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Mr Mark Stewart

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

 

In the matter of

Mr Mark Stewart (051312A)

Held on 3-5 July 2017 and 4-7 December 2017

at

International Dispute Resolution Centre

70 Fleet Street

London

EC4Y 1EU

———-

Present

Mr Julian Weinberg (Chair)

Mr David Kann (PCC Architect Member)

Mr Stephen Neale (PCC Lay Member)

Mr Stephen Battersby (Clerk)

Mr Jonathan Goodwin of Jonathan Goodwin Solicitor Advocate appeared on behalf of the Architects Registration Board (“ ARB”).
Mr Stewart was represented by Mr Patrick Hill of 3 Raymond Buildings.

The PCC found Mr Stewart guilty of unacceptable professional conduct (“UPC”) in that he:

Failed to carry out his work faithfully, conscientiously and with skill and care in that he provided his client with incorrect advice regarding the design and/or specification for the glazing units of the oak window frames and specifically that they should be left untreated/unpainted

And that by doing so, he acted in breach of Standards 1, 2, and 6 of the Architects Code: Standards of Conduct and Practice 2010.

The sanction imposed was a £1000 penalty order.

 Allegations:

Mr Stewart faces a charge of unacceptable professional conduct (“UPC”) and/or serious professional incompetence (“SPI”) based on two allegations in relation to breaches of Standards 1,2 and 6 of the Architects Code: Standards of Conduct and Practice 2010 (“the Code) in that:

1.1 He failed to carry out his work faithfully, conscientiously and with skill and care in that:

1.1.1 He provided his client with incorrect advice regarding the design and/or specification for the glazing units of the oak window frames and specifically that they should be left untreated/unpainted;

1.1.2 He failed adequately, or at all, to investigate and/or rectify the issues with the installed glazing units of the window frames;

1.2 He failed adequately or at all, to act impartially as contract administrator in that:

1.2.1 He advised his client to make payment to the building contractor despite ongoing issues relating to the installed glazing units;

1.2.2 He backdated practical completion by issuing a certificate dated 24 January 2013, confirming that practical completion took place on 28 September 2012 which had the effect of reducing the rectification period by 4 months and/or failed to inform his client of same;

1.2.3 He issued a “snagging list” dated 11 October 2013 which failed adequately, or at all, to distinguish which items were the contractor’s responsibility to rectify at the end of the retention period.

Allegation background

1. In November 2015, the Complainant, MC (“the Complainant”) made a complaint to the ARB about the services provided by the Respondent who had been instructed in relation to a renovation of their property. Terms of appointment were agreed in August 2011.

2. The Respondent subsequently provided drawings, proposing oak window frames to the rear elevation, suggesting that the Complainant consider “unpainted oak windows”. A schedule of works was produced which made reference to “untreated dried European oak”. The Respondent, it is alleged, subsequently advised that “the oak/teak/hardwood joinery would not need painting – ever”.

3. It was subsequently agreed that the Respondent would be instructed to act as the Contract Administrator.

4. In subsequent correspondence about the design and specification of the windows the Respondent stated that he would leave them unstained and would use putty, rather than oak beads and staining as suggested by the manufacturer.

5. In June 2012, the oak window manufacturers informed Ackroyd Electrical Services Ltd (“the Contractor”) that, given that the oak frames were not to be treated as per the Respondent’s specification, they would not guarantee the frames from, amongst other things, water leakage or timber degradation. It is disputed as to whether the full details of this disclaimer were discussed and agreed with the Complainant.

6. In summary, as the project progressed, the Complainant informed the Respondent of significant water ingress through the window frames.

7. In January 2013, the Respondent emailed the Complainant stating that in his opinion, practical completion was achieved on 28 September 2012. On 23 January, the Respondent, despite ongoing issues with the windows which the Complainant continued to raise, attached a copy of the Practical Completion Certificate dated 24 January 2013.

