Mrs Ighobemre Tabor
THE ARCHITECTS REGISTRATION BOARD
PROFESSIONAL CONDUCT COMMITTEE
In the matter of
Ms Ighobemre Tabor (067469I)
Held on 2 and 3 March 2017
8 Weymouth Street
Mr Paul Housego (Chair)
Ms Jules Griffiths (PCC Lay Member)
Mr David Kann (PCC Architect Member)
Mr Stephen Battersby (Clerk)
Mr Jonathan Goodwin of Jonathan Goodwin Solicitor Advocate appeared on behalf of ARB.
Ms Tabor attended in person.
- The Board is represented by Mr Jonathan Goodwin. Ms Tabor has attended this hearing and is not represented. Ms Tabor faces a charge of unacceptable professional conduct (UPC) based on five allegations in that she:
1.1 failed to comply with the terms of an Adjudication decision dated 27 August 2014 and/or
a repayment schedule agreed with Complainant 1
1.2 failed to pay a County Court Judgment dated 02 November 2015
1.3 failed adequately, or at all, to deal with a dispute appropriately in that:
1.3.1 failed to respond to emails from Complainant 1, and/or
1.3.2 failed to provide Complainant 1 with any, or any adequate, explanation for non
payment and/or an update of her financial position
1.4 failed to inform the ARB that she failed to pay a judgment debt.
In relation to Complainants 1 and 2
1.5 failed adequately, or at all, to disclose in writing to the Complainant(s) that:
1.5.1 in acting as both architect and contractor her advice would no longer be impartial; and/or
1.5.2 there was a conflict, or potential conflict of interest and/or
1.5.3 given the conflict, or potential conflict of interest she required the written confirmation
from the Complainant(s) giving informed consent to the Respondent continuing to act.
The Architects Act 1997 and the Architects Code: Standards of Conduct and Practice 2010 (“the Code”) apply. The ARB relies on Standards 1.1, 1.3, 6.4, 9.1, 9.2, 10.1, 10.2 and 10.3.
- The preamble to the Code states that any failure to comply with the provisions of this 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.
- 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.
- Each case is judged on its facts, and there may be circumstances in which unacceptable professional conduct 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.
- The relevant provisions of the Code are:-
Honesty and Integrity
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.
3 Where a conflict of interest arises you are expected to disclose it in writing and manage it to the satisfaction of all affected parties. You should seek written confirmation that all parties involved give their informed consent to your continuing to act.Where this consent is not received you should cease acting for one or more of the parties.
You should carry out your professional work faithfully and conscientiously and with due regard to relevant technical and professional standards
4 You should, when acting between parties or giving advice, exercise impartial and independent professional judgment. If you are to act as both architect and contractor you should make it clear in writing that your advice will no longer be impartial.
Maintaining the reputation of architects
1 You should ensure that your professional finances are managed responsibly.
2 You are expected to conduct yourself in a way which does not bring either yourself or the profession into disrepute. If you find yourself in a position where you know that you have fallen short of these standards, or that your conduct could reflect badly on the profession, you are expected to report the matter to the Board. For example, you should notify the Registrar within 28 days if you:
◦ fail to pay a judgment debt.
3 The above are examples of acts which may be examined in order to ascertain whether they disclose a wilful disregard of your responsibilities or a lack of integrity, however this list is not exhaustive.
Deal with disputes or complaints appropriately
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.
2 Complaints should be handled courteously and promptly at every stage; and as far as practicable in accordance with the following time scales:
a an acknowledgement within 10 working days from the receipt of a complaint; and
b a response addressing the issues raised in the initial letter of complaint within 30 working days from its receipt.
3 If appropriate, you should encourage alternative methods of dispute resolution, such as mediation or conciliation.
- The two Complainants are not connected, other than by similar circumstances in allegation 1.5. SL (“Complainant 1”) had a dispute with Ms Tabor. An adjudicator was appointed and on 27 August 2014 awarded Complainant 1 £5,793.10, to be paid in 14 days. Ms Tabor did not pay the amount of the award. She then (on 22 September 2014) agreed a payment schedule with Complainant 1 to pay over 12 months in equal instalments. She did not adhere to it, by 7 April 2015 paying 4 payments totalling £1988.25, but nothing since. On 6 October 2015 Complainant 1 took out a County Court summons and on 2 November 2015 obtained judgment in default of appearance for the sum of £3,804.85 and fixed costs. Ms Tabor did not tell the ARB of this before they knew of this through Complainant 1, who had complained to ARB on 14 April 2015.
