Mr John Lamb
THE ARCHITECTS REGISTRATION BOARD
PROFESSIONAL CONDUCT COMMITTEE
In the matter of
Mr John Lamb (047814H)
Held on 11th – 14th April and 17th May 2016
Novotel, Pitt Street, Glasgow
Architects Registration Board
8 Weymouth Street
Mr Paul Housego: (Chair)
Ms Linda Read: (PCC Lay Member)
Roger Wilson : PCC Architect Member)
Mr Stephen Battersby: (Clerk to the PCC)
Ms Catriona Watt of Anderson Strathern appeared on behalf of the Board
Mr John Lamb attended the hearing and was represented by Ms Lorna Davis solicitor
- Mr Lamb appeared before the Professional Conduct Committee of the Architects Registration Board to deny an allegation of unacceptable professional conduct (“upc”).
- The factual particulars asserted were that he: –
Allegation 1: failed to control the cost of the project to redevelop Westfield Health Centre, in particular:
(i) he omitted items from the Specification and Description of Works which had been requested by the Complainant, including:
a. new boilers
b. patient toilets
(ii) he underestimated the cost of the:
a. new boilers
c. air conditioning
(iii) he failed to present options for savings which could be made in respect of the project following a request from the Complainant for savings to be made, including in respect of:
- the flooring material in the reception area
(iv) authorised the exclusion of air conditioning in the file store as part of the tender negotiations without the prior agreement of the Complainant
Allegation 2: failed to keep the Complainant informed of matters which had a significant effect on the cost of the project.
- The preamble to the Architects Code: Standards of Conduct and Practice 2010 Version (“the Code”) states that any failure to comply with the provisions of the Code is not of itself to be taken as constituting unacceptable professional conduct or serious professional incompetence, but it shall be taken into account in any disciplinary proceedings before the Board’s Professional Conduct Committee.
- It also states that architects are expected to be guided in their professional conduct and professional work by the spirit of the Code as well as by its express terms. The fact that a course of conduct is not specifically referred to in the Code does not mean that it cannot form the basis of disciplinary proceedings.
- Each case is judged on its facts, and there may be circumstances in which unacceptable professional conduct (or serious professional incompetence) is found even where there has been no clear breach of the express terms of the Code. Not every shortcoming, or failure to meet the Standards expected by the Code, will necessarily give rise to disciplinary proceedings.
- The ARB stated that the relevant provisions of the Code are:-
Competent management of your business
4.5 Any agreed variations to the written agreement should be recorded in writing.
You should carry out your professional work faithfully and conscientiously and with due regard to relevant technical and professional standards
6.2 You should carry out your professional work without undue delay and, so far is reasonably practicable, in accordance with any cost limits agreed with your client.
6.3 You are expected to keep your client informed of the progress of work undertaken on their behalf and of any issue which may significantly affect its quality or cost.
- The Complainant is the practice manager of the health centre that wished to undertake a substantial refurbishment with the aid of a 66% grant from the Health Board. Another practice recommended a contractor whom the practice manager contacted, and the contractor recommended Mr Lamb. In order to secure the funding, the refurbishment had to be carried out very swiftly, on a fixed price contract. All expenditure had to be approved in advance by the Health Board in order to get grant funding. At the conclusion of the project the contractor presented a bill for a sum very substantially in excess of the agreed contract figure. The Complainant said that Mr Lamb failed to manage the situation properly, in the ways alleged. Mr Lamb denied all the allegations save that factually he agreed that the new boilers were not included in the specification and description of works.
Burden and standard of proof
- The ARB is required to prove the factual allegations to the civil standard; that it is more likely than not that any event occurred. That is a single unwavering standard of proof, though the more unlikely an allegation the more cogent the evidence required to prove it. There is no requirement for Mr Lamb to prove anything. The Committee has in mind throughout its deliberations that the right to practise a profession is involved in these proceedings and proceeds upon the basis that the Human Rights Act 1998 will apply. In particular, Mr Lamb has the right to a fair trial and to respect for his private and family life under Articles 6 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as incorporated within UK law by that Act. The question of whether or not any facts found proved amount to upc is a matter for the Committee’s judgment, and there is no burden of proof. A finding of unacceptable professional conduct requires the Committee to judge that conduct to be serious, and morally blameworthy.
Preliminary matter 1
- Ms Watt pointed out that in breach of the Rules; Mr Lamb had provided a substantial bundle of documents only on the working day before the hearing commenced. She did not, however, object to the Committee taking them into account, and the Committee decided to admit those documents.
Preliminary matter 2
- During the course of the cross-examination of Mr Lamb, Ms Davies objected to a line of questioning. This concerned the absence of any interim certificates from Mr Lamb to the contractor and client about the originally contracted work and any additional items. Ms Davies asserted that there was no allegation of failure to provide interim certificates and to permit such a line of questioning was to widen the scope of the Committee’s enquiry impermissibly. Ms Watt responded that it was relevant as background to an alleged failure to keep the Complainant informed of matters which had a significant effect on the cost of the project, and to the allegation of underestimating the cost of boilers, staircase and air-conditioning.
- The Committee considered the advice of its clerk, delivered in open session. There was no allegation of failure to provide interim certificates, but Mr Lamb’s view about interim certificates had relevance to the control of the cost of the project and was important. The view of Mr Lamb about interim certificates, or the absence of them, was also relevant to the information, or lack of it, provided to the Complainant. With that understanding as to the point of the questions this line of questioning was permitted to continue.
