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Mr Peter Bell

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

 

In the matter of

Mr Peter Alexander Bell (032899E)

Held on 14 to 17 January 2019

At

International Dispute Resolution Centre

70 Fleet Street

London

EC4Y 1EU

———

Present

 Emma Boothroyd (Chair)

Judy Carr (PCC Architect Member)

Stephen Neale (PCC Lay Member)

Steve Battersby (Clerk)

———

 

In this case, the ARB is represented by Ms Kathryn Sheridan of Kingsley Napley.

Mr Bell has attended this hearing and is legally represented by Mr Robert Stevenson of BLM Law.

 

The PCC found the architect guilty of unacceptable professional conduct for failing to enter into a written agreement with his client which adequately covered the terms of engagement, contrary to standard 4.4 of the Architects Code of Conduct and Practice.

The sanction imposed is a reprimand.

 

Allegations:

  1. Mr Bell (“the Respondent”) faces a charge of unacceptable professional conduct (“UPC”) based on two allegations in relation to breaches of the Architects Code: Standards of Conduct and Practice 2017 (“The Code”) in that:

 

1.1 The Respondent provided his client with incorrect and/or inadequate advice regarding:

i) The planning application, specifically that no planning permission was
required;
ii) The removal of asbestos in his property;

 

1.2 The Respondent did not enter into a written agreement with the client which adequately covered the terms of engagement contrary to standard 4.4 of the Architects Code of Conduct and Practice.

 

Background:

 

  1. This case arises out of a complaint made by The Complainant (“the Complainant”) in respect of the professional services carried out by the Respondent.

 

  1. The background to this case is that the Complainant instructed the Respondent as architect initially over the telephone in February 2017 in respect of refurbishment works at his property. Following that call the Respondent provided to the Complainant, by email, a letter confirming that he charged on an hourly rate and that his terms of engagement were based on RIBA recommendations. The Respondent provided a booklet produced by RIBA entitled “A Client’s Guide to Engaging an Architect including Guidance on Fees” (April 2000).

 

  1. On 31 May 2017 the Complainant wrote to the Respondent and asked what planning permission would be needed. The Respondent replied on 1 June that no planning permission was required but that the consent of the freeholder should be obtained.

 

  1. On 16 August 2017 the Complainant approached the planning office to enquire whether planning permission would be required for the glazing renovations proposed. The email set out the proposed works and materials to be used. A response was received from the planning officer on 18 August 2017.

 

  1. The planning officer’s email was forwarded to the Respondent on the same day and the Complainant explained that it looked like planning permission was required given the content of the email. The Respondent replied on 21 August that planning permission was not required as the proposed works were in line with what was outlined as acceptable. The Complainant subsequently made a planning application in October 2017 which was successful.

 

  1. During an onsite discussion about the works, the Complainant pointed out to the Respondent that there was “artex” on the ceilings of some of the rooms that were going to be the subject of renovation. The Complainant explained that he had sent samples to be tested and a report confirmed the majority of samples contained asbestos. The Complainant was unhappy with the Respondent’s advice about how this should be dealt with and said that it could have exposed him and his family to risk.

 

  1. The Complainant considered the Respondent’s appointment to be terminated the in October 2017 and subsequently complained to the ARB that the advice he had been given about the planning permission and the asbestos was wrong. There was a dispute between the Complainant and the Respondent regarding fees and other matters that do not form part of the allegations referred to this Committee.

 

  1. The Complainant complained that the Respondent’s terms of business did not provide him with details for suspension or termination of the agreement, any information about insurance cover or that he had a complaints handling procedure. He complained that he discovered that the RIBA document had been “discredited” by an Office of Fair Trading Investigation in 2003 and so wasn’t accurate or up to date.

 

  1. At the outset of the hearing the Respondent denied all of the charges.

 

Application to introduce additional evidence:

 

  1. On the second day of the hearing, after the Complainant had given evidence and the expert Mr Morrissey had concluded his examination in chief, Mr Stevenson made an application to introduce additional evidence.

