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THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

Mr Ibiapuye Tonye Ekineh (053715B)

Held on 14,15 and 16 May 2018

At

International Dispute Resolution Centre
70 Fleet Street
London
EC4Y 1EU

———-

Present

Ms Emma Boothroyd (Chair)
Mr David Kann (PCC Architect Member)
Mr Martin Pike (PCC Lay Member)

Mr Stephen Battersby (Clerk)

———–

ARB was represented by Mr Iain Miller of Kingsley Napley LLP.

Mr Ekineh attended the hearing but was not legally represented.

 

The PCC found Mr Ekineh guilty of unacceptable professional conduct in that he:

1. Failed to provide adequate terms of engagement;

2. Failed to provide accurate drawings, measurements and plans in accordance with the requirements of the brief and Building Regulations;

3. Failed to carry out agreed architectural services after being paid;

4. Failed to pass on his client’s money to London Building Control/Thames Water or arrange a refund;

5. Failed to communicate with his client effectively and/or deal with a complaint about his professional work in a timely manner;

6. Failed to ensure that he had adequate and appropriate insurance to meet his client’s claims;

7. Failed to deal promptly and openly with his regulator in relation to his insurance position.

The sanction imposed was a two year suspension from the Register of Architects.

 

Charge and allegations:

1. In this case, the ARB is represented by Mr Iain Miller. Mr Ekineh has attended this hearing and is not represented. Mr Ekineh faces a charge of unacceptable professional conduct (“UPC”) based on seven allegations in that he:
1. Failed to provide adequate terms of engagement;
2. Failed to provide accurate drawings, measurements and plans in accordance with the requirements of the brief and Building Regulations;
3. Failed to carry out agreed architectural services after being paid;
4. Failed to pass on his client’s money to London Building Control/Thames Water or arrange a refund;
5. Failed to communicate with his client effectively and/or deal with a complaint about his professional work in a timely manner;
6. Failed to ensure that he had adequate and appropriate insurance to meet his client’s claims;
7. Failed to deal promptly and openly with his regulator in relation to his insurance position. This particular is put on the basis that the Respondent’s conduct lacked integrity.

and that by doing so, the Respondent acted in breach of Standards 1, 2, 4, 6, 8, 9 10 and 11
of the Architects Code: Standards of Conduct and Practice 2010 and 2017 (“the Code”).

Allegation background:

2. This case arises out of a complaint made by Mr and Mrs S (“the Complainants”) in respect of the professional services carried out by the Respondent who, at the material time, was trading under the name IBI Design Associates.

3. The background to this case is that the Complainants state they instructed the Respondent in May 2013 to act as Architect in respect of the conversion of a loft into a bedroom and bathroom for their daughter. Other extension works were commissioned at the same time but do not form the subject of this complaint.

4. In his appointment letter, the Respondent set out his fee and enclosed a RIBA Small Project Services Schedule and RIBA Fees and Expenses Schedule. In around June 2014 building works began.

5. There were issues with the contractor and in September 2014 a notice to end the contract was served. In November 2014 an issue arose about the head height on the loft staircase. The Building Control officer advised the Complainants that there was insufficient head height on the staircase and there were some discussions on site to review the situation. It transpired that a steel beam had been incorrectly positioned by the contractors which had caused the problems. The Complainants were faced with costly works to remedy the problems.

6. In July 2015 the Complainants asked the Respondent to return money they had paid him for undertaking structural calculations he hadn’t carried out. In addition, they requested a return of money paid for a water connection that was not done.

7. Relations between the Complainants and the Respondent deteriorated as a result of this and other unrelated issues. The Respondent had no further involvement in the project after August 2015.

8. In February 2016 the Complainants discovered that money paid to the Respondent to settle an invoice with London Building Control had not been paid over in full. The Complainants asked for a refund from the Respondent.

9. The Complainants instructed solicitors and a formal letter of claim was served on the Respondent in around April 2016. A substantive response to that letter was sent by the Respondent’s Solicitors on 15 February 2017.

