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Mr Phillip John Armstrong

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

Mr Phillip John Armstrong (063263E)

held on

10 and 11 September 2015, 27 October 2015 (in Chambers)

&

1 February 2016

at

Architects Registration Board

8 Weymouth Street

London

W1W 5BU

—————–

Present:

Mr Paul Housego (Chair)

Mr Stephen Neale (PCC Lay Member)

Mr Roger Wilson (PCC Architect Member)

Ms Melinka Berridge (Clerk to the PCC) & Ms Nicola Hill (Clerk to the PCC for the sanction hearing)

—————–

 

 

Mr Iain Miller of Bevan Brittan appeared on behalf of the Board

Mr Armstrong attended the hearing and was represented by Ms Sian Mirchandani

 

Allegations

 

1.      Mr Armstrong appeared before the Professional Conduct Committee of the Architects Registration Board to deny an allegation of unacceptable professional conduct (“upc”). It was alleged that he: –

 

1.1 failed to undertake sufficient due diligence in checking the financial situation of the contractor thereby ensuring he was competent, contrary to standard 6.1 of the 2010 Code of Conduct (“the Code”); and/or

 

1.2  failed to keep the Complainant informed of the cost of the works as contained in the contract dated 2 July 2010 contrary to standard 6.3 of the Code and/or misled the Complainant as to the costs position contrary to standard 1.2 of the Code; and/or

 

1.3 failed to inform and/or keep informed the Complainant of the proposed removal of the underpinning from the contract and/or the consequences of the removal of the underpinning from the contract contrary to standard 6.3 of the Code; and/or

 

1.4  failed to identify the risk of the wall collapsing and/or failed to instruct the structural engineer to attend site once the risk to the cellar wall was identified, contrary to standard 6.1 of the Code; and/or

 

1.5  provided misleading advice to the Complainant and/or failed to keep the Complainant informed regarding the contractor’s liability for costs following the collapse of the wall contrary to standard 1.2 of the Code and/or 6.3 of the Code.

 

2.      The preamble to the Code states that any failure to comply with the provisions of the Code is not of itself to be taken as constituting unacceptable professional conduct or serious professional incompetence, but it shall be taken into account in any disciplinary proceedings before the Board’s Professional Conduct Committee.

 

3.      It also states that architects are expected to be guided in their professional conduct and professional work by the spirit of the Code as well as by its express terms. The fact that a course of conduct is not specifically referred to in the Code does not mean that it cannot form the basis of disciplinary proceedings.

 

4.      Each case is judged on its facts, and there may be circumstances in which unacceptable professional conduct or serious professional incompetence is found even where there has been no clear breach of the express terms of the Code. Not every shortcoming, or failure to meet the Standards expected by the Code, will necessarily give rise to disciplinary proceedings.

 

5.      The relevant provisions of the Code are said to be:-

Standard 1

Honesty and Integrity

            1          …

            2          You should not make any statement which is contrary to your professional opinion or which you know to be misleading, unfair to others or discreditable to the profession.

            3          …

            4          …

 

Standard 6

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

            1          …

            2          …

            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.

            4          …

 

Summary

 

6.      The Complainant and his wife engaged the Respondent to design works, manage the project and administer the contract for the conversion of the cellar of their house. When the tenders were returned significantly higher than budget, reductions and savings in work were discussed and agreed with the contractor by value engineering, including underpinning. Part way through the work a wall in the cellar collapsed (which collapse was not related to the underpinning).

 

7.      It is alleged that the Respondent did not explain to the Complainant how the cost reductions were to be effected through the contract.

 

8.      When a problem with a wall in the cellar was noticed it is alleged that the Respondent did not take effective action prior to its collapse a few weeks later, and then did not deal with the aftermath satisfactorily.

 

Complaint

 

9.      The ARB brings the allegation following a complaint by the Complainant after he and his wife had not been able to resolve matters with the Respondent and after they had needed to vacate their home for nearly a year while the problems that had arisen there were resolved by another builder.

 

Burden and standard of proof

 

10.  The ARB is required to prove the allegations to the civil standard; that it is more likely than not that any event occurred. That is a single unwavering standard of proof, though the more unlikely an allegation the more cogent the evidence required to prove it. There is no requirement for Mr Armstrong to prove anything. The Committee has in mind throughout its deliberations that the right to practise a profession is involved in these proceedings and proceeds upon the basis that the Human Rights Act 1998 will apply.  In particular Mr Armstrong has the right to a fair trial and to respect for his private and family life (which includes the right to practice a profession) under Articles 6 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as incorporated within UK law by that Act. The question of whether or not any facts found proved amount to upc is a matter for the Committee’s judgment, and there is no burden of proof. A finding of unacceptable professional conduct requires the Committee to judge that conduct to be serious.

 

Defence

 

11.   The defence is set out at length for us in the documentation, but can be put succinctly.

•     The fact that Mr Armstrong did not check on the financial status of the contractor is accepted, but not that it is upc. It was not his responsibility to do so.

•     It was denied that there was any failure to advise the Complainant about the cost of the work that was tendered for, or as finalised in the contract.

•     The risk of the wall collapsing was dealt with properly, and if anyone was at fault it was not him, as he relied on the advice of a structural engineer, and either the engineer or the builder was responsible.

•     Subsequent to the collapse he acted professionally, and the Complainant interfered.

 

Evidence

 

12.  The Committee perused the report of the Board’s solicitor with accompanying documents running to some 330 pages. The Board called evidence from the Complainant, who was cross examined by Counsel for Mr Armstrong.

