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Mr Neil Rothnie

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

Neil Anderson Rothnie 049678B

Held on 30 October – 1 November 2018

At

Holiday Inn Edinburgh
132 Corstorphine Road
Edinburgh
EH12 6UA

———-

Present

Julian Weinberg (Chair)
Roger Wilson (PCC Architect Member)
Steve Neale (PCC Lay Member)

Steve Battersby (Clerk)

———–

In this case, the ARB is represented by Ms Catriona Watt of Anderson Strathern Solicitors.
Mr Rothnie has attended this hearing but is not legally represented.

The PCC found Mr Rothnie guilty of serious professional incompetence (“SPI”) in that he:

 

1              provided a seriously incompetent design in relation to the gable wall of the house in Cults, Aberdeen.

 

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

 

2              failed to respond adequately to communications regarding an issue with his professional work.

 

and that by doing so, he acted in breach of Standards 2 and 10 of the Architects Code: Standards of Conduct and Practice 2010 (“the Code”).

 

The sanction imposed is erasure.

 
Preliminary application by the Respondent for the Committee to recuse itself

Submissions

1. Upon receipt of the papers, in the interests of transparency, the Chair and Mr Wilson, the Architect member of the Committee, disclosed to the ARB that they had been sitting on the PCC in a previous case involving the Respondent. The Respondent did not appear in person at that hearing, nor was he represented. Neither the Chair nor Mr Wilson have met the Respondent. That case was concluded in July 2014. The ARB’s Solicitor’s report identifies that case at paragraph 48, and a copy of the redacted decision is exhibited to the report.

2. That disclosure was passed on to the Respondent, who in response wrote:

“I am quite astonished by what you have told me; that two members of the Committee sat on my previous case and cannot remember. Notwithstanding, whether I am to be legally represented or not I can confirm that I am not at all happy with this situation and would insist that these Committee members are replaced”.

3. In subsequent correspondence to the ARB, he wrote:

“I have now been able to get legal advice and this concludes that if members of the panel that sat on my previous case are not replaced then this is unfairly prejudicial to the outcome of this current case. The underlying legal argument is that if you insist on proceeding then this is a breach of natural justice which could be remedied by a Judicial Review. On this basis please let me know how this will now progress?”

4. The Respondent’s submitted that the Chair and Mr Wilson should recuse themselves from hearing the case on the basis that, having sat on, and made an adverse finding on his case in 2014, there was a risk of a lack of impartiality. As a result, he would be unable to have a fair hearing in breach of Article 6(1) of the European Convention on Human Rights that states that the Respondent was entitled to a fair and public hearing within a reasonable period of time by an independent and impartial tribunal.

5. The Respondent accepted that he could not establish any real bias of the two Committee members in question, and that he was not suggesting that they held personal views prejudicial to him that made this hearing unfair. His concern was that they had made a previous determination against him. For those members to continue to hear his case would amount to a breach of natural justice.

6. He further stated that the fact that there was only one Scottish Architect PCC member should not adversely impact on the Committee’s decision. Rather, that was a matter for the ARB to resolve.

7. Ms Watt, on behalf of the ARB, opposed any application for either the Chair and/or Mr Wilson to recuse themselves. She recognised that the Respondent is entitled to a fair trial within the meaning of Article 6(1) of the European Convention on Human Rights in that the Respondent was entitled to a fair and public hearing within a reasonable period of time by an independent and impartial tribunal. However, in opposing the Respondent’s application, in summary, her submissions were as follows:

i. the previous involvement of the Chair and Mr Wilson does not amount to a breach of the Respondent’s right to a fair trial;
ii. that the impartiality of the Committee is to be presumed in the absence of proof to the contrary indicating bias, for example having previously displayed hostility (Pohoska v Poland [2010] ECHR 4). Ms Watts reminded the Committee that neither the Chair nor Mr Wilson have previously met the Respondent in person;
iii. that the Respondent has not established bias such that that the hearing would fall foul of the test in Porter v Magill and another [2002] AC 357 which is

“whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”.

A fair minded observer was considered in the case of Helow v Secretary of State for the Home Department and another (Scotland) 2009 SC (HL) to be

“The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious…. Her approach must not be confused with that of the person who has brought the complaint…Then there is the attribute that the observer is “informed”. It makes the point that, before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she has read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment”.

