Mr Mark Skehill
THE ARCHITECTS REGISTRATION BOARD
PROFESSIONAL CONDUCT COMMITTEE
In the matter of
Mr Mark Skehill (077811G)
Held on 17 and 18 June 2019
Architects Registration Board
8 Weymouth Street
Paul Housego (PCC Chair)
David Kann (PCC Architect Member)
Jules Griffiths (PCC Lay Member)
In this case, the ARB is represented by Mr Iain Miller of Kingsley Napley.
The Respondent Mr Skehill has attended this hearing but is not legally represented.
|The PCC found the architect guilty of unacceptable professional conduct for not completing the service that he was contracted to provide, contrary to standard 6.1 of the Architects Code of Conduct and Practice.
The sanction imposed is a reprimand.
- The Respondent appears before the Professional Conduct Committee (“the Committee”) of the Architects Registration Board (”the ARB”) to respond to an allegation of unacceptable professional conduct (“UPC”). The ARB allege that in his work for a (specified) client he did not:
- provide accurate drawings;
- communicate adequately with his client;
- actively manage the building contract;
- and complete the service that he was contracted to provide.
- The period in question is partly covered by the Architects Code: Standards of Conduct and Practice 2010 (“the 2010 Code”), and partly by the revised Code issued in 2017 (“the 2017 Code”).
- The preamble to the Codes states that any failure to comply with the provisions of the Codes is not of itself to be taken as constituting unacceptable professional conduct (or serious professional incompetence), but shall be taken into account in any disciplinary proceedings before the ARB’s Professional Conduct Committee. To be UPC conduct must be a serious falling short of acceptance professional standards. “Serious” is a matter for the judgment of the Committee, and there is no burden of standard of proof for that evaluation.
- The Codes also state that architects are expected to be guided in their professional conduct and professional work by the spirit of the Codes as well as by their express terms. The fact that a course of conduct is not specifically referred to in the Codes 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 UPC is found even where there has been no clear breach of the express terms of the Code. Conversely not every shortcoming, or failure to meet the Standards expected by the Code will necessarily give rise to disciplinary proceedings.
- The ARB submit that relevant provisions of the 2010 Code are:-
Standard 2: Competence
- You are expected to be competent to carry out the professional work you undertake to do, and if you engage others to do that work you should ensure that they are competent and adequately supervised.
- You are expected to ensure that the necessary communication skills and local knowledge are available to you to discharge your responsibilities.
Standard 4: Competent management of your business
4.1. You are expected to have effective systems in place to ensure that your practice is run professionally and that projects are regularly monitored and reviewed.
4.2 You should ensure that you are able to provide adequate professional, financial and technical resources when entering into a contract and throughout its duration. You should also, where appropriate, ensure you have sufficient suitably qualified and supervised staff to provide an effective and efficient service to Complainants.
Standard 6: You should carry out your professional work faithfully and conscientiously and with due regard to relevant technical and professional standards
- You are expected to carry out your work promptly and with skill and care and in accordance with the terms of your engagement.
- 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 2017 Code has the same provisions.
- The Respondent had a professional relationship with the Complainant over several years and three projects. The project leading to the complaint was to create a two bedroom flat below the Complainant’s house, in North London. The Respondent was contract administrator for the excavation phase for the project (which contract was left first, and was the only part for which the Complainant had contracted). The Complainant complained to the ARB after the Respondent left the project before it ended, by ceasing to contact the Complainant and failing to respond to her emails.
- The headings of the allegation are as above. The particulars of the allegations, in outline, are as follows:
8.1.1. The drawing of the stairs up from the new basement were inaccurate so that they arrived where a toilet was to be, and the scheme required redesigning as a result.
8.1.2. The Panel notes that other complaints made by the Complainant, such as that when the basement came to be fitted out there was a steel support (installed by those who created the basement) which was set on a padstone proud of the floor such that it had to be reengineered before the basement could be fitted out were not part of the allegations before the Committee. It was accepted that there was no evidence that it was the Respondent who was responsible for any problem that arose. There was said to be an issue of ventilation, but no evidence that there was an issue in this regard as the Respondent had provided for ventilation in the tender. His account that it was to be part of the fit out was not challenged.
8.1.3. Accordingly the allegation considered by the Committee is limited to the particulars set out in the Board’s solicitor’s report.
8.2. Inadequate communication:
8.2.1. The allegation is that there were often delays in responding to communication from the Complainant. Responses from the Respondent were said to be often delayed and came only after chasing emails. He was said to be hard to get on the phone and had no voicemail facility. He had no members of staff, so there was no one else to contact. He was said to have failed also to deal with others involved in the project. He should have made cover arrangements (as the Codes require), because he did not contact her he did not keep her informed.