 

13.  The Committee also perused the bundle of similar size prepared by Mr Armstrong. The Committee heard evidence from Mr Armstrong, and his assistant Ivor Smits, who were cross examined. (The Respondent’s bundle contained many of the same documents as that of the ARB. That bundle was not numbered, and so reference is to the numbers in the ARB bundle.)

 

Submissions on behalf of ARB

 

14.  Mr Miller’s submissions were of an hour or more, and so only a very brief synopsis of them is contained here. Mr Miller submitted that there were many factors of the case that were simply inexplicable. The tender had been at over £142,000. A price reduction had been agreed with the builder to some £128,000, by removing some items. The list of those omissions included underpinning, in its entirety. The breakdown of the builder’s costings showed that the removal of all the cost they had put in for underpinning was necessary to reduce the cost to about £128,000. The contract was for about £146,000, exactly £4,000 more than the tender, with no explanation or documentation as to how the figure had exceeded the tender price. Nor was there anything to show what underpinning there was to be, if it was not to be as the structural engineer had set out for the tender documentation. If there were costs savings by reason of less or no underpinning it was illogical that the contract price was more than the tender.

 

15.  As to the wall that had collapsed, the Respondent had seen no urgency in it at all, as it was four days before he referred the matter to the structural engineer, after being prompted twice by the builder, and then in a way that led the engineer not to be concerned. There was a hint from the Respondent to the structural engineer that “stitching it together” was all that was required. He did not insist on the engineer attending as he thought there would be costs (which was not a good reason in the circumstances), but nor did he tell the Complainant (who had access to his emails even though abroad) so that the Complainant could make an informed choice.

 

16.  Once the wall had fallen he told the Complainant that the builder’s insurers would reimburse the Complainant for the cost of fixing the problem, and supplied an architect’s certificate so that the Complainant had first to pay the builder for the work in fixing the problem. Then when the builder’s insurer declined to pay he suggested pursuing the engineer, although the scheme for underpinning they had designed had not been built, and whatever was to have been done instead had only been agreed at a meeting on 29 July 2010 (A97) and had not been fully implemented. At no time did he suggest that independent advice was needed by the Complainant, as plainly was the case.

 

Submissions on behalf of Mr Armstrong

 

17.  Counsel submitted that this was one allegation with several factual particulars alleged to support it. The Committee could rely only on the report as to how the allegation was put. It was a narrative charge with complex sentence structure. The rest was evidence, and the Committee had to be careful to ensure that it focussed on the allegations and considered the evidence only in so far as it was relevant to those allegations.

 

18.  For example in Allegation 3 there was no allegation that Mr Armstrong had failed to suggest a replacement underpinning scheme. In Allegation 4 there was no allegation that Mr Armstrong had in any way down played the significance of the crack. There was no allegation that he had failed to advise the Complainant that independent advice should be given. It was an allegation phrased as “and/or”.  In Allegation 5, it was not said what advice was alleged to be misleading, though paragraph 100 of the report was guidance: that Mr Armstrong advised the Complainant to make payment to the contractor for the repair of the collapsed wall and stated that the costs would be recoverable from the insurers. It was limited to an allegation that Mr Armstrong should not have told the Complainant that the cost would be repaid. The rest of Allegation 5 was alleged to be omission – that it was the contractor’s liability, which was the only matter about which there was an allegation.

 

19.  A misrepresentation was to state something that one did not believe. The allegation was not made out just because there was an inaccuracy in what was said. In Allegations 2 and 5 reference was made to standards 6.3 but also standard 1.2: which was that it was a breach of the Code to make a statement that is contrary to your professional opinion. Hindsight could not be relevant to this allegation as it must be based on what was known at the time.

 

20.  For upc the conduct must be serious. The Committee should keep in mind the preamble to the Code.

 

21.  Allegation 1: “Failed to undertake sufficient due diligence in checking the financial situation of the contractor thereby ensuring he was competent, contrary to standard 6.1 of the 2010 code of conduct (“the Code”)”

 

22.  The Respondent did not do a company search. It was not expected that he would. He did sufficient due diligence. He knew the contractor and checked up on his work. There was no instruction to do a credit or company search. There was no guidance that architects should do this, and other professions did not have such an obligation. Mr Armstrong could not have been on notice that such a search might be needed.

 

23.  Allegation 2. Paragraphs 6.3 and 1.2 – Counsel reviewed the evidence concerning the figures of approximately £128,000 and £146,000, and the signing of the contract. There was a conflict of evidence, with the Complainant saying the figure was blank, and Mr Armstrong saying that it was written in and was explained, backed by Mr S. The Complainant was prepared to agree that there might have been only one copy of the contract. Mr Armstrong had not misled anyone – there was no intention to do so. (Mr Miller then indicated that the question of whether or not something was misleading was to be viewed from the perspective of the Complainant, and that intention went to seriousness and not to the question of whether or not someone was misled).

 

24.  Allegation 3. The charge had to be clear enough to be proved. The allegation required the underpinning work to have been removed from the contract. It had not been removed. It had been intended to replace it but there had not been time to do this amendment before the work had to start. The engineer’s scheme was to be replaced, but there was never a complete omission. It was the “concrete fingers and mini piles” scheme for the rear part of the project that was so expensive and would not be used. There was a “value engineering” exercise to be undertaken, and that was a self explanatory term. There would always have been an underpinning scheme, and it had been explained at the 2 July 2010 contract signing meeting.

