receive such oral, documentary and other evidence as appears to be relevant to the case, provided that the Hearing Panel shall not receive evidence that would not be admissible in a court of law if it would be unjust to the Respondent to do so”.

11. Ms Sheridan submitted that it would not be unfair to admit the evidence because their evidence related to matters that the Respondent admitted. It was open to the Committee to attach such weight as it considered appropriate to that evidence. In addition she stated that the Respondent had been explicitly informed that the ARB would not be calling these witnesses in the Report of the ARB’s Solicitor and the Respondent had not objected to their evidence being tendered.

12. The Committee heard and accepted the advice of the Legally Qualified Chair. Having done so, the Committee is satisfied that there was no unfairness or injustice in allowing the statements of RDL and SK to be tendered in evidence. The evidence related to admitted facts and the Respondent had not objected to the evidence being tendered in this way.

13. The Committee therefore granted the ARB’s application.

Allegation Background

14. At the material time, the Respondent was practising as a registered Architect and was the owner of his own architecture practice, Company C. In addition, he owned a construction company, Company D.

15. Complaints were submitted to the ARB in relation to the Respondent’s professional services by three unconnected complainants, PG, RDL and Employee E.

Complaint by PG

16. PG (the “Complainant”) is the owner and director of a franchise gym. In November, she and her partner secured the site for a gym (“Property A”), and a lease was signed in September 2018.

17. The Complainant appointed the Respondent under a ‘Design and Build’ contract in September 2018 under which, the Respondent acted as both the architect and contractor. The Respondent provided the Complainant with a number of contractual documents, but it is alleged that the Respondent did not advise her at any stage that he could not provide both independent architectural services as well as contracting services. The ARB alleges that the Respondent failed to provide any advice or information regarding any potential conflict of interest that could arise. As such, it is alleged, he did not seek her informed consent to act in both roles.

Complaint by RDL

18. RDL appointed the Respondent in April 2017, initially as Architect through Company C to assist with the extension and refurbishment of his home (“Property B”). A contractor was required and the Respondent suggested his own construction company, but RDL wanted to appoint an alternative contractor who was subsequently appointed.

19. As the project progressed, issues arose with that contractor, and RDL wanted to appoint a new contractor to finish the work. It is alleged that the Respondent proposed his own company and RDL agreed to this.

20. It is alleged that the Respondent did not explain about any potential conflicts of interest that could arise if he were to act as both Architect and contractor.

Health and Safety Executive Concerns

21. The ARB became aware of Health and Safety concerns in relation to the project at Property B. Those concerns were detailed by GD (the “Inspector”), a Health and Safety Executive Inspector who, in summary, identified:

A material breach of Regulation 6(3) of the Work at Height Regulations 2005 in that:

i. An operative working near an unguarded edge on the extension roof;
ii. An operative working near a roof light;
iii. A lack of edge protection for working on the roof; and
iv. An untied ladder.

Breaches of the Construction (Design and Management) Regulations 2015, namely Regulations 13 and 15, regarding site management and training.

22. The HSE issued a Prohibition Notice and a process began in order to address the issues, but shortly afterwards, the Respondent ceased being the contractor.

Complaint by Employee E

23. Employee E was a Part II Architectural Assistant and former employee of Company C.

24. In October 2018, she handed in her notice to the Respondent, and her last day of work was 22 November 2018. She expected to receive her final salary payment between 1-7 December 2018. Her final payslip on 30 November 2018 showed that she was due £1486.67.

25. In December 2018, the Respondent informed Employee E that payment of her salary would be delayed due to bank account issues. Employee E made several attempts to resolve the matter with the Respondent. However, on 31 March 2019, the Respondent informed her that Company D had been liquidated and that the liquidator would deal with any concerns, but that they had not yet been instructed to deal with Company C.

