Mr Raymond Smale
THE ARCHITECTS REGISTRATION BOARD
PROFESSIONAL CONDUCT COMMITTEE
In the matter of
Mr Raymond Smale (042094H)
Held on 6 December 2016
8 Weymouth Street
Mr Julian Weinberg (Chair)
Ms Judy Carr (PCC Architect Member)
Mr Martin Pike (PCC Lay Member)
Mr Stephen Battersby (Clerk)
Mr Jonathan Goodwin of Jonathan Goodwin Solicitor Advocate appeared on behalf of ARB.
Mr Smale did not attend.
Charge and allegations:
- In this case, the Board is represented by Mr Jonathan Goodwin. Mr Smale has neither attended this hearing nor is he legally represented. Mr Smale 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 2010 (“the Code”) in that:
Allegation 1.1: He failed to enter into a written agreement with his client, prior to undertaking any professional work, which adequately, or at all, covered the matters required by Standards 4.4 and 4.6 of the Architects Code; Standards of Conduct and Practice 2010;
Allegation 1.2: He failed to have a written procedure for the handling of complaints
and that the respondent therefore acted in breach of Standard 10 of the Architects Code: Standards of Conduct and Practice 2010 (“the Code”).
Service of Notice and Proceeding in Absence:
- The Committee first considered whether notice of the hearing had been served in accordance with the Professional Conduct Committee Rules (“the Rules”). Mr Goodwin advised the Committee, and adduced documentation confirming that the Notice, containing all the information required by Rule 6 of the Rules, was sent to the respondent by recorded delivery 68 days before the hearing, (that being more than the 42 days required under the Rules) at the address registered with the Board. Having heard and accepted the advice of the Clerk, the Committee finds that notice was served in accordance with the Rules.
- The Committee then considered whether to proceed in the absence of the respondent. The Committee considered all of the circumstances of the case and, in particular, whether the respondent has chosen not to be present or represented. Mr Goodwin referred the Committee to the respondent’s signed Acknowledgement of Notice of Hearing Form dated 29 September 2016 in which he stated that he did not intend to appear at the hearing, that the respondent admits the factual allegations, but denies that the allegations amount to UPC. The Committee was also referred to the correspondence from the respondent dated 22 September 2016 in which he stated “This is to confirm that I will not be attending the hearings on 6/7th 2016….I am also about to make arrangements to visit……..around that time….Even so it would not be my intention to attend”.
- The Committee has applied Rule 11 of the Rules, the principles set out by the Court of Appeal in R v Jones (Anthony William)  1 AC 1 and the factors set out in Tait v. The Royal College of Veterinary Surgeons  UKPC The Committee has also borne in mind the case of GMC v Adeogba  EWCA Civ 162 reminding itself that “there is a burden on…all professionals subject to a regulatory regime, to engage with the regulator, both in relation to the investigation and ultimate resolution of allegations made against them. That is part of the responsibility to which they sign up when being admitted to the profession.”
- The Committee has considered whether the respondent’s absence was deliberate and voluntary and concluded that, given the contents of his correspondence with the Board, it was. No request for an adjournment has been made by the respondent. The Committee saw no evidence that led it to conclude that by adjourning the matter, the respondent would attend the hearing on any future date. He has not expressed a wish to be represented at the hearing in his absence.
- The Committee has considered the extent of the disadvantage to the respondent in not being able to give evidence having regard to the nature of the case. The respondent has provided detailed written submissions for the Committee’s consideration. In any event, he is afforded the safeguard under Rule 11d of the Investigation Rules. The Committee has also borne in mind the public interest in hearing cases expeditiously.
- The Committee has exercised the utmost care and caution in reaching its decision, and has carefully considered the overall fairness of the proceedings. In considering this application, it has balanced the potential impact on the respondent’s livelihood and reputation in hearing the matter today in his absence, as against the public interest in proceeding with the hearing in a timely manner. Having done so, the Committee is satisfied that the Respondent has been given an adequate opportunity to make arrangements to appear before it, to argue his case in person, and that he has chosen to voluntarily absent himself as he has unequivocally stated that he does not intend to appear at the hearing. Taking all these factors into account, the Committee has concluded that it is fair and in the interests of justice to hear the case in his absence.
- This case arises out of a complaint made by Mr and Mrs M (“the complainants”) on 2 November 2015 in respect of the professional services carried out by the respondent who, at the material time, was trading under the name, AART Architects.
- The complainants had a budget of £60,000 for works to their property. The respondent prepared sketches, but these were considered unsuitable by the complainants as what was prepared by the respondent varied from his design brief. The relationship between the respondent and the complainants subsequently broke down over issues concerning the extent of the build and the ability to build it within their budget. On the 18 May 2015, the respondent submitted an invoice for £4,378.35 for work undertaken. The complainants refused to pay the invoice and the respondent commenced legal proceedings against them, but this was unsuccessful. The respondent’s claim was struck out by the County Court in February 2016.