 

25.  Allegation 4. There was no deliberate playing down of the issue or of not telling the client. The drawings of the structural engineer were followed so far as the stairs were concerned. The engineer had been round the building at the pre tender stage. He had not said that the stairs were supporting anything. The evidence critical of Mr Armstrong was after the event and was self serving. If the engineer had thought there was any possible problem with the wall from removal of the stairs he would have made recommendations in his report, and he had not done so. The crack had not moved rapidly for two weeks or more after the stairs were removed until the wall partially collapsed: it appeared to be a long standing crack. There was nothing to alert Mr Armstrong that it was any different to inert cracks commonly found in such situations. It could not be upc as the reasonably competent architect would not be expected to call an engineer.

 

26.  Allegation 5. The allegation was that the Complainant had to pay costs and a certificate to pay those costs should not have been issued, and nor should Mr Armstrong have told the Complainant that he would get that money back from the contractor’s insurer. No one had admitted liability and this was to be expected. Work had to continue under the contract, so payment had to be made for work, and it was the architect’s responsibility to act even handedly between the client and the contractor. The architect could have suspended the contract but that would not have been in the interests of the Complainant. He had to issue a certificate as the work had actually been done.

 

27.  Generally, on the balance of probabilities it was the Complainant who was mistaken on points of fact. Even if the Committee found there was some negligence this was not a civil claim in negligence. It was not an allegation of serious professional incompetence, but one of unacceptable professional conduct. There had to be moral blameworthiness for that to be found proved. At all times Mr Armstrong had believed that the insurers of the contractor would pay, and that was highly relevant to the wording of the charges.

 

Advice to the Committee

 

28.  The Committee accepted the advice of its Clerk. She reminded the Committee of the burden and standard of proof. That there was an admission of fact on Allegation 1 was not an admission that the fact was upc. The Committee should pay close heed to the framing of the allegations as it was those allegations that had to be proved by the ARB. These were sometimes framed in the alternative. For example in Allegation 2 there were two limbs, so the Committee had to decide if each was made out. It was not alleged in Allegation 5 that there had been a conflict of interest. The Committee had to consider first what advice had been given and then whether it was misleading. Not all the sections of the Code referred to related to each allegation. Live evidence was usually the best evidence, and while the Committee could rely on hearsay evidence it should be cautious as to the weight attached to it. Upc was defined in the Architects Act 1997 Section 14 as “conduct which falls short of the standard required of a registered person”. The Code was guidance, but breach of the Code was not of itself upc. Nor was it necessary to prove a breach of the Code to establish upc. Moral blameworthiness was an essential part of upc. The Committee had to give reasons sufficient to show why it decided as it did.

 

Findings of fact

 

29.  The Respondent is an architect at White Box Architecture in Cheshire. Towards the end of 2009 the Complainant and his wife engaged the Respondent. (It was Mr N who lodged the complaint with ARB. Both he and his wife were clients of the Respondent. In this decision both Mr and Mrs N are referred to as “the Complainant”).

 

30.  The project was to remodel the ground floor of their home, a semi-detached Victorian villa, and develop the cellars of the property into an effective living space.  This was their first project and they obtained the Respondent’s details through the RIBA.

 

31.  The Committee found the witnesses to be doing their best to be truthful and frank. At this distance in time it is understandable that memories might fade or be mistaken.

 

32.  Mr Armstrong visited the Complainant in September 2009. A letter of engagement was sent on 21 September 2009, revised on 27 November 2009, and the revised letter was signed. The overall budget aimed at was £100,000. The engagement letter provided that a structural engineer was required.

 

33.  CS Ltd was appointed as the structural engineer with a scope of work limited to providing a scheme and attendant calculations. CG was the individual at that company who undertook the work on the project.

 

34.  Tenders were invited, and on 20 May 2010 the Respondent wrote to the Complainant (A23) to set out the tender returns. These were at £142,112, £154,649 and £152,985.  Two of the contractors were asked to submit breakdowns of their quotes. Within those breakdowns that of the contractor ultimately appointed, BD, provided for underpinning of the main house and for concrete fingers and mini piles for the rear single storey extension an amount of £14,049. The other contract provided £21,871 for this item (A27).

 

35.  There was then discussion between the respondent and KH of BD, and on 4 June 2010 Mr H wrote (A28/29) to the Respondent, “Further to our discussions at your office regarding possible cost savings, we have now re-evaluated our tender to reflect these changes to the specification and can offer to undertake the works for £128,962.89 plus VAT. This is based upon the following; 1… 2 Omission of underpinning and floor slabs as per the engineers details. 3. Provision of new floor slabs to be cast between cellar walls…[and 4 and 5, not relevant]”.

 

36.  Also on 4 June 2010 the respondent wrote to the Complainant (A30) to advise them of the revised prices. This set out the price for BD, and that the other two contractors that came in at £139,403 plus VAT and £151,093 plus VAT.  He suggested a meeting with BD to go through the project in more detail and identify any further savings that could be made.

 

37.  There was then such a meeting and on 17 June 2010 the Respondent wrote to say that subsequent to it he had gone through the figures in detail with BD, and the contract figure could be reduced to £115,240. A list of those further reductions was supplied. That did not refer to underpinning, as that cost had been removed previously.

 

38.  By email of 21 June 2010 (A38) the Complainant decided to accept BD’s tender price of £128,962 plus VAT. The email specifically asked for suitable references being obtained for BD.