26. Employee E commenced proceedings at the Employment Tribunal against the Respondent and Company C. She received a judgement in her favour on 30 May 2019 which noted that the Respondent had made an unauthorised deduction from her wages and was ordered to pay her £1818.18. To date, Employee E has not received that sum. The ARB noted that Company C was not in liquidation at the time of the judgement.

Additional Employment Tribunal Matter

27. Following receipt of the complaint by Employee E, the ARB made further enquiries as to whether there were any other Employment Tribunal Judgements issued against the Respondent. It established that proceedings had been commenced against Company D by Employee F who was employed as the Head of Marketing and Advertising by the Respondent between July and November 2018. The Employment Tribunal judgement dated 20 May 2019 ordered the Respondent to pay Employee F £989.76 damages. The ARB surmises that this sum has not been paid. On 1 April 2019, Company D went into voluntary liquidation.

28. It is alleged that Respondent had not notified the ARB of the judgements within the 28 day period required by the Code, or at all.

29. Allegations 1(b), 3(a)(i), 3(a)(ii) and 3(b) are admitted and that those matters amount to UPC. Allegations 1(a) and 2 are denied, and therefore UPC is denied in respect of those matters. It is the Respondent’s case that he saw no conflict of interest in relation to the projects at Property A, and that he acted with transparency and integrity. He strongly disputed in his initial representations, that he knowingly broke any Health and Safety Regulations and that any issues were addressed in a succinct professional manner.

30. So far as the Employment Tribunal judgements are concerned, he stated that due to liquidation, he was unable to pay any monies out. He acknowledges that he did not inform the ARB of the Employment Tribunal matters but stated that this was an oversight on his part.

31. In reaching its decisions, the Committee has carefully considered the live evidence, the documentary evidence presented to it in the Report of the ARB’s Solicitor and the exhibited statements and documents. The Committee has also had sight of the Respondent’s statement. 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 ARB 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 partial admissions.

32. The Committee heard live evidence from the Complainant, the Inspector and Employee E (whose live evidence was principally limited to the issue of whether she had been paid the monies ordered to be paid to her by Company C). In considering the credibility of the ARB’s evidence, the Committee found each witness’s evidence to be measured, credible, reliable and consistent with the documentary evidence before it.

33. As the Respondent did not attend, he did not give live evidence. The Committee draws no inference of guilt from the Respondent’s non-attendance, but nevertheless attaches less weight to his evidence because unlike the ARB’s witnesses, it could not be subject to the scrutiny of cross-examination or questioning. As stated above, the Committee found the ARB’s witnesses to be credible and reliable. This led the Committee to conclude that where there was a conflict between his evidence and that of the ARB’s witnesses, the ARB’s evidence was to be preferred.

Findings of Fact

34. The Committee makes the following finding of facts:

Allegation 1(a)

35. The Committee heard the live evidence of the Complainant. She confirmed that she had instructed the Respondent on her project as both Architect and as Contractor. She produced her agreement with the Respondent as Architect and with Company D as contractors. She produced invoices from the Respondent as Architect and Contractor. She stated that the Respondent did not raise the conflict of interest with her and she confirmed that she would not have instructed the Respondent in both capacities had she known that his independence would be compromised.

36. The Committee first considered whether there was a conflict of interest. Having considered the Complainant’s evidence and the supporting documentation, the Committee is satisfied that the Respondent was acting as both Architect and Contractor.

37. The Respondent did not accept that there was a conflict of interest. However, in his defence document, he accepted “not physically sending in writing that I was to become contractor and not architect, but [name given] and I spoke about it very clearly and had the design set so that all major issues were eliminated by the time we were on site”.

38. In his written submissions, he concluded by stating: “I admit to not having fully explained the potential conflicts of interest given that the clients genuinely thought I was acting as both contractor and architect. And I take sole responsibility for this”. As a result, looking forward, “I will not be embarking on a construction path and would solely focus on being an architect”.

