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Mr William Paterson

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

 

In the matter of

Mr William Paterson (038255H)

Held on 1 November 2016 2016

At

Chartered Institute of Arbitrators

12 Bloomsbury Square

London

———-

Present

Mr Julian Weinberg (Chair)

Mr Roger Wilson (PCC Architect Member)

Mr Stephen Neale (PCC Lay Member)

Mr Stephen Battersby (Clerk)

 

———–

 

Ms Catriona Watt of Anderson Strathern appeared on behalf of the Board

Mr Paterson appeared in person

 

  1. The Board is represented by Ms Catriona Watt. Mr Paterson has attended this hearing but is not legally represented. Mr Paterson faces a charge of unacceptable professional conduct (“UPC”) based on four allegations in that he:

 

Allegation 1:  Failed to complete the planning permission application in relation to a development in a prompt and timely manner;

 

Allegation 2:  He withdrew the application for said planning permission in or around November 2013 without the consent of the Complainant;

 

Allegation 3:  He failed to advise the Complainant that he had withdrawn the application for the said planning permission until 8 March 2014;

 

Allegation 4:  He failed to safeguard the Complainant’s monies by placing a refund that he had received from Highland Council on or around November 2013 into his personal current account

 

and that by doing so, the respondent acted in breach of Standards 6.1, 6.2, 6.3 and 7.2 of the Architects Code: Standards of Conduct and Practice 2010 (“the Code”).

 

  1. By way of a preliminary matter, the Clerk, in the presence of the parties, raised the fact that the report of the Board’s Solicitor identified a number of matters that should have been redacted from the papers. These related to matters that the Investigation Panel had considered which were not before the Committee, and details of a previous disciplinary finding made against the respondent. She referred the Committee to the case of Mahfouz v GMC [2004] EWCA Civ 233 and reminded the Committee that it should be seen to be acting fairly in the eyes of the “fair minded observer”. She advised the Committee that it should disregard such irrelevant matters in its fact finding exercise, and that, if it does so, as an experienced Committee, it would not need to recuse itself from hearing the case. The Committee accepted that advice. The respondent was “quite happy” for the Committee to continue to sit and Ms Watt raised no objection either.

 

  1. In the circumstances, the Committee concluded that it saw no reason for it to recuse itself, identifying that it would disregard those prejudicial matters referred to by the clerk at the fact finding stage of this hearing.

 

Background:

  1. A complaint has been made by Ms JM (“the complainant”), in respect of the professional services carried out by the respondent.

 

  1. The background to the allegations is that the complainant first contacted the respondent, through a builder in 2008 to apply for planning permission for a building project. The application was refused but the respondent was instructed to make a further application in late 2010 following a meeting in around September / October 2010. The chronology of events after that date is as follows:

 

  • The complainant emailed the respondent on 17 February 2011 for an update. He responded by saying that he was progressing the application;
  • Around June 2011, the respondent requested cheques from the complainant for planning application fees to the Highland Council. They were cashed by the Council on 10 January 2012;
  • On 16 November 2011, the complainant contacted the respondent as she had not heard from him having sent the cheques referred to above in June 2011;
  • On 4 December 2011, the respondent told the complainant that he would be submitting the application that week;
  • The Highland Council received the planning application on 5 January 2012 who, the same day, advised that the application was incomplete and could not be progressed. The Council stated that the application would be returned to the respondent with the fee submitted if the additional information requested was not provided within 28 days;
  • The complainant requested a further update on 19 July 2012. The respondent said that further documentation was required but the complainant stated that she had already supplied this to the respondent;
  • The complainant requested a further update on 30 April 2013. He stated that he would be preparing the necessary design statement over the next week;
  • The complainant requested a further update on 20 September 2013. The complainant alleges that the respondent responded in around October 2013 stating that he had had a computer problem and that he had lost the design statement, but that he would start it again and submit it to the Council;
  • The complainant requested a further update on 24 February 2014. The respondent replied on 8 March 2014 stating that the application had been withdrawn and that he was preparing a new application based on the previous one. It is alleged that the respondent had not asked the complainant for her permission to do that. He also confirmed that the application fee had been returned to him in November 2013;
  • The complainant requested a further update on 9 July 2014. The respondent replied on 5 October 2014 stating that he would submit a new application the following week. He requested a further cheque for the application fee as he had used the money returned from the Council to prepare a detailed contour map of the site in question. This, it is alleged, had not previously been discussed with the complainant. When queried, the respondent stated he had made an error but that he intended to retain some of the returned money on account of his fees;
  • The complainant raised her concerns directly with The Highland Council in October 2014 who confirmed that the planning application had been withdrawn in November 2013. The £319 application fee had been returned to the respondent when the application was withdrawn. The respondent paid this money into his own current account. This money, together with a £100 advert fee and an additional £92 was refunded to the complainant in October 2015.

