Mr Mukundkumar Dolatbhai Vashee
THE ARCHITECTS REGISTRATION BOARD
PROFESSIONAL CONDUCT COMMITTEE
In the matter of
Mr Mukundkumar Dolatbhai Vashee (052685A)
12-14 January, 7 March (in chambers) & 27 April 2016
Chartered Institute of Arbitrators
12 Bloomsbury Square
Mr Julian Weinberg (Chair)
Mr Stephen Neale (PCC Lay Member)
Mr Roger Wilson (PCC Architect Member)
Ms Nicola Hill (Clerk to the PCC)
1. In this case, the Board is represented by Mr Jonathan Goodwin. Mr Vashee has attended this hearing and is legally represented by Mr Scott Brady QC, briefed by BLM Solicitors. Mr Vashee faces a charge of unacceptable professional conduct (“UPC”) and/or serious professional incompetence (“SPI”) based on three allegations in that he:
1.1 Failed to carry out his work faithfully, conscientiously and with skill and care in that;
1.1.1 He failed to carry out an accurate survey, and/or
1.1.2 He produced a design and/or drawings which were inaccurate and/or unworkable.
1.2 He failed adequately, or at all, to provide his client with relevant information and advice, namely;
1.2.1 The need for a full measured survey to be carried out, and/or
1.2.2 The need to lower the first floor ceiling in order to obtain a workable ceiling height in the loft conversion, and/or
1.2.3 The cost implications of those matters particularised at 1.2.1 and 1.2.
1.3 He failed adequately, or at all, to deal with a complaint or dispute about his professional work appropriately, in that, he raised invoices to discourage, or which tended to discourage, a complaint.
2 and that by doing so, the Respondent acted in breach of Standards 1, 6 and 10 of the Architects Code: Standards of Conduct and Practice 2010 (“the Code”). UPC and SPI are alleged in relation to allegations 1.1-1.2.3 and UPC alone is alleged in relation to allegation 1.3.
3 This case arises out of a complaint made by Dr A and Mrs R B (“the Complainants”) in respect of the professional services carried out by the Respondent who, at the material time, was trading under the name, ARC3 Architects.
4 The background to this case is that the Complainants instructed the Respondent as Architect in respect of a loft conversion into a one-bedroomed flat. In his client care letter, the Respondent set out his terms of appointment in that he agreed to undertake a survey for the scheme design for planning application purposes. Planning permission was granted in January 2012. Subsequent tender quotes exceeded the amount estimated by the Respondent.
5 The client-appointed surveyor, Mr JA of ‘P A’ reviewed the plans but identified errors in the design in relation to inadequate headroom throughout the second floor of the property. The Respondent’s retainer was terminated in September 2012 and solicitors were instructed to take the matter up with the Respondent. Approximately nine months later, in July 2013, the Respondent submitted four invoices to the Complainants, which, it is alleged, was done to harass and bully the Complainants into dropping their complaint.
6 In November 2014, Ms Carol Norton, an Inquirer, was appointed by the Board to provide a report in which she identified a number of errors in the Respondent’s drawings.
7 All the allegations are denied. It is further denied that if any factual allegations are found proved, such failings amount to UPC or SPI.
8 In reaching its decisions, the Committee has carefully considered the live evidence of the Complainants, Ms Norton, and the Respondent together with the documentary evidence presented to it in the Report of the Board’s Solicitor, the 304 pages of documents exhibited to it, and a 725 page bundle of documents supplied by the Respondent.
9 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/SPI is a matter for the Committee’s independent judgment to which no burden of proof applies.
10 The Committee makes the following finding of facts:
11 Allegation 1.1:
12 The Committee finds the facts proved for the following reasons:
13 The Respondent agreed with the Complainants to carry out a dimensional survey which was carried out in January 2010. The Respondent’s client care letter stated that “This initial survey is only suitable for making a planning application and will not be suitable for construction”. However, the roof height on the plans for the proposed loft space was inaccurate. The Complainants required the project to be commercially viable, and it follows that the spaces should be of adequate habitable dimensions in considering whether the project was viable.
14 Mr A, the surveyor identified “significant errors and omissions in the constructional information provided for thescheme” in relation to the ridge heights which, he says, resulted in inadequate headroom throughout the second floor flat. This, he says prevented the works starting. The Inquirer concluded in her report that “When the survey was drawn up the change in the floor level of the loft was omitted and only the maximum incorrect ceiling height was used. This error was then perpetuated in all the future drawings that I have seen for the project…..In conclusion it appears an error was made in the survey information, which was not spotted until work was about to start on site”.