10. In November 2016 the Complainants first raised a complaint with the ARB. In December 2016 and January 2017, the Respondent was requested to provide details of his insurance position to ARB.

11. Following the responses given by the Respondent the ARB commenced an investigation.

12. All the allegations are denied save for allegation 1. It is denied that the admitted allegation amounts to UPC and if any factual allegations are found proved, such failings amount to UPC.

13. In reaching its decisions, the Committee has carefully considered the live evidence of the Complainant, Mr S, and the Respondent, together with the documentary evidence presented to it in the Report of the ARB’s Solicitor, the documents exhibited to it, and a bundle of documents supplied by the Respondent. The Respondent also provided further documents during the course of the hearing consisting of 3 drawings and emails relating to the insurance position.

14. 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 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.

15. The Committee makes the following finding of facts:

Allegation 1

16. The Respondent accepts that his terms and conditions as sent to the Complainants did not include the information required by Standard 4.4 of the Code. He has explained to the Committee that it was an oversight and as a result of his informal relationships with clients. He said that this did not impact on the project in any way.

17. The Committee found this allegation proved both on the basis of the Respondent’s qualified admission and the fact that the letter he sent to the Complainants did not contain the information required by Standard 4.4.

Allegation 2

18. It is an undisputed fact that there was insufficient head height on the stairs and that it did not meet Building Regulations in this regard. The Respondent contends that this was because the contractor ignored his instruction about where the steel was to be placed. He stated that his drawings were clear and his instruction to the on-site foreman was explicit. He suggested that the steel may have been moved on the advice of building control.

19. The Respondent explained to the Committee that the drawings alone did not set out precisely where the steel was to be placed. He said that there was a site meeting at the beginning of the project and he told the on-site foreman that the steel needed to be aligned with the lower partition. The Respondent did not do any of the measurements for setting out on site and said that this was because he expected the contactor to carry out those measurements. He said that he couldn’t check whether the steel had been installed correctly because there was no access to the area.

20. The Committee considered this allegation very carefully. The Committee accepted that there was no suggestion that the drawings showed the steel in the wrong location. However, there were no measurements on the drawings that set out precisely where the steel was to be positioned. The Committee accepted the Respondent’s evidence and did not consider that it was unreasonable for that to have been clarified on site and accurate measurements taken when the area was stripped.

21. The Committee considered that the Respondent did fail to accurately set out his site instruction about where the steel was to be located. There are no notes of the site meeting and no note on any drawing or plan which set out the explicit instruction that the steel was to be aligned with the lower partition.

22. In the context of this project, there was a possibility that the incorrect placing of the steel would result in issues with the head height on the stairs that would not meet building regulations. The Committee considered there was a responsibility on the Respondent to produce clear, accurate measurements, plans or explicit written instructions for the location of the steel, especially given the issues he had reported with the problems of access for inspection and his concerns about the quality of the contractor’s work.

23. As such, the Committee finds the facts of allegation 2 proved. In failing to ensure that there were accurate measurements and plans for the location of the steel this did not meet the requirements of the brief or the requirements of Building Regulations to ensure the location of the steel was explicitly communicated to the contractor and ensure it was placed according to his instruction.

Allegation 3

24. The Committee finds the facts proved for the following reasons:

It is a fact that the specific architectural work for which the Respondent was paid was not carried out by him. The Respondent accepts that he was paid to carry out the calculations for the second phase of the project, but in the event he was not instructed do that work. He explained in his evidence that there was to be some adjustment at the end of the project, but events overtook him and when he realised he wasn’t going to be paid for additional work he re-apportioned that money to cover the additional work. He did not account for this extra work to the Complainants.

25. Nevertheless, the position remains that the Respondent did not carry out agreed services after he was paid to do them.