 

39.  On 2 July 2010 the contract was signed at a meeting of the Respondent and his assistant Mr S, the Complainant and the contractor. It is a JCT Minor Works contract. The price set out in the document is £146,112.42.

 

40.  The Complainant gave evidence that the figure was added subsequent to the signing. The Respondent said that it was written in prior to signature. The Respondent pointed out that all the certificates subsequently issued referred to a contract sum of £146,112.42. The Complainant said that he thought this was the contract sum plus VAT.

 

41.  The Complainant said that at no time was the removal of the underpinning discussed with him. The Respondent said that it was.

 

42.  The Committee finds that only one copy of the contract document was signed, and that the Respondent retained it, and that it contained a figure of £146,142.42 when signed.

 

43.  It is unlikely that a contractor would sign a contract with a blank price, or that the Complainant, an accountant, would do so either. The figure included is indeed about the reduced price quoted by the contractor plus vat, and it seems most likely (and the Committee finds) that this accounts for the Complainant’s difficulty in recollection. The figure also featured in all the certificates, indicating that it was the contract sum.

 

44.  The Committee finds that the contract was signed at the tender sum with the intention of issuing instructions to reduce the cost.

 

45.  The Committee finds as follows. The tender price of the contractor was £142,112.42. This was an arithmetic error by the contractor. When they later gave their breakdown of this figure for the purpose of seeing how it could be reduced, its component parts added up to £146,112.42. The Respondent thereafter used that higher figure in the contract, but without explaining this to the Complainant. That price was above the budget of £100,000. The tenders were asked to review their prices. BD sent a letter to the Respondent dated 4 June 2010 saying “…we have re evaluated our tender to reflect these changes to the specification and can offer to undertake the works for £128,962.89 plus vat. This is based on the following; [and there followed a list of 5 times including] 2. Omission of underpinning and floor slabs as per the engineers details. 3. Provision of new floor slabs to be cast between the cellar walls.”

 

46.  What was meant was that the rear single storey extension would be demolished and rebuilt from the bottom of the new cellar as this was cheaper than supporting it with concrete fingers and mini piles. Under the main house the lowered cellar floor would be constructed using sectional underpinning and segmented slabs laid individually instead of one whole slab being cast. This was nowhere made clear to the Complainant.

 

47.  The Complainant’s belief that the £146,112.42 was the tender sum plus vat was understandable, and the Committee accepted his evidence on this point.

 

48.  By email of 4 June 2010 the Respondent told the Complainant of the “revised prices” and referred to identifying “further savings”. The Complainant decided not to make the further reductions, and agreed the reduced figure. The Complainant then thought they had a contract at £128,962.89. In fact they had one at £146,112.42, with the promise of a reduction to £128,962.89. The Respondent never issued an Architects Instruction to alter the contractual sum, or to vary the work, even though the demolition of the rear extension was one of the first things to be done.

 

49.  The wall that collapsed was one next to a staircase that led down to the basement. The single storey extension at the rear was demolished and the excavation used as access to the work area so that the house could continue to be occupied during the work, and the staircase then removed. The wall to which it was affixed was the one that collapsed, but was not one due to be underpinned by reason of the removal of the stairs.

 

50.  Work commenced on 5 July 2010 (A83). The basement was not the full width of the house. The staircase would appear to have been giving lateral support to an internal basement wall, to which it was attached, and behind which wall the ground was backfilled beneath another ground floor room. The removal of the support of the staircase led to the wall collapsing some five weeks later. Neither of these two facts was appreciated at the time (save perhaps by Mr H).

 

51.  On 15 July 2010 at 12:56 Mr H emailed the Respondent (A85). “Whilst on site I noticed a significant amount of deflection and cracking to the wall that has been exposed by the removal of the stairs. I am quite concerned with this and would ask that you inspect it as a matter of urgency.”

 

52.  There was a site meeting on 16 July 2010. The report of it (A86) stated that the wall was noted to be cracked and bowed. The Respondent was to forward photographs to the structural engineer for advice on any remediation work that should be carried out on the wall.

 

53.  Mr H remained concerned, and chased the Respondent by email on 20 July 2010 at 14:46 (A92).  “Can you please advise whether structural engineer will be visiting site as the lack of instruction is now causing a delay in the progress of the works.”

 

54.  Four days after this was raised, on 20 July 2010 at 17:43 the Respondent emailed the engineer, CG (A87). “We have started work …now. On removal of the basement stairs it was noted that the wall was bowing and cracked, see attached photos. Have you any thought?” Plainly the Respondent did not regard this as urgent.

 

55.  The engineer responded on 21 July 2010 at 08:18 (A91).  He said “Difficult to say without inspecting, however such cracking is not uncommon in a house of this age. How thick is the wall? And how much out of alignment is it i.e. 10 mm in 1 m? If you can confirm the above I will see if I am comfortable making a decision, if not I will need to do an inspection and report but it would be charged at hourly rate quoted and so would need approval.”

 

56.  The Respondent replied on 21 July 2010 at 09:52 (A91). “The 215 mm wall bows at the bottom by around 10 mm in 300 mm but then straightens. The ground behind is under the dining room and therefore will not be surcharged by the scheme, and I do not think that the old staircase was giving any support. I was thinking that we can put a few stainless steel straps to stitch it all together as a precaution.”

 

57.  Also on 21 July 2010 at 11:06 the Respondent emailed Mr H “It appears likely that the engineer will not have to attend site to inspect the wall and will be able to comment today in regards to strapping if required. Can you please confirm that you do not need the engineer to inspect the site in regards to the underpinning of the existing walls.”  (This referring to other walls, and not the one bowing and cracked.)