8. In October 2013, the Respondent wrote to both the contractor and the Complainant attaching a “snagging list”. Correspondence between the Respondent, the Complainant and contractor continued regarding who would be responsible for further remedial work to the windows. In October 2013, the contractor wrote to the Complainant and Respondent regarding the cost of oiling the frames and associated costs including materials and scaffolding and again in May 2014, suggested further remedial work. The Complainant continued to correspond with the Respondent, expressing his concern that remedial work was only required because he had accepted the Respondent’s advice to leave the work unstained and use putty instead of beading.

9. In due course, the Complainant instructed a firm of Chartered Surveyors, Wiggins Lockett Thompson (“WLT”) who prepared a report dated 20 April 2015, which conclusions were not accepted by the Respondent.

10. Following the referral to the Board, it instructed an independent expert’s report from Mr Smart, a Chartered Architect of Smart Arch Limited. He produced a report dated 3 September 2016. He concluded that the design of the windows was flawed and that the Respondent was culpable for the other matters alleged against him in the charge.

11. In reaching its decisions, the Committee has carefully considered the live evidence of the Complainant together with the documentary evidence presented to it in the Report of the Board’s Solicitor and the 616 pages of documents exhibited to it, which include the Respondent’s detailed written representations to the Board together with a separate bundle of documents including the Complainant’s statement and further exhibits. The Committee has also had sight of the Respondent’s bundle which includes the Respondent’s written representations and supporting documents together with statements of Mr Geoffrey Hall, Michael Ackroyd and Gil Schalom, an expert instructed by the Respondent, each of whom gave live evidence. The Committee has also received a joint statement by both expert witnesses addressing those matters that are agreed between them, those that are not and their reasons for disagreement.

12. The Respondent denies the factual allegations and therefore that his conduct amounts to UPC / SPI.

13. The Committee has accepted the legal advice given by the Clerk. It has had regard to the fact that the burden of proof is on the Board and that the civil standard applies, namely proof on the balance of probabilities. Whether the conduct alleged amounts to UPC is a matter for the Committee’s independent judgment to which no burden of proof applies.

14. Prior to opening the case for the Board, Mr Goodwin, having reviewed the evidence, made an application to withdraw allegation 1.2.3. This was unopposed by the Respondent. Having heard and accepted the advice of the Clerk, the Committee dismissed the allegation.

Submissions of no case to answer

15. At the conclusion of the Board’s case, Mr Stewart made an application of no case to answer in respect of the remaining allegations pursuant to Rule 16c of the Professional Conduct Committee Rules (“the Rules”).

16. Mr Stewart submitted that there was no evidence upon which the Committee could find the facts of the remaining allegations proved. He produced a detailed document setting out his submissions which the Committee does not propose repeating, save to say that he highlighted inconsistencies between the evidence of Mr Smart and Mr Schalom, his expert.

17. Mr Goodwin opposed the application. He submitted that, having considered the evidence of the Complainant, that of Mr Smart and having considered the documentation, there was “compelling evidence” to support the factual allegations such that the Committee could find that there was a case to answer on each of the allegations.

18. In considering these submissions, the Committee has taken into account all the live and documentary evidence heard as part of the Board’s case and has heard and accepted the advice of the Clerk. It has applied to the regulatory nature of these proceedings, the test as set out in the case of Galbraith , namely:

1. If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case.

2. The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence:

(a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case.

(b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury…. There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge.

19. The Committee has borne in mind that, at this stage, it is not making any finding of facts. It has also borne in mind that, applying the test in Galbraith, issues of a witnesses’ credibility or reliability were matters to take into account when all the evidence had been heard.

Allegation 1.1.1

20. The Committee has noted that the wording of allegation 1.1.1 relates to “the glazing units of the oak wood frames”, rather than the frames themselves. However, it is apparent from the Board’s Solicitor’s report and from the evidence adduced, that the allegation relates to the advice that the oak frames be untreated / unpainted.