 

  1. All the factual allegations are admitted. The respondent also admits that if any factual allegations are found proved, such failings amount to UPC.

 

  1. In reaching its decisions, the Committee has carefully considered the documentary evidence presented to it in the Report of the Board’s Solicitor and the 34 pages of documents exhibited to it. The Board did not call the complainant to give live evidence, relying instead on the documents before the Committee. The Committee has also taken into account the admissions to the allegations made by the respondent in his Acknowledgement of Notice of Hearing form and at the hearing today, together with his submissions.

 

  1. 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, notwithstanding the respondent’s admission.

 

Findings of fact:

  1. The Committee makes the following finding of facts:

 

Allegation 1

  1. By reason of the respondent’s admission, the Committee finds the facts proved. The respondent accepts that he had not dealt with the application “as speedy as might be expected”. The respondent suggests that much of the delay resulted from the complainant failing to provide the additional information required to complete the application, but, according to the complainant, this had in fact been provided in June 2011. The respondent stated that he had no knowledge of it until 2012. On either version of events, the respondent accepts that he failed to complete the planning application in a prompt and timely manner. Bearing in mind the admissions made by the respondent and having regard to the chronology set out above, the Committee finds that the respondent acted as alleged.

 

  1. Standard 6 of the Code states:

 

Standard 6 – Carry out your work faithfully and conscientiously

 

1              You are expected to carry out your work promptly and with skill and care and in accordance with the terms of your engagement.

2              You should carry out your professional work without undue delay and, so far is reasonably practicable, in accordance with any time-scale and cost limits agreed with your client.

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              ……

 

  1. By acting as found proved, that Committee finds that the respondent failed to carry out his work faithfully and conscientiously in breach of standards 6.1 and 6.2 of the Code.

 

Allegation 2

  1. By reason of the respondent’s admission, the Committee finds the facts proved.

 

  1. The respondent accepts the allegation and confirmed in his correspondence with the Board, that he should have informed the complainant that he was withdrawing the application. The Committee notes that correspondence from the Council confirms that it cannot unilaterally withdraw an application.

 

  1. By acting as found proved, the Committee finds that the respondent failed to carry out his work faithfully and conscientiously in breach of standard 6.3 of the Code.

 

Allegation 3

  1. By reason of the respondent’s admission, the Committee finds the facts proved.

 

  1. The respondent accepts that he did not advise the complainant that he had withdrawn the application until some four months after the event. He accepts in his correspondence with the Board that he should have informed her sooner.

 

  1. By acting as found proved, that Committee finds that the respondent failed to carry out his work faithfully and conscientiously in breach of standard 6.3 of the Code.

 

Allegation 4

 

  1. By reason of the respondent’s admission, the Committee finds the facts proved.

 

  1. The Committee also notes that it is not disputed that The Highland Council refunded the payment of £319 to the respondent after he withdrew the planning application. The respondent accepts that he paid the cheque into his personal current account when the monies should have been paid into a client account. The Committee has noted that, in his responses to the Board, the respondent stated that “the reality is that the money I have been holding on Ms M’s behalf is perfectly safe. I am still awaiting her instructions as to what she would like me to do with that money”. The respondent stated that he refunded the monies owed to the complainant at the beginning of this year.

 

  1. Standard 7 of the Code states:

 

Standard 7 – Be trustworthy and look after your clients’ money properly

 

 

7.2          You should keep such money in a designated interest-bearing bank account, called a “client account” which is separate from any personal or business account.

 

  1. By acting as found proved, that Committee finds that the respondent failed to look after his client’s money properly in that the money was not kept in a designated client account in breach of standard 7.2 of the Code.

 

Finding on Unacceptable Professional Conduct:

 

  1. Having found all the allegations 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.

 

  1. 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.

 

  1. The Committee has considered the authority of 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”. the Committee also recognises that any failing must be serious (Vranicki v Architects Registration Board [2007] EWHC 506 Admin).