- Mr Lamb said that the building contract was one that, of necessity, had to be entered into in haste, and for that reason some items were estimations: for the staircase the estimate was reasonable and the cost increased, partly by reason of the engineer’s requirements. The contractor’s final claimed cost was not one he had agreed. It was the contractor who had increased the cost of the boilers and air conditioning, but these were fixed sums in the contract so that he did not agree that the extra claimed was due from his client. He denied that he had been requested to include patient toilets, but admitted that he had omitted the new boilers in error. The Complainant had agreed a staged payment schedule with the contractor, so that he did not certify works as the project progressed. He had repeatedly pressed the contractor for details of costs of additional work, but the contractor had failed to provide these. He denied that he had been asked by the Complainant for such breakdowns, and the minutes did not refer to any such request. The contractor had very much worked as it wished, and not always to instruction. Some of the alterations had been requested by the Complainant direct of the contractor, and so he, Mr Lamb, had no control over them. Part of the work had not been requested at all (the attic store) and he told the contractor and the Complainant that the health centre need not pay for that work. Because there was no requirement to certify payment for work there was no running total of contractual cost. No architect’s instructions were issued. Once the contractor had issued its final ‘extras’ account, Mr Lamb felt that he had done all that was reasonably to be expected in addressing the matter. As the Health Board funding was withdrawn at 31 March 2014, any expense after that could not have been grant aided. Mr Lamb maintained that it was the failure of the contractor to provide information on the costs of additional items throughout the course of the project which prevented him from being able to advise the Complainant of the extent of additional expenditure until the end of the project (ARB1:140 – letter from Mr Lamb to ARB dated 24 April 2015).
- The Committee perused (1) the report of the Board’s solicitor with accompanying documents running to some 154 pages; and (2) the bundle of 134 pages prepared by Mr Lamb’s solicitors. The Committee heard evidence from the Complainant and from Mr Lamb, both of whom were cross examined. The Committee asked questions of both witnesses.
- Ms Watt submitted that the evidence showed that Mr Lamb had failed in the ways alleged. This was a case where 66% of the approved cost of the project fell on the State: for the health centre the effect of non-recovery of any sum not sanctioned by the Health Board meant they had to pay 100% of the cost not 34%. Insofar as the contractor was said to be at fault, it was for Mr Lamb to manage the situation. The initial letter from Mr Lamb confirming his fee and Conditions of Engagement was dated 15 July 2013; the tender was received on 30 August 2013, with the work commencing on 16 November 2013; Health Board grant funding ended on 31 March 2014, but it was not until 14 May 2014 that the Complainant was made aware of the additional costs incurred of over £70,000. Estimates were never updated. The stairs were in the contract as a provisional sum of £5,000 yet the final cost was over £12,000. This was clearly a failure to comply with the provisions of 6.2 and 6.3 of the Code because costs limits had been agreed with the client, who was unaware of the extent of the cost overrun. Mr Lamb had attended the site at approximately fortnightly intervals but had not given any indication to the Complainant about the likely final cost. While there were repeated references to options for savings to be made to offset any additional work, in fact this did not occur. None of the variations to the contract were recorded in writing, and this was a breach of 4.5 of the Code. Ms Watt made detailed submissions concerning the individual aspects of the allegations. This was a significant falling short of the standards to be expected of a reasonable and competent architect.
Submissions on behalf of Mr Lamb
- Ms Davis made lengthy submissions. She referred the Committee to three cases:
- R on appln of Wheeler v Asst Commissioner of Met Police  EWHC 439 (Admin). Ms Davies cited this case in support of her submission that allegation 2 was too vague to be capable of detailed understanding in advance, and accordingly should not be found proved.
- R on appln of Roomi v GMC  EWHC 2188. Miss Davies referred to this case, in particular paragraphs 17 and 18, in support of her submission that the Committee must focus solely upon the factual allegations put before it by the ARB in allegation 1. In conjunction with the previous case, allegation 2 could only be supported by the factual matters set out in allegation 1.
- Sharp v NMC EWHC 2174 (Admin). This case indicated that the Committee must be alert to make findings of fact based upon evidence, and conclusions drawn from that evidence rather than on “detective work” of its own. In that case the NMC’s fitness to practice committee decided that the allegation was not a one off, which was all that was alleged, but one of 4 further known occasions, on the basis of its own questions.
- Ms Davis went through the allegations in detail. It was accepted that the boiler was part of the brief and Mr Lamb omitted it in error: given the rush in this job, while that omission was regrettable it was understandable. It was disputed that the refurbishment of the toilets had ever formed part of Mr Lamb’s brief. Mr Lamb had not underestimated the costs of the boiler because he had obtained the contractor’s quote for them. The staircase was a reasonable provisional sum, and the first design was over engineered. The contractor had said he would get a revised design and did so, and it was reasonable for Mr Lamb to assume that the revised staircase would be of the order of the provisional sum of £5,000. The air conditioning had been precisely specified and there was no justification for the contractor increasing the cost of it at the end of the contract. As to the flooring, the floor specified had been basic, because of the haste required to send out a specification for tenders, and the design was always to be improved before being installed – the additional cost of better flooring laid on a diagonal with a stripe was perhaps no more than £500. There had never been air conditioning specified in the file store, and while it was unfortunate that the minutes of meetings led the Complainant to think that there was, it was clear from the specification that it was not. It was not in the tender documents sent out and there had been no tender negotiations to remove it. The contractor had formed the new storage area in the attic without the knowledge of Mr Lamb, and when Mr Lamb saw it he had told the contractor that the client could not be expected to pay for it. So far as allegation 2 was concerned, the Complainant had not asked for updates on the cost of the project, but the minutes showed that Mr Lamb had consistently pressed the contractor to provide cost updates; the contractor had repeatedly failed to do so, and then at the end of the project asked for sums which were wholly unwarranted. This was entirely outside Mr Lamb’s experience, which hitherto had always been that at the end of a project there was a satisfactory resolution to a reasonable discussion as to the cost of variations.