 

  1. Mr Stevenson wished to introduce emails that had been sent by the Respondent to the planning officer in October 2017. No explanation was given to the Committee for the failure to produce this evidence earlier.

 

  1. Ms Sheridan objected to the introduction of the emails on the basis that they were not put to the Complainant and she had not had the opportunity of asking the Complainant about them. Ms Sheridan said that she had been notified of this evidence late in the day and she was disadvantaged because of it.

 

Decision

 

  1. The Committee accepted the advice of the Clerk who reminded it of Rule 12 of the Professional Conduct Committee Rules. The Committee looked at the emails that Mr Stevenson wished to adduce. The Committee directed that enquiries be made to recall the Complainant. If he could not return, the Committee asked Ms Sheridan to consider whether an adjournment would be applied for.

 

  1. The parties agreed the fact that the Complainant had no knowledge of these emails and was never made aware of the Respondent’s approach to the planning officer and agreed that in those circumstances he did not need to be recalled.

 

  1. The Committee considered that the emails could be put to Mr Morrissey and Ms Sheridan could ask about them as he was still in the process of giving his evidence. In those circumstances any disadvantage to Ms Sheridan could be mitigated.

 

  1. The Committee considered that it was desirable that all relevant evidence was before it and decided that the evidence should be allowed. However, it was of concern to the Committee that the Respondent who was represented by an experienced firm of solicitors had not produced this readily available and relevant evidence earlier. No explanation was given for this failure to the Committee which had the potential to cause further delay and expense both to the ARB and the Respondent if the matter was adjourned.

 

 

 

No Case to answer:

 

  1. At the conclusion of the ARB’s case Mr Stevenson submitted that there was no case to answer. Mr Stevenson submitted that the evidence of the Complainant about what he was told by the Respondent about the asbestos was unreliable given the time that had passed since the conversation and the making of his statement. He submitted that as the expert’s evidence was based on that conversation there was no case to answer.

 

  1. He submitted that in relation to the planning application there was evidence that the changes were not external, and no planning application was required.

 

  1. With regard to the terms of engagement he submitted that the RIBA document contained all of the matters as required by standard 4.4 with the exception of information about a complaints procedure. He further submitted that a charge relating to having an adequate complaints handling procedure was withdrawn by the ARB before the hearing began. On this basis, he submitted that this charge could not amount to UPC.

 

  1. In response Ms Sheridan referred the Committee to the test as set out in the criminal case of R v Galbraith [1981] 1 WLR 1039. Ms Sheridan submitted that the proper approach to take was to establish whether the ARB case, taken at its highest was such that there was a possibility that the Committee could find the facts proved and that they amounted to UPC. Ms Sheridan submitted that where the matter required assessment of the credibility of a witness, as in this case the Complainant, the Committee should allow the case to go forward.

 

  1. The Committee has accepted the legal advice given by the Clerk who reminded it of the test in full and the approach to be adopted as set out in the case of R v Galbraith.

(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.

 

Decision:

 

  1. The Committee considers that the there is a case to answer on all the allegations and UPC. The Committee has considered the submission of the parties and adopted the approach as set out in Galbraith.

 

  1. With regard to allegation 1(i) the Committee considered that it was based on the emails of the planning officer, the subsequent successful planning application and the conclusion of the expert witness that a planning application was required. Mr Morrissey maintained in his oral evidence that the conclusion in his report was correct and that a planning application was required. The Committee did not consider that Mr Morrissey’s evidence was inherently weak or vague or inconsistent with other evidence.

 

  1. In these circumstances, the Committee finds that there is sufficient evidence before it upon which it could find that the Respondent had given incorrect or inadequate advice to the Complainant. The Committee therefore finds that there is a case to answer in respect of allegation 1(i).