- Failing to manage the building contract actively – it was said that:
8.3.1. He was the contract administrator, so appointed by the contract he drew. The contract provided a list of things he should do.
8.3.2. Fortnightly meetings did not occur, and the Complainant did not receive minutes.
8.3.3. In some matters it was the Complainant who identified matters that needed attention.
8.3.4. He did not issue a final certificate as he left the contract before its completion, inappropriately.
8.4. Not completing the service which he had contracted to provide:
8.4.1. The Respondent left site before the work was finished. He simply failed to carry on working on it, in breach of his contract with the Complainant.
8.4.2. This, on its own was a breach of the Code as it left the Complainant with no final certificate, no retention figure, no snagging list, and she had to resolve matters herself.
9.1 The matters said to be errors were not such. The small toilet and the new stairs were not part of the build contract for the excavation of the basement and the drawings complained of were for planning only. The small section of wall at the top of the stairs to the basement could stay or go as the Complainant wanted: he had initially shown it as being removed as it served no purpose, but the Complainant wanted to keep it as it had original features: and there was no difficulty with that being the case by reason of his plans.
9.2. There were various other matters set out in the complaint letter, but nothing of any substance. The particulars of the allegation referred only to the toilet and the adjacent wall, and not the other matters in the complaint letter. The raised padstone issue could just as easily have been a construction issue, and the ventilation for the basement was clearly on the tender document. The Complainant had opted to split the work between excavation and fit out, and that was relevant to all the technical matters raised.
10.1 The Respondent accepted that for periods he was unavailable but said that that they were relatively short lived and that for the most part he was responsive.
10.2. He accepted that his client was expressing frustration at not getting a response from him. He accepted that he has no voicemail, but said that email contact was possible, save when he had been away from work for a while and there were many emails to which he had to reply.
10.3 He had not supplied copy minutes of meetings, but the Complainant was not expecting him to do so, and never asked for them.
11.1 He was not the project manager but the contract administrator. He said that the Complainant had been very hands on. He had 26 site visits or meetings with the contractor in six months on site. It had been agreed by the Complainant that she should not routinely attend them. He accepted that he had ceased his involvement improperly and so ceased to manage (which was the last allegation) but before that he said that he had conducted himself in the role properly.
11.2 The Complainant had not wanted fortnightly meetings with him. She was on site and could ask him about anything. He had the meetings with the contractor and meetings with the Complainant at her home whenever she wanted one.
- Not completing the service:
12.1 The Respondent accepted that he ceased to contact the Complainant or respond to her, accepted that this was inappropriate and apologised to her (and to the ARB) unreservedly, both in correspondence and verbally in the hearing directly to the Complainant (who was present).
12.2.At the time he had a series of personal matters relating to the birth of his third child that caused him to take some time off, he had not kept the Complainant as well informed as he might, she became understandably irritated and some time after their last meeting on 20 June 2017, which had been tense, he ceased to contact her, and after a while she ceased emailing him, until one last email from her in September 2017 to which he had not replied: both then accepted that the arrangement had been ended by him, but not at completion and not in accordance with the terms of their contract.
Burden and standard of proof:
- The ARB is required to prove the 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 the Respondent 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 the Committee ensured that the Respondent had a fair hearing and afforded respect to his private and family life so that his rights under Articles 6 and 8 of the European Convention for the Protection of Human Rights were respected.
- 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.
- The defence of the Respondent is that:
15.1. While accepting the chronology of matters he does not accept that three of the four allegations are made out. He says that his conduct should not be categorised as unacceptable, even if it was less than the high standard to be expected of a professional person.
15.2.While apologising for his actions in abandoning the Complainant, and accepting that this was wrong, he says that it (even if in addition to any of the other three matters if the Committee found them, or some of them, proved) does not reach the threshold of seriousness required for a finding of UPC.
- The Committee perused the report of the ARB’s solicitor with accompanying documents. The ARB called evidence from the Complainant and the Respondent asked her questions. The Respondent gave evidence and he was questioned by the ARB’s solicitor. The Committee asked both the Complainant and the Respondent some questions.
- The Committee heard submissions from both the ARB’s solicitor and from the Respondent. The substance of them is reflected in the case put forward and the response. The ARB’s solicitor said that while this was not the worst matter ever to appear before the Committee the matters raised were clearly a falling short of professional standards and that even if not individually then cumulatively they amounted to UPC. The Respondent accepted some failure in communication before leaving the contract, and apologised for that. He did not feel that his other actions were egregious enough to be categorised as UPC. He did not feel that his plans were deficient, and nor did he feel that his management of the contract (apart from leaving it) warranted a finding of UPC. He accepted that leaving the contract in this way was totally unacceptable. He set out the actions he had taken since to ensure that this could not recur, such as engaging an assistant, and having a support network
Findings of Fact and UPC:
- There is no real dispute of evidence in this matter, and the decision to be made is more what the Committee makes of those facts, and in assessing how the case against the Respondent is put by the ARB in the Report to the Committee.
