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Mrs Sandy Hickey

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

 

In the matter of

Sandy Mary Hickey 060401A

Held on 10, 11, 12 July and 23 October 2018

At

ARB

8 Weymouth St

London

W1W 5BU

———-

Present

 Emma Boothroyd (Chair)

 David Kann (PCC Architect Member)

Steve Neale  (PCC Lay Member)

Steve Battersby  (Clerk)

———–

 

 

 

In this case, the Board is represented by Ms Sheridan of Kingsley and Napley.

Mrs Hickey has attended this hearing and is legally represented by Mr Lloyd.

The PCC found Mrs Hickey guilty of unacceptable professional conduct (“UPC”) in that she failed to:

 

  1. Provide adequate terms of engagement.
  2. Keep her client informed of the progress of the works and any delays.

       The sanction imposed is a Reprimand.    

Allegations

1. This case arises out of a complaint made by Ms B (“the complainant”) in respect of the professional services carried out by the respondent.

2. The background to this case is that the Complainant states she instructed the Respondent in February 2009 to act as Architect in respect of the conversion of a cottage into an “eco-friendly” property. Initially, the Respondent was asked to provide advice on whether the property was suitable for such a conversion and then was engaged on the project to provide design and technical input.

3. No formal terms of business were ever sent by the Respondent and it is disputed as to what her responsibilities were. There is no contract in place and the Respondent admitted at the outset of the hearing that she did not provide adequate terms of engagement but denies that this amounts to unacceptable professional conduct.

4. The chronology of the case is long and complex, and it is not necessary to set it out in detail in this determination save to say that planning permission was granted in 2010 and there were several periods of delay with the project. The Complainant considered that the Respondent was responsible for periods of the delay and in January 2017 she terminated the appointment of the Respondent and engaged another architect.

5. The Complainant complained to the ARB that the Respondent had been the cause of significant delays on her project which had added to the costs and stresses of the build. The periods of delay that it is alleged are the responsibility of the Respondent are particularised in the report of the Board’s Solicitor and form the subject of allegation 2.

6. The Respondent denies that she was responsible for any delay and it is her position that the delays were because of the contractor and other factors outside her control. The Respondent states that the Complainant was kept fully informed of the situation and she denies that her conduct amounts to UPC.

7. In reaching its decisions, the Committee has carefully considered the live evidence of the Complainant, and the Respondent, together with the documentary evidence presented to it in the Report of the Board’s Solicitor, the documents exhibited to that report, and the 12 bundles of documents supplied by the Respondent. It has considered the submissions made by the parties.

8. 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.

9. The Committee makes the following finding of facts:

Allegation 1 (Found Proved)

10. It is not disputed that the Respondent failed to send the Complainant adequate terms of engagement at the outset of the retainer or at any point during the professional relationship. It is stated that the Respondent did make her charging rate clear and discounted her fees heavily throughout the project and there was never any attempt to take any financial advantage of the Complainant. Nevertheless, the Committee considers that the provisions of the relevant codes are clear about what should be set out in writing before an architect starts work on a project and the Respondent did not set these matters out to the Complainant in writing at the outset of the project or at any time thereafter. The Committee therefore finds this fact proved.

Allegation 2 (Found Not Proved)

11. The Committee finds the facts not proved for the following reasons.

12. Delays between planning permission being granted in July 2010 and the second planning application being submitted on 24 August 2011.

13. It is alleged that the Respondent was responsible for this period of delay. The Committee noted that on 2 September 2010 the Complainant indicated that she was placing her plans on hold. When she was asked about this period in her oral evidence the Complainant could not remember exactly what the position was. This is not surprising given the time that has passed. The Committee had regard to the contemporaneous documents from this period and the evidence provided by the Complainant and Respondent.

14. The original design which had received planning approval did not have the roof structure that both the Complainant and Respondent thought would be the eco-friendliest. The Respondent stated that during the time the Complainant’s plans were on hold she was attempting to make the design “work”. It seems that matters moved on and it was discovered that there was a possibility of getting the roof design that was originally hoped for.

15. The Complainant did recall taking photographs to attempt to persuade the council to grant the revised planning application. It seems that it was decided to make the revised planning application when it became clear that the build was not going to start as had been originally envisaged.