 

  1. Looking at allegation 1(ii) the Committee considered that this allegation was based on what the Complainant alleged the Respondent had said to him about pulling down the ceilings and whether the subsequent written advice to “steam it off and bag up the soggy residue” was adequate.

 

  1. The exact advice that was given to the Complainant is a matter of credibility and a judgement to be made by the Committee. The Complainant maintained in his oral evidence that he was told not to worry and he could pull the ceilings down. That statement is corroborated by his email of 11 October 2017. Mr Morrissey stated in his report and oral evidence that such advice would be unreasonable and reckless.

 

  1. Taking the second piece of advice which was contained in a letter dated 16 October 2017 the Committee had the benefit of the report of the expert witness who stated that this advice was of concern as it “tends to trivialise the serious risk and there is no mention of precautionary or protective measures”. Mr Morrisey was cross-examined at length about whether it was ever the intention of the Complainant to do any of the work himself or whether he would even be present at the property when the work was carried out. Mr Morrissey maintained that the advice as set out gave the impression that this was a job the Complainant could do himself and he maintained that the advice was inadequate.

 

  1. In the circumstances, the Committee finds that there is sufficient evidence before it upon which it could find that the Respondent’s failure in allegation 1(ii) could amount to UPC. The Committee therefore finds that there is therefore a case to answer in respect of allegation 1(ii).

 

  1. So far as allegation 2 is concerned, the Committee has borne in mind that clearly setting out terms of engagement in writing with clients at the commencement of instructions, and before undertaking any professional work is essential to ensure that both parties understand the extent of their responsibilities and manages the expectations of both parties. This obligation falls to the architect. It is not the client’s responsibility to ensure that written terms and conditions are provided or undertake an exercise to establish precisely what terms apply to the work. The Complainant stated in his oral evidence that he had received the letter stating that terms were “based on” the RIBA booklet but he had no idea how to terminate the appointment or which terms actually applied. He said the information was confusing and misleading as it was based on RIBA terms which were out of date and the fee scales had been discredited. The Committee has reminded itself that in any event, the question of whether or not UPC can be established is a matter for the Committee’s judgment.

 

  1. In the circumstances, the Committee finds that there is sufficient evidence before it upon which it could find that the Respondent’s failure in allegation 2 could amount to UPC. The Committee therefore finds that there is therefore a case to answer in respect of allegation 2.

 

Findings of Fact and UPC:

 

  1. In reaching its decisions, the Committee has carefully considered the submissions of the parties, together with the documentary evidence presented to it in the Report of the Board’s Solicitor together with a report from the expert witness Mr Morrissey. The Committee has also considered the Respondent’s Bundle together with additional documents adduced during the hearing. The Committee heard live evidence from the Complainant and Mr Morissey for the ARB and the Respondent gave oral evidence.

 

  1. In general, the Committee considered that the Complainant gave evidence to the best of his recollection although there were some details that he could not recall. It was clear from his evidence that he felt very strongly about the Respondent’s service. Mr Morrissey was fair and measured and tried to be helpful to the Committee. He remained firm in his conclusions. The Respondent was credible in the explanations and account that he gave and he candidly accepted some failures under cross examination.

 

  1. The Committee has accepted the legal advice given by the Clerk. It has had regard to the fact that the burden of proof in this case is on the ARB and that the civil standard applies, namely proof on the balance of probabilities.

 

  1. Whether the conduct alleged amounts to UPC is a matter for the Committee’s independent judgment to which no burden of proof applies.

 

  1. UPC is defined as conduct which falls short of the standard required of a registered person. In reaching its findings on UPC, the Committee recognises that not every shortcoming on the part of an architect, nor failure to comply with the provisions of the Code, will necessarily give rise to disciplinary proceedings or 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.

 

Allegation 1(i)

 

  1. The Committee finds the facts proved for the following reasons:

 

  1. Mr Morrissey said in his evidence that the changes to the windows were “external” and needed planning permission because the change was visible from the outside. The Respondent didn’t agree and said in his evidence that the change was minimal and in his view based on his considerable experience, planning permission was not required.