Allegation 4

26. The Committee finds the facts proved for the following reasons:

There is no dispute that the Complainants paid the Respondent specific amounts to be paid to third parties on their behalf. The evidence before the Committee, that was not challenged, is clear that the Respondent was holding money on behalf of the claimants to pay to London Building Control and Thames Water when those amounts became due. In the case of London Building Control the Respondent did not pay the invoice when it became due and instead allocated that money for payment of his additional outstanding work. In relation to the money earmarked for Thames Water, the work was carried out by the Complainants’ contractor. In both cases the Complainants had to pay again for these services.

Allegation 5

27. The Committee finds the facts proved for the following reasons.

The Respondent conceded that his relationship with Mr S, in particular, had become difficult and he had taken a decision to limit his communication with him. The Committee had regard to the fact that the Respondent had received the Complainants’ letter of claim in April 2016 and did not substantively respond until February 2017. Notwithstanding the difficulties the Respondent faced with his insurance position the Committee considered that the Respondent did delay in dealing with a complaint about his professional work and did not communicate effectively with his client once the issues were brought to his attention.

Allegation 6

28. The Committee finds the facts proved for the following reasons:

The Respondent has provided his certificates of insurance to cover June 2015 to July 2018. There is a 6 week gap between 1 June 2016 and 15 July 2016 where the Respondent was working without insurance. The Respondent has failed to provide any confirmation that he was covered at the start of his appointment with the Complainants in 2013.

29. The Respondent explained in his evidence that his insurance company declined to accept the claim as there was a delay in him notifying his insurer about the letter from the Complainants’ solicitors between the 19 April 2016 and 10 May 2016. The Respondent said in his evidence that he provided an explanation for the delay to the insurers, but he could not now recall what that was.

30. The Committee noted that the insurers, via the broker, advised the Respondent not to mention their involvement at that stage but drafted a “holding” response for the respondent to send. It appears from the limited correspondence provided that the insurers, initially at least, accepted the Respondent’s explanation for the delay and asked for further information in support of the claim.

31. It seems unlikely to the Committee that the insurers would have declined cover solely on the basis of the delay between the 19 April and 10 May. The Respondent has not produced any evidence in support of his explanation about why the insurers declined to accept the claim.

32. The Committee considered the Respondent’s oral evidence on this matter to be vague and evasive. He was unable to provide any detail about exactly when or why the claim was declined.

33. For these reasons the Committee is not able to be satisfied on a balance of probabilities that the Respondent did have adequate and appropriate insurance to meet his client’s claims.

Allegation 7

34. The Committee finds the facts proved for the following reasons:

The ARB became involved in the matter in November 2016. By this stage the Respondent knew that his insurer had declined the claim and he was effectively without insurance for the claim being made by the Complainants. The Respondent in his oral evidence as unclear when the claim was declined but thought it might have been in around June or July 2016.

35. In an email of 23 November, the Respondent was asked by the ARB to confirm that the matter was being dealt with and was in the hands of his insurers. On 2 December the Respondent replied but did not provide the confirmation requested.

36. The Respondent was asked again in an email of 5 December 2016 by the ARB to provide confirmation by way of a letter from his insurer or solicitor that the claim by the Complainants was being dealt with by his legal representative or his insurer. The Respondent confirmed on 15 December that the matter was being dealt with by his legal representative and a letter would be sent to the Complainants the following week.

37. On 3 January following notification from the Complainants that there had been no response from the Respondent the ARB emailed again and asked the Respondent to confirm “Whether your PI insurers have been notified and have accepted cover in relation to this claim.” The Respondent was asked for a response by return and no later than 6 January 2017.

38. On 9 January the Respondent stated in his email to the ARB “My PI Company was notified about the case.” This was a partial answer to the question that the Respondent had been asked by the ARB. The Respondent knew that his insurance company had declined to accept cover and in the view of the Committee his response to the ARB omitted to disclose this information in an attempt to mislead.