 

58.  Mr H responded at 15:04 on 21 July 2010 by email to the Respondent, “We will require that the engineer or yourselves issue details on the required underpinning and its impact upon the shutter stone wall in the opening into the existing cellar. I am still concerned over the condition of the wall adjacent the old cellar stairs and feel that the proposals for its rectification should be issued as soon as possible…”

 

59.  At 15:20 on 21 July 2010 he emailed the Respondent (A94) to say “I have sent photographs of the wall to C….. S…… and in the first instance they are not at all concerned by the wall. In regards to the underpinning this falls firmly under your remit to arrange as this is an alternative method that you are putting forward to that information tendered.”

 

60.  Mr H replied at 17:25 on 21 July 2010, “Whilst I agree I proposed changes to the engineer’s scheme to make the project cheaper for the client, I don’t believe this falls under our remit as this is the wall that you had not been able to confirm foundation depth of, as it transpires that it does not go down to the depth of the basement.”

 

61.  Mr H was sufficiently concerned to ask his own structural engineer, Mr Hi, to attend (A96) by email of 23 July 2010. That surveyor did attend and recommended underpinning works. It is not clear what he said about the wall that later collapsed, as the Committee did not hear from Mr Hi or from Mr H. At a meeting on 29 July 2010 (A97) Mr H explained what Mr Hi had suggested, and the Respondent agreed with those suggestions. It was the builder who was to tell the architect what was to be done. There was no detail as to what was proposed and no costings or Architects Instruction given. The Respondent did not ask Mr H about the wall.

 

62.  On 11 August 2010 at 08:06 Mr H emailed the Respondent (A99) at 08:06,  “It has also become apparent that the reduced dig will be below the level of the existing brickwork which has no foundation, as the underpinning was removed from the contract we would appreciate your comments…”

 

63.  At 09:59 on the same day the Respondent replied (A99)  “I am getting really worried now. The tender documents clearly indicate is that the level of these foundations walls around the basement are shallow. In fact it was BD construction that undertook the trial pits to ascertain this. Are you now suggesting that you simply assumes that you could omit the underpinning costs to win the job and are now looking for an instruction from me as to how to make your costs work or indeed instruct the cost addition to the contract?”

 

64.  At about 08:30 on 12 August 2010 the cellar wall collapsed. The Complainant and their family had left about one hour earlier for a three-week holiday. They did not find out about the collapse until they returned on 02 September 2010. Save for mention at a meeting on 16 July 2010 that the Respondent was to forward photographs to the engineer for advice as to any remediation work that should be carried out on the wall, the Complainant was not informed of any difficulty with it.

 

65.  There then followed other problems, starting on 29 September 2010 (A127). Another wall moved, and the house above deflected. This was unconnected with the staircase removal, and involved a different wall. Substantial works were required to stabilise the house, and that of the other house of the pair of semi detached houses. A party wall notice had to be served. In the course of fixing the problem a drain was blocked with mass concrete so that the cellars of both houses flooded. The Complainant and his family had to vacate for about a year in total.

 

66.  On 14 September 2010 an Architect’s Certificate was issued so that the Complainant had to pay the builder £17,300 for all the work including that of fixing the problem of the collapsed wall. The Respondent stated that the cost of fixing the wall would be deducted from the final contract sum (A119).

 

67.  The builder’s insurers eventually paid for the other repair costs of the house, the engineer’s insurers having declined liability on the basis that their scheme was perfectly sound and had not been used. The insurers of the builder did not pay for the repair to the wall next to the removed staircase.

 

68.  Mr Hi was brought in by the Respondent to advise the Complainant, who did not know, and was not told, that he had been the builder’s engineer.

 

69.  By 12 October 2010 an alternative underpinning scheme had been developed (A147). This was necessary given the structural movement that had now occurred. At a meeting of that date the Respondent stated that the contract sum remained £146,112.42. The Respondent told the Complainant that once the builder received the insurance money he would instruct the builder to pay it to the Complainant. The meeting note (A149) stated “PA stated that BD…..  have a duty of care to either work to C…. S……  drawings or submit an equal or improved scheme design.”

 

Discussion and conclusion

 

70.  The Committee first considered the factual allegations and then whether what was found proved amounted to upc.

 

Allegation 1:Failed to undertake sufficient due diligence in checking the financial situation of the contractor thereby ensuring he was competent, contrary to standard 6.1 of the 2010 code of conduct (“the Code”)”

 

71.  It is not normally part of an architect’s role to carry out a financial due diligence exercise on a contractor. The Respondent accepts that he did not do so, and says that it was not part of his remit so to do. There was no request from the client to do any financial check on the contractor. The Respondent selected a contractor with whom he had worked before and got other checks done on their work. It was not upc (or spi) for him not to run a credit check on the contractor. Standard 6.1 does not support a charge that that the contractor was not competent by reason of financial frailty. This allegation is found not proved.

 

Allegation 2: Failed to keep the Complainant informed of the cost of the works as contained in the contract dated 2 July 2010 contrary to standard 6.3 of the Code and/or misled the Complainant as to the costs position contrary to standard 1.2 with the Code;”

 

72.  This allegation is found proved. The contract was to be delivered for £128.962.89, but was signed at £146,112.42. While the Respondent and Mr S said that the contract had been explained at the signing meeting, the Committee finds that this did not extend to adequate discussion of the price. There was no report to the Complainant or to the contractor, either pre or post contract, of the way that the contract was to be delivered at the lower price. There were only the emails of 21 and 22 June 2010 telling the Complainant that the tender price had now been reduced, and to a very precise figure. It was not explained that the contract sum remained at £146,112.42, nor how it would be reduced by the five means set out in the email from the contractor. Nor was there any Architects Instruction to this effect, even though the single storey extension had been demolished as the first step in the work, so as to allow access to the basement.