39. The Committee finds that the Respondent was acting as both the Architect and Contractor. The Respondent had a vested interest in both companies. As a result, a conflict of interest existed in that the Respondent’s independence would potentially have been compromised. The Respondent was in those circumstances, obliged to comply with Standard 1.3 of the Code. The conflict should have been disclosed in writing and written consent obtained, the Respondent accepts that this was not done, and, having failed to do so, the Respondent did not cease acting for one or more of the parties. As such, the Committee finds that the Respondent did not appropriately manage the conflict of interest.

40. Standard 1.3 of the Code states:

Honesty and Integrity
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.

41. The Committee therefore finds the facts alleged proved and that the Respondent acted in breach of Standard 1.3 of the Code.

Allegation 1(b)

42. By reason of the Respondent’s admission, the Committee finds the facts alleged proved.

43. The Respondent accepted in his written representations that he did not cover the conflict of interest in writing as he did not see one because he was acting as the contractor. However, he stressed the context of his relationship in that he and the Complainant were in a tender process and that it was natural for him to put his own construction company forward.

Allegation 2

44. The Committee finds the facts alleged proved for the following reasons.

45. The Committee has heard the live evidence of the Inspector, an HM Inspector of Health and Safety.

46. She stated, and the Committee accepts, that as the principal contractor, the Respondent was obliged to supervise and ensure that work was being carried out at Property B in accordance with Health and Safety Regulations.

47. She visited the property on 19 December 2018 and returned for an unannounced visit on 9 January 2019. On 9 January 2019, when she returned to Property B, she witnessed two workers working in unsafe circumstances without edge protection. This, she stated, posed a risk of serious injury in the event of a fall. She stated that the health and safety requirements were well established and practicable, should have been well known and that guidance relating to the standards required was available.

48. She provided photographic evidence of workers on the roof and the unprotected edges. She identified the risks alleged and issued a Prohibition Notice due to the serious risk of falls, a copy of which has been produced to the Committee. She subsequently wrote to the Respondent noting the Health and Safety risks she identified. These related to:

I. A material breach of the Work at Height Regulations 2005 – Regulation 6(3) and
II. Breaches of Regulations 13 and 15 of the Construction (Design and management) Regulations 2015.

49. As stated above, the Committee found her evidence to be informed, consistent, credible and reliable.

50. The Respondent stated in his representations that whenever he visited the site, his team had sufficient PPE on and his staff had high visibility jackets. He stated that staff had all necessary welfare facilities for the site. He stated that his client, the Complainant, was made aware of the dangers of the building site and that his workers and the Complainants were accountable for themselves in his absence if they carried out tasks or walked the site, knowing that such activities could be detrimental to their health. The Inspector was unequivocal in her evidence in stating that, whilst everyone on site had to be responsible for their actions, the Respondent, as Principal Contractor, was under the primary obligation to ensure that Health and Safety Requirements were being complied with. She concluded that the Respondent’s failings were basic and serious.

51. The Respondent in his written submissions accepted that there was a justified concern regarding the lack of edge protection. However, he has not made any specific submissions regarding the operative allegedly working near an unguarded edge on the extension roof or an operative working near a roof light. The Committee noted the Inspector’s evidence that the Respondent did not challenge her findings in respect of the breaches identified.

52. In the circumstances, the Committee finds that the Respondent, albeit in his capacity of a contractor, did not supervise and/or ensure that work was carried out at Property B in accordance with Health and Safety Regulations.

53. Standard 2.1 of the Code states:

Competence
2.1 You are expected to be competent to carry out the professional work you undertake to do, and if you engage others to do that work they should be competent and adequately supervised.

54. Standard 6.1 of the Code states:

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

55. The Committee is therefore satisfied that, having found the facts of this allegation proved, that the Respondent acted in breach of Standards 2.1 and 6.1 of the Code.

