Professional Conduct Committee Decisions

ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

IN THE MATTER OF

MS KULBIR CHADHA (059655H)

held on

15 and 16 November 2011

at
Clifford’s Inn Conference Centre
Fetter Lane London
EC4A 1LD

Present:

Mr Paul Housego (Chair)
Ms Linda Read (PCC Lay Member)
Ms Judy Carr (PCC Architect Member)

Mr Stephen Battersby (Clerk to the PCC)

John Williams of Bankside Law represented the Board.
Ms Chadha attended the hearing but was unrepresented.

It is alleged that Ms Chadha is guilty of unacceptable professional conduct and/or serious professional incompetence. There are seven matters alleged to be fact which it is said individually or cumulatively should lead to such a conclusion. Many of those seven matters are multi-faceted. The burden of proof is upon the Board’s solicitor on the balance of probabilities.

The basic circumstances are these. Ms Chadha practised from her home. She was recommended to Ms Nelson, who became her client. Ms Nelson’s house is a terraced Georgian property, was habitable but in poor condition and is within the Westbourne Conservation area of the Westminster City Council. By letter of 28th October 2003 Ms Chadha set out the terms of her appointment. This was to refurbish the house with a budget of £350,000, this being an inclusive sum encompassing VAT and professional fees as well as all building work. The timetable set out in the letter included six to eight weeks for the design process, a minimum of 12 weeks for a planning application, then up to 10 weeks for detailed design drawings and specification, then a tender process of up to six weeks. Works on site were said to take a minimum of six months.

Ms Nelson’s complaint, resulting in this hearing, arises because although she appointed Ms Chadha on 5th November 2003, a planning application was not launched until 12th of May 2004. Planning consent was granted on 11th of February 2005 and building work commenced on 5th of May 2006, on a fixed price contract at £480,000, with a fixed timescale of six months. Ms Nelson moved back into her house in March 2007, with work remaining to be done. The builder ceased to work on the house in August 2007, with the final payment unpaid and the remaining problems being resolved by other builders until late 2009. This is, of course, approximately six years in total.

The seven allegations may be summarised as follows:–

Failure to have adequate arrangements in place for conduct of business in the event of absence from work.
Failure to perform work with due skill care and diligence in five ways:–

Planning
Building contract negotiation
Building contract administration
Snagging
Appointment of a structural engineer

From 5th November 2003 (date of instruction) to 1st December 2007 (the date she ceased to act) failure to have appropriate and effective internal procedures in place so as to deliver an effective and efficient service. This is therefore an umbrella allegation covering the whole period of her involvement.
Failure to carry out professional work:–
- without undue delay
- in accordance with timescale
- within cost limit
specified in the letter of instruction of 20th of October 2003.
This has two parts:
- Failure to keep Ms Nelson (and her partner Mr Porter) adequately informed of the progress of work from May 2006 until 1 December 2007 (when she ceased to act)
- Similarly a failure to advise of issues which might significantly affect the quality and cost of the project from 5th November 2003 (the date of instruction) until 2nd of August 2005 (the date tenders were invited).
This also has two parts:–
- That she did not adequately resolve a complaint made by letter dated 10th of January 2006.
- That in connection with that complaint, she failed to advise Ms Nelson that the matter could be referred to the Architects Registration Board.
That she did not deal with that complaint courteously, sympathetically and in accordance with the required timescale, that is within 30 days.

We deal with each of these points in turn, making findings of fact as we do so.

Ms Chadha told us that she took standard holidays only, that she did not accompany her husband on business trips abroad, and that she had a mobile phone that was always on, even when abroad on holiday. She says she had a colleague who covered if necessary, and during the design process she had a full time assistant Sajjid Khan working in her home. Ms Nelson told us she had difficulty contacting Ms Chadha by email or phone. Ms Chadha says Ms Nelson was a very demanding client and she did not always answer her telephone, as she felt she needed to have the file in front of her. Her husband was a full time employee with another firm of architects and assisted her in her practice, before and after their separation. There is nothing to show that Ms Chadha was away from work for anything other than standard holidays. That she may not always have answered calls may be a service level issue, but the arrangements she had in place to cover absence seem to us adequate.
Planning: Ms Chadha had not worked with Westminster City Council before. She found the conservation area policies different to those she had encountered at Kensington Council, where she had carried out work. In particular there was no pre-application meeting which led to difficulties. In particular, Ms Chadha sent in plans at 1:100, and the Council then asked for plans at 1:50. This caused Ms Chadha a large amount of extra work, as she had to redraw the plans, with much more detail, which led to delays.

Ms Chadha knew that Westminster City Council had a policy against Mansard roofs. Ms Nelson was very keen on enlarging the floor area of her house and requested Ms Chadha to design a Mansard roof, on the basis that 40% of the houses in the road had such roofs and that it was worth trying that. In fact it was not acceptable, exactly as Ms Chadha had pointed out.

Eventually, and probably as a joint decision between architect and client, it was decided to change tack; instead of submitting a larger application than was desired, a smaller application was submitted, with subsequent applications to enlarge the scope of work, both by a smaller planning application and by obtaining approval under permitted development rights. On the balance of probabilities it seems to us that what happened was this:

Ms Chadha pushed her imaginative scheme as hard as she could. The planning officer was unreceptive and the matter was heading for a refusal, with Ms Chadha indicating that there was the possibility of appeal. This was unattractive to Ms Nelson, who then engaged with the planners direct. Plainly there was some difficulty between Ms Chadha and the relevant planning officer, so much that she complained to his superior about him.

Subsequent to that Ms Nelson asked the planning officer what he would accept, resulting in a slightly lower and sloping roof to the conservatory that was acceptable, and planning consent was obtained in February 2005. Because of the tactic of gradually expanding the scope of the scheme using permitted development rights, it took until June 2005 to conclude planning.