 

73.  The allegation is framed in the alternative and also in the conjunctive. The second limb of the allegation refers to misleading the Complainant. The Committee does not consider that “misled” requires an intention. The Complainant was misled. They thought that they had a contract at £128,962.89 but they had a contract at £146,112.42. Accordingly the allegation is proved in both limbs. The Committee finds that there was no intention to mislead, which is relevant to the seriousness of the allegation – accordingly there was no breach of paragraph 1.2 of the Code. The effect of this was to cause great problems when there was the collapse of the wall, and the potentially much more serious problem with the other, deflecting, wall. There was uncertainty about the fundamental basis for the relationship between the contractor and the Complainant, and that was entirely the responsibility of the Respondent.

 

Allegation 3: “Failed to inform and/or keep informed of the Complainant of the proposed removal of the underpinning from the contract and/or the consequences of the removal of the underpinning from the contract contrary to standard 6.3 of the Code”

 

74.  The Committee finds this allegation not proved. The underpinning was not removed from the contract, which was still at £146,112.42, and so included the underpinning in its original form in full. However the intention was never to use the underpinning scheme in the contract. Instead there were to be cost savings by demolishing the rear extension and value engineering to reduce costs, including a more simple underpinning scheme to the main structure of the house. This was a fact of which the Complainant cannot have been unaware as they were living at the house at the time the rear extension was demolished. The underpinning was to be done in a different way to that set out in the tender. The email setting out how the reduced tender price was arrived at, and which stated that the underpinning was to be removed, was not forwarded to the Complainant. There was a site meeting on 29 July 2010 (97) setting out that, “The underpinning / cellar creation works will commence on Monday 02 August 2010 and take approximately 7-10 working days. KH (Mr H of the contractor] explained the underpinning process to PA [Mr Armstrong] who is satisfied with their engineer’s approach.”. The Complainant was there for part of the meeting, though which part is not clear but on the balance of probabilities knew, at least in general terms, what was proposed.

 

75.  The Respondent explained that he regarded the contractor as obliged to design and provide and alternative underpinning system, with their own engineer. This they had done, using Mr Hi, who became heavily involved in the project once the wall collapsed. From the signing of the contract, the Respondent regarded the design and construction of the underpinning as the contractor’s responsibility. The Committee is not called upon to comment on this delegation of responsibility from architect and retained engineer to the contractor and its engineer or make findings of fact as it is not part of any allegation.

 

76.  The consequence of the alleged removal of the underpinning was not specified in the Board’s report because of an entirely understandable confusion arising from emails sent by the Respondent on 11 August 2010. In these emails the Respondent stated that underpinning had been removed from the contract. His explanation to us is, in essence, that he had decided to set out stage payments in proportion to the completion price of £128,962.59. He had no contractual basis for this save the one email reducing the price to this level (which was of doubtful assistance since the contract post dated it). He was concerned that the contractor might be trying to take advantage. Again this is not a matter for this Committee’s adjudication, as it does not from part of any allegation.

 

77.  The collapse of the wall was not a consequence of changes to underpinning. At the time the staircase was removed and at the time of the collapse there was no underpinning taking place to the wall. The Board’s assertion that this was so at paragraph 98 is therefore not correct.

 

78.  The fact that the underpinning was never removed from the contract makes this allegation not capable of proof.

 

Allegation 4: “Failed to identify the risk of the wall collapsing and/or failed to instruct the structural engineer to attend site once the risk to the cellar wall was identified, contrary to standard 6.1 of the Code.”

 

79.  The Committee finds this allegation not proved. This allegation is in two limbs. Taking the first, the wall was an internal wall below ground level. The cellar is not full width. The wall is in the middle of the house. On one side of it was the staircase, the other side of the wall was under the dining room. The structural engineer inspected the house and the plans for the work proposed and made recommendations. Those plans showed the removal of the staircase. The engineer made no recommendation in respect of the wall to which the staircase was attached. There was no reason for the Respondent to have identified any risk arising from that wall prior to the demolition of the staircase.

 

80.  When the staircase was removed the contractor identified the problem, which appeared to be revealed by the removal of the staircase rather than caused by its removal. There was no movement in the wall for some three weeks when part of it, towards the top, fell in to the cellar. Mr H asked the Respondent for advice and instruction about it immediately he became aware of the crack. Plainly he was concerned about it, and as it turned out rightly so. The Respondent referred to the engineer. He was not very speedy at doing so, but that is not an allegation. The engineer asked him some questions and he responded (A92). The text of this exchange is set out earlier. The unsolicited opinion of the Respondent indicated that it was his view that there was no problem. The observation that the stairs were not thought to be giving support may have been incorrect. However the whole responsibility for deciding whether there should be an inspection or not was clearly expressed to be that of the engineer. That the engineer may have relied on something the architect said does not transfer liability to the architect. It was the engineer who decided that a visit was not necessary. If it had been plain that the engineer was making a cavalier decision, or one that was plainly dangerous, then the architect might have the obligation to seek a second opinion, but that was not the situation here. If it was a mistake, it was not morally blameworthy to the extent required to found a finding of upc.