16. The Committee has seen no evidence that the Complainant was awaiting anything from the Respondent during this period, or that the Complainant instructed the Respondent to apply for revised planning permission before August 2011. In her evidence the Complainant accepted that the delays may have been as a result of the planning situation but could not be clear about when she had instructed the Respondent to make the second application.

17. In the circumstances the Committee does not consider that the Board has proved on a balance of probabilities that the Respondent delayed in making a second application for planning permission between July 2010 and August 2011.

18. Delays in 2012 in the provision of drawings to the Complainant and Building Contractor.

i. The second planning application was approved in December 2011. The Respondent undertook a number of drawings and they were provided to the Complainant by email in March 2012.

ii. It is stated by the Complainant that the drawings were not provided to the contractor until June 2012 and this delayed the build and caused difficulties for the contractor. The Respondent states that the builder was not available to even start the job as he was busy with other projects and so the drawings were not needed and at this point the Complainant and the contractor were still negotiating.

iii. In her oral evidence the Complainant confirmed that there were issues with the availability of the contractor during this period. A provisional start date of the spring 2012 was agreed but then this was pushed back until the summer as the contractor was busy on another job. The contractor did not start that year in any event as he had another project.

iv. The Committee has seen no evidence that the contractor or the Complainant were chasing the Respondent for the drawings during this period. The Committee has seen no evidence that the contractor could not quote for the job or provide a start date without further drawings. The Committee is not satisfied on a balance of probabilities that the drawings were requested and required by the Complainant and the Respondent failed to provide them within a reasonable time frame. The evidence shows that the Respondent provided the drawings in March 2012 and again to the contractor in June 2012 but there is no evidence that she was asked to provide them before then or that she delayed in producing them.

19. Delays in the provisions of re-designs following the gutting of the Cottage in 2013.

i. Work finally began on the cottage in 2013. It is not in dispute that when the cottage was opened up, there were issues with the roof structure. It was agreed that the contractor was not going to remove the roof in 2013 and he would leave the site over the winter months. It was agreed that the builder would return to site in late January 2014 and carry out the work on the roof, but that date was pushed back because of his holiday.

ii. The Respondent used the time that the builder was away from the site to prepare the drawings. The Committee has seen an email which confirms that the drawings were issued to the Complainant and the contractor on 18 March 2014. The Committee has seen no evidence that the drawings were requested or required before the meeting with the Complainant and the contractor on 13 March 2014.

iii. The Committee is not satisfied on a balance of probabilities that the Respondent was instructed to produce the drawings before March 2014 when the contractor was due to return to site or that the failure to produce the drawings during that time frame delayed the progress of the build.

20. Delays in providing the building contractor with all of the plans and a list of the materials for the back roof, which was initially due on 2 July 2014.

i. The Complainant states that there was a meeting with the Respondent and the contractor on 3 July 2014 and it was agreed that the Respondent would let the contractor have the plans and a list of all the materials for the back roof by 14 July 2014. The Complainant was not at that meeting and her recollection of it comes from what she was told by the contractor.

ii. The Respondent explained in her evidence that at the meeting she agreed to give the contractor’s roofing sub-contractor a copy of her drawings and requirements in an attempt to speed up the build and be helpful. The Respondent’s evidence was that the contractor had everything he needed in her drawing pack issued to him in March and again in June, but he was delaying. The Respondent thought that she could explain to the roofing sub-contractor what was required to progress the build. The Respondent sent emails to the roofing sub-contractor with copies of her drawings, but he did not respond. The Respondent chased him, but he still did not reply.

iii. The Committee is not satisfied on the evidence that the Respondent agreed to provide a “shopping list” to the contractor and delayed in doing so. The contractor had all of the plans issued to him and just needed to get on with the build. The architect that the Complainant asked for a second opinion at this time concurred that the drawings were complete and that the contractor just needed to get on and build. The Committee is not satisfied that the Respondent delayed in providing the contractor with all of the plans and a list of materials for the back roof.