 

  1. A planning application was made and subsequently granted and in Mr Morrissey’s view this further supported the contention that a planning application was necessary. The Respondent suggested that this could be because of a revenue raising strategy by the local authority. The Respondent set out that his normal practice would be to challenge a view that permission was required over the telephone and attempt to persuade a planning officer that an application was unnecessary.

 

  1. In this case, the issue first came about in August 2017. The Complainant had not decided whether he was replacing the glazing and he fairly set out in his statement that this was not discussed at the site visit on the 15 May 2017. This did not form any part of the cost plans or drawings prepared by the Respondent. When the Complainant asked whether any planning permission would be needed in his email of 31 May 2017 the windows were not part of the contemplated works at that stage and so there can be no criticism of the Respondent’s advice that no permission was required.

 

  1. On 16 August 2017, without any discussion with the Respondent the Complainant submitted a planning query via email in the following terms

a. “I was planning on having the windows re-glazed keeping the original frames, enlarging the rebates and adding slimline low E glass with argon filled cavities…..Would this require planning consent? I believe other residents have had similar work done without requiring permission and was looking for confirmation.”

On the same day the Respondent obtained an estimate for the glazing.

 

  1. On 18 August 2017 the planning officer replied;

“..any external changes to a flat would require a planning permission. For any Building of Townscape Merit in any Conservation Areas we require timber framed ‘slimline’ windows (12mm) matching the existing (original) windows in terms of design, style, division, siting, scale, materials, colour, thickness and style of frames and any original coloured/painted fans/lights should be preserved. However, if you are replacing just damaged/old glazing ‘like for like’ a planning application should not be required.” 

 

  1. The Complainant forwarded this response to the Respondent on the 18 August 2017 and the Respondent replied on the 21 August 2017 as follows;

“Thank you for this – we do not need planning permission as we are proposing to reglaze with 12mm slimline units… which she points out are acceptable.”

 

  1. The Respondent explained in his oral evidence that following this he went on holiday for three weeks. Before he left the Respondent wrote to the Complainant on the 25 August 2016 enclosing his account and the estimate for the glazing. It appears that there was no further contact between the Respondent and the Complainant until his letter of complaint on 11 October 2017. Prior to this on 6 October 2017 the Complainant made an application for planning permission without letting the Respondent know.

 

  1. Following the letter from the Complainant, the Respondent queried with the planning officer via email on the 13 October 2017 whether planning permission was required. On the 23 October 2017 he received a response that disclosed that an application had been submitted.

 

  1. The Committee considered that it was the Respondent’s genuinely held professional belief that a planning application was not required. The Committee accepted that this was based on his experience that identical alterations had not required planning permission in previous projects. The Committee did not consider that this was unreasonable given the Complainant’s evidence that other residents in the building had had similar work done without requiring planning permission.

 

  1. Mr Morrissey agreed that the change would be very small and hardly noticeable and given what was said in the email the likelihood of enforcement action requiring the Complainant to remove the glazing was minimal. He said that a reasonable architect would study the view given by the planning officer and if appropriate it could be challenged.

 

  1. The Committee considered that the advice given by the Respondent in his email of 21 August 2017 was both incorrect and inadequate. Given the email from the planning officer there was at least the possibility that a planning application was considered necessary by the local authority. The Respondent agreed that his normal practice would have been to telephone the officer and get a verbal confirmation that no planning application was required. In this instance he did not do this, nor did he tell the Complainant that this would be a way to deal with the matter. His brief response that a planning application wasn’t needed suggested that nothing further needed to be done and the Complainant could get on with the work. The Committee considers this was incorrect advice. His failure to follow the matter up with the planning officer until 13 October 2017 was inadequate as by this point the Complainant had already complained.