 

 

Allegation 5:  “Provided misleading advice to the Complainant and/or failed to keep the Complainant informed regarding the contractor’s liability for costs following the collapse of the wall contrary to standard 1.2 of the Code and/or 6.3 of the Code.”

 

81.  The Committee bore in mind that this was not put as an allegation of conflict of interest. When the wall collapsed there were several possibilities for compensation. Claims against the contractor, the engineer, the contractor’s engineer, and against the house insurance came up in discussion. The possibility of a claim against the Respondent was not raised by him. That is not part of the allegation. The allegation is framed about advice given about the contractor’s liability only. It cited certifying payment for the repairs to the collapsed wall, and advising that the costs could be recovered from the contractor’s insurance. It was alleged to be wrong to make the Complainant pay for the work by issuing the certificate, and wrong to say that the cost would be repaid by insurers when they had not admitted liability, and in fact did not pay for this damage repair (though they did for the repair to the other structural problems occasioned at this time).

 

82.  The Committee finds the allegation proved. As developed, the Committee does not find that there was fault in certifying the work for payment. The work had been done. The figure was not said to be an improper one. The Respondent said that the contractor needed to be paid for work done, in order to continue. There is some muddled thinking here by the Respondent. If it was the contractor’s fault then why should the Complainant have to pay to put it right? The Respondent was so sure that it was the contractor’s fault that he asserted as a fact that the money would be reclaimed via their insurance. These are contradictory. The incorrect one is the second, the assertion that the contractor’s insurers would pay. The first part, that in order to continue with the contract the work would have to be paid for as an extra was not incorrect.

 

83.  At a time when the Complainant most needed clear and cogent advice about a substantial sum (some £17,500) they did not receive it from the Respondent.

 

84.  In giving muddled and incorrect advice the Respondent did mislead his clients, not serving them well at a time when they were in great need of good advice. This allegation is factually made out.

 

85.  The Committee then considered whether the two matters found proved amounted either individually or collectively to upc. The Committee found that each on its own did so, and therefore jointly they also constituted upc.

 

86.    The matters described in allegation 2 left the Complainant unaware of the contractual position they were in. It was not a good position, for they thought they had a contract at £128,962.59, but they had one at £146,112.42. There was no clear way the contract was going to be delivered at the price the Complainant thought was a contractual obligation on the contractor. This is apparent from the emails commencing on 10 August 2010, the day before the collapse, with the architect and the contractor at odds about the extent and cost of underpinning. This confusion is the responsibility of the architect. This (entirely understandably) misled the Complainant. While the Committee does not find there was any intention to deceive the Complainant, the Committee finds this to be morally blameworthy to the extent required by Spencer v General Osteopathic Council [2012] EWHC 3147 (Admin).  A discussion as to whether this breached 1.2 of the Code is sterile. The Respondent’s Counsel submitted (in summary) that it was all done with the good intention of delivering the project for the client at the price sort and in the time sought, and that is inconsistent with an intention to mislead. For that to be a breach of 1.2 of the Code it would have to be done on purpose and not by accident or by reason even of a negligent failure to advise the complainant. This is so. However the Code has few paragraphs and they are short. It sets out principles and the preamble is an essential part of the code. Whether or not expressly covered by any paragraph of the Code, this was upc.

 

87.  Accordingly the Committee finds the allegation of upc proved.

 

Mitigation

 

88.  Ms Mirchandani spoke in mitigation. She said that the problems with the building were largely unrelated to Mr Armstrong, and that the allegations found proved were not of incompetence. The Committee had found no lack of integrity, or dishonesty and that while the client had been misled, the Committee had found that this was unintentional.

 

89.  Ms Mirchandani indicated that there was no loss of the client attributable to Mr Armstrong, as the certification of the repair work was not improper, and the project was always intended to be costed at £128k rather than £146k.

 

90.  Ms Mirchandani referred to various other decisions (of other divisions of the Committee), not as precedent, but as exemplars of why a financial penalty required behaviour more serious than in this case.

 

91.  While there had been a previous finding against Mr Armstrong dated 01 May 2013, for serious professional incompetence and unacceptable professional conduct, there was a financial penalty of only £500 for the UPC allegation, so that it should not be viewed as a serious precedent. The facts of this matter either ran in parallel with the facts of the earlier matter, or predated the earlier matter so it could not be thought that he had failed to learn lessons from the first matter.

 

92.  Ms Mirchandani drew attention to the corrective steps taken by Mr Armstrong to ensure that contractors were financially sound, set out in Mr Armstrong’s witness statement, and to his remorse and contrition.

 

93.  Mr Armstrong produced no testimonials.

 

94.  The Committee accepted the advice of its Clerk.

 

Sanctions

95.  The primary purpose of sanctions is not to be punitive (though this may be their effect) but to protect members of the public, to maintain the collective reputation of the profession (and the ARB as its regulator), and to declare and uphold proper standards of conduct and competence. Sanctions also help ensure that the profession better understands the importance of professional standards.

 

96.  The Committee has considered the Indicative Sanctions Guidance. Appearance before this Committee is in itself salutary. The Act does not require the Committee to impose a sanction in every case where a guilty finding is reached, so the Committee may choose to make no disciplinary order.  If it decides to impose a sanction, the Committee commences at the lowest sanction, and only if it decides that sanction is not appropriate does it move to the next level of sanction. Having arrived at a sanction that it is minded to impose the Committee then reviews the next sanction above so as to satisfy itself that this would be too severe a sanction before arriving at a final conclusion. If the Committee decides on a fine, it is limited by the Architects Act 1997 to £2500 for the charge of upc it found proved.