- The project started in 2013, intended to be a home for the Complainant’s elderly mother, who had lived at the house for 18 years, but who was then frail and with dementia, and who needed a carer. When the mother of the Complainant died in 2014 the project had obtained planning consent and a tender pack had been prepared, but no work had started. There were legal matters to resolve, as the Complainant’s three stepsons had an interest in the property: a 999 year lease of the proposed basement was granted to the Complainant to resolve this, and that took some time. In 2016 the Complainant was ready to proceed and the project resumed, with the same documentation. The Complainant decided to separate the creation of the basement from its fitting out, using a specialist firm for the construction (excavation) and another firm (with whom the Complainant had a connection) for the fit out.
- In the meantime the Respondent worked on two other projects for the Complainant, which came to fruition uneventfully.
- The contract was the “JCT building contract for a home owner / occupier who has appointed a consultant to oversee the work”. The Respondent was that consultant, and his role was set out in paragraph three of the contract. It was signed on 12 August 2016. He was to certify work and did so until 20 June 2017 which was his last visit to site.
- There were regular meetings with the contractor and the work proceeded without any substantial difficulty. The Complainant lived on site and so was (naturally) much involved: it was agreed that the level of involvement of the Complainant would be kept to a minimum and that she would not attend the meetings between the Respondent and the contractor. She and the Respondent also had meetings. The Respondent provided no minutes of either set of meetings, but the Complainant did not request them until later on (but they were not then provided). There was no particular difficulty about the creation of the basement, though (inevitably) many points of detail arose and were dealt with. There were matters such as an issue with the drains laid by the contractor in the wrong place, but these are not properly to be laid at the Respondent’s door.
- The Complainant was not happy that he was hard to get hold of on occasion, primarily over the Christmas period, and when his partner gave birth to their third child in February 2017, and when later there was family illness. The Complainant was also initially not happy that the Respondent had relocated to Ireland and commuted to the UK weekly. This did not affect his work for the Complainant. He did fail to manage the Complainant’s expectations as to communication.
- There was a series of emails about difficulty in contacting the Respondent, such as on 13 March 2017 (C111) when she pointed out that there had been no voicemail facility, and asked for notes of meetings (which the Respondent did not do), and said that he was not dealing with emails. There are a few other examples, but only for a few days at a time (such as 22 May 2017, C121).
- On 20 June 2017 the Respondent went to the house and dropped off the keys to the Complainant after a routine visit. She was unhappy and he saw this. At some point during the next few weeks he decided not to deal with her further: a series of emails from the Complainant of increasing urgency about what needed doing on site went unanswered. Eventually she gave up trying to contact him and got on with it herself. By 20 June 2017 the Respondent had prepared a draft final account, but the resolution of the final bill was something the Complainant and contractor had to resolve themselves, and the retention and snagging list. Fortunately they were able to resolve that matter. The Respondent did not raise a final invoice for his own work.
- The complaints about plans are somewhat nebulous save in one regard. The system used for naming plans did cause others some confusion, but this is not a matter of complaint in the papers before the Committee. The most important issue for the Complainant was the internal stairs going down to the basement from the ground floor, the ground floor cloakroom/toilet which is accessed from the same area, and a small wall at the top of the stairs from the basement. The Committee finds that wall an irrelevance to the allegation. It was not structural. The Complainant wanted to retain it for its original features. The Respondent showed it as absent, including on some drawing shown as existing rather than planned. No work was to be done on the wall or to the ground floor by the contractor, whose contract did not include the internal stairs, which were part of the fit out. This is the sole matter to do with plans particularised in the Report to the Committee.
- The Complainant wanted to extend the excavation contractor’s remit and have the stairs and toilet built by them as it was inconvenient for the Complainant to have no ground floor WC. That was done after the Respondent left the project. There were difficulties with it, but it has not been established that this was down to the Respondent’s plans, for the stairs were varied from what was originally envisaged.
Discussion and conclusion:
- The Committee finds that the single allegation of leaving the contract in breach of it is sufficiently serious to amount to UPC, and so found the Charge proved. The effect on the Complainant and the damage to the reputation of the profession mean that it is a matter serious enough to require such a finding. The fulsome and sincere apology made by the Respondent is a powerful mitigation factor, but is not a defence. It was a matter of good fortune that both Complainant and contractor were sensible and reasonable so as to be able to resolve the final account and retention.