 

  1. In deciding whether this amounted to UPC the Committee again considered the case of Spencer v GOC. The Committee noted that the enquiry about planning came just before the Respondent was about to go on holiday and before the Complainant had definitely decided to proceed with the windows as he had only recently obtained a quote. It appears that the issue was not raised again with the Respondent until the Complainant complained on 11 October 2016. By this point the Complainant had already made his own planning application without telling the Respondent. The Respondent said that in his lengthy career he had never known a client make their own planning application whilst he was engaged.

 

  1. The Respondent accepted in his oral evidence that although in his view a planning application was not necessary he had learned from this experience and would either get confirmation that one was not required or submit one. The Committee considers that had the Complainant discussed the matter with the Respondent before making his application the Respondent would have made enquiries with the planning officer and sought to make a case that an application was not necessary. The Committee considered that this was not a situation where the Respondent’s view was wholly unreasonable and it was obvious that planning was required, but instead that he should have done more to protect his client. The Committee agrees with Mr Morrissey that the risk of enforcement would have been very small and a retrospective application would be very likely to have been granted.

 

  1. The Committee concluded that this failure was not so serious as to amount to UPC.

 

Allegation 1(ii)

 

  1. The Committee finds the facts proved for the following reasons:

 

Advice to “just pull it down”

 

  1. The Committee considered this aspect of the allegation very carefully and the evidence given by both the Complainant and the Respondent about what was said. It is agreed that the conversation took place at the first meeting on site on 15 May 2017 and was part of a general discussion about the project.

 

  1. The Complainant said in his written evidence that the Respondent told the Complainant that “there is so little asbestos in it, just pull it down you will be fine”. In his oral evidence his first recollection was that the Respondent had said, “don’t worry about it.” The Complainant said that he did not challenge that comment or follow it up with the Respondent at the time. When asked if any further conversation took place, or advice given, he said that he could not recall any. He was not firm in his recollection that this was all that was said by the Respondent. The Complainant did not raise the subject again until his email of 11 October 2017 which was essentially a complaint about the services provided by the Respondent. In that email he said, “you told me….that the levels would be so low that I was not to worry and just have the ceilings pulled down.”

 

  1. The Complainant gave evidence that he was very concerned about the asbestos and his concern led him to commission the testing in 2015. He stated that he was still concerned about the asbestos even now and was very worried that the work would not be done correctly by the contractor and leave him and his family exposed to risk. The Complainant said he thought that the Respondent’s advice was a bit strange at the time, but it was only after the meeting in July 2017 that he felt he had to check everything and then did some research on the internet over several months.

 

  1. The Respondent said in his oral evidence that he did not tell the Complainant that he could just pull the ceilings down. The Respondent said that he did not need to see the report because his experience suggested that he always assumed there was likely to be asbestos in the artex paint throughout the flat not just in the rooms that had tested positive. He said that he gave the Complainant a number of options including leaving it alone and decorating over it. He explained that he has seen this issue on a number of occasions during his career and he always gives people the same advice. The Respondent was firm in his recollection that he did not tell the Complainant to just pull the ceilings down and he would never have given anyone that advice.

 

  1. In his response to the Complainant’s initial complaint when this issue was raised the Respondent stated in his letter of 16 October 2017, “I never ever suggested you simply pull it down but advised leaving it well alone and decorating over it.”

 

  1. The Committee considered it was more likely that the Respondent’s advice was as he had set out in his letter. This project was for a new kitchen and shower room, it was not a whole scale renovation of the whole flat and in that context, there was no necessity for pulling down of the ceilings. The Committee considered that it was unlikely that if the Respondent had said that the ceilings could just be pulled down the Complainant would have not mentioned the topic again given his ongoing concern about the asbestos and the advice he says he had been given.

 

  1. The expert witness Mr Morrissey agreed that the advice to leave well alone and decorate over it would be reasonable. The Committee considers that this aspect of the allegation is not proved.