- Allegation 1.5
Complainant 1 entered into a JCT contract dated 23 September 2013 with Ms Tabor, trading as
Siproj Architecture. It is alleged that she did not deal with the fact that from that date she was
the contractor for the project, as required by the Code.
- RH (“Complainant 2”) complained to ARB on 18 February 2016. In July 2015 she had instructed Ms Tabor as architect for a side extension and loft conversion at a house she owned. On 19 August 2016 Complainant 2 signed a contract with Ms Tabor, trading as Siproj Architecture, allegedly as both architect and contractor, at a price of £50,000 payable by 3 equal instalments. The total paid was £82,137. Complainant 2 complained to ARB.
- Ms Tabor denied impropriety stating that she acted solely as contractor once the contracts was signed, and rendered no accounts for architectural work after those contracts were signed. She also denied that matters 1.1 – 1.4 (which she admitted) were serious enough to be unacceptable professional conduct (“UPC”), being the result of impecuniosity.
- Ms Tabor denied that the matters she admitted amounted to upc. She did not accept the basis of the adjudicator’s findings, although she accepted she was bound by it. The CCJ had made her already fragile finances worse, and it was inability to pay that accounted for her non-payment.
- The Committee perused the report of the Board’s solicitor with accompanying documents running to some 163 pages. The Board called evidence from Complainants 1 and 2, and Ms Tabor cross examined them. Ms Tabor gave evidence and was cross examined by the solicitor for the ARB. The Committee asked some questions of the witnesses and of Ms Tabor.
Submissions by the solicitor to the ARB:
- It was for the Committee to make findings of fact about Allegation 5. Allegation 1.1 – 1.4 had been put and were admitted. Whether these amounted to upc, defined as a falling short of professional standards, was for the Committee to decide, and there was no burden of proof on that question.
- Complainant 1 – in September 2013 he and his wife wanted a brick outbuilding constructed. Complainant 1 entered into a JCT building contract with the Respondent for a sum of £29,000 plus a project management fee of £4350. There was a disagreement and it was agreed that there would be an adjudication. By a decision of 27 August 2014 the Respondent was ordered to pay Complainant 1 £5793.10 within 14 days. Following negotiation a schedule of repayments was agreed at £482.75 equal monthly instalments. This was dated 22 September 2014. Some four payments were made between then and April 2015. The Respondent had paid £1988.25 and there was a balance of £3804.85. A County Court Judgment was obtained on 02 February 2016. The ARB put the matter to the Respondent in December 2015 and her explanation was given on 11 January 2016. She did not dispute that she was obliged to abide by the adjudication but said that she simply did not have the money. She said that she had been expecting to pay him in September 2015 but the expected funds did not arrive. She had been away when the summons arrived, and judgment was entered in default. Failure to inform the ARB was an omission for which she apologised. She said she still could not pay Complainant 1 and the CCJ was already a severe punishment.
- There had been no attempt by the appellant to renegotiate at any time nor any payment made from April 2015 to date.
- There had been a succession of emails from Complainant 1 to the Respondent which she had ignored. Examples were dated 02 September 2014, 09 September 2014, 07 January 2015 and 16 September 2015. The only response was one of 15 September 2015 where the Respondent thanked Complainant 1 for his patience and stated that she would be in a position to resume payment on or before the end of the month, but she had not done so, and had made no subsequent payment at all.
- In a detailed response from the Respondent to the ARB (82 onwards) the Respondent’s summary was “In my opinion, it is wage theft that the adjudicator decides that I, acting as the project manager should pay for the complainant’s additional goods and services not originally allocated for. And it is not right for the complainant to hound me for this payment in such an aggressive manner when they know for a fact that I saved them over £28,500 in construction cost and the amount I am “supposed” to owe is a small fraction of the total amount that I saved them.”
- To her credit the Respondent admitted that she had failed to tell the ARB of the County Court Judgment (CCJ), but the reality of the situation was that Complainant 1 had to take court proceedings after the Respondent failed to comply with the terms of the adjudication award, a subsequent schedule of payment, and she had also failed to meet the CCJ. The Code at 9.1 set out that finances should be managed responsibly and specifically listed the matters that bring the profession into disrepute, one of those being not paying a judgment debt.