 

  1. It is the Committee’s finding that the facts found proved, are serious failings. The delays in pursuing the planning application were lengthy and the complainant was not kept informed of developments, and importantly, that the application had been withdrawn. Such contact as there was, took place as a result of the complainant being proactive in chasing the respondent for an update. The respondent also retained client monies in his own personal account in breach of the Code for a lengthy period of time. The allegations found proved and the corresponding breaches of the Code, both individually and collectively, are serious and adversely impact both on the reputation of the Architect and the profession generally. Such failings can quite properly be categorised as UPC.

 

  1. The Committee therefore finds that the Respondent’s conduct does amount to unacceptable professional conduct.

 

  1. The respondent then addressed the Committee in mitigation. He reminded the panel that he had taken some remedial steps to address his failings and that, practising alone, any sanction that prevented him from working as a registered architect would have a severe impact on him.

 

  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, behaviour and competence. The Committee has carefully considered all the evidence and submissions made during the course of this hearing. It has heard and accepted the advice of the clerk. It has borne in mind that the purpose of imposing a sanction is not to be punitive although it may have a punitive effect. It has taken into account the respondent’s interests, the indicative sanctions guidance and the need to act proportionately. It has taken into account any aggravating and mitigating factors in this case. The Committee has exercised its own independent judgement.

 

  1. Having taken into account the respondent’s submissions, the Committee has identified the following mitigating factors:

 

  • he has fully engaged in the regulatory process;
  • he made admissions in respect of all the allegations he faced, and further, that his conduct amounts to UPC;
  • he has stated that he has taken corrective action to address his failings, for example by implementing an effective complaints procedure (although this is not an allegation against the respondent in this case) and that he has incorporated a system for monitoring timescales.

 

  1. The Committee has identified the following aggravating factors:

 

  • the respondent was previously made the subject of an erasure order imposed in 2006, albeit for matters, dissimilar in nature. He successfully sought readmission to the profession in 2010. However, having done so, the failings found proved, and the breadth of them, occurred within a relatively short period of time after readmission when the Committee would have expected the respondent to have taken particular care to understand and comply with his professional obligations;
  • the UPC found proved continued over a lengthy period of time;
  • The Committee considers that allegation 4 is particularly serious in that it relates to client money that was not held in a designated client account and remained in the respondent’s account for a substantial period of time. The Committee has particular concern that he saw no need to move the money from his personal account because he had not received instructions from the complainant. Whilst he has repaid the money to the complainant, he held the money in his personal account for approximately two years. Even though the respondent stated that he would not now hold client money, this nevertheless, in the Committee’s view, demonstrates a fundamental lack of understanding of his professional responsibilities when handling client money;
  • The Committee has heard no expression of remorse or regret such that the Committee can have confidence that the respondent has real insight as to the impact of his conduct on the complainant and the profession.

 

  1. Taking all these factors into account, and particularly given that these matters arose shortly after being readmitted to the profession after erasure, the Committee considers the risk of repetition of his failings to be significant.

 

  1. The Committee notes that the extent and breadth of the matters found proved are serious to the extent that Mr Paterson’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.

 

  1. The Committee first considered whether to impose a reprimand. Given the seriousness of the UPC found proved, the Committee considered the respondent’s failings too serious for such a sanction to be either appropriate or proportionate.

 

  1. The Committee then considered whether to impose a penalty order but discounted this as an appropriate sanction for the same reasons.

 

  1. The Committee then considered whether to impose a suspension order. The Committee does not consider his failings fundamentally incompatible with remaining a registered Architect, and that the respondent’s conduct is capable of being remedied. However, as previously stated, these were serious failings which posed a clear risk to clients and to the reputation of the profession generally. The fact that these matters arose after having been made the subject of an erasure order leads the Committee to conclude that a suspension order would not be the appropriate and proportionate sanction to impose to protect the public and the reputation of the profession and to declare and uphold professional standards of behaviour and conduct. Even though the respondent had been the subject to an erasure order previously, the respondent still failed to comply with his professional obligations. The Committee cannot now therefore have any confidence that any lesser sanction would have the desired effect of ensuring future compliance.

 

  1. The Committee therefore imposes an erasure order. The Committee considers that, in all the circumstances, only permanent removal from the register will protect the public and the reputation of the profession. It recommends that the respondent should not be considered for readmission to the profession for a minimum period of two years.

 

  1. That concludes this determination.

 

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