There would have to be a real risk of bias. It is insufficient for the Respondent to simply believe there is bias;

iv. bias is not established simply by reason of the fact that a tribunal has previously found against a party: Amec capital Projects Ltd v Whitefriars City Estates Ltd [2004] EWCA Civ 1418.
“There needs to be something of substance to lead the fair-minded and informed observer to conclude that there is a real possibility that the tribunal will not bring an open mind and objective judgment to bear”.

v. recusal would lead to unacceptable delay in the administration of justice given that the events complained of date back to the period between 2013 and 2016 and practical difficulties because Mr Wilson is the only Scottish Architect on the PCC.

The Committee’s decision

8. The Committee has taken into account the submissions of both parties and has accepted the advice of the Clerk.

9. In reaching its decision, the Committee has borne in mind the following:

i. that neither the Chair nor Mr Wilson have previously met the Respondent;
ii. in the absence of having met the Respondent, neither the Chair nor Mr Wilson are in possession of any additional information over and above that which any other PCC member would be aware of if they were sitting on this case as they would receive the same bundle of documents disclosing the previous finding;
iii. other than having sat on the Respondent’s earlier case, there is no evidence before the Committee to substantiate the submission that this Committee would otherwise display any bias towards the Respondent. There is no evidence of any personal animosity by the Committee members, displayed hostility, or that the Committee members hold prejudicial views about the Respondent;
iv. Ms Watt made it clear that the matter of the previous finding was an irrelevant consideration for the Committee at the fact finding stage;
v. the Committee members are experienced and are fully cognisant of the need to determine those matters that fall to be considered by them, based on the evidence presented to them.

10. The Committee has carefully considered the decision in the case of Datta v GMC, Privy Council Appeal No 34 of 1985. It was held that

“It is inevitable that those who sit in a judicial or quasi-judicial capacity will, from time to time, have to hear cases against accused persons who have appeared before them on previous occasions. As a general rule, there can be no objection to this practice”.

11. As a result, the Committee does not consider that the test as set out in Porter v Magill is satisfied regarding there being a real possibility of bias. The Committee therefore refuses the Respondent’s application.

Allegation background:

12. This case arises out of a complaint made by Ms A (“the Complainant”), against the Respondent who is a registered Architect practising under the name Neil Rothnie Architects. He was previously in practice with GDA (Grampian Design Architects). The allegations against the Respondent relate to a period of time when the Respondent was working at both practices.

13. In March 2015, the Complainant bought a new build property into which she moved in May 2015. The property had been completed for approximately a year and four months. In March 2015, the Respondent, who had designed the two properties, signed and dated the Professional Consultant’s Certificate, certifying that the works had been completed, and constructed to a satisfactory standard in general compliance with the drawings. He also certified that he was aware that the Complainant would be relying on the certificate.

14. The property purchased by the complainant had a different design to the property next door also designed by the Respondent in that it had an extended lower gable section running along the side of the property.

15. Shortly after the Complainant moved in, she noticed a hatch in the ceiling of one of the upper floor bedrooms which she considered was unusual. She also became aware of water ingress into an upper floor bedroom and its en suite bathroom. It is alleged that she repeatedly tried to raise her concerns with the Respondent, by phone, text and email, and she visited the Respondent’s office, but he failed to adequately respond to her concerns.

16. By November 2016, and after initial remedial works had failed to resolve the problem, further remedial work was to be undertaken at the property. She instructed a surveyor, Mr Bean of AG Bean, Chartered Building Surveyors, who identified a number of defects, as follows:

i. the head of the gable wall was incorrectly designed;
ii. the granite copes have dropped where they rest on the timber frame. He also noted movement and cracking at the mortar joints between the granite cope stones;
iii. the detail used at the joints between the side wing pitched roof and the main gable was incorrectly deigned and inadequately detailed.

17. He also stated that the proposed remedial works did not address the fundamental problems with the wall construction.

18. The ARB instructed an independent report from an Inquirer, Mr Johnston, a Chartered Architect. He agreed with Mr Bean’s conclusions and considered that the design flaws identified were as a result of the Respondent not following fundamental good practice and were serious failings. He also concluded that the ongoing water ingress may affect the property’s resale value.

19. In reaching its decisions, the Committee has carefully considered the live evidence of the Complainant and Mr Johnston. It also considered the documentary evidence presented to it in the Report of the ARB’s Solicitor and the 141 pages of documents exhibited to it, which include the Respondent’s written representations to the ARB. The Respondent also gave live evidence.