- Complainant 2 had a project in 2015 for a side extension and loft conversion. The Respondent was both architect and contractor as with Complainant 1. In an email of 23 August 2016 Complainant 2 specifically stated that the building contract did not cover anything about advice as an architect being otherwise than impartial by acting as the builder as well. Complainant 1 had not noticed this, at the time, as the Respondent had not told him.
- The Respondent understood this was an issue. Her explanation was to be found in a response dated 22 August 2016. She stated that the Complainant signed a building contract in JCT form stating that Siproj Architecture (the practice name of the Respondent) was the contractor, on page 2. After then she carried out her work strictly as the contractor and did not carry out any work in her role as architect and did not invoice the Complainants for any work carried out in her role as the architect. However she agreed that in future an additional letter was required should she stop being an architect and become a building contractor. There should have been an explanation that she was not acting as an impartial architect, there was not, and clients were not advised, so that plainly they had not given informed consent, so that the Respondent should not have acted.
- Allegation 1.5 was broken down into a variety of different ways and it was submitted that all those sub-allegations were proved. The Code made it clear that the client should know. Informed consent should be given, and if it was not given then it was mandatory that the architect ceased to act. If proven it was conduct falling short of the professional requirement.
Ms Tabor’s submissions:
- Ms Tabor submitted that none of these matters were serious breaches. The CCJ was in October 2015 and the ARB was aware of it a month later. There was no intention to conceal it from the ARB. What she had done was to write two separate letters, one about architecture and one about building work. She appreciated that there must be an easier way to deal with the matter. However neither complainant was inconvenienced by any conflicts of interests. Complainant 1’s issue with the non-payment was down to her inability to pay. This was because of financial problems, and her inability to meet the fixed amount per month that Complainant 1 had demanded. The impartiality allegation, 1.5, boiled down to not writing a letter.
- While everyone agreed that all architects should act with the highest degree of professionality, these were slightly unusual circumstances and in the heat of the moment she had made errors in the way she gone about it. It could have been put in a more specific way, but this was not a case where somebody had ripped people off. Her clients had gained substantially from her input into the contracts. If she had had the money to pay off the Complainants she would not be here. She had very little notice of the County Court summons and by that time the judgment was entered against her and she did not have the funds to pay it off immediately.
- It puzzled her that while Complainant 1 had made his complaint about the non-payment of the CCJ, he had not complained about any conflict of interest. She said that was something the ARB had found and they had beefed up the allegation.
- The Committee received and accepted the advice of its Clerk, delivered in open forum. The burden of proof is solely on the ARB: the Respondent has to prove nothing. The standard of proof is the civil standard, that of the balance of probabilities, meaning that the factual allegation being considered must be more likely than not to be true. Allegations 1.1 – 1.4 were admitted and so findings of fact were not required, save as might be relevant to seriousness. The Respondent had made statements in her evidence about allegation 1.5 that might be considered as admissions of fact, but the whole of allegation 1.5 had been denied and had to be found proved, or not, on the evidence.
- When the findings of fact were made, the Committee had then to decide whether the matters found proved amounted to upc. There was no burden or standard of proof and this was a matter for the Committee’s own independent judgment.
- For a matter to be upc there had to be a serious falling short of the required standards, to the extent of moral blameworthiness or opprobrium. That could be on one or more matters, or all the matters found proved considered together.
Findings of fact:
- The Committee found allegations 1.1 – 1.4 proved upon Ms Tabor’s admissions. The Committee was unable to accept that the sole reason for not paying Complainant 1 was lack of funds. The sister of the Respondent had died during this period and the Respondent had inherited money from the estate. She did not specify the amount she inherited (and was not asked) but said that she had other bills that she had to pay with it. None was paid or offered to Complainant 1. The Respondent said that at all times she could have afforded £50 a month like clockwork but had not offered it, nor paid it. While she said Complainant 1 would not accept it, this would be the more credible had she tried, and had it been offered and refused then put away £50 a month to show that she was saving up to discharge the debt. Nor was the Committee able to assess the overall financial position of the Respondent as she had declined to produce the audited accounts that she agreed she had produced each financial year by a qualified accountant.