Findings of fact
- The Complainant was and is practice manager of the health centre, and on 19 July 2013 the practice appointed Mr Lamb for the refurbishment of the health centre on the basis of his letter and Conditions of Engagement of 15 July 2013 (ARB 1:6/7). The letter of appointment stated that he appreciated that the prices received from contractors must be fixed, as the health centre would not have an opportunity to obtain further funding once the prices were submitted for Health Board approval. He said (and it was not disputed) that the best way forward was the traditional method of procurement with a construction phase role of his monitoring quality and progress and certifying interim payments, as well as administering the contract on behalf of the health centre. The letter referred to the need to include some provisional sums in the tender document. The estimation given by Mr Lamb was £108,000 plus VAT for the upper floor conversion, excluding architect’s and engineer’s fees, leaving £42,000 for the ground floor alterations, within the health centre’s overall budget of £150,000. He would administer the contract on their behalf. He stated “the timescale is very tight but I can assure you that we will use every effort to achieve it and am confident that we will do so”.
- Mr Lamb’s standard Client Agreement and Conditions of Engagement referred to the design proposals taking into account the client’s requirements and budget, and (ARB 1:10) for work stages J & K that he would “conduct regular site inspections to ensure that the works are being executed in accordance with the drawings specifications and contract conditions” and “advise the client of any variations arising from the execution of the works, together with any cost or time indications, and to seek authority from the client to issue variation orders to the contractor”, and to “carry out regular valuations of the work at intervals agreed in the building contract between the client and the contractor and issue interim payment certificates to the client…”
- The tender document (ARB 1:14 – 43) did not refer to new boilers, and Mr Lamb accepted that he had mistakenly omitted provision for boilers. As the existing boiler was 20 years old, and the scope of the work was substantially to enlarge the area of the building being used by converting the attic to further accommodation, it was obvious that a new boiler, or boilers, would be needed. Mr Lamb accepted that this was an error on his part.
- A refurbishment of the patient toilets was not contained in the tender specification. The Complainant noticed this, and prior to work starting on site on Friday, 25 October 2013 (R1:7) emailed Mr Lamb to say “Are we doing any work to the patient toilets at the front of the building? I do not see any mention in the spec. They are really a bit dated and will definitely need to be decorated at the very least.… I remember discussing at a very early meeting, but think they may have fallen off the radar.” This was raised again at a pre-start meeting held on site on 05 November 2013 between Mr Lamb, the Complainant and the contractor. The minutes at P.2.5 record that “The architect and client undertook to agree the scope of upgrading works required to the public toilets which are not included in the contract. It is proposed that the cost of this work be covered by savings to be identified and the remainder of the contract.” Mr Lamb claimed that a change in specification to worktops was a commensurate saving. This was not recorded in any correspondence with the contractor.
- Mr. Lamb denied that the Complainant had requested new patient toilets, and this was the one of the few areas of fact that was in dispute. The Complainant was clear that it was something she had requested; the facilities were of the same age as the building being refurbished, and very much in need of refurbishment. She vividly recalled discussion with another practice concerning some “sparkly walls” which she had decided against when she found out how much they cost. Mr Lamb denied this had been discussed and said that the grant aid was for clinical facilities not for other aspects of the building. The Complainant said the grant funding was on the basis of improving infection control and had been liberally interpreted by the NHS funding board. On balance the Committee accepted Mr Lamb’s evidence that the toilets did not form part of the brief. The Committee did not doubt the practice manager’s recollection about the discussion with another practice, and found her a credible witness on this point, but thinks that on the point of discussion with Mr Lamb her recollection was inaccurate. To her credit, the evidence she gave on the point was that she thought she had discussed it with him, rather than that she was certain that she had. The toilets were not referred to in Mr Lamb’s note of the discussion with the practice manager, and although he did not send those notes to her it was not disputed that they were a contemporaneous note of those discussions. On the balance of probabilities the Committee find that the toilets were not requested as part of the specification of works.
- The specification and description of works upon which the tenders were received contained only two provisional sums: £5000 for the new staircase (specification item 4.4.1) and £2,000 for shelving to the File Storage and Training Rooms (specification item 5.7.2). Of these, the staircase is the only provisional sum at issue here.
- On 30 August 2013 Mr Lamb reported on the 3 tenders received. The contractor’s tender contained no other qualification, and was for a fixed price of £220,326, plus VAT. The percentage markup to cover contractor’s profit and overhead on all additional works was 25%. (ARB1:49/50). The specification upon which the tender was based, including air-conditioning, specified at points 5.11.11 to the meeting room and training room/library for a particular set of air conditioning units. (ARB 1:36). It also included at 5.10.6 (ARB 1:35) precisely specified extractor fans for each toilet, shower room training room and staff kitchen.
