Select Page

Mrs Helen Victoria Phillips

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

Mrs Helen Victoria Phillips 064500A

Held on 26-28 November 2019 and 9-11 March 2020

At

Architects Registration Board
8 Weymouth Street
London
W1W 5BU

———-

Present

Julian Weinberg (Chair)
Roger Wilson (PCC Architect Member)
Martin Pike (PCC Lay Member)

———–

In this case, ARB is represented by Ms Kathryn Sheridan Kingsley Napley LLP.
Mrs Phillips has attended this hearing and is legally represented by Mr Leon Smith of DAC Beachcroft LLP.

The Professional Conduct Committee (“PCC”) found Mrs Phillips guilty of unacceptable professional conduct (“UPC”) in that she:

1. (i) Did not manage costs and valuations competently; and
(ii) Issued a Practical Completion Certificate when it was not appropriate to do so.

2. Her actions at particular 1(ii) were misleading and dishonest.

and that by doing so, she acted in breach of Standards 1, 4 and 6 of the Architects Code: Standards of Conduct and Practice 2017 (“the Code”).

The sanction imposed is a suspension order for a period of 6 months.

Allegations

1. In this case, ARB is represented by Ms Kathryn Sheridan. Mrs Phillips (“the Respondent”) has attended this hearing and is represented by Mr Leon Smith of DAC Beachcroft. Mrs Phillips faces a charge of unacceptable professional conduct (“UPC”) based on two allegations in relation to breaches of the Architects Code: Standards of Conduct and Practice 2017 (“the Code”). It is alleged that:

1. The Respondent’s actions as Contract Administrator fell significantly below the standard of a reasonably competent architect in that she:

i. Did not manage costs and/or valuations competently or at all; and/or
ii. Issued a Practical Completion Certificate when it was not appropriate to do so.

2. The Respondent’s actions at particular 1(ii) were misleading and/or dishonest.

Background

2. At the material time, the Respondent was practising as a registered Architect and partner at Carlisle Jessop 2004 LLP, trading as CJ Architects. This case arises out of a complaint made by Mr W (“the Complainant”), in relation to the Respondent’s conduct regarding her managing of costs and issuing a Practical Completion Certificate when acting as Contract Administrator on the Complainant’s project at his home.

3. The Respondent was initially engaged to design the alterations to the property and obtain planning permission. The Complainant proceeded with a contractor who the Respondent knew. In March 2017, the relationship between the Contractor and the Complainant broke down and the Contractor stopped working on the project and refused to carry out any further work. At that point, the Complainant asked the Respondent to become involved again. A JCT Minor Works contract was subsequently prepared and the Respondent was then appointed as the Contract Administrator. This provided for completion of the works by 19 May 2017. However, the works were not completed either within that timescale or to an adequate standard. The Contractor left the site in July 2017.

4. The Respondent provided 15 Certificates of Progress Payment to the Complainant between March and September 2017. Over that period, the Complainant raised his concerns with the Respondent that the amounts of the certificates did not reflect the true value of the work undertaken. This contributed to the breakdown in the relationship between the Complainant and the Contractor in July 2017.

5. On 29 August 2017, the Respondent issued a Practical Completion Certificate in circumstances where it is alleged that the contracted work had not been completed. The certificate certified that:

i. Practical completion of the works had been achieved and;
ii. That the Contractor has complied with the contractual requirements in respect of information for the health and safety file.

6. The Complainant then appointed a Quantity Surveyor, in December 2017, who prepared a report. That report concluded that approximately £40,000 of work remained outstanding identifying a range of defects. The Complainant subsequently appointed a new Contract Administrator in March 2018 and the Practical Completion Certificate was revoked in May 2019.

7. As part of its investigation following a complaint having been made to it, ARB appointed an Inquirer, Ms Carol Norton (“the Inquirer”), who prepared a report dated 20 September 2019 and a subsequent addendum. She noted that there were no available records of site visits or meetings available and concluded that the quantity of unfinished work should have been reflected in the amount valued in the Certificates of Progress Payments. She further concluded in her addendum, having reviewed the Respondent’s Instructions issued, that the additional works and costs were not managed in a way that kept the project within the Complainant’s budget and that there had been an overvaluation of incomplete / defective works.