15 Ms Norton, the Inquirer, gave evidence that she undertook a survey. She identified that, whilst the Respondent’s survey was mostly accurate, she identified errors in the different ceiling heights, which the Respondent, in his evidence, accepted were significant. The Complainants stated that the viability of the conversion was at the heart of the project, and the inaccuracy of the height measurement impacted on that. The Committee considers that, even though the survey was only being prepared for planning permission application purposes, it was still incumbent on the Respondent to ensure that the survey, and any drawings prepared in pursuance of it, were accurate. Ms Norton gave credible evidence that the height differences identified between her measurements and that of the Respondent were significant as they impacted on the viability of the project.
16 As such, the Committee finds allegation 1.1.1 proved. In failing to undertake an accurate survey, the Committee finds that the Respondent failed to carry out his work faithfully, conscientiously and with due skill and care.
17 Allegation 1.1.2
18 The Committee finds the facts proved for the following reasons.
19 The Respondent prepared plans for the proposed development. The Committee notes that the Respondent was able to secure the granting of planning permission, but has gone on to consider whether the design and drawings were accurate and/or workable. It has concluded that they were not.
20 The first floor of the property was split between two levels. There was approximately 600mm difference between these two levels, which was connected by stairs. The Respondent prepared drawings (202B and 202C) which were submitted for Building Regulation permission and tendering purposes, but which failed to identify this difference in first floor levels on the appropriate cross sections. Furthermore, they stated that the project would use the “existing lath and plaster ceiling” which the Respondent accepted was an error.
21 It was his case that it was always his intention that the first floor ceiling would have to be lowered. This, he stated, would have created the head height of 2445mm in the loft, leaving an available ceiling height of 2425mm for the first floor. Until responding to questions from the Committee, the Respondent had not identified that there would not have been a uniform height of 2425mm across the first floor because of the stepped floor level referred to above. This would have reduced the effective ceiling height to 1825mm in the raised part of the first floor. Ms Norton confirmed that a minimum 2200mm of headroom was required for the project to be feasible as habitable space. The Respondent did not submit that such a low height, i.e. 1825mm was acceptable, but stated in response to questions from the Committee that, had he been allowed to continue with the project, he could have found a solution to this problem. However, until raised by the Committee, the Respondent had not identified the issue which would have left his design unworkable because the ceiling height in some rooms would have been too low to be fit for habitation. His failure to recognise this issue undermined the credibility of his evidence that he was always aware of the need to lower the first floor ceiling; until that point, he had not made any reference as to how he would have addressed the issue of there being insufficient headroom in that part of the first floor flat.
22 In the circumstances, the Committee finds that the design and drawings prepared by the Respondent were inaccurate and unworkable. In doing so, the Committee finds that the Respondent failed to carry out his work faithfully, conscientiously and with skill and care.
23 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.
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.
24 By reason of the facts found proved, the Committee finds that the Respondent acted in breach of standards 6.1 and 6.3 of the Code.
25 Allegation 1.2:
26 The Committee finds the facts proved for the following reasons:
27 The Committee has had regard to the evidence of the Complainants, who the Committee considered gave credible and consistent evidence. They stated that they had relied on the Respondent for his professional input and that they had not been informed of the need for a full measured survey.
28 The Respondent relies on two documents. The terms of his written proposal dated 11 September 2009 which states:
“This initial survey is only suitable for making a Planning Application and will not be suitable for construction. This survey will not have all dimensions and/or all levels to allow minimum costs. If the client requires a full survey, to avoid risk, Arc 3 will require separate written instructions with payment, as the costs may be higher depending on the instruction”.
29 His lengthy appointment letter dated 18 January 2010 states, albeit in small print:
“Arc 3….will undertake a preliminary dimensional survey for scheme and design and planning application purposes…..which is generally suitable for Planning Applicants, but is not suitable for construction and other stages….the plans….will not be fully dimensioned for the contractor to undertake building work. If you proceed with construction based on these approvals, you do so at your own risk. If you would like a measured survey….you will have to appoint a specialist consultant expert in this field as your direct appointment.
It is crucial that you understand that Planning drawings and Building Regulation drawings are not Construction drawings and/or complete specifications. We do not recommend that you proceed to construction stage without proper documentation”.
