Mr Mark Heyes
THE ARCHITECTS REGISTRATION BOARD
PROFESSIONAL CONDUCT COMMITTEE
In the matter of
Mr Mark Heyes (048562D)
24 March 2014
8 Weymouth Street
Mr Julian Weinberg (Chair)
Mr Donal Hutchinson (PCC Architect Member)
Mr Stephen Neale (PCC Lay Member)
Ms Nicola Hill (Clerk to the PCC)
Mr Iain Miller of Bevan Brittan appeared on behalf of the ARB.
Mr Heyes attended the hearing and was not represented.
- In this case, the Board is represented by Mr Iain Miller. Mr Heyes has attended this hearing but was not represented. Mr Heyes faces one charge of unacceptable professional conduct based on 5 allegations relating to conduct allegedly in breach of Standards 1 and 4 of the Architects Code: Standards of Conduct and Practice 2002 (“the Code”) and Standards 1, 9 and 7 of the Architects Code: Standards of Conduct and Practice 2010 (“the 2010 Code”).
- No preliminary applications have been made.
- The allegations follow a complaint made by Dr Wassim Malas (“the complainant”) in relation to work carried out by the Respondent who was working at the relevant time as an architect at Heyes and Company. Having been recommended to the complainant, the Respondent was instructed in November 2008 to act as architect and project manager in relation to the Complainant’s plans to extend and develop his home. The allegations against the Respondent are extensive but can be summarised as follows:
- In the Respondent’s letter of engagement dated 7 November 2008, the Respondent failed to set out the scope of the work, the allocation of responsibilities, any limitation of responsibilities, provision for termination or that he was subject to disciplinary sanction of the Board in relation to complaints of unacceptable professional conduct or serious professional incompetence.
- Initial tenders sought were higher than the Complainant had anticipated and an amended scheme was proposed by the Respondent, thereby reducing the overall cost of the project. Having received revised tenders, the Complainant agreed to instruct Empire Developments and Construction (“Empire”), a firm recommended by the Respondent. The Complainant was not asked to sign a contract with Empire, nor was he recommended by the Respondent to do so. There was therefore an absence of express written terms for example in relation to a completion date or provision for the payment of liquidated damages.
- As the project progressed, the Complainant and Respondent became friends which blurred the professional boundaries between them. It made it difficult for the complainant to voice any concerns he had about the Respondent’s handling of the job. When concerns surfaced in respect of the quality of Empire’s work, which the Complainant raised with the Respondent, he offered to resign from the project. This strained the relationship between the Complainant and Respondent given their personal friendship.
- In addition, it transpired that the Respondent had failed to issue any architect’s instructions in respect of works that had been undertaken by the contractor and there was no adequate formal documentation sent to the Complainant by the Respondent breaking down which works had been certified and certifying the value of the works that should have been paid to the contractor. The cost of the project increased and the Complainant continued to have concerns about the progress of the works.
- In November 2009, the Complainant, having moved into rented accommodation, received a further invoice which would have meant that the total sum being charged by the Respondent for his services would have exceeded a previously agreed cap of £15,000. The Complainant became distrustful of the Respondent and the contractors. Again, in December 2009, the Respondent offered to resign from the project. However, the Complainant wished to continue instructing the Respondent even though, by this time, he was feeling uncomfortable with the blurred personal and professional boundaries.
- As the project was nearing completion in May 2010, the Respondent produced a summary sheet of the value of works up to the 1 June 2010. The Complainant agreed, given that he was going away on holiday, to send to what he expected to be the Respondent’s client account, £10,000, to pay the contractors in his absence, which he duly sent. On his return from holiday, it became apparent that the contractors had not been paid and that the money had been paid by the Respondent into his office account which had become depleted due to a number of direct debits from that account. The Respondent used the money against a cheque that had been previously issued on another project. The Respondent did not have sufficient monies to pay back all the money in one go, although it was eventually all repaid. The final payment of £1000 was not paid until 16 August 2011, over a year later. In the meantime, the Complainant had had to pay the contractors before they would be prepared to recommence working on site.
- Between October 2010 and June 2012, a dispute arose between the contractor and the Complainant as to the amount of payments made to the contractor. Discussions with the Respondent took place but the Respondent was unable to put forward a sum from his own records as to what had, or had not been accounted for. This lack of certainty resulted in the contractor refusing to return to site to continue working.