- Prior to the acceptance of the tender Mr Lamb had discussed with the Complainant changes to the specified work, there being some additions and some subtractions. He had discussed them with the contractor and agreed a new contract figure at £220,081 plus VAT. Mr Lamb did not advise the client about the type of building contract to be entered into, which was completed by a letter of acceptance drafted by Mr Lamb from the health centre to the contractor dated 18 November 2013 (R1:23/24). It described the contract as consisting of the specification and description of work, the tender terms, the acceptance of the tender (R1: 23/24) of 18 November 2013 and the agreed amendments. This was in a fixed sum of £220,081 plus VAT. The conditions of contract attached to the tender, which therefore formed part of the contract between the health centre and the contractor, were that the SBCC Scottish Minor Works contract, MW/Scot (2011 Edition) applied, subject to a series of additional points. Amongst these were dispute resolution, article 8, schedule 1, relating to arbitration, and paragraph 6 of schedule part 3, relating to disputes, applied. The contract period was within 20 weeks of commencement and liquidated damages applied at £1000 per week.
- The Complainant then arranged with the contractor, directly and without involving Mr Lamb, a schedule of payments for the contract sum made on fixed dates of set amounts so that invoices could be submitted to the Health Board for reimbursement. This removed the need for the architect’s interim certification as the basis for payment of the contractor. It did not remove the need for architect’s instructions for alterations, nor of overall cost monitoring. Some of the alterations were instructed direct by the Complainant to the contractor without involving Mr Lamb. Mr Lamb accepted that this was inevitable where the contractor was working in a site used by the client and he accepted also that he was told of any such alteration with a day or so. At no time did Mr Lamb discuss, set or agree prices with the contractor for alterations. Neither did he identify in writing to either party the variations to the contract. Instead, he expected to have a negotiation at the end of the contract about the cost of extra work carried out.
- The absence of the boilers from the specification was noticed fairly soon into the contract period. By email of 06 January 2014 (ARB1:78), Mr Lamb wrote to the Complainant stating that he would speak to the contractor about options for the boiler as well as how to absorb the cost of it in the contract. The contractor then advised that the price for installing two new boilers (this was a large building so that two domestic boilers was a better solution than one commercial boiler) was £4230 plus VAT. This was an oral communication at the sixth site meeting of 13 February 2014 (ARB 1:84). Those minutes were circulated to the contractor, and the Committee finds that this was a quoted price given by the contractor to the architect for the new boilers. Mr Lamb did not agree with the contractor what the boilers were to be, and nor did he ask for confirmation of the cost to the contractor of the boilers. Nor did he need to do so for the purposes of the cost to the health centre. It is not asserted that £4230 plus vat was an excessive price for the boilers and the health centre does not object to the quality of boilers installed. The Committee accepted Mr Lamb’s evidence that this was a fixed price given by the contractor for the addition of adequate boilers to the contract price.
- In coming to this conclusion the Committee noted not only the clear minuting of this at 6.2.4 of the minutes of that meeting, but also that it was clear to the contractor that this was a fixed price contract. Mr Lamb took no steps subsequently to try to absorb the cost of the boilers by making other savings within the contract. At the eighth site meeting of 20 March 2014 the minutes record Mr Lamb obtaining the contractor’s statement that the “price quoted for the boilers was the lowest that he had received” (so indicating that there were more than one quote received and at a subsequent meeting with the client (probably the same day) the Complainant confirmed acceptance of the quote and instructed the boilers to be installed.
- Mr Lamb inspected the premises at approximately two weekly intervals. The Complainant was not present at those inspections, but there was a debriefing report after each meeting, which formed part of the minutes. Those minutes were circulated to the Complainant as well as to the contractor. Throughout those minutes there were frequent references to Mr Lamb seeking cost information from the contractor, which the Complainant said was in direct response to her requests to Mr Lamb to obtain such information. Mr Lamb denied that such requests were made by the Complainant, and pointed to the minutes of the meetings with the Complainant which did not mention them. The Committee accepted the Complainant’s evidence on this point. It did not think it undermined the evidence of the Complainant in this regard that she did not point out to Mr Lamb that her request were not minuted, as the actions Mr Lamb took in response to those requests were minuted
- While the initial deadline for Health Board funding approval was August 2013, it was (and Mr Lamb knew this) later made more flexible so that if full details (including 3 quotes) were obtained, extra funding might be made available until 31 March 2014. The Complainant was plainly looking to keep an eye on the cost being incurred both for that reason, and to know the overall expense of the work whether or not the work was not going to be 66% grant aided.
- The contract required some internal stairs to be replaced. The contract provided a provisional sum of £5000 for this work. The contractor’s structural engineer produced some drawings. Both Mr Lamb and the contractor agreed that these were substantially over engineered and were impracticable. By 14 February 2014 (R1:62), a supplier’s structural engineer produced alternative drawings with which Mr Lamb was happy. He did not enquire as to the price. He assumed that because the provisional sum was known to be £5000, and because the original drawings were considered to be over-engineered, that the revised drawings would be at or around the provisional sum for which he had provided in the tender documentation.
- The staircase was largely a subcontracted item. At no point did Mr Lamb seek a copy of the subcontractor’s invoice, nor seek an account of the amount of work required to install it. The tender return form (ARB 1:50) had included hourly rates for its tradesmen. Mr Lamb accepted, in answer to the Committee’s questions, that a fair price for the staircase would have been the subcontractor’s costs, plus the contractor’s 25% mark up, plus the labour required to install it. Mr Lamb’s involvement with the pricing of this staircase was first to rely upon the £5000 provisional sum, and then to object to the substantial extra sum claimed by the contractor subsequent to its installation.
- At some point in the contract the Complainant climbed into the attic space up the builder’s ladder and discovered that a part of the attic which was not within the tender specification had been converted into an additional store. This was done by the contractor so that his workman might have a mess room during continuation of the latter parts of the works. It is unclear whether the Complainant told Mr Lamb of this, or whether he discovered it for himself, but at some point after the Complainant noticed it, Mr Lamb did also. The Committee accepted Mr Lamb’s evidence that he told the contractor that this was not within the specification, and that the contractor could not expect to be paid for it. The contractor could either leave it where it was, or could remove the flooring and plasterboard ceiling if he wished.