30 The Committee considers that the documents on which the Respondent relies, whilst advising of the option of obtaining a full measured survey, do not state with sufficient clarity that it needed to be carried out. What is stated lacks the prominence that such an important requirement necessitates. The correspondence states that the Respondent’s firm was able to carry such a survey out if the client wished, and that, there was a risk in proceeding to construction based on the survey undertaken by the Respondent. But beyond giving the Complainants that option, should they have wanted to take it up, the Committee has not had sight of sufficient evidence that the Respondent adequately brought the need for the full measured survey to be carried out to the Complainants’ attention.
31 The Inquirer confirmed that the Respondent had not stated that a full measured survey was being undertaken, but concluded that “there is no record of them advising the client to have this carried out due to the complex construction of the loft and limited access until 14 December 2012, after their services on the project had been completed”.
32 Balancing the evidence of the Complainants as against the fact that the Committee has not seen any evidence that the Respondent adequately advised the Complainants of the need for a full measured survey, the Committee finds the facts of this allegation proved.
33 In the circumstances, the Committee finds that by failing to act as alleged, the Respondent has acted in breach of standard 6 of the Code.
34 Allegation 1.2.2
35 The Committee finds this allegation proved for the following reasons.
36 There is a fundamental conflict between the evidence of the Complainants and the Respondent. The Complainants were adamant that they were not at any point advised of the need to lower the first floor ceiling in order to obtain a workable ceiling height in the loft conversion. The Inquirer and the Complainants both point to the fact that there is no correspondence or email confirming that this needed to be done. The Complainants stated that they wanted to retain their long-standing tenants in the first floor flat through the building works and wanted to minimise disruption to their living space. They stated that they discussed this with the Respondent, but he had not at any point said that this would have been impossible because the ceiling would have to be lowered. They were emphatic that, had they been aware of the need to lower the first floor ceiling, they would have raised this with the Respondent, but they had not been so advised. They stated that while they had been made aware of the total sum quoted by tendering contractors, they had not seen the quotes.
37 The Respondent stated that he did discuss the lowering of the first floor ceiling with the Complainants. He referred to a number of handwritten notes written on agenda meeting notes, copies of emails he had printed off, handwritten telephone notes and a sketch drawing he had prepared at his first visit to the property, which all make reference to a lowered ceiling height. He also refers to costs estimates provided by a number of building contractors, which, he states, make reference to this aspect of work. However, the Committee notes that such reference, such that it may be, is oblique in the sense that two such documents simply refer to “works to first floor area” and “works in the cellar and first floor”. Only one quotation from BK R Construction Ltd makes explicit reference to “Ceilings incl lowering etc”.
38 The Committee has borne in mind that the handwritten notes on which the Respondent relies were not sent to the Complainants and he accepts this. The contents of the notes were not shared with the Complainants by way of confirming what had been discussed or agreed. They were not expressly written to confirm that the first floor ceiling height would have to be lowered. Nor did the drawings prepared by the Respondent reflect that the loft floor/first floor ceiling height would need to be lowered. The exhibited Outline Specification of works makes no express reference to lowering the first floor ceiling, simply to forming a “new ceiling in one hour fire resistant material”.
39 The Complainants had relied on the Respondent for his professional input. The onus was on him to advise the Complainants of the cost and other implications of lowering the loft floor/first floor ceiling height so that they could make an informed decision as to whether the project was viable, given their initial objectives of which they made the Respondent aware.
40 Given the importance to the overall viability of the project of lowering the loft floor/first floor ceiling, such information should have been expressly and clearly communicated to the Complainants. It seems that notes of any such conversations were retained by the Respondent without confirmation in writing to the Complainants.
41 In the circumstances, the Committee finds that the Respondent failed to adequately provide the Complainants with advice regarding the need to lower the first floor ceiling in order to obtain a workable ceiling height in the loft conversion.
42 Allegation 1.2.3
43 Given the Committee’s findings in respect of allegations 1.2.1 and 1.2.2 that the Respondent failed to provide his clients with the relevant information and advice, it follows that the Respondent therefore failed to provide his clients with relevant information and advice regarding the cost implications of those matters.