39. On 16 January 2017 the Respondent was asked again by the ARB to provide confirmation that his insurers were providing cover in respect of the claim. On 19 January 2017 the Respondent replied to the ARB stating, “There has been some issue regarding the status of the claim with the Insurance Company which is being dealt with.” Again, the Committee considered this response to be less than candid and lacking in integrity.

40. The Respondent said in his evidence that by this stage he had instructed a solicitor who was challenging the decision of the insurance company to decline cover for the claim and he hoped he could get it back. He provided no confirmation of this to the Committee and was vague and evasive when asked about the details. The Committee considered that the Respondent’s explanation that he had in mind the previous instruction from his insurance brokers not to mention the involvement of the insurance company as lacking in credibility given that the insurers had declined cover some months earlier and he was being asked for information by his professional regulator. The Committee considers that the Respondent didn’t do enough to ensure that his responses to the ARB were accurate and complete.

41. On 20 January the position was very clearly spelled out to the Respondent in an email from the ARB. He was notified that the ARB considered his responses to be less than candid and he was asked for a full explanation. The Respondent did not take that opportunity and did not in fact explain the position with the claim until this hearing. The Respondent has not provided any relevant correspondence regarding the claim from his insurers, despite several requests and his explanation is still unclear. The Committee considers that the Respondent failed to deal promptly and openly with the ARB regarding his insurance position.

42. In deciding whether the Respondent’s conduct lacked integrity the Committee has had particular regard to the decision in the case of Wingate and Evans [2018] EWCA Civ 366. In particular paragraphs 100 and 101. The Committee considers that the Respondent was reckless in providing selective information regarding his insurance position to his regulator which resulted in the ARB being misled about the status of the insurance claim made by the Complainants.

Finding on Unacceptable Professional Conduct:

43. Having found the facts of all the allegations 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 Codes. In particular the Committee had regard to standards 1, 2, 4, 6, 8, 9 10 and 11.

44. 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.

45. The Committee has considered the authority of Spencer v General Osteopathic Council [2012] EWHC 3147 (Admin). It has borne in mind in reaching its decision that for a finding of unacceptable professional conduct to be made, “a degree of moral blameworthiness on the part of the registrant likely to convey a degree of opprobrium to the ordinary intelligent citizen” was required. Any failing should be serious. The Committee accepts that “mere negligence does not constitute misconduct” and that “a single negligent act or omission is less likely to cross the threshold of misconduct than multiple acts or omissions….a single instance of negligent treatment unless very serious indeed, would be unlikely to constitute deficient professional performance”.

46. By reason of the facts found proved, the Committee finds that the Respondent acted in breach of standards 1.1, 2.1, 4.4, 6.1, 8.1, 8.4, 9.2, 10.2, 11.1 and 11.2 of the Code.

47. The Committee considered that the failure to set out in writing to the Complainants all of the matters required by Standard 4 was a serious failing given that the Respondent didn’t properly explain what to do if they had complaints or set out his insurance position. The Complainants were not notified of his complaints handling procedure and tried for a number of months to obtain a satisfactory response to their complaints.

48. The failure to provide accurate drawings, measurements and plans meant that the staircase did not comply with building regulations and there was nothing to confirm that the contractor had acted contrary to instructions. This left the Complainants unprotected from the failings of the contractor. The Committee considered this was a particularly serious failing in the light of the consequences for the Complainant.

49. The Committee considered that the Respondent’s actions in re-apportioning money paid for one purpose to offset other professional work was a serious failing that was likely to convey a degree of opprobrium. There may have been a previous agreement for re-apportionment at the end of the contract but at the point the relationship broke down the Complainants asked for their money back. The Committee considered that the decision to re-apportion the money without the Complainants’ consent in the face of that request was unacceptable professional conduct.

50. The Committee considers that the failure to have adequate insurance cover and the subsequent failure to be open with the ARB was a serious failing. This resulted in the Complainants being unable to make a claim against the Respondent for their losses and involved them pursuing a claim and incurring costs for a significant period of time. The Respondent’s actions in his dealings with ARB fell far below the conduct expected of a registered architect.