8. So far as the issue of the Practical Completion Certificate is concerned, she commented that the Certificate was issued without a Building Control Certificate, an Electrical Test Certificate or a Gas Safety Certificate having been issued and without there being a copy of the Health and Safety File.

9. The Inquirer concluded that the Respondent’s actions regarding the valuations and the issuing of the certificates fell well below the standard expected of a reasonably competent Architect.

10. It is alleged that the Complainant and others were entitled to rely on the Respondent’s Practical Completion Certificate which wrongly stated that the works had been completed to a satisfactory standard.

11. It is further alleged that the Respondent’s actions were misleading and/or dishonest in certifying the works as being practically complete.

12. It is ARB’s case that, in respect of each of the allegations in relation to certifying practical completion, the Respondent would have been aware of the stage the construction works would have reached, but nevertheless, certified practical completion on the terms set out above. It is alleged that in doing so, the Respondent would have been aware that the information contained in the certificate was untrue and misleading; that the Respondent would have been aware at the time that that was the case, and that when judged by the standards of ordinary people, her conduct would be considered to be dishonest.

13. It is ARB’s case that practical completion should not have been certified where the work was patently incomplete. Ms Sheridan submitted that works are only generally considered to be practically complete where there are no outstanding defects, save for minor items or snagging, and the building can be put to its intended use. This, Ms Sheridan stated, was a critically important stage, from which, amongst other things, the defects liability period begins.

14. The factual allegations including dishonesty, and hence UPC, are denied. The Respondent states that after she was invited to resolve the original dispute between the Complainant and the Contractor. She advised the Complainant to instruct a Quantity Surveyor but the Complainant declined to do so. It is her case that the Complainant wanted to proceed with the works without a full schedule of works and valuations as he could not afford the cost of delay. She issued 16 Architects Instructions and stated that she correctly assessed the value of the building work undertaken by the Contractor in accordance with the contract.

15. It was her case, prior to the start of the hearing, that it was necessary to issue the Practical Completion Certificate because the Complainant had expressly instructed that he did not want the Contractor to be further involved in the project and that he and his wife had retaken possession of the property. Issuing the Practical Completion Certificate was in her opinion, the appropriate way to bring an end to the works in accordance with the contract terms; to procure the Contractor’s health and safety file and to regularise any issues regarding the Complainant’s insurance arrangements for the property.

16. In the circumstances, it was her case that her actions did not fall short of the standard expected of a reasonably competent Architect and therefore, she denies that her conduct amounts to UPC.

17. In reaching its decisions, the Committee has carefully considered the live evidence and the documentary evidence presented to it in the Report of ARB’s Solicitor and the 642 pages of statements and exhibited documents. The Committee has also had sight of the Respondent’s statement and 348 pages of exhibits, and has also heard her live evidence. The Committee has accepted the legal advice given by the Legally Qualified Chair which is a matter of record. It has had regard to the fact that the burden of proof is on ARB 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.

Assessment of Witnesses

18. In considering the credibility of ARB’s evidence, the Committee found the Complainant, save for his evidence regarding when he moved back into his premises which appeared at odds with the documentation before the Committee, to be a credible and consistent witness. It concluded that his evidence was therefore generally reliable.

19. The Committee considered the Inquirer’s evidence to be credible and consistent and her conclusions well-reasoned. The Committee considered that the consistency between the failings identified by both the Complainant and the Inquirer added credibility to their respective evidence.

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

i. The Respondent had provided two written responses to ARB in response to the allegations. She initially stated in her response dated 1 November 2017 that she had issued the practical completion certificate “(a) to terminate the contractor’s appointment in accordance with the terms of the agreed contract and (b) to procure the contractor’s health and safety file”. In subsequent correspondence, she stated that the certificate was also issued to regularise “any issues in respect of the client’s insurance arrangements for the property”.

ii. However, when she gave evidence to the Committee on 27 November 2019, she then gave a third explanation. The Respondent claimed for the first time that the Certificate for Practical Completion was issued in relation to a reduced scope of works that had been agreed at a meeting on 4 July 2017. She stated that it was therefore appropriate in her view, to issue the certificate because the works had been completed in accordance with that reduced scope. This position, the Committee concluded, was at odds with her responses to ARB. It was further contradicted by the documentary evidence including her email of 4 July 2017 to the Complainant following their meeting that day, which referred to what work the Contractor might be able to do within the Complainant’s remaining funds. That email did not record an agreed reduced scope of work.

iii. This explanation had not been previously provided to ARB when she responded to the allegations, nor had it been raised with the Complainant or the Inquirer when they gave evidence. The Committee therefore concluded that this explanation lacked credibility given her failure to refer to it prior to her giving evidence at this hearing.