21. In that regard, the Committee has had regard to the Complainant’s evidence, and the numerous examples of documentary evidence, in which the Respondent had advised the Complainant to incorporate untreated/unpainted oak window frames of which the following are examples:

• In his email to the Complainant of 2 November 2011, the Respondent wrote: “we could also think about unpainted oak windows which would lend texture an (sic) warmth to the elevations”;
• The Schedule of Works prepared by the Respondent in November 2011, and the revised December Schedule referred to “untreated dried European oak”;
• In his email dated 27 January 2012, the Respondent wrote to the Complainant stating “As a PS – the oak/teak/hardwood joinery would not need painting-ever”;
• The Schedule of Works submitted to the contractor also made reference to “untreated dried European oak”;
• In his email dated 28 May 2012 to the Complainant, the Respondent stated having met with the joinery manufacturer:

“Staining the oak

The manufacturer is keen to stain the oak….The advantage is that it would always look like that and more importantly will keep the oak stable for moisture movement and reduce the risk of any cracks occurring at joints. It is a balance between the aesthetic and any risk of cracks at the joint. We can discuss but if it was mine I would leave it unstained and live with the consequences and enjoy the wreathing (sic) of the oak”;

Glass Beading/putty

The manufacturer is keen to use oak beads rather than putty as the putty will deteriorate over time. Again, if it were mine I would use putty. If you use the bead then it would also be best to use the stain – which is why I would go for putty”.

22. In the circumstances, the Committee is satisfied that there is sufficient evidence which, if accepted, could enable a properly directed Committee to find the facts proved. The Committee therefore finds that there is a case to answer in respect of this allegation.

Allegation 1.1.2

23. Even though the Committee notes from the Complainant’s evidence was that the problems are still ongoing, it is apparent from the documentation that steps were taken to investigate the cause of the water ingress, but these proved unsuccessful. In the circumstances, there is no basis for a Committee being able to find that the Respondent took no steps to investigate / rectify the issues with the glazing units and the window frames. However, the Committee has had regard to the joint statement of Mr Smart and Mr Schalom. It is an agreed position between them that, “if a substitution for the glass is suggested by the contractor the architect has a responsibility to check compatibility and performance for the new product. There is no evidence that MS checked these issues when the glass was changed from Slimlite to Action Glass”.

24. In the circumstances, the Committee is satisfied that there is sufficient evidence which, if accepted, could enable a properly directed Committee to find the facts proved to the extent that his actions were adequate. The Committee therefore finds that there is a case to answer in respect of this allegation.

Allegation 1.2.1

25. The Committee has had regard to the Respondent’s email dated 22 January 2013 and the signed Certificate of Progress Payment form. It is not disputed evidence that the Respondent advised the Complainant to pay the full sum sought by the contractor less a 2.5% retention. The Committee heard evidence from the Complainant that at that time, the issues with water ingress were ongoing and the documentation before the Committee indicates that the Respondent was aware that this was an ongoing issue.

26. Mr Smart gave evidence to the effect that, given that the issue of water ingress was ongoing and that the cause of that was as yet unknown at that time, the Respondent should not have certified the full amount owing to the contractor (subject to the limited retention) was owing.

27. In the circumstances, the Committee is satisfied that there is sufficient evidence which, if accepted, could enable a properly directed Committee to find that, in acting as alleged, the Respondent failed to act impartially. As such a Committee could find the facts proved and it therefore finds that there is a case to answer in respect of this allegation.

Allegation 1.2.2

28. It is not disputed evidence that the practical completion certificate was backdated and that this had the effect of reducing the rectification period. However, the Committee also notes that Mr Smart stated, in response to questions from the Committee, that there was insufficient evidence before him for him to state that practical completion did not occur on 28 September 2012. He also stated that he could not identify any loss suffered by the Complainant in this taking place.

29. However, the Committee has also had regard to the correspondence before it. It has noted in particular the concerns raised by the Complainant regarding practical completion being certified as evidenced in the Complainant’s emails of 14, 17 and 23 January 2013. Notwithstanding an expressed willingness by the Respondent to discuss the issue on 23 January, the Practical Completion certificate was nevertheless issued on the 24 January without further recourse to the Complainant.