- The Committee found all parts of Allegation 1.5 proved.
The explanation put forward by the Respondent simply did not add up. For Complainant 1 there were three documents, all dated 23 September 2013, all with Siproj Architecture (the architectural firm of the Respondent).
- There was a document entitled “Project Management” for the outhouse construction. This thanked Complainant 1 for inviting her to provide “an architectural quote”. It said that she would prepare new design drawings, organise the builders and provide progress reports, for a fixed fee of £4350. The Respondent agreed that this was architectural work, as plainly it was.
- A letter of appointment stated that “The Client wishes to appoint Mrs I Tabor of Siproj Architecture for the Project and Mrs I Tabor has agreed to accept and perform the Services upon and subject to the terms set out in this Letter of Appointment and the attached copy of the RIBA Conditions of Appointment Small Works 2010…” This RIBA document relates to appointment as an architect.
- There was a JCT contract for the work to be carried out for a fixed sum of £29,000, as contractor.
- The first two are clearly contracts with the client as architect, and the third is a building contract with the same firm that entered into the architect’s agreements, all on the same date. The assertion that there was a cessation as work as an architect and then a commencement as a building contractor is not correct. Even if it was so it would breach the Code unless the architect made clear that there was to be such a change of role, and the Respondent did not.
- The project management role was to manage herself: it is a nonsense. The Complainants thought they were getting an architect and a builder, but the Respondent had not explained that she was no longer there to act impartially between the client and the builder: precisely because she was now herself the builder.
- The assertion that neither Complainant was disadvantaged is not evidence based and is not so. Complainant 2 said that she had very many issues with work done, in particular remedial work necessary by reason of things done by the builders. She was billed for that work by the Respondent as contractor, and did not have an architect to consider whether the contractor (the architect) should pay for the remedial work, having caused the damage.
- This epitomises the difficulty for the client (and for the Respondent) arising from the conflict of interest she had placed herself in. It is no better if the client does not appreciate that there was such a conflict.
- Complainant 1 was said to have been saved £25,000 by the design by the Respondent of a light weight construction that meant foundations were smaller: but that saving could have been achieved whoever had built the structure, had the Respondent put it out to tender.
- The clients contacted the Respondent in her capacity as an architect – the Respondent accepted that. As well as accepting architectural work, she then signed them up to building contracts, without discussion with either Complainant about the inherent loss of impartiality that necessarily accompanied that change, and while at the same time purporting to act (despite her denials) as their architect. That she sent no bills specifically for architectural work after signing a JCT contract is not to the point, particularly where she collected up front an amount, as architect, for project managing herself as contractor.
- The situation with Complainant 2 is similar.
Discussion and conclusion:
- The Committee next considered whether the matters admitted or found proved amounted to upc. It bore in mind that to amount to upc the matters found proved had to be serious.
- The non-payment of an arbitration award, the failure to pay subsequent agreed instalments, and then the failure to make any payment at all towards satisfaction of a CCJ, are serious matters, specifically covered in the Code. It is upc.
- The Code is absolutely clear about conflict of interest, and the risks inherent for clients relying on the professionalism of members of the profession where there are conflicts of interest are obvious.
- The account of Ms Tabor is not accurate – she was simultaneously being architect and building contractor. Her architectural agreement with Complainant 1 was to project manage the builders: and that was herself under a different contract, both agreements being between the Complainants and her architects firm, Siproj Architecture.
- This matter is also a serious falling short from professional standards, and is morally blameworthy to the extent required to be upc. It is not relevant that the Complainants did not appreciate that there was a conflict of interest. That is part of the insidious risk that conflict of interest presents in these circumstances. The clients were not aware of the risk, as the professional was trusted to deal with matters properly. Nor is it relevant to the level of misconduct if (the Committee makes no finding of fact) Complainant 2 offered to drop her complaint to the ARB if she was paid money.
- The ARB’s solicitor had correctly identified the parts of the Code that had been breached by the actions of the Respondent.
- The allegation of upc is found proved.