21. This led the Committee to conclude that the Respondent’s evidence was less reliable than that of ARB’s witnesses.

Preliminary Application

22. During the course of the Respondent’s cross examination, and hence, after the conclusion of ARB’s case, she made reference to the existence of a defects list that the Respondent stated she had prepared. No reference had been made to it either in correspondence before the hearing, nor had ARB’s witnesses been shown or asked to comment on it.

23. Mr Smith made an application for the list to be adduced in evidence which was opposed by Ms Sheridan. She stated that the document had not previously been seen and that there had been no opportunity for ARB’s witnesses, who had now concluded their evidence, to comment on it. She stated that the Respondent had been legally represented and had had the opportunity to adduce this evidence in advance of the hearing but that this had not been done despite having submitted lengthy representations.

24. The Committee heard and accepted the advice of the Legally Qualified Chair. It had regard to Rule 9 of the Professional Conduct Committee Rules 2019 (“the Rules”) which states:

9. If the Respondent intends to plead not guilty then not less than 21 days before the date set for the hearing the Respondent shall serve upon the Presenter:
a. particulars of the defence;
b. a copy of any written statement or other document or plan that he or she intends to adduce in evidence at the hearing;
c …
Such notice may be given by being sent by letter addressed to the Presenter at the registered offices of the Board or at any other address given for this purpose in the notice served under Rule 6 of these Rules.

25. The Committee also had regard to Rule 15b of the Rules which states:

b. Neither party shall, without the consent of the other or the permission of the Hearing Panel, call a witness or adduce evidence that was not referred to in a notice served on the other before the hearing in accordance with these Rules.

26. The Committee has had regard to the overall fairness of the hearing, noting that ARB, and its witnesses, who had now concluded their evidence, had not had the opportunity to consider and comment on the proposed evidence. Additionally, no good reason had been provided for this evidence not being previously disclosed in accordance with the Rules.

27. In the circumstances, the Committee refused the Respondent’s application for this additional evidence to be disclosed at this late stage

Findings of Fact:

28. The Committee makes the following finding of facts:

Allegation 1.1

29. The Committee finds the facts alleged proved for the following reasons.

30. The Committee has had sight of the fifteen Progress Payment Certificates that the Respondent issued.

31. The Inquirer gave evidence to confirm the contents of her report in which she raised concern as to the lack of notes or records of site visit meetings to justify the various valuations. As such, she concluded, and the Committee accepted, that it would not have been possible to verify the value of the works certified by the Respondent as having been completed. She also identified a number of additional items that were not the subject of Architect’s Instructions and concerns regarding the charging of VAT on the electrical and plumbing work. Based on the report of the Surveyor, the Inquirer concluded that there was a substantial amount of outstanding works which should not have been valued as having been satisfactorily completed. She concluded that: “based on the evidence I have seen the Architect’s performance regarding valuations and the issuing of certificates is well below the standard expected of a reasonably competent architect”.

32. The Committee has also noted and accepted the evidence of the Complainant who expressed his concern that he was unable to reconcile the value of the work certified with the work actually carried out. By way of example, the Committee noted the contents of the Complainant’s letter dated 14 June 2017 in which he stated: “Every time we get an invoice from the contractors it is massively inaccurate and requires me to spend ages of my time unpicking it (normally part of CA work I guess). On top of that you then spend time certifying….which frankly. [sic] is unaffordable. I am effectively paying for someone else’s inadequacy in producing a fair and accurate invoice and to compound that, your time in double-checking after I have done the heavy-lifting on analysing it”.