- Following the complaint to the Board, an allegation was made that the respondent failed to deliver written terms of engagement to the complainants and failed to provide them with a written complaints procedure. Both factual allegations are admitted, but the respondent denies that his failings amount to UPC.
- In reaching its decisions, the Committee has carefully considered the evidence of the complainant together with the documentary evidence presented to it in the Report of the Board’s Solicitor and the 66 pages of documents exhibited to it, which include the respondent’s detailed written representations.
- The Committee has accepted the legal advice given by the Clerk. It has had regard to the fact that the burden of proof is on the Board and that the civil standard applies, namely proof on the balance of probabilities. Whether the conduct alleged amounts to UPC is a matter for the Committee’s independent judgment to which no burden of proof applies.
Findings of Fact:
- The Committee makes the following finding of facts:
- By reason of the respondent’s admission, the Committee finds the facts proved.
- The Committee has also taken into account the following evidence presented to it. In his letters of 29 February, 27 April and 4 July 2016 to the Board, the respondent stated that he provided a copy of his terms of engagement to his clients, a fact that is not accepted by the complainants. However, no copy of such letter has been produced. However, the respondent concedes in his letter of 4 July 2016 that “it was not in the form as the registration board require. The reason for this is that since only taking on commissions for house extensions rather than for larger commercial projects, I have found that house builders are somewhat confused by the standard required form and prefer and understand a single sheet straightforward agreement rather than a more complex and lengthy agreement….I accept that it is not correct for me to use alternatives and not to use the standard requirements for terms of engagement and complaints procedures and apologise for this but with respect do not accept in the circumstances that it warrants level of serious professional conduct and incompetence for which I can contemplate matters that are far worse and deserving of such a definition”.
- Whilst the respondent makes reference in his correspondence to clauses contained in his fee details, and the complainants appear to have had some limited understanding of the basis upon which the respondent’s fees would be charged, the Committee considers that if any written terms of engagement were sent to the complainants, the respondent would have retained a copy, which would be available for production to the Committee. He has not done that. Given the complainants clear and consistent evidence that no such terms were provided, the Committee finds that no such written terms were given to the complainants prior to undertaking any professional work.
- 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;
- your complaints-handling procedure (see Standard 10), including details of any special arrangements for resolving disputes (e.g. arbitration).”
- Standard 4.6 of the Code states:
- “You are expected to ensure that your client agreements record that you are registered with the Architects Registration Board and that you are subject to this Code; and that the client can refer a complaint to the Board if your conduct or competence appears to fall short of the standards in the Code.”
- These written terms must be provided to the client prior to undertaking any professional architectural services.
- In all the circumstances, the Committee finds allegation 1.1 proved. By reason of the facts found proved, the Committee finds that the respondent acted in breach of Standards 4.4 and 4.6 of the Code.
- By reason of the respondent’s admission, the Committee finds the facts proved.
- The Committee has also taken into account the contents of the respondent’s letter dated 4 July 2016 to the Board. In it he accepts “I do not have a set and published complaints procedure this is correct and I find common (sic) amongst colleagues in similar situations. Regarding the rights and wrongs of this, I feel as a sole practitioner it is somewhat impracticable and over the top (and perhaps with today’s leanings to political correctness) for me to have such a formalised procedure as I would expect from larger organisations”.
- Standard 10 of the Code states:
“Deal with disputes or complaints appropriately
10.1 You are expected to have a written procedure for prompt and courteous handling of complaints which will be in accordance with the Code and provide this to clients. This should include the name of the architect who will respond to complaints”.
- Given that the respondent accepts that he did not have a written complaints handling procedure, the Committee finds allegation 1.2 proved. By reason of the facts found proved, the Committee finds that the respondent acted in breach of Standard 10 of the Code.
Finding on Unacceptable Professional Conduct:
- Having found allegations 1 and 1.2 proved, the Committee went on to consider whether the respondent’s conduct amounts to UPC. UPC is defined as conduct which falls short of the standard required of a registered person.
- In reaching its findings, the Committee has carefully considered all the evidence presented to it, all submissions made and has accepted the advice from the clerk. The Committee recognises that not every shortcoming on the part of an Architect, nor failure to comply with the provisions of the Code, will necessarily result in a finding of UPC. However, a failure to follow the guidance of the Code, whether in one’s professional or private life, is a factor that will be taken into account should it be necessary to examine the conduct or competence of an Architect.
- The Committee has considered the authority of Spencer v General Osteopathic Council  EWHC 3147 (Admin). It has borne in mind in reaching its decision that for a finding of unacceptable professional conduct to be made, “a degree of moral blameworthiness on the part of the registrant likely to convey a degree of opprobrium to the ordinary intelligent citizen” was required. Any failing should be serious. The Committee accepts that “mere negligence does not constitute misconduct” and that “a single negligent act or omission is less likely to cross the threshold of misconduct than multiple acts or omissions….a single instance of negligent treatment unless very serious indeed, would be unlikely to constitute deficient professional performance”.
