Mr J Ross McKay
THE ARCHITECTS REGISTRATION BOARD
PROFESSIONAL CONDUCT COMMITTEE
In the matter of
Mr J Ross McKay (049154C)
Held on 3 November 2016
Chartered Institute of Arbitrators
12 Bloomsbury Square
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 the Board
Mr McKay did not attend the hearing.
- The Board is represented by Mr Jonathan Goodwin. Mr McKay did not attend the hearing and was not legally represented. Mr McKay faced a charge of unacceptable professional conduct (“UPC”) based on two allegations in that:
Allegation 1.1 He failed to inform his client adequately, or at all, that in respect of his costs;
- The “total of £4,350.00” was not an agreed fixed fee and may be subject to additional fees; and/or
- Additional fees were being incurred on an hourly rate and accumulating during the production of the revised sketch proposals.
Allegation 1.2 He failed adequately, or at all, to produce a design for the project that could realistically be produced within his client’s budget;
and that by doing so, the respondent acted in breach of Standards 2, 4 and 11 of the Architects Code: Standards of Conduct and Practice 2002 (“the Code”).
Service of Notice and Proceeding in Absence:
- The Committee first considered whether notice of the hearing had been served in accordance with the Professional Conduct Committee Rules (“the Rules”). Mr Goodwin advised the Committee, and adduced documentation confirming that the Notice, containing all the information required by Rule 6 of the Rules, was sent to the respondent by recorded delivery 49 days before the hearing at the address registered with the Board. Having heard and accepted the advice of the Clerk, the Committee finds that notice was served in accordance with the Rules.
- The Committee then considered whether to proceed in the absence of the respondent. The Committee considered all of the circumstances of the case and, in particular, whether the respondent has chosen not to be present or represented. Mr Goodwin referred the Committee to correspondence with the respondent in which he stated that he wished to be removed from the register and importantly, that in his email of 12 May 2016, he “will not be attending any hearing”. He informed the Committee that the respondent had not communicated with the Board indicating whether or not he was contesting the allegations against him.
- The Committee has applied Rule 11 of the Rules, the principles set out by the Court of Appeal in R v Jones (Anthony William)  1 AC 1 and the factors set out in Tait v. The Royal College of Veterinary Surgeons  UKPC The Committee has also borne in mind the case of GMC v Adeogba  EWCA Civ 162 reminding itself that “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.”
- The Committee considered whether the respondent’s absence was deliberate and voluntary and concluded, given the contents of his correspondence with the Board, that it was. No request for an adjournment has been made by the respondent. The Committee saw no evidence that led it to conclude that by adjourning the matter, the respondent would attend the hearing on any future date. On the contrary, he stated in correspondence with the Board that he will retire and that he wished his name be removed from the register. He has not expressed a wish to be represented at the hearing in his absence.
- The Committee has considered 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 detailed written submissions for the Committee’s consideration. In any event, he is afforded the safeguard under Rule 11d of the Investigation Rules.
- The Committee has also borne in mind that these are serious allegations and the Committee has borne in mind the public interest in hearing cases expeditiously. The Committee has borne in mind that the complainant has made herself available to give evidence today by phone.
- 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. 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 voluntarily absent himself. 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.
- A complaint has been made by GM (“the complainant”), in respect of the professional services carried out by the respondent.
- The background to the allegations is that in 2006, the complainant instructed Mr W, an Architect in relation to the conversion of her property. The complainant’s budget was £150,000-£180,000. Mr W passed away in 2008, but prior to his death, the respondent worked with him on an informal basis. At the last meeting with Mr W, at which the respondent was present, it became clear that the anticipated project costs exceeded her budget by about £100,000. The respondent was then engaged to bring the cost of the project within budget by reducing its scale and by modifying the existing plans.
- A fee proposal was suggested and accepted. The complainant subsequently received invoices for additional work undertaken by the respondent which it is alleged was carried out without her knowledge or agreement. Court proceedings followed and the matter was settled.
- It is also alleged that the respondent failed to produce a design that could be achieved within the complainant’s budget.