 

  1. In his letter of 16 October 2017 to the Complainant the Respondent goes on to set out more options for the removal of the asbestos. The expert witness said in his report that the advice regarding

a. ““soaking it and bagging it”…tends to trivialise the serious risk and there is no mention of precautionary and protective measures.”

 

  1. Mr Morrissey went further in his oral evidence and explained that the statement “However many people steam it off…” inferred that the Complainant could do this job himself and so he should have gone further to advise on the precautions required, such as a specialist vacuum for any residue.

 

  1. The Respondent said in his oral evidence that he was merely providing options for the Complainant and he was giving advice in the context that a contractor would carry out the work. He also pointed out that at that stage the client had effectively ended the relationship and was complaining about the previous advice given.

 

  1. The Committee agreed with the conclusions of Mr Morrissey and considered that the Respondent’s advice in the letter of 16 October 2017 was inadequate as it did not mention the precautionary measures to be taken and implied that the job could be done as a “DIY project”. The Committee therefore finds as a fact that this advice was inadequate.

 

  1. However, the Committee does consider that the advice was given in response to a complaining client who had already done a significant amount of research on the matter and was, on his own evidence, very concerned even about a contractor not doing the job properly. It was not advice that was given in response to a query about how to safely remove the artex paint.

 

  1. In deciding whether this amounts to UPC the Committee had regard to 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”.

 

  1. The Committee considered that this “advice” about the asbestos, contained in a comprehensive response to the Complainant’s 8 points of complaint ought to be considered in context. It was not given to the Complainant as a full explanation of how he could remove the artex paint as part of the project. The Respondent was answering a complaint that he had told the Respondent to “just pull it down” and no more. The Respondent went on in his letter to elaborate on the earlier advice he had been given and remind the Complainant of the options. All of which assumed a contractor would be engaged and the Complainant would in all likelihood be out of the property. There was never any suggestion that the Complainant would do this work himself and so be put at risk by the inadequate information. Although the Respondent ought to have taken more care to set out in full how the artex paint could be safely removed the Committee does not consider that this error in this context is sufficient to amount to UPC.

 

Allegation 2

 

  1. The Committee finds the facts proved for the following reasons:

 

  1. Although the Respondent had provided the Complainant with a number of documents before starting work, in the Committee’s view, the documents were not enough to meet the requirements of the Code. The Respondent accepted in his oral evidence that what he provided to the Complainant did not fully comply with standard 4.4 of the Code in particular he acknowledged that he should not have described the fee scales as “suggested”.

 

Standard 4.4 of the Code states:

 

  • You are expected to ensure that before you undertake any professional work you have entered into a written agreement with the client which adequately covers:
  • the contracting parties;
  • the scope of the work:
  • the fee or method of calculating it;
  • who will be responsible for what;
  • any constraints or limitations on the responsibilities of the parties;
  • the provisions for suspension or termination of the agreement;
  • a statement that you have adequate and appropriate insurance cover as specified by the Board;
  • the existence of any Alternative Dispute Resolution schemes that the contract is subject to and how they might be accessed;
  • that you have a complaints-handling procedure available on request;
  • that you are registered with the Architects Registration Board and that you are subject to this code.

 

  1. The Committee has borne in mind that some information was sent to the Complainant but that the written agreement was inadequate in a number of material aspects. The RIBA document is significantly out of date and the fee scales are no longer in use. Suggesting to the Complainant that the “suggested percentage scale fees” could be used as a comparison to the Respondent’s quoted fee was misleading and inaccurate. However, the Committee considered that the documents did adequately set out the fee and method of calculating it and that the Respondent did provide a checklist of the likely work required. In the Committee’s view this adequately set out to the Complainant what the scope of the work was that the Respondent was undertaking. The fact that these tasks may not have ultimately been done or needed would not be known to the Respondent at the time he is required to send the terms of engagement.

