Mr Don James Rush
THE ARCHITECTS REGISTRATION BOARD
PROFESSIONAL CONDUCT COMMITTEE
In the matter of
Mr Don James Rush (052495F)
Held on 18 September 2017
8 Weymouth Street
Mr Julian Weinberg (Chair)
Mr Roger Wilson (PCC Architect Member)
Ms Jules Griffiths (PCC Lay Member)
Ms Fiona Barnett (Clerk)
Mr Jonathan Goodwin of Jonathan Goodwin Solicitor Advocate appeared on behalf of ARB.
Mr Rush has attended this hearing and is not legally represented.
Mr Rush faces a charge of unacceptable professional conduct (“UPC”) and serious professional incompetence (“SPI”) based on two allegations in relation to breaches of the Architects Code: Standards of Conduct and Practice 2010 (“the Code”) in that:
1. He failed to enter into a written agreement with his client prior to undertaking any professional work, which adequately, or at all, covered all matters set out in Standard 4.4 and 4.6 of the Architects Code: Standards of Conduct and Practice 2010;
1.2 He failed adequately, or at all to carry out his work faithfully, conscientiously and with due skill and care in that;
1.2.1 He failed adequately or at all, to explain to the complainant any potential issues
with the planning application; and/or
1.2.2. He failed to carry out, adequately or at all, a feasibility study for the project; and/or
1.2.3. He failed adequately or at all, to liaise with the Planning Department and/or take account of the local planning requirements when preparing the Planning application
and that the respondent therefore acted in breach of Standards 2, 4 and 6 of the Code.
1. This case arises out of a complaint made by DS and PK (“the Complainants”) in relation to services provided by the Complainant to obtain planning approval for the construction of six semi-detached houses.
2. Having been instructed in 2014, the Complainants allege that the Respondent indicated that he was confident that his proposed scheme would get planning approval. However, in May 2015, the application was refused. This gave rise to the Complainants’ concerns that the Respondent should have known that the application would not have succeeded and the further allegations as set out above.
3. Save for allegation 1.1 which is admitted, the factual allegations are denied.
4. At the commencement of the hearing, the Committee was informed that the Complainants were no longer willing to pursue their complaint and that they would not be attending the hearing to give evidence. Mr Goodwin submitted that, in the circumstances, it would not be fair to the Respondent to proceed with allegations 1.2, noting that the Respondent, and the Committee would be deprived of the opportunity of questioning the Complainants on matters disputed by the Respondent. He confirmed that ARB would not proceed with the contested allegations which were therefore withdrawn.
5. In reaching its decisions, the Committee has carefully considered the documentary evidence presented to it in the Report of the ARB’s Solicitor and the exhibited documents, so far as they relate to allegation 1.1. The Committee has accepted the legal advice given by the Clerk. 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. Whether the conduct alleged amounts to UPC or SPI is a matter for the Committee’s independent judgment to which no burden of proof applies.
Finding of facts
6. The Committee makes the following finding of facts:
By reason of the Respondent’s admission, both at the hearing, in his completed Acknowledgement of Notice of Hearing form and having regard to the unequivocal admissions in the correspondence from the Respondent contained in the bundle before the Committee, it finds the facts proved.
7. Standards 4 of the Code 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).”
4.6 You are expected to ensure that your client agreements record that you are registered with the Architects Registration Board and that you are subject to this Code; and that the client can refer a complaint to the Board if your conduct or competence appears to fall short of the standards in the Code.
8. In the circumstances, the Committee finds that by reason of the facts found proved, the Respondent acted in breach of Standard 4.4 and 4.6 of the Code.
9. Allegation 1.2 in its entirety was withdrawn.
Finding on Unacceptable Professional Conduct:
10. Having found allegation 1.1, proved, the Committee went on to consider whether the Respondent’s conduct amounts to UPC / SPI. UPC is defined as conduct which falls short of the standard required of a registered person. Whilst noting that the Respondent admits his failure in respect of allegation 1.1, any finding of UPC / SPI, remains a matter for the Committee’s independent judgment.
11. Serious professional incompetence relates to the quality and application of the professional skills architects need to do their job. In particular circumstances, some acts or omissions may amount to both incompetence and unacceptable conduct. Serious professional incompetence is a serious failure to meet the required standard of skill expected of a member of the profession undertaking a similar kind of job at the same time. It can relate to something that an architect has or has not done, but an unexpected or unsatisfactory outcome is not in itself proof that an architect has been seriously incompetent.