Allegation 3(a)(i)

56. By reason of the Respondent’s admission, the Committee finds the facts alleged proved.

57. The Respondent in his written submissions accepts that he was unable to pay Employee E, stating that he was “dismayed by this unfortunate situation”. He stated that if his architecture practice were able to continue, he will make paying Employee E and Employee F a priority. The Committee noted that when Employee E sought an update regarding money owed to her, the Respondent stated by text saying ”I’m quite surprised by your attitude to a very difficult and sad situation”. She also stated that the Respondent threatened to report her to ARB and RIBA due to the company’s financial problems.

58. Employee E stated in her live evidence that the money ordered to be paid to her in the judgement of the Employment Tribunal dated 20 May 2019 remains outstanding.

Allegation 3(a)(ii)

59. By reason of the Respondent’s admission, the Committee finds the facts alleged proved.

60. The Respondent stated that he had previously tried to contact Employee F to explain his intention to pay her should he work through the company again, but to no avail. In his conclusion to his written submissions, he stated “…should I be able to continue my practice then I would endeavour to pay back the two employees that have monies outstanding from the company”.

Allegation 3(b)

61. By reason of the Respondent’s admission, the Committee finds the facts alleged proved.

62. The Respondent accepted that he did not inform the ARB of the judgments and that it was an “oversight” on his part.

63. In the circumstances, the Committee finds the facts of this allegation proved.

64. Standard 9.2 of the 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:
• …..;
• fail to pay a judgment debt.

65. In the circumstances, the Committee finds that in failing to pay Employees E and F the money ordered to be paid, and in failing to notify the ARB of the judgements made, the Respondent, in relation to both particulars at 3(a)(i) and 3(a)(ii), and 3(b) acted in breach of Standard 9.2 of the Code.

Finding on Unacceptable Professional Conduct

66. 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 in respect of the admitted facts, his conduct amounts to UPC. However, the Committee recognises 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 to which no burden or standard of proof applies.

67. 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.

68. 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).

69. The Respondent’s failings embrace several areas of the Respondent’s practice. Failing to disclose a conflict of interest to his clients as required and to obtain informed consent is a serious failing on the Respondent’s part. Clients should be able to expect that their architect is impartial and untainted by their own commercial interests as contractor. Disclosure is essential so that the client can make an informed decision as to how such a conflict might impact on their project so they can make a decision as to how they want to proceed. Failing to disclose such a conflict not only potentially detrimentally impacts on the client, but also on the confidence the public can have in the profession.

70. The Committee also found the matters found proved in relation to the Respondent’s non-compliance with Health and Safety Regulations marked a serious falling short of the standard expected of a registered Architect. The failings found proved posed a risk of serious injury to those working at Property B.

71. The Committee also found that in respect of those matters proved at particular 3, the Respondent’s conduct again fell substantially short of the standard expected of him. The Respondent has shown a disregard for Court orders and for his obligations towards his regulator. The Committee also noted the Respondent’s tone of his communications to Employee E when she contacted him about money owed. Such conduct, the Committee has concluded, seriously undermines public confidence in the profession.

72. 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

73. Ms Sheridan addressed the Committee in relation to sanction. She reminded the Committee to bear in mind the ARB’s Sanctions Guidance and that in reaching its decision on sanction, the Committee should balance the Respondent’s interests with the need to protect the public, to maintain confidence in the profession and the ARB, and to declare and uphold proper standards of conduct and behaviour. She submitted that the Committee should act proportionately, considering the available sanctions in ascending order of severity. She further reminded the Committee to consider the aggravating and mitigating factors present.

74. In terms of aggravating factors, Ms Sheridan submitted that the Committee take into account the fact that a number of areas of the Respondent’s practice were found wanting, reflecting a pattern of poor practice. Those items at particulars 1 and 2, she submitted, reflected basic failings.

75. In respect of particular 3, she stated that the Respondent’s failings were repeated and deliberate and were demonstrative of an inability to recognise the seriousness of his failings. She asked the Committee to take into account the impact of the Respondent’s UPC on former employees as well as the health and safety aspect identified in particular 2.