33. The Respondent accepted in evidence that:

i. Managing costs was integral to her role as Contract Administrator;
ii. She did not have any site notes to justify her valuations, which she accepted was a serious failing on her part;
iii. She had to correct all but two of her Certificates of Progress Payment because of errors including failing to properly account for retention monies. Two certificates both numbered 7 were issued on 21 June and 27 June 2017 for £17,269.66 and £9943.66 respectively. The Committee noted that the inconsistent numbering of the certificates (for example, there were no certificate numbers 1 and 4) was further evidence of the Respondent’s disorganised management of costs;
iv. She accepted that she had failed to adequately manage the VAT element of the work undertaken, accepting that she was unaware of the VAT that was properly chargeable on the plumbing and electrical aspects of the work. As such she accepted that she was unable to accurately value that part of the work.

34. The Inquirer also gave evidence that the Respondent failed to issue Architect’s Instructions in respect of approximately £8000 worth of work, relating to approximately 50 items of additional work. She concluded that this failure would significantly impact on the Complainant’s ability to keep track of the costs being incurred and amounted to a serious failing on the Respondent’s part given her role as Contract Administrator.

35. The Complainant stated in evidence that he repeatedly requested costed Architect’s Instructions but that these were not forthcoming. The Respondent had recognised the importance of providing Architect’s instructions in her email of 8 March 2017 to the Complainant in which she stated that “The rule is that if there is no Architect Instruction for an item of variation, then there is no payment”. The Committee noted that in addition to providing some Architect’s Instructions, some emails were sent by the Respondent, the contents of which, the Respondent submitted, was such that they constituted Architect’s Instructions. The Inquirer conceded that as a theoretical possibility. However, the Respondent conceded that the documenting of her Architect’s Instructions was not as complete as it should have been and that there were some costs items that could not be reconciled to a written instruction, for example in relation to the attic studwork. When asked how many times this occurred, the Responded stated “more than I would like”. She accepted that “too many were overlooked but I did my best”. The Respondent accepted that her failures regarding the issuing of Architect’s Instructions was a serious failing on her part.

36. In all the circumstances, the Committee finds that the Respondent did not manage costs and/or valuations competently and that in doing so, her actions as Contract Administrator fell significantly below the standard of a reasonably competent architect. The Committee therefore finds the facts alleged proved to the extent that the Respondent did not manage costs and/or valuations competently.

37. Standard 4 of the Code states:

Competent management of your business
4.1 You are expected to have effective systems in place to ensure that your practice is run professionally and that projects are regularly monitored and reviewed.

38. Standard 6 of the Code states:

You should carry out your professional work conscientiously and with due regard to relevant technical and professional standards
6.1 You are expected to carry out your work with skill and care and in accordance with the terms of your engagement.
6.3 You are expected to keep your client informed of the progress of work you undertake on their behalf and of any issue which may significantly affect its quality or cost.

39. In the circumstances, the Committee finds that the Respondent acted in breach of Standards 4 and 6 of the Code.

 

Allegation 1.2

40. The Committee finds the facts alleged proved for the following reasons.

41. It is not disputed that the Respondent issued the relevant Practical Completion Certificate on 27 August 2017.

42. The Committee has taken into account the contents of the report of the Inquirer together with the supporting photographic evidence. The Inquirer stated in evidence that works should only be certified as practically complete when there were no outstanding defects, save for minor or snagging issues, and that the building can be put to its intended use. The issuing of the certificate starts the defects liability period. The Complainant gave evidence that at the time, there were a number of outstanding works including there being no hot water or heating; incomplete steelwork to the staircase; there was no front window and the standard of plastering was poor. In addition, the Surveyor valued the outstanding works at approximately £40,000.

43. The Inquirer also identified that “A major issue of concern is the lack of the Building Control Certificate, the Electrical Test Certificate, the Gas safety certificate and a copy of the Health and Safety file to comply with CDM regulations. Yet a Practical Completion Certificate has still been issued and certificate 9 has been issued releasing half the retention monies”.