20. The Respondent denies the factual allegations and therefore denies that any alleged failings amount to SPI or UPC respectively.

21. 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 ARB and that the civil standard applies, namely proof on the balance of probabilities. Whether the conduct alleged amounts to SPI or UPC is a matter for the Committee’s independent judgment to which no burden of proof applies.
Findings of Fact:

22. The Committee makes the following findings of facts:

Allegation 1

23. The Committee finds the facts proved for the following reasons.

24. The Complainant gave live evidence. The Committee considered her evidence to be credible, consistent, measured and not prone to exaggeration or vindictiveness.

25. She stated that the Respondent’s failures had resulted in a longstanding problem with water leaking from the roof. She stated that the Respondent was aware of the issue prior to her having bought the property, as he had told her that the loft access hatch had been constructed to allow access to repair and monitor the damage caused by leaking from the roof. The Committee saw two video clips she had taken showing the damage the leaking had caused to the ceiling and the rooms below, and the steps she had taken by placing towels on the floor to soak up the water that had pooled in the bedroom and bathroom. These clips corroborated her evidence as to the extent of the damage caused. As a result, the Committee considered that this added to the credibility of her evidence generally.

26. She stated that the persistent water leaking had caused her a great deal of stress, that it would cost in the region of £30-50,000 to repair permanently, and that her house was, in its present state, unsaleable.

27. The Committee has had sight of Mr Bean’s report dated 17 November 2016 which in summary, states that there were a number of defects as set out in the background above. The Inquirer instructed on behalf of the ARB, Mr Johnston, stated the Respondent’s design was flawed in two respects:

i. the coping stones rested partly on stone and partly on timber, and the absence of a damp proof membrane between the granite and the timber. This resulted in ongoing movement in the coping stones and
ii. the existence of a designed gap between the flashing and the cavity trays at the gable abutment which would allow water to permeate into the stone wall. It was these design flaws that he considered to be responsible for the water ingress, and he considered these failings to be serious.

28. Mr Johnston stated that, in relation to the design of the timber frames and granite:

“in my opinion, the relatively heavy and stiff granite copes should have been supported at the inner leaf on a material of appropriate stiffness, eg steel, masonry or precast concrete and not timber…”.

29. In relation to Mr Bean’s finding regarding the detail used at the joint between the roof and the gable being incorrectly designed, he stated:

“The conclusion of Mr Bean ….is in my opinion correct. In this particular location such water will collect on the top of the…..steel beam which spans over the opening in the main gable wall where the floorspace of Bedroom 2 and its en suite extend into the side extension. The correct design would have been to use ‘step and cover flashings’….The nature and location of the remedial work in the roofspace of the side extension…..suggest that much of the water ingress has occurred as a result of the detailing of the abutment flashing”.

He concluded that because timber was subject to shrinkage, it was unsuitable to support the stone copes. Movement in the copes would permit water to enter the property through any gaps that appeared.

30. In relation to the alleged seriousness of the design flaw in the copes and flashing, the Inquirer stated:

“In general terms, whenever the weather-proof envelope of the main structure…..is penetrated by a subsidiary volume…..it is fundamental good practice that breaches in the cavity wall of the main structure are detailed so that any moisture in the cavity is shed to the outside above the roof level of the subsidiary volume. The detailing and the evidence of water ingress indicate that in this case fundamental good practice was not followed and this is in my opinion is a serious design flaw”.

Mr Johnston referred the Committee to the Rolled Lead Sheet Complete Manual. From that, and comparing it with the Respondent’s design plans, he identified how the abutment flashing detail was defective in that the design permitted moisture and water to enter the property through gaps in what would otherwise have been a waterproof membrane in the wall around the flashing. He also noted that the cavity trays were not fully detailed.

31. Whilst he was unable to apportion how much water was able to enter the property from the gable joints and how much was from the defective flashing, he was unequivocal that it was these two aspects of the construction that were responsible for the water ingress.

32. In considering the credibility of the ARB’s evidence, the Committee bore in mind that, notwithstanding that Mr Bean is a surveyor, and not an architect, his findings mirrored those of Mr Johnston. The Committee found Mr Johnston’s evidence to be credible and consistent, and his conclusions well reasoned. The Committee considered that the consistency between the failings identified by both Mr Bean and the Inquirer adds credibility to their respective findings.