- On 11 September, the Complainant received a letter from solicitors informing him that the Respondent had been adjudged bankrupt on 2 November 2011. They sought the return of the £1000 paid to the complainant in August 2011. This was challenged by the Complainant who informed the solicitors the background to the repayment being made. The relationship with the Respondent then broke down as the Complainant realised that an earlier request by the Respondent to borrow money from him would have been made at a time when the Respondent had been made bankrupt. The Complainant “felt devastated that I had been so trusting of someone who appeared to have taken advantage of my good nature”. He terminated the contract with the Respondent.
- The Respondent only notified the Board of his bankruptcy by letter dated 20 December 2011, having been made bankrupt on 2 November 2011. This was outside the 28 days provided for by the 2010 Code.
- On 10 July 2012, the Board received a letter from a former employee of the Respondent informing them that the Respondent had failed to satisfy a judgment debt (in excess of £10,000) following proceedings that were brought by her in respect of unpaid wages. By March 2013, no payment to her had been made by the Respondent.
- The allegations are all admitted by Mr Heyes save for the allegation that he failed to act with integrity by not explaining to Turner Parkinson the true position in relation to the £1000. On review of the evidence by Mr Miller, that part of allegation 1.4 was withdrawn.
- The Committee notes that allegation 1.2 was also admitted by the Respondent. The evidence in this case does not suggest how the Respondent was to provide services that would not incorporate the independent functions of an Architect, notwithstanding the admitted failures in respect of allegation 1.1. Given that, the Respondent could not reasonably be said to have failed to make that ambit of his services clear. The Committee has borne in mind that the Respondent is unrepresented. It considers that, in the circumstances, his admission is inappropriate given that there is no evidence that he would provide anything other than the independent function of an Architect. Therefore, the Committee finds that allegation not proved, but the remaining allegations proved by virtue of his admissions.
- In reaching its decision as to whether the facts found proved amount to unacceptable professional conduct, the Committee has carefully considered the documentary evidence presented to it in the Report of the Board’s Solicitor together with the 681 pages of documents exhibited to it in its two appendices. It has also considered a statement of mitigation from the Respondent so far as it relates to the issue of unacceptable professional conduct.
- The Committee has heard and accepted the legal advice given by the clerk. It has had regard to the fact that whilst the burden of proof in this case is on the Board to prove the factual allegations, whether the conduct admitted and therefore found proved amounts to unacceptable professional conduct is a matter for the Committee’s judgement.
- So far as allegation 1.1 is concerned, the failures to set out the scope of his work and his role as required meant that the Complainant did not have a clear idea of what the Respondent was responsible for and led to confusion and uncertainty in the relationship. As such, the Committee finds that the Respondent has acted in breach of Standard 11.1 of the 2002 Code.
- Turning to allegation 1.3, the Respondent’s failure to enter into a written contract with the contractor led to disagreement between the Complainant and the contractor. The Respondent failed to issue architect’s instructions, properly certify the value of works or formally document changes to the works. The contract was not properly administered. The Committee finds that the Respondent’s actions amount to breaches of Standard 4 of the 2002 Code and Standard 4 of the 2010 Code as his failures straddle periods of time when both these codes were in force.
- So far as allegation 1.4 is concerned, the Respondent failed to preserve the Complainant’s money, instead, using the money against a cheque he had previously been issued. As such, the Committee finds that the Respondent has acted in breach of Standards 7 of the 2010 Code.
- So far as the matters contained in allegation 1.5 are concerned, the Respondent had failed to inform the Board of his bankruptcy within the time period prescribed by the Code (albeit that he did approximately two weeks late) and further that he had failed to inform the Board at all of the judgment debt which was brought to its attention by a third party. In the circumstances, the Committee finds that the Respondent has acted in breach of Standard 9 of the 2010 Code.
- Having determined that the Respondent has breached a number of standards of the Code, the Committee then considered whether Mr Heyes’ conduct amounts to unacceptable professional conduct. This is defined as conduct which falls short of the standard required of a registered person. In reaching its finding, 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 give rise to disciplinary proceedings. 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.
- Whilst the Committee reminds itself that the issue of unacceptable professional conduct is a matter for the Committee’s judgment, the Respondent accepts in his statement of mitigation dated 24/25 March 2014, that he “did not act in a correct manner in the circumstances” and that “I had not acted in line with either my own personal standards or those of the profession” and that “my conduct in this matter fell short of an acceptable standard”. The Respondent did not make any specific submissions in this hearing as to whether his conduct amounts to unacceptable professional conduct. The matters found proved represent failings both in respect of the Respondent’s relationship with his client and his regulator. They are serious failings and are aggravated by the fact that they continued over a lengthy period of time and relate to the use of client money to pay office debts when the Respondent was not entitled to do so. The fact that the Respondent had a personal friendship with the Complainant did not obviate the need for him to comply with his professional obligations. As such, the Committee finds that the Respondent’s actions represent a serious departure from the standard expected of a registered architect. The Committee therefore finds that the Respondent’s conduct does amount to unacceptable professional conduct.