30. In the circumstances, the Committee is satisfied that there is sufficient evidence which, if accepted, could enable a properly directed Committee to find that, in acting as alleged, the Respondent failed to act impartially. As such a Committee could find the facts proved and it therefore finds that there is a case to answer in respect of this allegation.

31. At the resumed hearing, the Respondent was represented by Mr Hill of Counsel. The Respondent, Mr Hall, Mr Ackroyd and Mr Schalom each gave live evidence. Having heard their evidence and Mr Hill’s closing submissions, the Committee makes the following findings of facts:

Allegation 1.1:

Allegation 1.1.1

The Committee finds the facts proved for the following reasons:

32. Whilst the Respondent accepted that he initially advised the Complainant to consider having untreated timber framed double-glazed units, he accepted that this was the first time that he had undertaken a project using untreated oak as window frames. He further accepted that, prior to knowing of the nature of the disclaimer issued by the manufacturer in June 2012, he was unaware of the extent of the risk that the proposed windows and untreated wooden frames might fail. Having considered the documentation produced to the Committee as referred to above in its findings on the no case to answer submission, it is satisfied that, prior to the meeting with the Complainant on 14 June 2012, the Respondent repeatedly advised the Complainant to leave the oak untreated. The Respondent accepted this to be the case and that his advice to leave the frames untreated / unpainted, which had been his position from November 2011 until June 2012, was wrong.

33. The Committee has had regard to the report of Mr Smart in which he concluded: “I consider from the evidence that the major cause of the leakage and the misting of double glazed units is likely to have been (the respondent’s) failure to properly design the glazing and its installation into the new windows. I consider that the design of the windows was flawed because (the respondent) failed to properly specify the glazing to be used in untreated oak windows and how the glazing was to be installed. It appears that Slimline double glazed units cannot be installed in untreated timber windows due to the need to seal the glazing putty against the windows with paint, or other compatible seal, so as to stop the double glazed units’ premature failure. Whilst untreated oak windows maybe aesthetically pleasing, (the Respondent) should not, in my opinion have specified or recommended such untreated windows without having used them before and resolved the issues of weathering and glazing”. He concluded that the Respondent failed to properly design and specify the windows which led to the problems encountered by the Complainant.

34. The manufacturer emailed Mr Hall on 7 June 2012 advising that they could not guarantee untreated oak and thereby disclaiming liability for the frames from “shrinkage, expansion, splitting, twisting, glue joint failure, water leakage through joints or timber degradation in the future”. The Respondent stated that the contents of the disclaimer were discussed with the Complainant at a meeting held on 14 June. Mr Ackroyd supports that position which is consistent with the Complainant stating in evidence that he was aware of a disclaimer. However, contrary to the Respondent’s position, he stated that he was not advised specifically to have the frames treated / painted.

35. In considering which version of events to prefer, the Committee has borne in mind the following:

• The Complainant consistently stated that the Respondent did not explicitly advise him to treat / paint the frames (as opposed to ongoing maintenance), although he accepted that he was aware of the manufacturer’s disclaimer being discussed;

• In the Respondent’s statement of 18 November 2017, he stated that he had a very clear recollection of the meeting of the 14 June. He recalls Mr Ackroyd reading out the terms of the emailed disclaimer from the manufacturer and advising of the risks of leaving the wood untreated and discussed treatment options and the fact that regular maintenance would be required. However, without having explicitly stated that he gave changed advice to paint / treat the frames, he later states that “if the windows had been decorated in accordance with my advice of 14 June 2012 they would not have failed”;

• Mr Ackroyd in his statement of 14 June 2017, makes reference to a discussion about the disclaimer and maintenance requirements but does not state that the Respondent advised the Complainant to treat / paint the frames. In considering the weight to be attached to Mr Ackroyd’s evidence, the Committee is aware that the contents of his written statement included the input of the Respondent. However, the Committee nevertheless considered his live evidence to be honestly given, frank and consistent, and hence, credible.