 

  1. The Respondent in his letter said that his terms of engagement were “based on the RIBA recommendations”. This does not make it clear which terms would apply to the Complainant’s work. Although the Committee were directed to the passages in the RIBA document that mention provisions for suspension, insurance, ADR and registration with ARB it did not consider that these adequately covered the requirements of the Code as they were not specific to the Respondent and his arrangements. The Complainant would have had to look for these items and then ask the Respondent whether they applied. Indeed, the Respondent admitted in his oral evidence that he did not really know what was contained within this document. The fact that the Complainant did not raise any questions about the terms does not in the Committee’s view mean that he was adequately informed. It is the Architect’s responsibility to ensure that the terms of engagement that he uses are compliant with the requirements of the Code.

 

  1. The Committee therefore finds the facts of this allegation proved and that the Respondent acted in breach of standard 4.4 of the Code.

 

  1. Having found the allegation proved, the Committee went on to consider whether the Respondent’s conduct amounts to unacceptable professional conduct.

 

  1. Any person who retains an architect should be informed about the scope of the work that will be done by the architect, the fee or method of calculating it for which they will be liable, what they will be responsible for and other important matters. This information is of crucial importance to the parties, so that in advance of the engagement of the architect the client knows and agrees to these matters. Setting out compliant terms of engagement identifies each party’s responsibilities and obligations and ensures clarity for both parties. These are core obligations of an architect.

 

  1. The fact that the Respondent is a busy sole practitioner does not mean that he is not required to produce compliant terms of engagement. Compliance with the Code is not unduly onerous and compliant terms of business letters are readily available from a variety of sources that can be easily tailored to the Respondent’s practice.

 

  1. Reliance on an outdated document with fee scales that are no longer in use, undoubtedly caused the Complainant to question the Respondent’s professionalism and in his letter of 11 October 2017 he describes it as the “straw which broke the camel’s back.” Compliance with standard 4 from the outset would have gone some way to avoiding the dispute that followed especially as it appeared to begin with an issue about the RIBA fee scales. In the circumstances, the Committee finds the Respondent’s failure to comply with standard 4 to be a substantial falling short of the standard expected of a registered architect.

 

  1. It is the Committee’s finding that the fact found proved and corresponding breach of the Code is serious and adversely impact both on the reputation of the architect and the profession generally. They represent a standard of conduct falling materially below the standard expected of a registered architect.

 

  1. In all the circumstances and for the reasons set out above, the Committee finds that the Respondent’s conduct does amount to unacceptable professional conduct in respect of allegation 2.

 

Sanction:

 

  1. 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 (“ISG”) 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.

 

  1. The Committee has identified the following mitigating factors:

 

  1. that he has no adverse regulatory history in his 60 year career;
  2. he has fully engaged in the regulatory process;
  3. he made partial admissions in his evidence that his documentation was not adequate;
  4. he has demonstrated some insight into his failings and now accepts that amended terms should be sent to all clients;
  5. he has indicated he will take remedial steps to reduce the risk of a similar failing recurring in future by ensuring that adequate written terms and conditions are provided to clients;
  6. he has not gained, either financially or otherwise from this failure and the consequent regulatory process has had a significant effect on him.

 

  1. The Committee has identified the following aggravating factors:

 

  1. The Respondent has only at this hearing recognised the deficiencies in his terms and conditions.

 

  1. 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. The Respondent has expressed an intention to address the procedural failing in his practice and has shown insight into his failing, the Committee therefore considers the risk of repetition to be low. The Committee, however, is mindful of its role to declare and uphold proper standards of conduct and behaviour. The importance of complying with the professional obligation to supply fully compliant terms and conditions to clients, cannot be overstated. 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.

 

  1. The Committee first considered whether to impose a reprimand. Having considered the ISG and the mitigating factors detailed above, the Committee considered that such a sanction is appropriate and proportionate.

 

  1. The Committee considered whether to impose a penalty order but considered that in all the circumstances, such an order was disproportionate given that a reprimand was a sufficient sanction to protect the public interest.

 

  1. That concludes this determination.

 

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