- Mr Heyes addressed the Committee in mitigation.
- In considering whether to impose a sanction, the Committee has had regard to the public interest, which includes the need to protect the public, to maintain confidence in the profession and the Board and to declare and uphold proper standards of conduct and behaviour. The Committee has carefully considered all the evidence and submissions made during the course of this hearing. It has heard and accepted the advice of the 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 Mr Heyes’ interests, the indicative sanctions guidance and the need to act proportionately, taking into account all the aggravating and mitigating factors in this case. In doing so, the Committee has exercised its own independent judgement.
- The Committee has identified the following mitigating factors:
- The Respondent has fully engaged with the process and has admitted the allegations against him;
- Both in his statement of mitigation and before this Committee, the Respondent has made genuine expressions of regret for what happened and has demonstrated some insight into his failings;
- He has fully taken personal responsibility for his failings and has not sought to apportion blame on the Complainant.
- The Committee has also taken into account the following aggravating factors:
- The Respondent was made the subject of an earlier PCC order in December 2007 in relation to a number of matters including his failure to safeguard clients’ money. Despite the PCC on that occasion suggesting to the Respondent that he would be well advised to open a client account, he failed to do, and has still not done so. The PCC in May 2007 identified that the Respondent had been “reckless” with clients’ money, yet in June 2010, he had again used client money for an unauthorised purpose. He was informed in December 2007 that a designated client account was the most effective way to ensure that money is only used for legitimate client purposes. When his hearing in May 2007 was adjourned, the Respondent was given the opportunity to introduce some quality management into his practice. The fact that the Respondent has had to appear before a PCC for a second time suggests that he has not availed himself of this opportunity. At this hearing, despite assurances that such matters would not reoccur, the Committee has seen no evidence of practical steps the Respondent has taken to ensure that that will be the case.
- These were serious failings both in relation to his relationship with his client and his regulator. Inappropriately using client funds for purposes other than which they were intended is a patently serious matter. The public should quite rightly expect monies paid to architects to be safely preserved by them. The Committee does not accept that the Respondent has not financially gained from his actions because he has done so by using funds to pay debts that would not otherwise not have been available to him;
- His failings occurred over a lengthy period of time;
- His failure to notify ARB of his bankruptcy is a repetition of a previous finding made against him in 2007;
- The Committee considers that there remains a high risk of repetition of his failings given that the judgment debt has remained unsatisfied since July 2011 and his finances are therefore still not on a sound footing;
- Despite the PCC in May 2007 expressing the hope that the Respondent was serious about his desire to take steps to improve his administration and his relationships with clients, many of his failings in this case occurred within less than two years of the sanction being imposed.
- The Committee notes that the matters found proved are serious in that Mr Heyes’ failings, not only put the public at risk, but diminish both his reputation and that of the profession generally. As a result, the Committee concluded that his 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 and has concluded that, given the seriousness of the matters found proved, and taking into account the identified aggravating factors as set out above, that this would be a wholly inappropriate sanction to protect the public and the public interest. Similarly, the Committee considers a penalty order to be inappropriate for the same reasons.
- The Committee then considered whether to impose a suspension order. The Committee has had particular regard not only to the nature of his failings, but that, in many respects, they represent repeated failings of conduct matters that have previously brought him before a PCC. His failure to put in place practical steps to prevent a further repetition, and the fact that the judgment debt has remained unpaid after nearly 3 years, leads this Committee to conclude that his financial position remains precarious and that there remains a significant risk of repetition of similar failings. The Committee has given serious thought as to whether erasure would be the proportionate sanction. It is just persuaded that it is not in the light of the fact that dishonesty is not specifically alleged and because he has in fact, repaid to the Complainant in its entirety, the money taken from the Complainant, prior to the complaint being made to the Board.
- The Committee therefore concluded that a suspension order would be the appropriate and proportionate sanction to impose. This shall be for a period of two years which the Committee considers appropriately reflects the serious nature of the Respondent’s unacceptable professional conduct.
- That concludes this determination.