- The allegation about the plans is not proved. While there were issues with some of the plans of the ground floor these were not plans to be built, for they were design development plans. Also they related to the fit out stage, and the only contract placed was the dig out phase. The plans criticised were 2013 planning drawings. The error, if it was such, was at an early stage and likely to be corrected in subsequent contract drawings. The issue with the small toilet at the top of the stairs was as likely to be by reason of the rebuilding of the stairs as the plans drawn by the Respondent. It has not been shown that the redesign of the stairs was to do with the plans of the Respondent. The contract with the contractor was for the basement not the ground floor. There was some confusion in the Complainant’s mind as to plan nomenclature, but the contract did have a complete list of plans prepared for the contract, and there was no issue with them being built by the contractor. In any event the issue would be one of competence, not unacceptable conduct, and even if it was a matter of competence not as serious as would be necessary for a misconduct finding. The particulars of this allegation in the ARB’s solicitor’s report is limited to the plans of the ground floor, with some somewhat nebulous other criticisms.
- The allegation of not communicating with the Complainant adequately is in part correct, for there were periods when he was not contactable, but not for long periods. It is not unusual or unreasonable for there to be a break over Christmas. There is not said to be any issue between August 2016 and Christmas 2017. The period when the baby was born (February 2017) was not lengthy (about 3 weeks), nor was the subsequent period of family illness. There was a period of a week in May 2017 when the Respondent was ill himself. There is no allegation of failing to have cover put before the Committee, although it is mentioned in the Report. As the Respondent had no voicemail, then his obligation to respond to emails swiftly is the greater.
- In considering this part of the charge the Committee did not consider the period post 20 June 2017, as that relates to the abandonment of the project by the Respondent. That later period was unacceptable, as set out.
- The ARB’s solicitor’s report particularises this allegation only by saying “there were often delays in responding” and that he did not answer telephone calls. There is some evidence of this, but the allegation is not particularised or put in sufficient detail to show that there was sufficiently serious failure to be categorised as UPC. In short this was not acceptable, but not serious as to be UPC.
- The allegation of not actively managing the contract is proved in respect of its abandonment, but that is part of the fourth allegation. Otherwise the Committee finds it not proved. The Respondent was actively involved throughout, and did not fail to do anything that required to be done. Any delay was not such as to lead to the contractor failing to meet the completion date (important as there was a liquidated damages clause for late completion).
- The other 3 matters are not (individually or collectively) UPC, and the Committee has no doubt that without the fourth matter the Respondent would not be appearing in front of it. However the fourth matter, which the Respondent admits, the Committee finds to be UPC and so the charge is proved.
- The Respondent spoke in mitigation. He repeated his apology. There has been no previous disciplinary finding against the Respondent. He had taken on an assistant so that there would not be the difficulty in communication if he were not at work for any reason. He had a support network of colleagues. He is selective about the projects he takes on and refers some work opportunities to others. He does not accept split contractor projects.
- 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.
- In the particular circumstances of this case the Panel considered that a sanction is appropriate because of the need to declare and uphold professional standards.
- The Committee could identify no aggravating factors beyond the matters found proved. It identified the following mitigating factors:
- The Respondent has approached this matter in a highly professional way. He has engaged with the process throughout. He has not disputed matters unnecessarily. He behaved in the hearing with great courtesy and in particular towards his former client, to whom he made a point of apologising in the hearing, and offered to repeat that apology in person to her outside the hearing room. He was evidently sincere in that apology.
- This is a first appearance before the Committee.
- There was some personal mitigation to account for the lack of communication at the times when that failure was greatest.
- The Respondent has put in place measures to help with the difficulty of being a sole practitioner – he has an assistant, he has a support network, and he carefully assesses what work he accepts.
- The Respondent plainly has full insight into the matters before the Committee. He did not accept that three of the four matters were made out, nor that the fourth was serious enough to be UPC, but that was not to belittle the matters about which the complaint was made, but to offer explanation for some of them (which explanations were largely accepted by the Committee). His submission that any failings (other than leaving the contract) did not, in context, fall so far below professional standards that they amounted to UPC was accepted by the Committee. He was entitled to make his submission about leaving the contract, which was coherently argued and coupled with an apology, but fully accepted his failings in this regard, and accepted the Committee’s decision on liability.
- The Committee judges the risk of repetition as very low.
- The Indicative Sanctions Guidance states:
Where the Committee 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.
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 Committee 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 did not consider that a fine would be proportionate. Having considered the facts of this case, and the mitigation advanced, particularly the insight, apology and remedial steps taken, the Committee considers that a Reprimand is the appropriate sanction and accordingly reprimands the Respondent.