• The Respondent accepted in evidence that at the time of the meeting, he was not aware that the windows might completely fail. This is inconsistent with the contents of his email dated 14 October 2014 to the Complainant asserting that “if the windows are installed without external decoration they are going to allow water to pass through the oak in extreme conditions and will cause the glazed units to fail, which was a point raised before the windows were manufactured and has been on going discussion since they were installed…”. Not only was this assertion refuted the same day by email from the respondent, but this inconsistency undermined the credibility of his evidence generally. In any event, Mr Ackroyd, in his evidence, stated that the level of risk of issues arising was not identified at the meeting. Whilst he considered that there was a risk of movement and moisture ingress which could be addressed by regular maintenance, he stated that the risk of complete failure was not anticipated;

• Whilst Mr Schalom makes reference to the adequacy of advice given by the Respondent to the Complainant, the Committee attaches little weight to his assertions because he had no direct knowledge of what was said at that meeting on 14 June and can only comment on what he was told by the Respondent;

• The Committee notes that the site minutes of 14 June 2012 do not make reference to either the disclaimer being discussed, or to the client being specifically advised to paint / treat the frames as asserted by the Respondent;

• There is no evidence before the Committee that the Respondent explicitly confirmed the advice that he states he gave the Complainant to treat / paint the frames in writing. This was a fundamental and important change of advice, not least because the windows were such a central and costly feature of the project. The absence of any written record of this change of advice, makes it more likely that unequivocal advice to paint / treat the frames, was not given.

36. Whilst the Committee recognises that it does not follow that because no such record in writing was made of the change of advice that the advice could not have been given, given the obvious significance of the issue to the success of the project, it is unsurprising that both experts are in agreement that such a fundamental change of advice should have been recorded in writing. However, this was not done. The Committee does not accept the Respondent’s evidence as credible that his site minute notes did not reflect the change of advice because he only minutes actions, rather than matters that require no change of action. For example, in the minutes of 14 June and point 7.11, the Respondent noted “Confirmed retain utility room wall”. By way of further example, his notes of 28 June 2012 referred to “Confirm Bedroom 5 and the Bathroom to stay as existing”. These, non-exhaustive examples, reflecting a maintenance of the status quo, undermine the credibility of the Respondent’s explanation for his failure to note his fundamental change of advice. The Committee finds that the failure to record the change of advice in writing resulted from the Respondent failing to give such advice.

37. In all the circumstances, the Committee finds that, whilst reference was made to the manufacturer’s disclaimer and the need for ongoing maintenance, the Respondent did not specifically advise the Complainant that the frames should be painted / treated. Contrary to Mr Hill’s submission, the Committee does not consider that it is inherently unlikely that if the disclaimer was discussed, that the Respondent would not have advised the complainant to treat / paint the frames to avoid water ingress through the frames – the evidence before the Committee suggests that that is what occurred.

38. Standard 6 of the Code states:

You should carry out your professional work faithfully and conscientiously and with
due regard to relevant technical and professional standards

6.1 You are expected to carry out your work promptly and with skill and care and
in accordance with the terms of your engagement.

39. In the circumstances, the Committee finds that the Respondent acted as alleged. In doing so, he failed to carry out his work faithfully, conscientiously and with skill and care in breach of standard 6 of the Code.

Allegation 1.1.2

The Committee finds the facts not proved for the following reasons:

40. The Committee first considered whether the Respondent failed to adequately investigate the issues with the installed glazing units and the frames, having previously found that there was no evidence that the Respondent had not failed entirely in this regard. Whilst not intended to be an exhaustive list, the Committee has identified the following several examples of communications over a lengthy period of time between the Respondent and the Complainant in which the Respondent is seeking to find solutions to the problems with the units:

• The Respondent’s email to the Complainant dated 2 October 2012;
• The Respondent’s email to the Complainant dated 11 October 2013;
• The Respondent’s email to the Complainant dated 8 May 2015;
• The Respondent’s email to the Complainant dated 31 October 2013;
• The Respondent’s email to the Complainant dated 1 November 2013;
• The Respondent’s email to the Complainant dated 7 November 2013;
• The Respondent’s email to the Complainant dated 15 January 2014;

41. In all the circumstances, the Committee finds that the Respondent did adequately investigate the issues with the glazing units and frames.