44. As set out in paragraph 20 above, the Respondent gave a number of inconsistent explanations for the issuing of the Practical Completion Certificate. Her explanation, first raised in her evidence that the scope of the works was reduced by agreement on 4 July 2017, is at odds with her previous explanations, including her representations to ARB made in her letter dated 28 February 2019. In that letter, she stated: “A Certificate of Practical Completion was issued on 29 August 2017 in circumstances where the works had not yet been completed in accordance with the terms of the contract and relevant instructions. However, the complainant and his wife instructed that they no longer wished for the contractor to have any further involvement with the works and had taken occupation of the property”.

45. The Committee notes that there is no corroborating evidence before it to record any such agreement and the Practical Completion Certificate does not identify that works had been completed subject to any reduced scope of work. Rather, it certifies that practical completion had been achieved under the terms of the JCT Minor Works contract without reference to any caveat. Had that been the true position, the Committee did not consider it credible that she would not have mentioned it in her correspondence both to the Complainant and to ARB in responding to the allegations, noting that this position was not raised with ARB’s witnesses. In the circumstances, the Committee rejects the Respondent’s evidence that a reduced scope of works was ever agreed. As such the Committee finds that it was not appropriate to issue the Practical Completion Certificate when she did. The Committee also notes that the Respondent accepted in response to questions put to her by Ms Sheridan, that it was a serious failing to issue the Practical Completion Certificate when she did. She accepted that it had been misleading to do so, but she denies that she had acted dishonestly.

46. In addition, the Respondent conceded in evidence that at the time the certificate was issued, the Respondent was not in possession of the Building Control, Certificate, Electrical Test Certificate or Gas Safety Certificate. The Committee noted that the Gas Safety Certificate was subsequently refused on its first application. The Inquirer identified this as a “major cause for concern”. In all the circumstances, the Inquirer concluded that it was not appropriate for the Practical Completion Certificate to be issued at that time.

47. In considering whether it was appropriate for the Practical Completion Certificate to have been issued, the Committee has also borne in mind that the Complainant subsequently instructed a new Contract Administrator in March 2018. That resulted in the Practical Completion Certificate being revoked in May 2019. Such a course, the Committee concluded, was inconsistent with the works having been satisfactorily completed even if there had been any agreed reduced scope of works.

48. In all the circumstances, the Committee finds that the Respondent issued a Practical Completion Certificate when it was not appropriate to do so. As such, it finds the facts of this particular proved.

49. In the circumstances, the Committee finds that the Respondent acted in breach of Standards 4 and 6 of the Code.

Allegation 2

50. The Committee finds the facts alleged proved for the following reasons.

51. The Committee first considered whether the Respondent’s actions found proved at 1(ii) were misleading. In reaching its decision, it bore in mind the ordinary definition of the word in that an act is misleading if it gives the wrong idea or impression.

52. The Committee finds that, as a matter of fact, the works were not completed in accordance with the JCT Minor Works contract. The Committee concluded that it was misleading to certify that they were. Similarly, the Committee finds that it was misleading to certify that the contractor had complied with the contractual requirements in respect of information for the health a safety file when the Respondent was aware of the absence of the Building Control Certificate, the Electrical Test Certificate and the Gas Safety Certificate.

53. The Committee then went on to consider whether the Respondent acted dishonestly as alleged.

54. In considering whether the Respondent acted dishonestly, the Committee has applied the test for dishonesty as set out in Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67.

“When dishonesty is in question the fact-finding tribunal must first ascertain subjectively the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the objective standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.”

55. The Committee has had regard to the case of SRA v Siaw [2019] EWHC 2737 (Admin) in reminding itself of the need to apply the Ivey test without reference to the Respondent’s motive. It is also mindful of the fact that the absence of a motive does not preclude the finding of dishonesty: Alam v GMC [2015] EWHC 854 (QB). It has also taken into account the Respondent’s good character and the approach to take in those circumstances applying the Legally Qualified Chair’s advice.

56. For the reasons set out above, the Committee has rejected the Respondent’s position that it was appropriate for the Practical Completion Certificate to be issued.

57. In the circumstances, in applying the first limb of the Ivey test, the Committee finds that the Respondent, at the time of issuing the Professional Consultant’s Certificate, knew that the works in question were not practically complete, and that by doing so, she knew the contents of the certificate were untrue and misleading. The Respondent in her written representations, for example in her letter to ARB dated 28 February 2019, stated that she was aware at the time she issued the certificate that the building works were not complete. However, she stated that her reason for issuing the certificate was because she considered this to be the appropriate way to terminate the contract with the Contractor believing this to be in the Complainant’s best’s interests. This, the Committee concluded, was her rationale for issuing the certificate. However, this did not justify the Respondent issuing the certificate. In doing so, the Committee finds that the Respondent made the relevant certifications knowing they were untrue and misleading.