- Again at some point during the work on the contract, the question of the flooring to the ground floor was discussed. Mr Lamb produced a new specification, emailed to the client on 11 March 2014 (R1:72). He did not discuss a price with the Complainant, nor with the contractor. The design is of a flooring material costing perhaps £25 per square metre for a substantially sized reception area, the material being laid diagonally so as to give a diagonal stripe across the room in a different colour. Mr Lamb claimed that this would be cost neutral, but under questioning from the Committee he accepted that if a single colour sheeting had been used, there could have been a saving of up to £500. None of this was recorded, either with the Complainant, or with the contractor.
- Towards the end of March 2014 the Complainant asked Mr Lamb to make savings by omitting air-conditioning in the file store. This is recorded in the minutes of the eighth site meeting held on 20 March 2014 (ARB 1:90). In fact none was specified for the file store, but Mr Lamb did not appreciate this. At the ninth site meeting on 03 April 2014 (ARB1:93) Mr Lamb chased up a figure for any saving from omitting air conditioning file store. At the tenth site meeting, 10 April 2014 (ARB1:95) the minutes record the main contractor advising that “the air-conditioning had been omitted from the File Store as part of the tender negotiations and no allowance had therefore been made for it”. Mr Lamb told the Committee that there were no tender negotiations. Plainly there were, because the tender price was revised between the tender being received and being accepted. But there never had been air-conditioning specified for that room in the tender. The agreed alterations to the tender did not involve the air-conditioning, which was in the tender as a specified item for a fixed price. Mr Lamb therefore was in error both in saying that the saving could be made by omitting something that had never been specified in the first place, and then in wrongly recording the reason given by the contractor as to why there was no air-conditioning specified in his tender for the file store. It was not that it had been removed, but that it had never been there in the first place.
- The contract work was not completed by 31 March 2014, but came towards a conclusion around the end of April 2014 – a precise date is not recorded. Although the site meeting minutes record Mr Lamb regularly seeking the contractor’s list of all variations and associated costs claimed, nothing was forthcoming until an email dated 14 May 2014. At this point the contractor indicated the extent of the additional sum which he was claiming for the extra work as £42,981 plus VAT. The cost of the boiler had risen from £4230 to £4680, and extra cost was claimed to the air-conditioning of £2860. The patient toilets refurbishment was priced at £1520. The flooring area on the ground floor was priced at an additional £3675.
- The minutes of the fourteenth site meeting of 15 May 2014 record that the main contractor issued his list of variations and the architect undertook to assess these. This gave no indication of any objection to the extras. The minutes of the fifteenth and sixteenth site meetings held on 22 May 2014 and 29 May 2014 respectively do not refer to the additional costs claims.
- Mr Lamb knew of the discussion direct between the Complainant and the contractor about the extra costs claimed. Mr Lamb told the Committee, and the Committee accepted, of the contractor’s claim that the contractor was being generous in his assessment of some of these additional costs, and had not included the 25% markup on subcontracted items that he was entitled to charge. Because, the contractor said, that generosity had not been repaid by acceptance of his claim, he had decided to withdraw that generosity and claim the full amounts by increasing them by 25%.
- In June 2014 the contractor provided a revised list (ARB1:111) priced at £64,551.50, plus VAT. This now included a storage area in the attic for £1890, the boiler had now risen to an additional £6,850. The staircase was priced at an additional £8,270 over the provisional sum. Air-conditioning was an extra sum of £7791.50. The Committee does not accept, as was suggested, that this may have been an attempt to recoup some of the cost by Health Board funding; the 31 March 2014 deadline had long passed and 3 estimates were needed for any additional funding, and none were provided.
- It is not entirely clear how this matter came to a conclusion, but there was discussion between the contractor, Mr Lamb and the Complainant, collectively and severally. Ultimately, in the absence of the Complainant, the health centre paid a lump sum to the contractor, in order that he might finish certain outstanding works. The Complainant indicated that the contractor was “holding a gun to their heads”. Mr Lamb’s advice on the matter was not sought, nor given.
- Mr Lamb has never issued a completion certificate, nor had he prepared his own schedule or valuation of variations to the contract. His practical involvement with the project ended towards the end of May 2014 or the beginning of June 2014. It became apparent to him that he was no longer required by the health centre from about September 2014. In terms of his contract administration duties, he did nothing subsequent to the meetings of May 2014 to resolve the matter; he did not suggest implementation of any dispute resolution procedure; he had not considered whether any liquidated damages might be due.
- There was additional work in the course of this contract. Mr Lamb had no evidential basis for the value of it, but in answer to questions from the Committee he put its value at about £25,000. As work on the contract progressed, Mr Lamb would visit the site frequently. He knew how much and when money was being paid to the contractor by the health centre. He “kept an eye” on the amount of money being paid, compared to the work being done. However he decided not to issue interim certificates because he thought that would be confusing. This was because it would generate an obligation on the client to pay to the contractor the sum he certified, and that might be more than the amount of the payment scheduled to be made under the arrangement made direct by the health centre with the contractor. Mr Lamb did not discuss his decision not to issue interim certificates with the health centre, nor did he write to advise the Complainant of the difficulties he saw with the fixed payment schedule. Those difficulties identified by him were that there was an obligation to pay not connected with the amount of work done, which robbed him of the power of not certifying payment.