33. The Respondent gave evidence. It was not disputed that the property was designed by him. However, he denied the allegations in that he disputed that the defects in the property resulted from design flaws on his part. He stated that the Inquirer had based his opinion not on a thorough inspection of the property, but instead, relied heavily on the findings of Mr Bean. He stated that, apart from the issue of water ingress, there was no other movement within the property. He also stated that the instructed structural engineer had approved the design, but he subsequently conceded that the structural engineer’s input was relevant to the issue of structural integrity, rather that the issue of weatherproofing.

34. In contrast to the ARB’s evidence, the Committee found the Respondent’s evidence to be less credible. There were a number of inconsistencies in his evidence that undermined his credibility generally:

i. he initially stated that the cause of the water leaking was not because of defects in his design, but because of failings in the joints in the gable stones. This explanation was not provided to the ARB when he responded to the allegations, nor had it been raised with the Complainant. The Committee considered that this explanation lacked credibility given his failure to refer to it prior to his giving evidence at this hearing;
ii. he subsequently stated in evidence that the problems resulted from failings in the cavity tray. However, the Committee notes that cavity trays were not fully detailed on the plans, and again, this different explanation was also not given to the ARB when responding to the allegation. The Committee notes that it is not credible that there should independently have been these two unrelated failings, neither of which the Respondent raised with either the Complainant or the ARB in his correspondence with them;
iii. he then gave a third explanation. He stated that the problems resulted from poor workmanship. The Committee does not accept this explanation as being credible either. Despite blaming the builders for poor workmanship, the Committee notes that in his letter to the ARB dated 5 May 2017, he stated that

“the works were constructed in accordance with our detailed drawings and specifications which had all been approved for Building Warrant. Kinellan Building Limited were a contractor known to us having carried out construction works in other projects, and were a competent firm of contractors”.

iv. The position now being taken is wholly at odds with his response to the ARB and in the Committee’s view, therefore lacked credibility;
v. he subsequently stated that he did not know what caused the leaking and that it was “a puzzle”.

35. The Respondent had given a number of different, and inconsistent explanations as to why the leaking had occurred. The Respondent had undertaken a limited range of tests but there was insufficient evidence that he adequately tested for evidence that specifically supported his view as to the cause of the water ingress, or invalidated Mr Bean or Johnston’s view. For the reasons stated above, the Committee considered that his view lacked credibility. This led the Committee to conclude that where there was a conflict between his evidence and that of the ARB’s witnesses, the ARB’s evidence was to be preferred.

36. Having accepted the opinion of the Inquirer, the written evidence of Mr Bean and having heard from the Complainant, the Committee is satisfied to the required standard that the defects identified resulted from the Respondent’s design.

37. Standard 2.1 of the Architects Code: Standards of Conduct and Practice 2010 (“the Code”) states:

“Competence
2.1 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.”

38. In the circumstances, the Committee finds that the Respondent provided a seriously incompetent design in relation to the gable wall of the Complainant’s house, and in doing so, acted in breach of standard 2.

Allegation 2

39. The Committee finds the allegation proved for the following reasons:

40. The Committee heard consistent and credible evidence from the Complainant, supported by documentary copies of the various text and WhatsApp messages, that between June 2015 and December 2016, she requested that the Respondent make contact with her. She stated that she had repeatedly tried to discuss the ongoing problems with the Respondent, by text message, email, phone and by periodically attending his offices. Notwithstanding that the Respondent initially engaged, she stated that from January 2016, he failed to engage with her when she raised her concerns. She referred to the number of text messages she sent the Respondent to which he had not replied. The Respondent did not challenge her evidence in this regard, accepting that he did not respond to her over at that time.

41. Other than the evidence of the Respondent and one response from him that he was away for two weeks, there is no other supporting evidence that, having initially engaged with the Complainant to resolve the issue, he responded in a meaningful way, or at all. The Complainant in her emails of September 2016, described herself as “desperate to get this moving”, yet the Respondent ended his communications with her.

42. He stated to the Committee that, whilst he was not unsympathetic to her problems, he saw no further need to engage with her. He said that he did not consider that the Complainant was in fact, making a complaint. He did not consider her to be his client, and that he had said that unless he had anything meaningful to add, he would not respond further. The Complainant accepts that he stated this, and accepted that he had not responded to her requests to make contact with her.