58. In the circumstances, the Committee finds that ordinary decent people would consider knowingly making false certifications, irrespective of the Respondent’s desire to help her clients resolve their differences with the Contractor, to be dishonest.

59. Standard 1 of the Code states:

Honesty and Integrity

1.1 You are expected at all times to act with honesty and integrity and to avoid any actions or situations which are inconsistent with your professional obligations. This standard underpins the Code and will be taken to be required in any consideration of your conduct under any of the other standards.

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 your profession.

60. In the circumstances, the Committee finds that the Respondent acted dishonestly and in breach of standard 1 of the 2017 Code.

61. In the circumstances, the Committee finds the facts of allegation 2 proved in that the Respondent’s actions were both misleading and dishonest.

Finding on Unacceptable Professional Conduct/Serious Professional Incompetence:

62. Having found allegations 1.1, 1.2 and 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. Any finding of UPC is a matter for the Committee’s independent judgment.

63. 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 Legally Qualified Chair. 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.

64. The Committee recognises that any failing should be serious, such that it would attract a degree of opprobrium. The Committee has borne in mind the case of Spencer v General Osteopathic Council [2012] EWHC 3147 (Admin) and accepts that “mere negligence does not constitute misconduct” and that “a single negligent act or omission is less likely to cross the threshold of misconduct than multiple acts or omissions (The Queen on the Application of Dr Malcolm Noel Calhaem –v- General Medical Council [2007] EWHC 2606 (Admin). Misconduct, which is akin to UPC, was defined in the case of Roylance v GMC [2000] 1 AC 311 as, “a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances”. The Committee also recognises that any failing must be serious (Vranicki v Architects Registration Board [2007] EWHC 506 Admin).

65. The Committee has taken into account all the evidence before it together with both Ms Sheridan’s and Mr Smith’s submissions.

66. However, so far as the matters found proved and the corresponding breaches of the Code are concerned, the Committee finds that the Respondent’s failings represent conduct falling substantially below the standard expected of a registered Architect.

67. The Respondent had been instructed to act as Contract Administrator to try and resolve a difficult situation for the Complainant where it was apparent that there had already been a number of delays in the project prior to her appointment, which was intended to facilitate the smooth running of the project. The Respondent was aware that the contractor’s paperwork was “really really bad”. This should have alerted her to the importance of effectively managing costs. That the Respondent failed to manage costs and valuations competently, amounted to a substantial falling short of the standard expected of her. Her role was not to try and please everybody, but to act as an impartial contract administrator.

68. Compliance with Standard 1 goes to the heart of what it means to be a professional. Failing to act honestly, particularly in these circumstances where reliance is placed on the certificates, amounts to a serious falling short of an Architect’s core obligations. In seeking to resolve a stressful situation for her clients, and in circumstances where the project had been fraught with difficulties, the Respondent had failed to comply with a basic professional obligation.

69. The Committee therefore concluded that the matters found proved represent serious departures from the standard expected of a registered Architect. Those failings, the Committee has concluded, both individually and collectively, are sufficiently serious to amount to unacceptable professional conduct, which finding the Committee therefore makes.

Sanction

70. Ms Sheridan addressed the Committee on the question of sanction. She reminded the Committee to take account of ARB’s Sanctions Guidance, reminding the Committee that the purpose of imposing a sanction was to protect the public and to uphold the reputation of the profession and professional standards of conduct. Its purpose was not to punish a Respondent although a sanction may have a punitive effect.

71. She reminded the Committee of the available sanctions open to it and that the Committee should consider them in ascending order of severity, stopping when it had reached a balance between meeting the overarching objective and the needs of the Respondent.

72. She reminded the Committee that it was open to it not to impose any sanction but that it would be disproportionate in this case. She emphasised the need to balance any aggravating and mitigating circumstances identified and to consider where, on the spectrum of seriousness, the dishonesty found proved in this case lies.