21. Delays in 2015 which led to a meeting on 26 June 2015 to discuss the lack of progress.

i. It was agreed between the Complainant and the contractor to delay between January 2015 and April 2015 to take advantage of a reduced rate of VAT. On 26 March 2015 the Respondent met with the contractor on site who was going to arrange for the scaffolding to be put up around the property so that work could begin. The Respondent sent an email to the Complainant confirming what was agreed. There is no evidence to suggest that the contractor required any drawings or other input from the Respondent before returning to site. It seems that the contractor did not return to site until July 2015. There is no evidence before the Committee that this delay was in any way attributable to the Respondent.

ii. The Complainant said that she was concerned about lack of progress on site and went to the Respondent’s house for a meeting on 26 June 2015. During this meeting the Complainant said the Respondent was tearful and said she would be concentrating all her efforts on this project. The Complainant said it was difficult to get information and she was concerned about a lack of a schedule. However, there is no evidence that the delay in June 2015 was as a result of anything that the Respondent was required to do. The Committee considers that it is more likely than not that the contractor was responsible for the delay.

22. Delays in providing Architect’s Instruction No. 1, which was not sent to the building contractor until 18 August 2015.

i. The contractor returned to site at the end of June 2015. There was a meeting between the contractor, the structural engineer and the Respondent on site on the 27 July 2015. Work was ongoing at this point and the contractor wanted to order the steels. It was established with the Respondent in her oral evidence that there was no formal contract and so in reality an architect’s instruction was inappropriate. There was no formal date for completion or issue of the AI or any evidence that it was required. However, the Respondent explained that she wanted to instill an element of administrative framework into the building works for the benefit of the Complainant in the hope that it would focus the contractor. At around the same time the Respondent was urging both the Complainant and the contractor to enter into a formal contract.
ii. There is no evidence that the contractor was delayed by the failure to issue the architects instruction until 18 August 2015. It is clear from the emails and other photographic evidence that there was ongoing communication between the contractor, the architect and the structural engineer and that work was progressing on site.

23. Delays in 2016 which led to a meeting on 10 November 2016 to discuss the lack of progress.

i. Building works continued through 2016. Both the Respondent and the Complainant describe the progress as slow but there is no evidence that the Respondent was the reason for any delay or that she was required to produce anything that delayed the build. The Complainant says that the specialist plumber confirmed he wasn’t able to do the job in April 2015 and the Respondent delayed in designing a heat recovery system. However, the hole for the pipe was made in April 2016 even though the site was not yet ready for the specialist plumber.

ii. In her statement the Complainant explains that there was a meeting in April 2016 to discuss the slow progress. There is no evidence about the discussions at that meeting but there is nothing before the Committee to suggest that the Respondent was in any way responsible for the delay or that the Contractor was awaiting anything from her. The Committee considers that with the benefit of hindsight the Complainant may have considered that the collaboration between the Respondent and specialists and the detailed designs and re-designs served to slow progress. However, there is no evidence to support the suggestion that the contractor was awaiting anything from the Respondent that she delayed in providing.

24. Delays in providing the Building Contractor with measurements for the windows and pipes in January 2017.

i. With regard to the pipes, it was confirmed by a photograph and accepted by the Complainant that the pipe she was referring to had already been installed in November 2016. The Complainant accepted in her oral evidence that she may have been mistaken about this. There is no other contemporaneous documentary evidence that suggests that the contractor was awaiting a measurement from the Respondent in relation to the pipe in January 2017.

ii. The Complainant said in her evidence that the Respondent was reluctant to provide the measurements for the windows. It was agreed at a meeting on 10 January that the Respondent would measure for the windows. The Complainant says that the contractor contacted her on 20 January 2017 explaining he hadn’t heard from the respondent.

iii. The Committee has had sight of an email that the Respondent sent to the window supplier on 12 January 2017 enclosing the specifications and measurements for the windows. The Respondent explained that although in her view the site wasn’t ready for the windows the Complainant was anxious that she measure for them and confirm the order. The Respondent also asked the contractor to check a measurement at around the same time. It was clarified before the Committee that the Complainant remained responsible for the approval of the order and needed to make payment before the order would be processed. The Respondent explained that she was conscious of the fact that any mistakes could be costly for the Complainant and so she was keen to get it right, but she did not delay.

iv. The Committee considers that the Respondent was instructed to measure for the windows on 10 January 2017 and it was done without delay and sent to the suppliers on 12 January 2017. The Committee does not doubt the Complainant’s recollection of the conversation with the contractor and it is likely that he did tell the Complainant he had not heard from the Respondent. However, the evidence shows that the windows were measured, and the specification was sent by the Respondent as instructed without delay.