43. Furthermore, in his evidence, the Respondent accepted that the Complainant having repeatedly raised concerns about water leaking into her property over an extended period of time, her communications “patently” amounted to a complaint.

44. Standard 10 of the Code states:

“Deal with disputes or complaints appropriately
10.1 …
10.2 Complaints should be handled courteously and promptly at every stage; and as far as practicable in accordance with the following time scales:
a. an acknowledgement within 10 working days from the receipt of a
complaint; and
b. a response addressing the issues raised in the initial letter of complaint
within 30 working days from its receipt.
10.3 …

45. Having initially engaged with the Complainant to resolve the water leaking issues, it was incumbent on him to address the concerns raised by the Complainant. The Committee notes that it was he who designed the property and that he had signed the Professional Consultant’s Certificate certifying the general level of construction, understanding that it would be relied upon by the Complainant.

46. In the circumstances, the Committee finds that the Respondent failed to respond adequately to communications regarding an issue with his professional work in that he failed to deal with the matters raised promptly as required by standard 10. As such, the Committee finds that the Respondent acted in breach of standard 10 of the Code.

Finding on Unacceptable Professional Conduct/Serious Professional Incompetence

47. Having found allegations 1 and 2 proved, the Committee went on to consider whether the Respondent’s failing amounts to SPI / UPC respectively. SPI 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 relates to the quality and application of the professional skills Architects need to do their job. 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.

48. The ARB’s own guidance recognises that because the facts and circumstances of each case are different, it is not possible to identify the exact point where incompetence becomes serious incompetence. The Committee recognises that each case will turn on its own facts. However the following features make it more likely to be viewed as serious:

i. When the consequences are, or could have been, particularly serious. The Vranicki case gives examples of death or injury. Whilst it is not suggested that there was such an effect in this case, it gives some guidance as to the seriousness of the consequences that might amount to SPI;
ii. Where the architect’s standard of competence falls significantly below that expected;
iii. Where a number of failings, while not serious individually, together demonstrate a pattern of incompetence;
iv. Where a pattern of incompetence suggests an architect may not act competently in the future.

49. 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 SPI or UPC. The Committee reminds itself that a finding of SPI and UPC are matters for its own judgment.

50. The Committee recognises that any failing should be serious. The Committee has borne in mind the case of Spencer v General Osteopathic Council [2012] EWHC 3147 (Admin) and 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 (The Queen on the Application of Dr Malcolm Noel Calhaem –v- General Medical Council [2007] EWHC 2606 (Admin)). The Committee also recognises that any failing must be serious (Vranicki v Architects Registration Board [2007] EWHC 506 Admin).

51. So far as the allegation found proved is concerned, the Committee finds that the Respondent’s competence unquestionably falls seriously below the standard expected of a registered Architect – a member of the public should quite rightly be able to expect that an Architect adequately designs a property so that it is fit for purpose. That he failed to do so reflects very poorly on him, and on the profession generally. However, the issue for this Committee to determine is whether by having failed to do so on this occasion, it is demonstrative of a lack of competence of such seriousness that it amounts to SPI.

52. The Committee has taken into account both Ms Watt’s and the Respondent’s submissions, and all the evidence presented to it.

53. Whilst the allegation relate to the design of a single property, the nature of the design flaws was such that the house was not watertight. This fundamentally undermined the integrity of the property. The Respondent’s design flaws meant that the Complainant had to endure months of damp and damage, in addition to the stress of having to deal with these problems, which potentially includes the substantial cost of effecting a lasting repair, when the expectation was that, being a new property, it would be fit for purpose and saleable.

54. In the circumstances, whilst the Committee finds that the Respondent is guilty of a lack of competence on this single occasion, it nevertheless finds his failing is so serious, that it can properly be categorised as SPI.

55. The Committee then went on to consider the question of UPC in respect of allegation 2. Misconduct, which is akin to UPC, was defined in the case of Roylance v GMC [2000] 1 AC 311 as,

“a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances”.

56. 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.

57. The Committee has taken into account all the evidence before it together with both Ms Watt’s and the Respondent’s submissions.