42. The Committee next went on to consider whether the Respondent adequately or at all, rectified the issues with the units and frames.

43. The Committee is mindful that the rectification works were only required because the Complainant, in reliance on the advice of the Respondent, installed untreated oak frames. It was those failings found proved in respect of allegation 1.1.1, that meant rectification works were required.

44. The Respondent accepts that those defects can only properly be resolved by treating / painting of the frames. As identified above, the Committee accepts that the Respondent took steps to resolve the issue of water ingress. However, the Complainant stated that the problems have continued since first identified in September 2012 until the present day, a period of some five years. As a matter of fact, the Committee finds that, in those circumstances, the Respondent has failed to rectify the issues in question. However, the Committee has gone on to consider whether this has resulted from the Respondent’s failure to work faithfully, conscientiously and with skill and care.

45. The Respondent stated that the problems that resulted were the Complainant’s fault in their insistence that aesthetic considerations were core to the project. The Committee has noted that the complainants, despite the water ingress issues, have repeatedly stated that they want to continue with untreated oak frames for aesthetic reasons. The Committee has had sight of an email from the Complainant dated 1 November 2013, over one year after first raising the issue of water ingress, stating: “We would like all other windows to remain untreated and therefore problems will need addressing differently”. Even in September 2014, the Complainant emailed the Respondent stating: “I want untreated dried European Oak windows with “Slimlite”, or approved similar glazing units as specified in the contract”.

46. Given the Complainant’s repeated insistence to continue with untreated frames, and the restrictions that that entails in being able to rectify the defects, for example by not being able to paint / treat them as required, the Committee does not consider that the failure to rectify the defects results from the Respondent’s failure to work faithfully, conscientiously and with skill and care.

47. In the circumstances, the committee finds this allegation not proved.

Allegation 1.2:

Allegation 1.2.1

The Committee finds the facts not proved for the following reasons:

48. It is not contested that the Respondent was appointed as Contract Administrator. Similarly, it is not disputed that, as a matter of fact, that the Respondent advised his client to make payment to the building contractor despite ongoing issues relating to the installed glazing units.

49. However, it is the Respondent’s position that he did not fail to act impartially as the defects were not the fault of the contractor, and that, in accordance with his contractual obligations, the money was properly payable to the contractor. As such, he stated, he did not fail to act impartially. This position is supported by Mr Schalom. Indeed, Mr Goodwin stated that it was the Board’s case that the water ingress problems were not the fault of the contractor, but as a result of the Respondent’s design and specification.

50. The Committee has carefully considered the evidence of Mr Smart, the Board’s expert. He confirmed that where the contractor was not at fault, the client has no grounds to withhold payment to the contractor. To do so in those circumstances, he stated, would be “a dangerous thing” because it could expose the client to legal action by the contractor. In response to questions from the Committee, Mr Smart further confirmed that it was appropriate to issue a practical completion certificate where the fault was in design, rather than construction. The issuing of a practical completion certificate would release retained monies (subject to a 2.5% retention) to the contractor. Mindful that the burden of proof rests with the Board, the Committee notes that Mr Smart couldn’t “say categorically whether practical completion should have been certified in September 2012, because I don’t have all the evidence”.

51. In all the circumstances, the Committee finds that the Respondent did not fail adequately, or at all to act impartially. The Committee therefore finds the facts of this allegation not proved.

Allegation 1.2.2

The Committee finds the facts not proved for the following reasons:

52. It is not disputed that the Practical Completion certificate was issued on 24 January 2013, but stated that Practical Completion had taken place on 28 September 2012.