73. Referring to case law, she reminded the Committee that “The effect of dishonesty by professionals as far as public confidence in the public is concerned….is a primary consideration for Fitness to Practise panel” (Siddiqui v GMC [2013] EWHC 1883). In the case of the case of PSA v Nursing and Midwifery Council, Mr D Wilson [2015] EWHC 1887 (Admin) it was held that the public interest outweighs the Registrant’s interest, and the effect of sanction on a registrant was very much of secondary importance. In that case, it was stated that:

“The overriding factor … was the public interest in maintaining the reputation of the profession. The [NMC] and the public are entitled to the highest standards of honesty and integrity from the Registrants…”

74. She submitted that the Respondent’s failings as Contract Administrator were not isolated, that the Respondent had demonstrated limited insight and that she had denied the allegations. She stated that the Respondent could only demonstrate limited remediation and that there remained a risk of repetition of her UPC if she were allowed to practise unrestricted. She recognised that a sanction would have an impact on the Respondent and reminded the Committee that there were no previous adverse findings against her.

75. Mr Smith made submissions to the Committee in mitigation on the Respondent’s behalf. He submitted that the Respondent had provided detailed representations to ARB in response to the allegations. Even though she had denied the allegations, she now accepts, as set out in his closing submissions on facts, that her actions fell below the standards expected of her. She had admitted her failings regarding the issuing of the Certificates of Progress Payment and in relation to VAT. She had accepted that her Architect’s Instructions were not well documented and that she had issued the Practical Completion Certificate when it was inappropriate to do so, the works not being practically complete as required by the contract. He submitted that the Respondent accepted that she could have been more effective in terminating the contract between the Complainant and the Contractor. He confirmed that the Respondent accepted the Committee’s decision.

76. He further submitted that the Respondent had genuinely believed that she was acting in the best interests of her client who had had a previous difficult relationship with the Contractor. He stated that the Respondent was not motivated by self-interest, nor had she profited from her actions. She had merely tried her best to treat both the Contractor and the Complainant fairly.

77. He submitted that whilst the Respondent was disappointed at the finding of dishonesty, she was not motivated by a dishonest intent, or an intention to mislead. He stated that both the Contractor and the Complainant would have been well aware of the state of the property despite her issuing the Practical Completion Certificate.

78. He stated that the finding of UPC would in itself present significant negative consequences for the Respondent, both reputationally and in terms of future insurance. He emphasised that the Respondent wished to apologise for her failings and undertook not to repeat them.

79. He submitted that the Respondent had booked to go on a five day ICE Approved Course in Law and Contract Management which would cover a range of issues relevant to work as a Contract Administrator, but for reasons beyond the Respondent’s control, that course had been cancelled. Instead, the Respondent had registered for a six hour online seminar on contract issues and solutions.

80. He informed the Committee that the Respondent had changed her working practices in that she had updated her procedures to fully document site visits and had revised her spreadsheets, linking her records to Architect’s Instructions and photographic records.

81. The Respondent also addressed the Committee. She stated that it had been a difficult time for her, but that she accepted the criticisms that had been made of her. She recognised that she would benefit from ongoing courses and that she had put in place effective measures to ensure that her failings would not be repeated. She apologised for what had happened but stated that she had worked hard in difficult circumstances to try to be fair to both parties.

82. 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 ARB, and to declare and uphold proper standards of conduct and behaviour. The Committee has carefully considered all the evidence and submissions made during the course of this hearing. It has heard and accepted the advice of the Legally Qualified Chair. 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, ARB’s Sanctions Guidance and the need to act proportionately. It has taken into account any aggravating and mitigating factors in this case, and in doing so, the Committee has exercised its own independent judgement.

83. The Committee has reminded itself of the need to understand the context in which the dishonest act took place and to make a decision considering the key factors. The Committee has borne in mind that there is a spectrum of seriousness of dishonesty (Watters v NMC [2017] EWHC 1888 (Admin)), and has considered where, on a properly nuanced scale of dishonesty, the UPC falls (Lusinga v NMC [2017] EWHC 1458 (Admin)). The Committee has also borne in mind Bolton v Law Society [1994] 1 WLR 512 in reminding itself that the collective reputation of the profession is more important than the fortunes of the individual and that expulsion from the profession is appropriate for serious lapses.