51. The Committee finds that both individually and collectively, his failings are serious and adversely impact both on the reputation of the architect and the profession generally. Such failings as outlined above can quite properly be categorised as UPC.

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

53. The Respondent then addressed the Committee in mitigation. He set out that he accepted the findings of the Committee although he continued to state that he was working in difficult circumstances with an uncontrollable builder.

Sanction:

54. Having heard from the Respondent in mitigation, 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 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 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 and it has exercised its own independent judgement.

55. The Committee has identified the following mitigating factors:

• that he has participated in this process; although the Committee notes that many of his responses to entirely proper issues raised by the ARB were evasive and failed to meaningfully address ARB’s concerns;
• that he has expressed some regret and remorse although he has not apologised directly to the Complainants;
• that he has worked on a number of projects in the past 10 years without any issues as far as the Committee is aware;
• the Respondent has changed his office organisation and working practices;
• the Respondent does now have a professional indemnity policy.

56. The Committee has identified the following aggravating factors:

• he has demonstrated little insight into the seriousness of all his failings and continued to blame the builder and the client;
• the Respondent had ample opportunity to address the ARB’s legitimate concerns regarding his PI cover, yet his correspondence with the ARB and his evidence to this Committee was evasive;
• the Respondent as a result of his failure to maintain adequate insurance from the start of the appointment has deprived the Complainants of the possibility of a judgement backed by an indemnity;
• there has been a loss to the Complainants;
• the Respondent has had similar difficulties resulting in a previous case at the ARB. He should have been aware as a result of this previous case of the need to promptly inform his insurers of any potential claim;

57. Taking into account the aggravating and mitigating circumstances and looking at all the facts in the round, the Committee was not confident that there was little risk of repetition given the lack of appreciation of the issues and the failure to take on board previous experience.

58. A lack of integrity on the part of a professional architect is obviously a serious matter. Integrity is one of the cornerstones of a professional, and failure to demonstrate this quality severely undermines the confidence that can be placed in that individual and in the profession generally. It is particularly serious that the ARB was misled. The public and the regulator should quite rightly be able to rely on an architect giving full explanations to his regulator.

59. The matters found proved are serious to the extent that Mr Ekineh’s failings diminish both his reputation, and that of the profession generally and expose himself and his clients to the risk of substantial financial loss. The Committee is mindful of its role to declare and uphold proper standards of conduct and behaviour. The Committee has reminded itself as to its findings regarding the seriousness of all the matters found proved. Having done so, the Committee 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.

60. The Committee has balanced the Respondent’s own interests with those of the profession and the public and has borne in mind the need to act proportionately.

61. The Committee first considered whether to impose a reprimand. However, having considered the Indicative Sanctions Guidance and the factors detailed above, the Committee considered that the nature of the UPC found proved was too serious for such a sanction to be considered appropriate or proportionate.

62. The Committee next considered whether to impose a penalty order and considered that, for the same reasons, such an order was neither appropriate nor proportionate.

63. The Committee then considered whether to impose a suspension order and concluded that this was the appropriate and proportionate sanction. Such a sanction, in the Committee’s view properly reflects the seriousness of the Respondent’s failures as found proved, the risk to the public and reputational damage to the profession. The Committee considered that the seriousness of the matters found proved were at the higher end of the scale and as such the Committee therefore imposes a suspension order for the maximum period of two years.

64. The Committee considered carefully whether to impose an erasure order but considered that notwithstanding the ongoing risk identified and the Respondent’s limited insight, his conduct is capable of being rectified. The Committee has also taken into account that the Respondent has taken some steps to prevent a repeat of his failings and there has been a significant period of working without apparent incident. As a result, the Committee considered that such a sanction would be disproportionate and punitive given the suitability of a suspension order.

65. That concludes this determination.

 

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