- The Committee has taken into account both Mr Goodwin’s, and the respondent’s submissions (as referred to above in respect of allegation 1.1) that his failings are not so serious that they amount to UPC. The respondent accepts that he did not have a complaints procedure, but he considered the need for one to be “well over the top and demonstrating a lack of practicality and common sense for a sole trader when there is only me to deal with complaints. It seems a case of, well “rules are rules” with no sense of context as to what may be necessary for those larger than a sole practitioner and I think overkill in reverence to the blinkered politically correct culture”.
- However, so far as allegations 1.1 and 1.2 and the corresponding breaches of the Code are concerned, the Committee finds that both individually and collectively, the respondent’s failing, represents conduct falling below the standard expected of a registered Architect. Setting out terms of engagement in writing prior to undertaking any professional work is essential for both the architect and his/her client to understand their respective rights and obligations, and ensures that both parties are aware of their respective contractual obligations. Failure to comply with this obligation, leads to misunderstandings and confusion, and frequently, the breakdown of the architect / client relationship, as demonstrated in the evidence before the Committee. Similarly, clients should be notified of an architect’s complaints procedure in the event that a complaint has to be made. The respondent had taken a conscious decision that compliant written terms of engagement and a written complaints procedure were not necessary given the small size of his practice. However, even though the respondent worked alone, it was still incumbent of him to have a written complaints procedure. His failings, collectively, are serious and adversely impact both on the reputation of the Architect and the profession generally.
- The Committee therefore finds that the Respondent’s conduct as found proved in respect of allegations 1.1 and 1.2 does amount to unacceptable professional conduct.
- The Committee then considered whether to impose a sanction, and if so, which one. The Committee has had regard to the public interest, which includes the need to protect the public, to maintain confidence in the profession and the Board and to declare and uphold proper standards of conduct and behaviour. The Committee has carefully considered all the evidence and submissions made during the course of this hearing. It has heard and accepted the advice of the clerk. It has borne in mind that the purpose of imposing a sanction is not to be punitive although it may have a punitive effect. It has taken into account the respondent’s interests, the indicative sanctions guidance and the need to act proportionately. It has taken into account any aggravating and mitigating factors in this case. The Committee has exercised its own independent judgement.
- Having taken into account the respondent’s submissions, the Committee has identified the following mitigating factors:
- that the respondent has no adverse regulatory history in a career spanning in excess of 40 years;
- he has engaged in the regulatory process and has admitted the factual allegations he faced;
- he has not personally gained from his failings;
- The Committee has identified the following aggravating factors:
- he has not expressed any apology to the complainants or remorse for his actions. On the contrary, he has referred to the complainants as the “worst clients I have ever experienced” who piled “one lie and complaint upon another to justify their cause of avoiding paying any fees which has resulted in my small claims court case against them”. The Committee reminds itself that that the respondent’s claim was struck out.
- he has demonstrated very little insight into his failings. Even though he accepted that he had not used compliant terms of engagement, he also stated that “the only mistake I made was continuing to work for these impossible clients and trying to please them”. He has not expressed any understanding of his obligation, even as a sole trader, to comply with standards 4 and 10 of the Code. He has not demonstrated that he has taken steps to remediate his failings. The Committee also considers that the respondent’s UPC results from a deliberate non-compliance with the Code given what he perceives the lack of necessity to do so given that he is a sole practitioner. In his letter to the Board dated 4 July 2016, rather than recognising his own failings, he maintains the view that it is the responsibility of the Board to simplify and adapt procedures for sole traders.
- In the circumstances, the Committee considers the risk of repetition of his unacceptable professional conduct, should he continue in practice, to be high.
- The Committee notes that the matters found proved are serious to the extent that Mr Smale’s failings diminish both his reputation, and that of the profession generally. The Committee therefore concluded that the respondent’s conduct was sufficiently serious for it to require the imposition of a sanction and has considered them in ascending order of severity.
- The Committee first considered whether to impose a reprimand. Given the respondent’s lack of insight and the risk or repetition, the Committee considered that such a sanction was neither appropriate nor proportionate.
- The Committee then considered whether to impose a penalty order and concluded that such a sanction was the appropriate and proportionate sanction to impose. Given the identified aggravating factors and the risk of repetition of his UPC, the Committee concluded that the UPC found proved was too serious for the imposition of a reprimand, so decided on a penalty order. Such a sanction adequately reflects the seriousness of the UPC found proved and would adequately protected and the public interest. The penalty order will be in the sum of £500.
- The Committee considered whether to impose a suspension order, but given the suitability of a penalty order, the Committee concluded that such a sanction would be unduly punitive.
- The Committee therefore imposes a £500 penalty order. That sum must be paid within 28 days. Failure to pay that sum within that time frame may lead to the order being replaced with a suspension or erasure order.
- That concludes this determination.