76. She also submitted that the Respondent had not demonstrated insight or remediation of his failings.

77. In terms of mitigating factors, Ms Sheridan informed the Committee that there are no previous adverse regulatory findings recorded against the Respondent and that he had made some admissions at the outset.

78. The Respondent had submitted written submissions to the Committee in his defence document which the Committee has taken into account in mitigation.

79. He stated that he had not been practising at all in architecture for the past year as he felt it necessary to reflect and understand what had happened. Some of the allegations he stated he agreed with, others he strongly disagreed with. However, he stated that if he were given the chance to practise again as an architect, he would not be embarking on a construction path but would focus solely on being an architect. He would also try to pay back the two former employees that are owed money.

80. The Committee then considered whether to impose a sanction, and if so, which one. The Committee has had regard to the public interest referred to above. 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.

81. In considering the appropriate sanction to impose, 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.

82. Having taken all the evidence and submissions before it into account, the Committee has identified the following aggravating factors:

I. The failings identified covered a wide breadth of shortcomings in the Respondent’s practice as set out in the Committee’s determination on UPC;
II. The failings identified related to basic failings of health and safety which had the potential to cause serious injury. There is no demonstrable evidence before the Committee that the Respondent now fully understands his obligations in this regard. Similarly, there is insufficient evidence before the Committee that the Respondent is now better able to recognise the existence of a conflict of interest or how he might manage it in future;
III. In considering insight, 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. The Committee has borne in mind that in relation to particular 2, the Respondent sought to pass responsibility to individual workers for their own health and safety. In relation to particular 3, the Respondent, far from accepting his obligation to pay Employee E, threatened to report her to the ARB / RIBA;
IV. Despite his stated good intentions, the Respondent has still not paid Employees E or F the money owed under the court judgements for which there is an inevitable financial impact on them. Failing to repeatedly comply with Court orders, in the Committee’s view, seriously undermines the confidence the public can have in the profession.
V. His conduct in relation to Employees E and F reflect repeated failings;
VI. The Committee notes that in relation to allegations 1 and 3, the Respondent put his own interests before that of his clients and employees.

83. The Committee has identified the following mitigating factors:

I. that the Respondent has no adverse regulatory history;
II. the Respondent made a number of admissions at the start of the hearing and recognised that his admitted conduct amounted to UPC;
III. he has engaged in the regulatory process, albeit that he did not attend the hearing;
IV. he has accepted some of his failings and offered to make good on them, but the Committee noted however, that he has not done so despite the fact that approximately a year has elapsed since the Court orders;
V. he stated that he will not undertake any more projects as a contractor.

84. 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 the Respondent has not demonstrated meaningful insight into his failings, nor has he demonstrated that he has taken steps to remediate them, other than by not undertaking contractor work in future. The Committee therefore considers that there remains an ongoing risk of his UPC being repeated.

85. The Committee notes that the matters found proved are serious to the extent that the Respondent’s failings diminish both his reputation, and that of the profession generally. The Respondent has failed to identify and act on a clear conflict of interest; he has failed to ensure basic health and safety requirements were complied with and he has failed to make good on two court orders requiring him to make payments to former employees. 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.

86. 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.

87. 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.

88. The Committee next considered whether a suspension order was appropriate. Having carefully considered the Sanctions Guidance, the Committee considered that such a sanction would be sufficient to protect the public and the reputation of the profession. Despite the breadth of his failings, which are capable of being rectified, and his limited insight, the Committee has concluded that, taken in the round, the Respondent’s failings are not fundamentally incompatible with continuing to be an Architect. Despite the lack of insight identified, the Committee has not concluded that there is evidence of the Respondent having entrenched integrity issues.

89. It therefore imposes a suspension order for a period of 2 years which the Committee considers appropriate to protect the public and meet the public interest.

90. Given the suitability of a suspension order, the Committee concluded that imposing a sanction of erasure would be disproportionately severe.

91. That concludes this determination.

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