Discussion and conclusion
- The Committee accepted the advice of its clerk, delivered in open forum. The Committee bore in mind the burden of proof, and the standard of proof required for each allegation. The Committee was careful to pay particular attention to the exact wording of the allegations put for Mr Lamb to answer. The Committee first considered its findings of fact and then in the light of them whether it found the matters that were denied proved or not. The Committee then considered whether the matters found proved individually or collectively amounted to unacceptable professional conduct. It bore in mind that in making that decision there is no standard or burden of proof, and it was a matter for the expert judgment of this Committee.
- Allegation 1
(i) a. – Mr Lamb accepted that he omitted that item from the specification and description of works. It is found proved on that admission.
(i) b. – The findings of fact above set out that the Committee found this factual matter not proved.
(ii) a. – The Committee found that the contractor had given a fixed price for the boilers of £4230, plus VAT. It is irrelevant for these purposes that the quotations which the contractor said that he had obtained were not provided to Mr Lamb, or to the Complainant. There is no allegation arising from any failure to provide documentation to enable the Complainant to seek grant funding. It is not said that the price of £4230 plus VAT is in any way excessive, or that the boilers installed (Mr Lamb having obtained no specific or detail of such boilers) were inadequate. It is not proved that Mr Lamb underestimated the cost of the new boilers. On the contrary, he established precise and fixed costs for the new boilers. The contractor’s subsequent claim for additional sums for the boilers is not explicable by the addition of a 25% markup, and it would not matter if they were, as the price was fixed. Neither Mr Lamb nor the Complainant suggested that there was any arithmetic calculation, or evidential basis for the contractor’s figures subsequently provided. This allegation is found not proved.
(ii) b. – The facts found concerning the staircase do not present Mr Lamb in a good light. The provisional sum of £5000 in the tender document was based on his experience and judgment. The Complainant’s structural engineer created a design that Mr Lamb and the contractor both regarded as over engineered and expensive, though no figures were presented to the Committee. From the second design of the staircase attributed to the contractor’s sub-contractor, which he approved, Mr Lamb made an assumption that the likely cost, would approximate to the £5000 provisional sum.. At no time prior to its installation, or subsequent to it, did he take any step to check whether that assumption was correct. It is true that he was consistently and persistently asking the contractor for details of all costs incurred, as he raised it at every site meeting. He allowed himself to be fobbed off by the contractor repeatedly. He should, of course, have nailed down the price of the staircase, which on any version of events was going to be a substantial sum, before agreeing to its installation. Even subsequent to its installation it would not have been difficult to ask for – or to demand – the subcontractor’s account and the timesheet for the work of installing it. Mr Lamb agreed that this should be the measure of the cost of the staircase to the health centre. He offered no advice to the Complainant about this at any time. Nor did he invoke the dispute resolution procedures specified in the contractual terms he had arranged for the contract (ARB1:44). The difficulty for the ARB in proving this allegation, is that it presupposes that the true cost of the staircase is known, but it is not. From the schedules of additional costs claimed by the contractor (ARB 1:105 and 111) it seems clear that the contractor was claiming unjustified amounts of money for the boilers and the air conditioning. This could apply equally well to the contractor’s claims for extra money in respect of the staircase. Without evidence as to the proper cost of the staircase, this allegation cannot be proved. The Committee did not accept that the prices set out by the contractor on 14 May 2014 and in June 2014 reflect the amount which the health centre should have paid to the contractor for the staircase. This sub allegation, as pleaded, required such evidence. It is not proved.
(ii) c. – The specification upon which the tender was based provided exact details of the air-conditioning required. The tender was costed on the basis of the specification and gave an exact figure. The tender was not subject to any condition (excepting the two provisional sums for the staircase and file storage shelving). Accordingly, the contractor’s price for the air-conditioning installation was not an estimate but a fixed price based on Mr Lamb’s specification. There is no justification apparent to the Committee for any additional sum to be paid by the health centre above the price in the tender. Accordingly this allegation is not proved.
(iii) – the Committee had careful regard to the framing of this allegation. It is clear that Mr Lamb did not seek to find out the cost of the diagonal striped flooring before approving it, and did not advise the client that it might exceed the amount in the specification. The Complainant was keen to keep prices as low as was consistent with a high quality end result (see R1:10 minutes of a meeting on 16 October 2013 between Mr Lamb and the partners of the health centre) and Mr Lamb had given assurances of ‘balancing’ savings to cover additional works, but there was no specific reference to making savings concerning the flooring material. Doubtless Mr Lamb should have advised the Complainant that to lay a flooring materially diagonally would involve additional wastage, and therefore expense. Under questioning from the Committee, Mr Lamb accepted that had he reverted to a simpler single colour flooring, there could have been a £500 saving. Accordingly, the allegation is proved.
(iv) – It is clear from the Committee’s findings of fact that air-conditioning was not specified for the file store, was not tendered for, and that although there were tender negotiations prior to the start of the contract (resulting in the changes noted at R1:23/24), air-conditioning was not among them. While it is entirely understandable that on looking at the minutes of the meetings of meetings on 20 March 2014, 03 April 2014 and 10 April 2014, (ARB1:90, 93 and 95), both the Complainant and the ARB thought this was the case, on hearing the evidence it is plain that on these facts this sub-allegation is not proved.
The storage area in the attic was formed by the contractor for his own convenience. While noting that there was no record of such discussions, the Committee accepted Mr Lamb’s evidence that he told the contractor that he was not entitled to payment for it and advised the Complainant so. He did not authorise the formation of the new storage area. This sub-allegation is not proved.