25. Delays in providing all outstanding information by the deadline set of 10 February 2017.

i. It was accepted by both the Complainant and the Respondent that the professional relationship had broken down in early January 2017. The Complainant asked another architect to take over the project and following a meeting on 26 January 2017 the Respondent was asked by the Complainant to hand over all information relating to the project by the deadline of 10 February 2017.

ii. The minutes of the meeting of 26 January 2017 set out specific actions for the Respondent and it appears that the Respondent complied with the specific requests to forward the window schedule and other actions.

iii. On 28 January 2017 the Complainant emailed the Respondent and asked for “all the drawings needed to finish the build”. In oral evidence the Complainant wasn’t really sure what she meant by this but suggested that she simply wanted the Respondent to hand over everything she had produced so far and step away from the project.

iv. The Respondent considered that the Complainant was asking for every drawing that could possibly be required to complete the build and so the Respondent was undertaking new work and completing architect’s instructions to progress the build. In addition, she explained in her oral evidence she was trying to anticipate every matter that the contractor would want clarification about. It appears that the Complainant was aware of this work and for a period of about 6 weeks the situation went on where the Respondent was essentially continuing her involvement.

v. The Committee considers that the outstanding information and actions required at the meeting on 26 January 2017 was provided without delay but then the Complainant appeared to instruct the Respondent to carry out further work and this was necessarily time consuming but was not unduly delayed.

Allegation 3

26. The Committee finds this allegation proved for the following reasons.

27. There is a fundamental conflict between the evidence of the Complainant and the respondent about the progress of the build and the reasons for the delays. The Committee has determined that the Respondent was not responsible for the delays and that it was to a significant degree the contractor who was either the cause of the delay or the cause of the Complainant’s belief that the contractor was awaiting instructions from the Respondent. It is clear that the project was significantly delayed at various points either because of the availability of the contractor or other technical and planning matters.

28. In her oral evidence the Respondent said that she had a number of meetings with the Complainant to explain these difficulties. The Committee has seen no evidence of what was discussed in these meetings and there is no evidence that the Respondent communicated these issues to the Complainant properly. For example, the Complainant was under the impression that drawings were required and was asking the Respondent to supply drawings when in fact the contractor had all of the information he needed to get on with the build. The Committee considers that it was the responsibility of the architect to explain clearly to the Complainant how the work was progressing, why it was not progressing as quickly as it should have been and the issues that were affecting the progress of the build. The Committee considers that the Respondent should have set these matters out to the Complainant clearly at various stages of the project and ensured that she understood the reasons for the delay.

29. The Complainant considered that the Respondent had caused significant delays to her build by failing to supply drawings, apply for planning and provide instructions to the contractor. It is the responsibility of the architect to ensure that the Complainant was fully advised about these matters and the impact on her build. The Committee considers that the Respondent should have kept her client informed about the work she was doing and when it was likely to be needed. For these reasons the Committee finds this allegation proved.

Finding on Unacceptable Professional Conduct:

30. Having found the facts of allegations 1 and 3 proved the Committee went on to consider whether this amounted to UPC. UPC is defined as conduct which falls short of the standard required of a registered person. The Committee had regard to the relevant standards within the Code.

31. Standard 11.1 of the 2002 Code states that Architects should not undertake professional work unless the terms of a contract have been recorded in writing as to the scope of the work, the fee or method of calculating it, the allocation of responsibilities, any limitation of responsibilities, the provisions for termination and any special provisions for dispute resolution.

32. Standard 6 of the 2010 and 2017 Code states:

“You should carry out your professional work faithfully and conscientiously and with due regard to relevant technical and professional standards
i. 6.1 You are expected to carry out your work promptly and with skill and care and in accordance with the terms of your engagement.
ii. 6.2 ……
iii. 6.3 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.