- The respondent not having given any formal notification as to whether the allegations were admitted or not, the Board presented its cases on the basis that it would have to prove all the allegations made.
- In reaching its decisions, the Committee has carefully considered the documentary evidence presented to it in the Report of the Board’s Solicitor and the 68 pages of documents exhibited to it, together with a copy witness statement of the complainant together with its exhibits. The Committee has also taken into account the live evidence of the complainant given by telephone.
- 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 Board and that the civil standard applies, namely proof on the balance of probabilities. Whether the conduct alleged amounts to UPC is a matter for the Committee’s independent judgment to which no burden of proof applies, notwithstanding the respondent’s admission.
Findings of fact:
- The Committee makes the following finding of facts:
- The Committee finds the facts of this allegation not proved.
- Having initially submitted a fee proposal that was rejected by the complainant, the respondent sent a revised proposal in an email dated 25 September 2008. His fees covered the following costs: “preparing working drawings and related specifications for the finalised and agreed scheme of the new proposals sufficient to accompany your application for a Building Warrant and which would allow a contractor to prepare a competitive Tender; of preparing contract documentation, inviting Tenders from selected builders, administering the terms of the contract, visiting the site to inspect the works and making submissions for approval of a Completion Certificate on your behalf”. It stated:
“This would leave a total of £4,350 due to be paid in arrears, in instalments as described before, at the end of each work stage in the normal fashion. As you know, you can halt the process whenever you choose and only fees for work actually carried out up to that point would fall due. My fee does not attract VAT…..As before, my fee does not include…..additional architectural services that may be required but are not covered in the above description and which I would normally charge at an hourly rate of £45.00.”
- The complainant gave evidence that the work undertaken by the respondent was “haphazard” and unsuitable for her needs. It is not disputed that the respondent subsequently submitted two invoices. His invoice of 18 August 2009 for £2,970 covered the period 1 September 2008-1 June 2009 and was for 66 hours of work at £45 per hour. The complainant stated that she disputed the invoice because she considered that the fee proposal as set out in the respondent’s email of 25 September 2008 covered the costs of the work in question and that she had not agreed to being charged additional fees on an hourly rate.
- The Committee has considered the terms of the respondent’s email of 25 September. In it, he sets out the scope of work to be included in his fee of £4350. In response to questions from the Committee, the complainant accepted that she was aware that additional fees may be charged as per the respondent’s email of the 25 September 2015, but that she could not see what additional fees might be chargeable. In any event, she would have expected to have been told in advance of incurring any additional fees, that they were being incurred, and what for. This, she stated, was not done.
- Even though the complainant was unsure as to what additional costs may be incurred, the Committee is satisfied, to the required standard, that the respondent did adequately inform his client that the total of £4350 was not a fixed fee and that it may be subject to additional fees.
- The Committee finds the facts of this allegation proved.
- The complainant stated that when she received the respondent’s invoice of 18 August 2009, she was unaware that the respondent was undertaking work outside his quoted fee and on an hourly basis, hence the contents of her email dated 13 October, querying the invoice on the basis that she had not agreed to pay the respondent on an hourly rate as per the invoice. The invoice claimed a fee of £2970 for 66 hours of work between 1 September 2008 and 1 June 2009. The Committee accepts the evidence of the complainant that she was not told that those additional fees were being incurred. The Committee has seen no evidence that the respondent made the complainant aware that he was carrying out work on an hourly basis.
- Standard 11 of the Code states:
“Architects should organise and manage their professional work responsibly and with regard to the interests of their clients.
11.4 Architects should carry out their professional work without undue delay and, so far as is reasonably practicable, in accordance with any time-scale and cost limits agreed with the client.
11.5 Architects should keep their client informed of the progress of work undertaken on their behalf and of any issue which may significantly affect its quality or cost.”
- By acting as found proved, the Committee finds that the respondent acted in breach of Standards 11.4 and 11.5 of the Code.
- The Committee finds the facts not proved.