- Allegation 2
Allegation 2 is proved. It is that Mr Lamb failed to keep the Complainant informed of matters which had a significant effect on the cost of the project. On Mr Lamb’s own estimation now, extras of some £25,000 were carried out to the project but this information was not transmitted to the client as the project work was being done, other than that there would be some additional cost.
- In coming to this decision, the Committee has had careful regard to Ms Davis’ objection that this allegation is not sufficiently specified, and noted the way the case was put by Ms Watt (which based allegation 2 generically in paragraphs 34-36 of the statement of case and also in opening largely on the matters in allegation 1). The facts set out in this decision are derived solely from the documentary evidence supplied by the ARB to Mr Lamb a considerable time ago, upon documents provided by Mr Lamb only on the working day before the hearing, and upon the evidence of the Complainant (largely as in her witness statement provided well in advance of the hearing) and upon Mr Lamb’s own oral explanations of matters to the Committee in his evidence to it. There is nothing to take Mr Lamb or his representative by surprise in any finding of fact in this decision. Neither he nor his representative have needed to divine from a complex volume of papers what the allegation is. It is plain.
- There was no witness statement from Mr Lamb, and so his case was unknown to the ARB (and to the Committee) until he gave his explanations orally. The explanation concerning allegations about the extra storage and about the air conditioning in the file store were new at the hearing, although he had set out matters to some extent in lengthy letters to the ARB as the matter progressed.
- Mr Lamb was not unaware of what was alleged against him, and was not taken by surprise by any matter put to him in the questions he was asked by Ms Watt in cross examination, or by the Committee. During her submissions the Committee asked Ms Davis whether she raised an objection to any question asked of Mr Lamb by the Committee and she advised that she did not.
- Matters such as the absence of any architect’s instruction have relevance to this allegation, as Mr Lamb was contractually obliged to provide them – his contract, at work stages J and K (ARB 1:10), specifically stated that he should.
- Had he authorised or contemporaneously documented the additional work its cost would have been known, or at least estimated. He did not do so. The whole point of Mr Lamb’s concern about the payment arrangement with the contractor was that there could be inconsistency between the value of the work carried out and the payments made by the client. However, this arrangement did not prevent him advising the client periodically of the general state of the contract sum, even if it showed that the contractor had at various times been overpaid. His contract with his client obliged him to do so. (In parenthesis the Committee is fully aware that Scottish law is different to English law, and that the arrangement made by the client direct with the contractor may well have had full contractual effect, but it was not a point of significance in the case, and no evidence was led in respect of it by either the ARB or by Mr Lamb).
- Without clear identification of authorised additional work, the effect of such work on the contract period was unknowable, and that could have been important as liquidated damages were due at £1,000 a week if the project was not concluded within 20 weeks of its commencement (16 November 2013 – R1:14). This made the failure to keep the Complainant informed of greater significance. It was not a point that had occurred to Mr Lamb until the Committee asked him about it. The importance of this is not only did Mr Lamb’s contract with his client oblige him to value the work as it progressed, but that he had to do keep track of authorised extra work that might have an impact on the contract completion date and any advice to the client on the application of the liquidated damages clause also. The existence of a staged payment schedule was not a good reason not to undertake such valuations.
- The existence of the payment schedule agreed between the Complainant and the contractor does not bear at all on the obligation of Mr Lamb to advise his client of any variations arising from the execution of the works together with any cost implications, and to seek authority from the client to issue variation orders to the contractor. This Mr Lamb simply did not do, and he was contractually obliged to do so by the express terms of the Conditions of Engagement he provided for his clients. Had he done so, the client would have known how much cost was being incurred. That would have prevented the problems arising in the first place. Whether the amounts claimed by the contractor were properly due, or not, plainly a significant amount of money was due in addition to the tender sum. Mr Lamb’s approach to this obvious fact was that there would be a meeting at the end of the project where he would have a discussion with the contractor about what extra work had been done, and that he would negotiate a satisfactory outcome for the Complainant of the cost of that extra work. It did not occur to Mr Lamb that the extra cost claimed would be so large as such an event had not previously occurred in his lengthy practice.
- The consequence of his inaction was that not only was he in breach of his contractual Conditions of Engagement, but his client was put in the position of being hostage to fortune, and the end result was the dissatisfaction resulting in this complaint. It was a failure to keep the Complainant informed of matters which had a significant effect on the cost of the project.
- The Committee next considered whether the allegations found proved, individually or collectively, amounted to unacceptable professional conduct. The Committee bore in mind the advice of its clerk, delivered in open forum. There has to be a significant falling short of professional standards. The matter must be serious. There must be moral blameworthiness or opprobrium to be attached to the conduct found proved before it constitutes unacceptable professional conduct. There is no standard or burden of proof and it is a matter for the committee’s expert judgment.
- In the context of a rushed job, the omission of the boilers is not a matter which this Committee would find serious enough to warrant a finding of unacceptable professional conduct. While there is no lesser standard of professional work for projects which have to be carried out swiftly, that haste is part of the overall context which the Committee considers when looking at the scale of seriousness. Similarly, even though a cost saving could have been effected to the flooring, or as a minimum, discussed with the client, the Committee do not regard this as a serious enough omission to warrant a finding of unacceptable professional conduct. The other matters set out in allegation 1 were not proved.
- In considering allegation 2, the Committee did not consider that paragraph 4.5 of the Code had any relevance. That section of the Code relates to variations in the agreement between client and architect, while allegation 2 concerns variations in the building contract.