53. At that time, the Respondent was aware that the issues with the windows remained unresolved and the cause of water ingress into the property was still in dispute. Much has been made of the Respondent’s alleged failure to respond to correspondence from the Complainant about concerns raised by him over certifying practical completion in September 2012. Whilst it is a feature of this case that the Respondent did not fully address certain matters in writing, the issue for this panel to resolve is whether the respondent was acting impartially by certifying practical completion as at September 2012, and by backdating the certificate from January 2013. If the Committee finds that he did, the consequences of his actions require no further consideration.

54. The Committee repeats its rationale for its finding in respect of allegation 1.2.1 and finds that the Respondent did not act inappropriately in certifying that practical completion had taken place in September 2012. The Complainants had taken beneficial occupation, notwithstanding the ongoing issues. In the absence of fault on the part of the contractor, both experts agree that it was not inappropriate to certify practical completion as at September 2012.

55. Notwithstanding that the certificate was only signed in January 2013, it is apparent that all parties were aware of the ongoing issues. Indeed Mr Ackroyd appreciated that he wanted to resolve the outstanding issues even if that meant a delay in payment.

56. The Committee has also had regard to the Respondent’s email to the Complainant dated 22 January 2013. Far from failing to act without impartiality, the Respondent raised with the Complainant that, if he was unhappy with the decision to certify practical completion as at 28 September 2012, it was open to him to take legal advice in compliance with the Construction Housing and Regeneration Grants Act.

57. Standard 6 of the Code further states:

You should carry out your professional work faithfully and conscientiously and with due regard to relevant technical and professional standards
6.1 …….
6.2 …….
6.3 …….
6.4 You should, when acting between parties or giving advice, exercise impartial and independent professional judgment……

58. It is important to note that the practical completion certificate was backdated to the correct date, in circumstances where evidently, all parties were aware of ongoing water ingress issues. As such, the Committee does not consider that the Respondent’s actions in backdating the certificate were unjustifiably biased beneficial to one party over another. Whilst it was within the remit of the Complainant to issue the certificate on the 28 September or promptly afterwards, the Committee does not find that backdating the certificate in January represents bias or prejudice in circumstances where all parties were aware of the ongoing issues and the contractor was waiting for, what was in effect, his final payment

59. In the circumstances, the Committee finds the facts not proved as alleged in that the Respondent did not fail adequately, or at all, to act impartially as contract administrator.

Allegation 1.2.3

This allegation was dismissed for the reasons stated above.

Finding on Unacceptable Professional Conduct / Serious Professional Incompetence:

60. Having found allegation 1.1.1 proved, the Committee went on to consider whether the Respondent’s conduct amounts to UPC / SPI. UPC is defined as conduct which falls short of the standard required of a registered person.

61. Serious professional incompetence relates to the quality and application of the professional skills architects need to do their job. In particular circumstances some acts or omissions may amount to both incompetence and unacceptable conduct. Serious professional incompetence is a serious failure to meet the required standard of skill expected of a member of the profession undertaking a similar kind of job at the same time. It can relate to something that an architect has or has not done, but an unexpected or unsatisfactory outcome is not in itself proof that an architect has been seriously incompetent.

62. Because the facts and circumstances of each case are different, it is not possible to identify the exact point where incompetence becomes serious incompetence; however the following features make it more likely to be viewed as serious:

• When the consequences are, or could have been, particularly serious
• Where the architect’s standard of competence falls significantly below that expected
• Where a number of failings, while not serious individually, together demonstrate a pattern of incompetence
• Where a pattern of incompetence suggests an architect may not act competently in the future

63. In reaching its findings, the Committee has carefully considered all the evidence presented to it, all submissions made and has accepted the advice from the clerk. The Committee recognises that not every shortcoming on the part of an Architect, nor failure to comply with the provisions of the Code, will necessarily result in a finding of UPC or SPI. However, a failure to follow the guidance of the Code, whether in one’s professional or private life, is a factor that will be taken into account should it be necessary to examine the conduct or competence of an Architect. The Committee reminds itself that a finding of UPC / SPI is a matter for its own judgment.