44 In the circumstances, the Committee finds the facts of this allegation proved.
45 Allegation 1.3:
46 The Committee finds the facts proved for the following reasons.
47 On 25 September 2012, the Complainants emailed the Respondent terminating the retainer stating that the Respondent should not undertake any further work “unless we discuss in detail beforehand”. In October, the Respondent agreed that he would not bill the Complainants beyond stages F and G (i.e. to prepare tenders and outline specification) unless they chose to instruct him for any such additional work. On 19 October, Alastair Bennett of Arc 3 emailed the Complainants stating “I understand from Mayur that you are dealing with the project from this point and do not want to incur Arc 3’s Architectural fees….As you may be aware Arc 3 have not yet made a charge you (sic) for Tendering and reporting back to you. Good luck with your project and this concludes Arc 3’s involvement unless you send us instructions for the future RIBA Stages…..”.
48 In March 2013, solicitors instructed for the Complainants wrote to the Respondent intimating a claim. It is that letter that forms the basis of the complaint which is the subject of the allegation. PI Protect Legal Services responded on the Respondent’s behalf on 4 July 2013. That day, nine months after his retainer was terminated, the Respondent sent four invoices to the Complainants, which it is alleged that the Respondent was not entitled to submit as he had agreed not to bill the Complainants beyond stages F and G, but the invoices made reference to termination of services and stage H.
49 The Complainants says that the invoices were “a deliberate attempt to harass and bully us into dropping the issue. There were no monies owing since our contract with them concluded in October 2012 on good terms with all invoices paid”.
50 However, the Complainants accepted that they only stopped pursuing their claim against the Respondent approximately a year afterwards, and that they only did so because of the cost implications of continuing to instruct solicitors to pursue it. In the circumstances, the Committee finds that the Respondent’s actions in raising the invoices in question did not tend to discourage their complaint.
51 The Committee next considered whether the raising of the invoices was done with the intention of discouraging the complaint and has concluded that it was. The Complainants both gave evidence that it was their belief that the invoices were raised to frustrate their complaint, given the timing of them. The Respondent in evidence denied this and stated that he raised the invoices to recover money to which he believed he was entitled in accordance with the contract terms signed by the Complainants. The Committee however notes that, for example, invoice 203 for £2500 relates to fees for the authority to hand out drawings and documentation to other persons. However, the Respondent sent CAD drawings to the Complainants some 7 months previously in December 2012 (recognizing that Arc 3 accepted no liability when the drawings were “used by anyone accept (sic) Arc 3 Architects), yet had not raised an invoice at that time.
52 On response to questions put to him in cross examination, the Respondent did not accept that there was any other motive for the raising of those invoices. He stated that, despite the contents of the emails referred to above, he did not raise the invoices in question earlier as he did not previously believe that his retainer had been terminated. The Committee does not consider this explanation credible given the clear and unequivocal contents of the emails. The Committee has taken into account what the Respondent has said that the email of 19 October 2012 was not written by him, but the Committee cannot but conclude that it was sent after a conversation with the Respondent given its contents.
53 The Committee has further borne in mind that the Respondent did not subsequently pursue payment of the relevant invoices, which it would have expected him to do, had the raising of the invoices been done in a genuine attempt to seek payment of monies owing to him.
54 In the circumstances, the Committee is satisfied on the balance of probabilities that the Respondent raised invoices to discourage a complaint. In doing so, he failed to adequately deal with a complaint about his professional work appropriately and acted in breach of standard 10 of the Code.
55 In the circumstances, the Committee finds the facts of this allegation proved.
56 Having found allegations 1.1, 1.2 and 1.3 proved the Committee went on to consider whether the Respondent’s conduct amounts to UPC and/or SPI. UPC is defined as conduct which falls short of the standard required of a registered person. SPI is defined as a serious failure to meet the required standard of skill expected of a member of the profession undertaking a similar kind of work at the same time.
57 In reaching its findings, the Committee has carefully considered all the evidence presented to it, all submissions made and has accepted the advice from the clerk. The Committee recognises that not every shortcoming on the part of an Architect, nor failure to comply with the provisions of the Code, will necessarily result in a finding of UPC. However, a failure to follow the guidance of the Code, whether in one’s professional or private life, is a factor that will be taken into account should it be necessary to examine the conduct or competence of an Architect. Similarly, so far as SPI is concerned, 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.