 

97.  The Committee identified the following mitigating and aggravating factors:

 

98.  In mitigation, Mr Armstrong has a wish not to be before the Committee again, and expressed contrition and remorse towards his client. The Committee found no intention to mislead.

 

99.  However this cannot be said to be an isolated act or omission or an aberration, and Mr Armstrong cannot use that in mitigation.

 

100.The Committee expressly excluded from its considerations the other problems with the house as they were unconnected with the two allegations found proved.

 

101.Aggravating factors identified are that the contract is the bedrock of the relationships that must underpin – the Committee uses the word advisedly – the work being done. It is essential that this is undertaken properly. It is not difficult to ensure that proper attention is given to this topic. Here the client was left unaware of the true situation.

 

102.While it is not charged, and so not taken into account as an aggravating factor, there was no Architect’s Instruction to rectify the situation after the contract was signed. That would have been mitigation if he had done so, and it is not available to Mr Armstrong as mitigation. He allowed the situation to continue.

 

103.There are other matters considered by the Committee.

 

104.The Committee has not heard of any courses undertaken by Mr Armstrong, nor was it given any other comfort that Mr Armstrong now fully understands what he should do in terms of contract preparation and administration, and so there is no such mitigation.

 

105.The poor advice was a failing in one of the fundamental responsibilities as a contract administrator. There is nothing to indicate to the Committee that Mr Armstrong now understands his role when problems arise in the course of contract administration.

 

106.The Committee is concerned that the variety of matters found proved in the two disciplinary decisions show a worrying lack of ability in Mr Armstrong’s conduct of his practice.

 

107.In all the particular circumstances of this case the Committee considered that a sanction is appropriate because of the need to declare and uphold professional standards, and because the matters found proved are too serious for there to be no sanction, especially where there has been a previous adverse finding against Mr Armstrong.

 

108.The indicative sanctions guidance states:

 

Reprimands

 

109.Where the PCC decides that it is appropriate to impose a sanction in relation to a guilty finding, a reprimand is the lowest sanction that can be applied. It may be used in relation to those offences at the lower end of the scale of seriousness, where and where it would be appropriate to mark the conduct or competence as being unacceptable.

 

110.   This sanction may be considered where the following factors are present (this list is not exhaustive):

 

– Evidence that the conduct or competence has not seriously affected clients / the    public

– Insight into failings

– Genuine expression of regret

– Corrective steps taken

– Previous good disciplinary history

 

111.   Like all disciplinary orders a reprimand will remain permanently on an architect’s record, but only published for two years after the date of sanction.

 

112.   There is no previous good disciplinary history, and this was serious to the client in terms of worry and confusion, in both allegations. The matter, viewed overall, is too serious for a reprimand.

 

Penalty orders

 

113.   Penalty orders are fines of up to level 4 on the standard scale of fines for summary offences, currently set at £2,500. Only one penalty order can be issued per charge, and under the Act only two charges can be brought (unacceptable professional conduct and/or serious professional incompetence). It may be used in relation to those offences too serious to warrant a reprimand, or where a lack of remorse or understanding is displayed.

Accordingly in this case the Committee may impose one fine to a maximum of £2,500.

 

114.   This sanction may be considered where the following factors are present, and this list is not exhaustive:

 

·    Offence is too serious to warrant a reprimand

·    Limited or lack of remorse

·    Architect has benefitted financially from the offence

 

115.The PCC will specify the period within which the sum must be paid, and a failure to satisfy the order may lead to it being replaced by a suspension or erasure order. A penalty order is published for two years after the date of sanction.

 

116.Mr Armstrong did not benefit financially, and expressed some remorse and contrition.

 

117.However, the Committee finds that the seriousness of the matters, viewed in the light of the other disciplinary decision, means that the offence is too serious to impose a reprimand and so at least a penalty order is required.

 

118.The Committee then considered whether a suspension order was disproportionate.

 

Suspension orders

 

119.   A suspension order may be imposed by the PCC for serious offences, but not so grave as to warrant erasure from the Register. Suspensions are for a maximum period of two years and the architect is automatically reinstated to the Register at the end of the suspension period. Any individual suspended from the Register cannot use the title ‘Architect’ in business or practice.

 

120.   This sanction may be considered where the following factors are present (this list is not exhaustive):

 

An offence so serious that a reprimand or penalty order would be insufficient to protect the public or the reputation of the profession

Behaviour that is not fundamentally incompatible with continuing to be an architect

No evidence of entrenched integrity issues

The PCC is satisfied that the behaviour is unlikely to be repeated

Conduct capable of being rectified

Non-payment of a previously imposed penalty order

 

121. The Committee noted that the matters found proved in this decision and in the previous decision were (broadly speaking) overlapping. There are aspects of the indicative sanctions guidance that could indicate suspension was appropriate. The Committee seriously considered this question. After giving the matter careful thought the Committee decided that on this occasion suspension was disproportionate.

 

122. The Committee is greatly concerned at the variety of matters that have led to disciplinary action against Mr Armstrong, and Mr Armstrong should be in no doubt that should he again be found guilty by the Committee of either SPI or UPC it may be doubtful that his ability to practice will be unimpaired.

 

123. The Committee’s power to impose a penalty order is limited to £2500, and the circumstances of this case lead the Committee to impose the maximum of £2500, to be paid within 28 days.

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