- The provisions of paragraph 6.2 of the Code relate, among other things, to costs limits agreed between the architect and the client. This element of the Code is relevant to our consideration of allegation 2 because the costs limits, i.e. the contract sum, had even on Mr Lamb’s own admission, been significantly exceeded.
- The provisions of paragraph 6.3 of the Code are more precisely the substance of this allegation, and the Code was breached in this regard. Even had the precise words of the Code not been found applicable to this allegation then the Committee would have found that Mr Lamb’s conduct of the matter so far as the Complainant was concerned was a breach of the spirit of the Code, as set out in the preamble. The Committee is not restricted by the submissions of the ARB when presenting the case in forming its own view of what provisions of the Code have been breached, for that is a matter for the Committee’s own independent judgment.
- Allegation 2 on its own, and as described in this decision, is serious enough to amount to unacceptable professional conduct and the Committee decides that it is upc. Accordingly the Committee found the allegation proved.
- Ms Davis spoke in mitigation. She pointed out that Mr Lamb had a good disciplinary history, and a long career. The difficulties were caused by the contractor, who had behaved in an extraordinary way. The allegation that had been found proved had not been particularised properly, which had made the matter more difficult for Mr Lamb, but he had engaged with the ARB fully. The surgery had been able to extend their overdraft in order to pay the builder the extra costs, and as they had been able to repay that extra borrowing within 12 months they had suffered no substantial loss. Mr Lamb saw no point in telling clients about matters over which he and they had no control, but would now do so in order “to cover his own back”. On occasion he would in future recommend a quantity surveyor. The allegations had considerable impact on Mr Lamb, both in terms of time out of the practice and in expense. The proceedings themselves were sufficient penalty. If the Committee was not with her then a reprimand should be the maximum sanction.
- Mr Lamb had produced testimonials from 3 clients, which the Committee considered carefully. The ARB confirmed that there has been no previous disciplinary finding against Mr Lamb.
- The primary purpose of sanctions is not to be punitive (though this may be their effect) but to protect members of the public, to maintain the collective reputation of the profession (and the ARB as its regulator), and to declare and uphold proper standards of conduct and competence. Sanctions also help ensure that the profession better understands the importance of professional standards.
- The Committee has considered the Indicative Sanctions Guidance. Appearance before this Committee is in itself salutary. The Act does not require the Committee to impose a sanction in every case where a guilty finding is reached, so the Committee may choose to make no disciplinary order. If it decides to impose a sanction, the Committee commences at the lowest sanction, and only if it decides that sanction is not appropriate does it move to the next level of sanction. Having arrived at a sanction that it is minded to impose the Committee then reviews the next sanction above so as to satisfy itself that this would be too severe a sanction before arriving at a final conclusion. If the Committee decides on a fine, it is limited by the Architects Act 1997 to £2500 for each of the charges of UPC and of SPI.
- In all the particular circumstances of this case the Committee decided that a sanction was required because of the need to declare and uphold professional standards, and because of the effect upon the client.
- The Committee identified the following mitigating and aggravating factors:
- There is no previous disciplinary matter recorded. Mr Lamb has a long unblemished career. The issues were of contract administration not of design. The fixed payment schedule was not the responsibility of Mr Lamb.
- The effect on the client of additional stress and probable extra expense was considerable. Mr Lamb failed in his duty properly to look after the interests of his client in this project. This was a course of action over the course of the project. The Committee was unable to accept the assertion made on behalf of Mr Lamb that this had little impact on the client as they had been able to extend their overdraft and repay that additional borrowing within 12 months. This seemed to the Committee to display a marked lack of insight, as did the submission that Mr Lamb saw little point in telling clients things that were uncertain but would do so “in order to cover his own back”.
- The Committee noted that Mr Lamb did not express any regret for the difficulty his client encountered.
- The indicative sanctions guidance states:
- Where the PCC decides that it is appropriate to impose a sanction in relation to a guilty finding, a reprimand is the lowest sanction that can be applied. It may be used in relation to those offences at the lower end of the scale of seriousness, where and where it would be appropriate to mark the conduct or competence as being unacceptable.
- This sanction may be considered where the following factors are present (this list is not exhaustive):
– Evidence that the conduct or competence has not seriously affected clients/the public
– Insight into failings
– Genuine expression of regret
– Corrective steps taken
– Previous good disciplinary history
- Like all disciplinary orders a reprimand will remain permanently on an architect’s record, but only published for two years after the date of sanction.
- The Committee decided that the effect on the client and the fact that this was not an isolated aberration but a course of conduct over the progress of the project meant that this was too serious for a reprimand.
- Penalty orders are fines of up to level 4 on the standard scale of fines for summary offences, currently set at £2,500. Only one penalty order can be issued per charge, and under the Act only two charges can be brought (unacceptable professional conduct and/or serious professional incompetence). It may be used in relation to those offences too serious to warrant a reprimand, or where a lack of remorse or understanding is displayed.
- This sanction may be considered where the following factors are present (this list is not exhaustive):
Offence is too serious to warrant a reprimand
Limited or lack of remorse
Architect has benefitted financially from the offence
- The PCC will specify the period within which the sum must be paid, and a failure to satisfy the order may lead to it being replaced by a suspension or erasure order. A penalty order is published for two years after the date of sanction.
- The Committee had decided that this was too serious for a reprimand, and so considered a penalty order. Before concluding the Committee considered whether a suspension order would be disproportionate. The Committee decided that a suspension order would be disproportionate, and so decided on a penalty order.
- Given the marked lack of insight and Mr Lamb’s complete lack of sympathy for his client, the Committee decided that a penalty order of £2,000 would be appropriate and so ordered that payable within 28 days.