58 The Committee has considered the authority of Spencer v General Osteopathic Council  EWHC 3147 (Admin). It has borne in mind in reaching its decision that for a finding of unacceptable professional conduct to be made, “a degree of moral blameworthiness on the part of the registrant likely to convey a degree of opprobrium to the ordinary intelligent citizen” was required. Any failing should be serious. The Committee accepts that “mere negligence does not constitute misconduct” and that “a single negligent act or omission is less likely to cross the threshold of misconduct than multiple acts or omissions….a single instance of negligent treatment unless very serious indeed, would be unlikely to constitute deficient professional performance”.
59 In considering where incompetence becomes serious incompetence, the Committee has borne in mind that the following features make it more likely that incompetence may 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.
60 It is the Committee’s finding that the facts found proved in respect of allegation 1.1, whilst relating to a single incident, are sufficiently serious to amount to a finding of serious professional incompetence. The consequences for the Complainants were particularly serious given they only found out that the project was not feasible when the errors identified by Mr Aldous were brought to their attention, just before they planned to start construction. Given the nature of the failings found proved, the Committee considers that the Respondent’s standard of competence fell significantly below the standard expected of him. As a result, the Committee has concluded that the matters found proved at allegation 1.1 can properly be categorised as SPI.
61 So far as allegations 1.2 and 1.3 and the corresponding breaches of the Code are concerned, the Committee finds that both individually and collectively, his failings are serious and adversely impact both on the reputation of the Architect and the profession generally. As the architect, the Respondent failed to provide to his clients information that was essential for them to be able to make an informed decision on the viability of their project. Such a failing, and failing to adequately deal with the complaint made against him, represents conduct falling substantially below the standard expected of a registered Architect. Such failings can quite properly be categorised as UPC.
62 The Committee therefore finds that the Respondent’s conduct does amount to serious professional incompetence and unacceptable professional conduct as set out above.
63 Mr Brady then addressed the Committee in mitigation. 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, behaviour and competence. 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, particularly given that the Committee has made findings of both SPI and UPC. It has taken into account any aggravating and mitigating factors in this case. The Committee has exercised its own independent judgement.
64 Having taken into account Mr Brady’s submissions, the Committee has identified the following mitigating factors:
· that he has no adverse regulatory history in his 30 year career. However, the Committee notes that the Respondent has not provided positive testimonials attesting to his character and professionalism.
· he has fully engaged in the regulatory process;
· he has accepted the findings of the Committee;
· he has taken some steps to remediate his failings by changing his working practices to the extent that his letters to clients regarding loft extensions better address the concerns identified in this case;
· he had been able to secure planning permission for a loft extension for the Complainants. However, the Committee notes that this was based on drawings that made the project unworkable. However, whilst his motivation may have been to save his clients money, this was at the expense of him complying with his professional obligations as identified earlier in this determination.
65 The Committee has identified the following aggravating factors:
· the Respondent has demonstrated limited insight into his failings to the extent that he has not demonstrated any recognition of the impact of his failings on the Complainants or the reputation of the profession. The Committee considers that he has sought to minimise the impact of his failings on the Complainants by deflecting responsibility to his clients in failing to obtain construction drawings or to follow his complaints procedures;
· his failings have put the Complainants to substantial cost and inconvenience. Whilst the Complainants may yet be able to salvage the project, the Committee considers that if that were the case, it is despite the Respondent’s involvement in the project, not because of it;
· the Committee has heard no statement of apology or remorse.
66 The Committee notes that the matters found proved are serious to the extent that Mr Vashee’s failings diminish both his reputation and that of the profession generally. The Committee therefore concluded that the Respondent’s conduct was sufficiently serious for it to require the imposition of a sanction and has considered them in ascending order of severity.
67 The Committee first considered whether to impose a reprimand. Given the seriousness of the SPI and UPC found proved, the Committee therefore considered the Respondent’s failings too serious for such a sanction to be either appropriate or proportionate.
68 The Committee then considered whether to impose a penalty order but discounted this as an appropriate sanction for the same reasons.
69 The Committee then considered whether to impose a suspension order. The Committee does not consider his failings fundamentally incompatible with remaining a registered Architect, and that the Respondent’s conduct is capable of being remedied. However, as previously stated, these were serious failings, such that the Committee considers that such a sanction is required to protect the public and the reputation of the profession.
70 The Committee gave consideration to an erasure order, but decided against such a sanction given the suitability of a suspension order. An erasure order, the Committee considered, would be unduly punitive.
71 The Committee therefore imposes a suspension order for 6 months which the Committee considers to be an appropriate period to reflect the seriousness of the Respondent’s failings.
72 That concludes this determination.