- Ms Tabor spoke in mitigation. She provided some testimonials. She said that Complainant 1 had not raised any issue of conflict of interest. She had qualified in 2002, and had helped a lot of clients. There were always some who would not be happy whatever was done for them. She would have preferred a hearing where both sides learned something. She would like other architects to be protected from her experience in not writing the conflicts letter. She wanted to take the dispute with Complainant 1 to Court, but that did not happen. As to the judgment it was a matter of lack of resources. She was a single parent and could pay £100 a month. Her clients benefitted from her work: she gave them her best ideas and was very generous with her time and that was why she got so many complaints. If she could not earn no one would benefit from this process. She wondered if the Complaints had been made by the Complainants for financial gain.
- There has been no previous disciplinary finding against Ms Tabor.
- 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.
- 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.
- In this case we consider that a sanction is appropriate.
- The Committee identified the following mitigating and aggravating factors:
There are few mitigating factors. There was personal distress arising from her sister’s terminal illness, and that her husband was out of work at the time, and for an extended period. The Respondent has engaged with the ARB throughout the process. She has a previously good disciplinary record.
The aggravating factors are that throughout the process the Respondent demonstrated no insight into the failure to attempt to pay the CCJ, nor the mischief that the conflict of interest represents.
- The Indicative Sanctions Guidance states:
Where the Committee 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.
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
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.
- There is no insight here, and conflict of interest is a serious matter. The Committee judges this too serious for a reprimand.
- Penalty orders
The Committee may make a penalty order in relation to those offences too serious to warrant a reprimand, or where a lack of remorse or understanding is displayed.
This sanction may be considered where the following factors are present (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
The Committee 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.
- The Committee decided that in all the circumstances of the case the matter was too serious for a penalty order. The whole concept of conflict of interest is a fundamental point of professional ethics, and the approach of the Respondent showed no understanding of the point – the Respondent said only that she had failed only to send a letter, and that if she had the money to pay the Complainants she would not be before the Committee.
- Suspension orders
A suspension order may be imposed by the Committee 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.
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
A suspension order is publicised for the period of suspension and a subsequent two years from the date of reinstatement.
- The difficulty with a suspension order is that the behaviour is fundamentally incompatible with continuing to be an architect and there is evidence of entrenched integrity issues, and nor is the Committee satisfied that the behaviour is unlikely to be repeated. The failure to make any attempt to pay the CCJ in some 15 months despite the admission that there was an amount that could be paid every month, and an inheritance, amounts to a defiance of the civil justice system.
- Erasure orders
An erasure order may be imposed by the Committee for those offences that are so serious that only a permanent removal from the Register will protect the public and/or the reputation of the profession. Erasure from the Register is permanent, though an application may be made to the ARB for re-entry after no less than two years. The Committee may make a recommendation as to a minimum period of time before such an application should be considered.
- A serious criminal offence
- Behaviour that is fundamentally incompatible with continuing to be an architect
- The Committee lacking confidence that a repeat offence will not occur
- Dishonesty or a severe lack of integrity
- A persistent lack of insight into the seriousness of actions or consequences
- Non-payment of a previously imposed penalty order
Any individual erased from the Register is not permitted to use the title ‘Architect’ in business or practice (nor any reference to membership or fellowship of RIBA). An erasure order is publicised for a period of five years after the date of sanction.
- The Committee is very concerned that the Respondent simply does not understand the ethics of the profession. Items 2, 3 and 5 above apply.
- In addition one of the Standards breached is 9.1 “You should ensure that your professional finances are managed responsibly”. Yet in documents tendered to the Committee it is apparent that the Respondent has failed to pay PAYE and National Insurance Contributions, and over a prolonged period.
- While the references speak to the creative flair of the Respondent, none of them were prepared with knowledge of these proceedings. They do not go to the mischiefs that result in these findings.
- While the Respondent does not seem to have intended harm to the Complainants, the Committee is not satisfied that they did suffer no loss or detriment, as set out above. The lack of any insight is deeply troubling, and these are serious matters.
- With regret the Committee decided that the reputation of the profession and the protection of the public require the Committee to order that the Respondent be erased from the Register and it so orders.
- The Committee may make a recommendation as to when the Respondent may make application for readmission to the Register. The Committee sees no reason to recommend that the period before which she could apply for readmission to the Register should exceed the minimum of 2 years.
- If there was such an application, the Committee would expect the Respondent to provide proof that the CCJ had been settled in full, that the Respondent was able to meet Standard 9.1 (“You should ensure that your professional finances are managed responsibly”), and was able to satisfy the ARB that she had now a full understanding of professional ethics.