84. Having taken all the evidence and submissions before it into account, the Committee has identified the following aggravating factors:

i. The Respondent’s dishonesty related to a critical aspect of the project, given the importance of a Practical Completion Certificate. However, the Committee accepts that the Respondent’s principle motivation for issuing the Practical Completion Certificate was to terminate the Complainant’s relationship with the Contractor, rather than for some inherently dishonest purpose. As a result, the Committee considers the Respondent’s dishonesty to be at the lower, but not at the lowest end of the scale;
ii. Notwithstanding that her failings related to one project, the Respondent repeatedly fell short of the standard expected of her in relation to the management of costs;
iii. The Respondent has demonstrated limited insight into the impact of her actions on the reputation of, and public confidence in the profession.

85. The Committee has identified the following mitigating factors:

i. Her failings represented isolated failings in an otherwise unblemished career of approximately 20 years;
ii. She has engaged in the regulatory process and has cooperated with ARB;
iii. She had made a partial acknowledgement of her failings, albeit at a late stage;
iv. She had undertaken some remediation in improving her procedures for contract management (for example, by improving her spreadsheets) and had endeavoured to attend relevant courses to address many of the failings identified in this case. In that regard the Committee considered that the contents of the 6 hour online course, whilst undoubtedly helpful, seemed significantly less comprehensive than the five day course that was cancelled. The Committee would strongly encourage her to attend that course when it is rescheduled;
v. She has recognised and expressed regret for her failings;
vi. Her actions in issuing the Practical Completion Certificate were motivated by a genuine; albeit misguided and dishonest attempt to act in her client’s best interests. The Committee accepts that the Respondent does not have entrenched dishonesty or integrity issues;
vii. The Respondent has not personally gained financially from her failings.

86. The Committee considered the risk of repetition of the Respondent’s UPC. In the absence of having undertaken relevant updated training, albeit through no fault of her own, and despite the practical steps the Respondent had taken to improve her practices in relation to contract administration, the Committee concluded that there remained an ongoing risk of repetition of her failings. The Committee did however conclude that, in the absence of any entrenched integrity issues, there was a limited risk of her dishonest behaviour being repeated.

87. The Committee notes that the matters found proved are serious to the extent that the Respondent’s failings diminish both her reputation and that of the profession generally. Honesty is a core quality that any member of the public should be able to expect from a professional, even when acting for clients in difficult circumstances. The Committee has 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.

88. The Committee first considered whether to impose a reprimand. The Committee considered that such a sanction was neither appropriate nor proportionate given that it did not consider the Respondent’s UPC to be at the lower end of the scale given the scope of failings and the aggravating factors identified.

89. The Committee then considered whether to impose a penalty order and concluded that such a sanction was neither appropriate nor proportionate to protect the public or the reputation of the profession. The UPC found proved is too serious for the imposition of a penalty order given the ongoing risks identified and the need to declare and uphold standards in relation to dishonest conduct, even if unlikely to be repeated.

90. The Committee next considered whether a suspension order was appropriate. Having carefully considered the Sanctions Guidance, the Committee considered that such a sanction would be sufficient to protect the public and the reputation of the profession. The Committee noted that the Respondent’s failings are remediable, that she had taken some steps towards doing so and demonstrated her proposals for further ongoing training. Notwithstanding that the Committee concluded that the Respondent was unlikely to repeat her dishonest behaviour, the nature of her dishonesty was such that it concluded that a suspension order was justified to uphold confidence in the profession and to publicly declare the unacceptability of her dishonesty. However, in all the circumstances, the Committee did not consider that the Respondent’s failings are fundamentally incompatible with continuing to be an Architect.

91. The Committee therefore imposes a suspension order for a period of 6 months, which period it considers proportionately balances the Respondent’s needs with the objective of protecting the public and the public interest.

92. The Committee considered whether to order erasure of the Respondent’s name from the register but concluded that, given the suitability of a suspension order, such a sanction would be unduly punitive and disproportionate.

93. That concludes this determination.

Pin It on Pinterest

Shares
Share This