12. Because the facts and circumstances of each case are different, it is not possible to identify the exact point where incompetence becomes serious incompetence; however the following features make it more likely to be viewed as serious:
• When the consequences are, or could have been, particularly serious;
• Where the architect’s standard of competence falls significantly below that expected;
• Where a number of failings, while not serious individually, together demonstrate a pattern of incompetence; and/or
• Where a pattern of incompetence suggests an architect may not act competently in the future.
13. 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 Clerk. 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 or SPI. However, a failure to follow the guidance of the Code, whether in one’s professional or private life, is a factor that will be taken into account should it be necessary to examine the conduct or competence of an Architect. The Committee reminds itself that a finding of UPC / SPI is a matter for its own judgment.
14. The Committee has considered the authority of Spencer v General Osteopathic Council  EWHC 3147 (Admin). It has borne in mind in reaching its decision that for a finding of unacceptable professional conduct to be made, “a degree of moral blameworthiness on the part of the registrant likely to convey a degree of opprobrium to the ordinary intelligent citizen” was required. Any failing should be serious. The Committee accepts that “mere negligence does not constitute misconduct” and that “a single negligent act or omission is less likely to cross the threshold of misconduct than multiple acts or omissions….a single instance of negligent treatment unless very serious indeed, would be unlikely to constitute deficient professional performance”. Furthermore, for a finding to be made, any failings should be serious failings, referring the committee to the case of Vranicki v Architects Registration Board  EWHC 506 (Admin).
15. The Committee has taken into account both Mr Goodwin’s, and the Respondent’s submissions.
16. However, so far as the matter found proved and the corresponding breach of the Code is concerned, the Committee finds that the Respondent’s failing represent conduct falling below the standard expected of a registered Architect. Compliance with standard 4 ensures that both the Architect and the client understand their respective contractual obligations and forms the bedrock of the relationship between them. The Respondent’s failure to comply with standard 4 of the Code is serious because it gives rise to the potential for misunderstandings and confusion, and to the breakdown of the architect / client relationship.
17. The Committee therefore finds that the Respondent’s conduct as found proved in respect of allegation 1.1 can quite properly be categorised as amounting to unacceptable professional conduct, rather than serious professional incompetence. The Committee therefore finds that the Respondent’s conduct as found proved amounts to UPC. For the avoidance of doubt, the Committee makes no finding of SPI.
18. The Respondent addressed the Committee in mitigation.
19. 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 ARB, and to declare and uphold proper standards of conduct and behaviour. The Committee has carefully considered all the evidence and submissions made during the course of this hearing. It has heard and accepted the advice of the Clerk. It has borne in mind that the purpose of imposing a sanction is not to be punitive although it may have a punitive effect. It has taken into account the Respondent’s interests, the indicative sanctions guidance and the need to act proportionately. It has taken into account any aggravating and mitigating factors in this case. The Committee has exercised its own independent judgement.
20. Having taken into account the Respondent’s submissions, the Committee has identified the following mitigating factors:
• that the Respondent has no adverse regulatory history in a career spanning 35 years;
• he has engaged in the regulatory process and has admitted the factual allegation he faced and apologised for his failing;
• he has not personally gained financially from his failings;
• he has demonstrated insight into his failing and has addressed the situation by taking corrective action in sending clients compliant terms and conditions and explanatory notes to avoid a repetition of the failing that has brought him before this committee;
21. The Committee has not identified any aggravating factors.
22. In the circumstances, the Committee considers the risk of repetition of his unacceptable professional conduct to be low.
23. The Committee notes that the matters found proved are serious to the extent that Mr Rush’s failings diminish both his reputation, and that of the profession generally. The Committee therefore concluded that the Respondent’s conduct was sufficiently serious for it to require the imposition of a sanction and has considered them in ascending order of severity.
24. The Committee first considered whether to impose a reprimand. Given the mitigating factors identified and the low risk of repetition, the Committee considered that such a sanction was appropriate and proportionate. The Committee therefore imposes a reprimand. Such a sanction adequately reflects the seriousness of the UPC found proved and would adequately protect the public and the public interest.
25. The Committee then considered whether to impose a penalty order and concluded that such a sanction would be inappropriate and disproportionate sanction to impose given the suitability of a reprimand.
26. That concludes this determination.