58. However, so far as the matters found proved and the corresponding breach of the Code are concerned, the Committee finds that the Respondent’s failings represent conduct falling below the standard expected of a registered Architect. Compliance with Standard 10 is essential in ensuring that clients can have confidence that, should they raise concerns about their architect, they will be addressed. The Respondent failed in this regard notwithstanding the high level of anguish suffered by the Complainant who had to ensure difficult living conditions in her newly built home over an extended period of time.

59. The Committee therefore concluded that the matter found proved represents a serious departure from the standard expected of a registered Architect. That failing, the Committee has concluded, is sufficiently serious to amount to unacceptable professional conduct, which finding the Committee therefore makes.

60. For the avoidance of doubt, in reaching its decision, the Committee has not taken into account the fact of the previous finding of the PCC in 2014 in relation to a similar allegation, but has considered the current allegation on its own merits.

Sanction

61. 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 ARB 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 and the inevitable impact a sanction might have on him, 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.

62. The Respondent addressed the Committee in mitigation. He said that he accepted the decision of the Committee and that there was no likelihood of his failings being repeated. He said that he had sympathy for the Complainant, he had dealt with her courteously, and that he was now more mindful in identifying when a complaint was made. So far as the finding of a lack of competence was concerned, he said that he would pay more attention to detailing in future, having more regard to guidelines. He said that his business was picking up and that he wanted to continue in practice. As such, suspension or erasure would be disproportionate.

63. The Committee has identified the following aggravating factors:

i. the Respondent’s lack of competence resulted in significant distress and harm to the Complainant, both financially and otherwise, resulting in the Complainant living in a damp and damaged property;
ii. The Respondent has demonstrated limited insight into his failings, and such insight as there is has come late in the day. The Committee did not consider that the Respondent has sufficiently demonstrated that he understood where he had failed from a technical perspective or that he had taken steps to demonstrate that he had remediated his lack of competence. In addition, the Committee also did not consider that he understood the significance of the impact of his failings on the reputation of the profession. Given that, the Committee concluded that the risk of the Respondent repeating his SPI and / or UPC found proved, was significant;
iii. So far as allegation 2 is concerned, the Respondent has been made the subject of a reprimand from a PCC in 2014 for a similar matter where he failed to identify when a complaint was being made, yet he has repeated his failure to comply with the Code.

64. The Committee has identified the following mitigating factors:

i. he has engaged in the regulatory process;
ii. he said that he would pay more attention to guidelines, but the Committee notes that the Respondent has not indicated that he had sought any additional training so as to ensure that his competence failings would not be repeated;
iii. he had initially taken steps, albeit inadequate, to resolve the Complainant’s concerns;
iv. he has expressed some sympathy for the Complainant’s position.

65. The Committee notes that the matters found proved are serious to the extent that the Respondent’s failings diminish both his reputation, and that of the profession generally for the reasons set out in its determination on SPI and 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.

66. 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 SPI or UPC to be at the lower end of the scale given the aggravating factors identified.

67. The Committee then considered whether to impose a penalty order and concluded that such a sanction was neither appropriate nor proportionate to protect the public or the reputation of the profession. The SPI / UPC found proved is too serious for the imposition of a penalty order.

68. The Committee then considered whether to impose a suspension order. Noting that the Respondent’s failings relate to serious professional incompetence and repeated UPC, the Committee was mindful that imposing a suspension would allow the Respondent to resume practice automatically after the end of the period of suspension. This would occur in circumstances where the Respondent had demonstrated little insight into his failings, and had failed to address previous failings relating to complaints handling. The Committee therefore concluded that the risk to the public and the public interest remained significant if he were allowed to return to practice without satisfying his regulator that he had adequately addressed his failings.

69. The Committee therefore concluded that a suspension order would not be the appropriate and proportionate order to impose and that only an erasure order would sufficiently protect the public and meet the public interest, which order the Committee therefore imposes. This would mean that should the Respondent wish to return to practise as an Architect, he would have to demonstrate that he is fit to do so by satisfying his regulator that he had fully addressed his lack of competence and behaviour that gave rise to the findings of this Committee, prior to resuming practice as an Architect. This, the Committee concluded, was an essential safeguard to ensure that the reputation of the profession would be upheld and that the public would be protected. If the Committee imposed a suspension order, this would not be possible and hence, such a sanction would not be appropriate.

70. The Committee therefore directs that the Respondent’s name be erased from the register. The Respondent is not eligible to apply for re-entry to the profession until after the expiry of two years from the date of this order.

71. That concludes this determination.

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