64. The Committee has considered the authority of Spencer v General Osteopathic Council [2012] EWHC 3147 (Admin). It has borne in mind in reaching its decision that for a finding of unacceptable professional conduct to be made, “a degree of moral blameworthiness on the part of the registrant likely to convey a degree of opprobrium to the ordinary intelligent citizen” was required. Any failing should be serious. The Committee accepts that “mere negligence does not constitute misconduct” and that “a single negligent act or omission is less likely to cross the threshold of misconduct than multiple acts or omissions….a single instance of negligent treatment unless very serious indeed, would be unlikely to constitute deficient professional performance”. The Committee also recognises that any failing must be serious (Vranicki v Architects Registration Board [2007] EWHC 506 Admin).

65. The Committee has taken into account both Mr Goodwin’s submissions, and the Respondent’s evidence.

66. However, so far as allegation 1.1.1 and the corresponding breach of the Code is concerned, the Committee finds that the Respondent’s failing, in failing to provide accurate advice about the suitability of untreated window frames resulting in water ingress, represents conduct falling below the standard expected of a registered Architect. His failing is serious and adversely impacts both on the reputation of the Architect and the profession generally.

67. The Committee therefore finds that the Respondent’s conduct as found proved in respect of allegation 1.1.1 can properly be categorised as unacceptable professional conduct, which finding the Committee so makes. For the avoidance of doubt, the Committee makes no finding of SPI.
Sanction:

68. Mr Hill then addressed the Committee in mitigation.

69. The Committee then considered whether to impose a sanction, and if so, which one. The Committee has had regard to the public interest, which includes the need to protect the public, to maintain confidence in the profession and the 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 the Respondent’s interests, the indicative sanctions guidance and the need to act proportionately. It has taken into account any aggravating and mitigating factors in this case. The Committee has exercised its own independent judgement.

70. Having taken into account the Respondent’s submissions, the Committee has identified the following mitigating factors:

• that the Respondent has no adverse regulatory history in his 33 year career;
• this was an isolated failing;
• he has engaged in the regulatory process;
• he has not personally benefitted from his conduct, financially or otherwise;
• he had taken steps to rectify the problems with the water ingress, albeit that the problems have not been satisfactorily resolved;
• the Committee has had sight of a number of testimonials and references attesting to his character and professionalism;
• the Committee accepts that undergoing this regulatory process (which has taken over five months to conclude) and having a finding of UPC against him has been a salutary experience such that his failings are unlikely to be repeated. The Committee has noted that the Respondent now practises in a different area of practice, and he now takes a more guarded approach to his advice and corresponding records of it, and there has been no repetition of his failings since this incident five years ago.

71. The Committee has identified the following aggravating factors:

• this was a serious failing that resulted in material inconvenience and potential expense to the Complainant;
• there has been no expression of regret, apology or remorse.

72. The Committee notes that the matters found proved are serious to the extent that Mr Stewart’s failings diminish both his reputation, and that of the profession generally for the reasons set out in its determination on UPC. The Committee therefore concluded that the Respondent’s conduct was sufficiently serious for it to require the imposition of a sanction and has considered them in ascending order of severity.

73. The Committee first considered whether to impose a reprimand. The Committee considered that such a sanction was neither appropriate nor proportionate given that it did not consider the Respondent’s UPC to be at the lower end of the scale.

74. The Committee then considered whether to impose a penalty order and concluded that such a sanction was appropriate and proportionate.

75. The Committee therefore imposes a £1000 penalty order which the Committee considers to be an appropriate and proportionate sum to impose given the seriousness of the UPC found proved. That sum must be paid within 28 days. Failure to pay that sum within that time frame may lead to the order being replaced with a suspension or erasure order.

76. The Committee considered whether to impose a suspension order, but given the suitability of a penalty order, the Committee concluded that such a sanction would be unduly punitive.

77. That concludes this determination.

 

 

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