- It is not disputed evidence that the complainant had a budget of between £150,000-£180,000 and that the respondent was specifically required to bring the project in line with her budget. The respondent relies on a letter from a Mr R, a builder who inspected the property in December 2008. In his letter of 13 April 2015, he stated that “I was told that the budget for carrying out this work was £180,000 I confirmed that this seemed to be a reasonable rough price for doing what was proposed based on what I had seen and the drawings I had been given”. The complainant disputed this on the basis that the inspection, in effect, did not seem thorough and that Mr Rodger had attended without any plans. She stated that she could not see on what basis he had reached his conclusions on what she considered to be a “brief look around” the property.
- Even though the complainant stated that she was never supplied with a costs breakdown that supported her budget feasibility, the respondent stated in correspondence with the Board that the design was “do-able”. The respondent accepted in his letter of 12 October that “it was practically impossible to provide detailed comments on costs, not just because the client did not trust my assessments but because design layouts for the project changed so frequently and often so dramatically”.
- In reaching its finding, the Committee has reminded itself that the burden of proving the allegation rests on the Board. It has also borne in mind that the Board has not produced any designs or other evidence, other than that of the complainant’s general concerns, that the respondent failed to produce a design for the project that could realistically be produced within the client’s budget. The Committee has taken into account that the only evidence on this issue before it is the letter from Mr Rodger which indicates that, based on drawings provided to him, the project could be completed within the client’s budget. There is no evidence before the Committee upon which it could conclude that the complainant’s concerns were justified. Whether or not that was, in fact the case, is not demonstrated by evidence before the Committee.
- The Committee therefore finds this allegation not proven.
Finding on Unacceptable Professional Conduct
- Having found allegation 1.1.2 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.
- 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. 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 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”.
- It is the Committee’s finding that the allegation found proved, represents a serious failing on the respondent’s part. Invoicing the client for 66 hours of work without having informed her that additional costs were being incurred represents a serious departure of the standard of conduct expected of a registered Architect. Such conduct undermines the reputation of the respondent and the profession generally. Such failings can quite properly be categorised as UPC and the Committee therefore finds that the Respondent’s conduct does amount to unacceptable professional conduct.
- The Committee learning that the respondent has no adverse regulatory history, 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, behaviour. The Committee has carefully considered all the evidence and submissions made during the course of this hearing, including the respondent’s correspondence with the Board. 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.
- The Committee has identified the following mitigating factor:
- This was an isolated incident in a career spanning approximately 40 years without any adverse regulatory findings;
- The Committee has identified the following aggravating factors:
- the respondent has demonstrated limited insight into his failings to the extent that he has not made any apology or expressed any remorse for his actions, nor has he identified the impact of his conduct on the reputation of the profession. The Committee noted that, when challenged on his fees, he inappropriately wrote to the complainant stating that she was raising “the same old excuses you used previously to try and avoid paying Hugh his professional fees”;
- whilst it may be, in part, because the respondent has given a clear statement in his correspondence to the Board that he wishes to retire and to be removed from the register, he has not demonstrated that he has remedied his failings such that the risk of repetition is low in the event that he were to continue in practice;
- the registrant has failed to engage fully in the regulatory process;
- the respondent has sought to make financial gain at the expense of his client, from the conduct found proved.
- The Committee notes that the respondent has not provided any references or testimonials.
- Taking all these factors into account, the Committee considers the risk of repetition of his failings to be moderate in the event that he were to return to practice.
- The Committee notes that the matter found proved is serious to the extent that Mr McKay’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.
- The Committee first considered whether to impose a reprimand. Given the seriousness of the UPC found proved, the Committee considered the respondent’s failings too serious for such a sanction to be either appropriate or proportionate.
- The Committee then considered whether to impose a penalty order, and considered a £2000 penalty order to be an appropriate and proportionate sanction to reflect the seriousness of the UPC found proved. That sum must be paid within 28 days. Failure to satisfy the order may lead to it being replaced by a suspension or erasure order.
- The Committee then considered whether to impose a suspension order but considered this inappropriate and disproportionate given the suitability of a penalty order.
- That concludes this determination.