33. By reason of the facts found proved, the Committee finds that the Respondent acted in breach of standards 11.1 of the 2002 Code and 6.3 of the 2010 and 2017 Codes.

34. In reaching its findings on UPC, 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.

35. 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”

is 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”.

36. The Committee considered that the respondent’s actions in failing to properly explain to the Complainant the reasons for the delay and failing to properly inform her about the issues with the contractor was a serious failing that was likely to convey a degree of opprobrium. In isolation, some issues with the contractor may not have been serious and could have been remedied informally. However, the Committee considered that the Respondent’s failure to adequately explain the issues and who was responsible as the periods of delay extended meant that the Complainant lost control of her contractor and ultimately lost faith in her architect. The Committee considered that the Respondent allowed the Complainant to be misled by her contractor about the progress of the works.

37. The Committee considers that if the Respondent had set out her terms of business fully as required, then much of the Complainant’s confusion about what the Respondent was ultimately responsible for could have been avoided. It was clear that the Respondent was not sure who was acting as project manager at various times during the build. The Committee considered the correspondence demonstrated that the Respondent was very keen on the project and very committed to the Complainant’s requirements, but she failed to set out the professional relationship with clarity to ensure that the Complainant fully understood the scope of her involvement. Although the cost of the Respondent’s services was not excessive and indeed discounted, this caused distress to the Complainant who believed that the Respondent was not charging full price for the work because it was of poor quality.

38. The Committee finds that both individually and collectively, her failings are serious and adversely impact both on the reputation of the architect and the profession generally. As the architect, the Respondent failed to provide to her client information that was essential for her to be able to make informed decisions on the timing and progress of their project. Such a failing represents conduct falling substantially below the standard expected of a registered architect. Such failings can quite properly be categorised as UPC.

39. The Committee therefore finds that the Respondent’s conduct does amount to unacceptable professional conduct as set out above.
Sanction:

40. Mr Lloyd then addressed the Committee in mitigation and set out a number of mitigating factors to which the Committee should have regard. 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.

41. Having taken into account Mr Lloyd’s submissions, the Committee has identified the following mitigating factors:

i. that the Respondent has no adverse regulatory history in her career.
ii. she has fully engaged in the regulatory process;
iii. she has taken some steps to remediate her failings by changing her working practices to ensure terms and conditions will be sent in all cases;
iv. she has extensively reflected on her failings in this case and recognised the reasons for the complaint;
v. she has provided a number of positive testimonials attesting to her character and professionalism;
vi. she has expressed genuine regret and remorse for the situation of the Complainant and has apologised;
vii. the Committee considers the risk of repetition to be reduced in view of the insight demonstrated by the Respondent into her failures and the steps taken to avoid these issues in the future.

42. The Committee has identified the following aggravating factor:

i. Her failings have caused the Complainant distress. The Committee considered that the effect on the Complainant was serious and she has suffered anxiety and uncertainty about the reasons for the delays on the project.

43. 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. 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.

44. The Committee first considered whether to impose a reprimand. The Panel considered that the Respondent demonstrated factors that would make this sanction appropriate including insight, a genuine expression of regret, previous good disciplinary history and corrective steps taken. The Committee had in mind the seriousness of the UPC found proved, and in particular reminded itself that the Respondent was not in fact responsible for the delays on the project but had failed to properly advise the Complainant about them.

45. The Committee considered that the failure by the Respondent to provide terms and conditions of business contributed to the difficulties and the ultimate breakdown in the relationship but there was no financial benefit to the Respondent and indeed she provided a high standard of work for very limited fees.

46. The Committee considered that a reprimand was the necessary sanction and that this was sufficient to protect the public and this sanction together with its findings in relation to UPC would be sufficient to mark the conduct as unacceptable and uphold the reputation of the profession.

47. In deciding that a reprimand was appropriate and necessary the Committee did consider whether a penalty order would be proportionate. The Committee does not consider the Respondent’s failings require a penalty order and considered her remorse and insight and the lack of financial benefit would make this sanction disproportionate in the circumstances.

48. The Committee therefore imposes a reprimand which will remain on the Respondent’s record and will be published for one year.

49. That concludes this determination.

 

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