While it would have been helpful had Ms Chadha had greater experience of the ways of Westminster City Council, we see in this nothing to justify a finding of unacceptable professional conduct or serious professional incompetence. A satisfactory end result was achieved; there was delay, but in part that was due to the difficulty in resolving the planning officers objections to a very imaginative design in a conservation area and the clients wish to try for a Mansard roof.

Building contract negotiation: Ms Chadha suggested a JCT contract and JCT Minor Works contract. Ms Nelson expected Ms Chadha to negotiate an entirely individual contract with the builder. Ultimately Ms Nelson asked a colleague, Mr Leyburn, to negotiate terms with the builder. A JCT standard form was used with wholesale amendments and deletions, coupled with a substantial addendum with wholly new terms in it. It was a fixed price contract with such unusual features as the employer issuing the final completion certificate. Ms Chadha refused to embark on that process.

It is alleged that terms of her agreed retainer at page A 10 oblige her to “agree a building contract” and negotiate finer points with the contractor, and so Ms Chadha was obliged to do as Ms Nelson asked. We do not agree. It seems to us very ill advised of an architect to attempt to redraw any JCT document. It is the architect’s responsibility to suggest an appropriate standard form, and this she did. It is then incumbent on the architect to deal with points such as the amount of the retention, and the defects period. This Ms Chadha was prepared to do. Accordingly, this was not unacceptable professional conduct or serious professional incompetence. Put shortly, it was not part of her contract with the client to act as a lawyer to draft a contract with the builder.

Building contract administration: The contract between the client and the architect required her to act as contract administrator, to inspect the site regularly and hold once fortnightly meetings with the client and the contractor present. Miss Chadha had only this one project on at the time of the building work. She tells us that she attended the site daily. While we doubt that this is literally correct, plainly she visited the site very often.

It was intended that she had weekly meetings on Saturdays at the site with the builder and with the client. It appears that there were some 15 such meetings during the 22 weeks that the contract continued, until its conclusion. This would satisfy the contractual requirement. Further, the contract with the builder was drawn by the client herself, and so those contractual requirements do not dovetail with the contract between the client and the architect. The contract between the client and contractor required fixed stage payments, on fixed dates. These were not connected with schedules of work other than that the architect had to express her confidence that the requests were reasonable. This Ms Chadha did, and on occasion asked the client to delay payment until such time as further works were carried out. The contract between the client and the builder was for a fixed term with liquidated damages thereafter.

The contract period was exceeded and liquidated damages became due. The client then became frustrated with the lack of progress; the builder became frustrated at the fact that he was incurring liabilities in excess of the money he was receiving from the transaction, and eventually the entire contract came to a conclusion by the builder leaving site. Either he repudiated the contract, or the client did by refusing to pay the final instalment to the builder.

Whichever way it was, the determination of the contract was not the responsibility of the architect. Accordingly this can be neither serious professional incompetence nor unacceptable professional conduct. It is unfortunate that the common misconception of clients that contract administration means project management occurred in this case. This obligation is set out in the RIBA documentation sent to the client at the beginning of the relationship (it was received and read by the client as it is referred to in her letter of 10th January 2006 (A 100).

Snagging: The house was reoccupied in March 2007 and the builder left site in August 2007. A snagging list was prepared by Ms Chadha dated 26th May 2007. The agreement with the client of 28th October 2003 required the architect to prepare a snagging list after practical completion. The difficulty is when this was.

The client moved in to the house in March 2007, unilaterally. There was no gas and electrical certification at the time, which would normally preclude practical completion. If so the obligation to prepare a snagging list would not have arisen. Practical completion would also trigger a defects liability period. In the end the builder said he was leaving, in August 2007, saying that the cost of snagging should be taken off his final bill.

In fact the relationship ceased and there has never been a final account between them. The client then obtained other builders to deal with issues to this house and the neighboring house. The contract between the client and the builder does not deal with snagging. The “snagging list” was actually a list of things that were wrong. The letter said there would be a further list. There never was, but events overtook such a further list. For these reasons this can be neither unacceptable professional conduct nor serious professional incompetence.

Appointment of Mr Redstone: A structural engineer was required. Ms Chadha said to the client that she would approach one. She did, Mr Redstone. It is unusual for an architect to instruct a structural engineer as agent for a client. It is to be expected that the architect would recommend a structural engineer to the client, and the structural engineer then contact the client who would sign letters of engagement. This did not happen.

There is no evidence that anything other than this in fact occurred. Mr Redstone undertook work and then billed the client for it. All the contemporaneous documentation is consistent only with Miss Chadha expressing surprise and concern that Mr Redstone had “jumped the gun”.

The client plainly had not instructed Mr Redstone. Neither, on the balance of probabilities, do we find that Ms Chadha did so. Neither the client nor Ms Chadha is at fault here, and this is not unacceptable professional conduct or serious professional incompetence by Ms Chadha.
Monitoring and internal procedures failures (in summary) and inadequate staffing levels

It is plain that, probably entirely understandably, Ms Nelson was very keen to have the work move forward because of the delays that occurred in getting the building work to start. She was also concerned about her need to move house if the contract did not finish on time. No doubt that led to her being perceived by Ms Chadha as a somewhat demanding client.

However the paper trail is clear that there were periods when it was simply impossible for the client to make contact with her architect. We bear in mind that there were some 15 site meetings during the building period so that there would have been no period between meetings of more than some three weeks (if the visits were evenly spaced). We do not think there is any difficulty with the quality of the personnel involved, and plainly the contract was monitored by reason of the site visits. However it is not an appropriate and effective internal procedure so as to enable an effective and efficient service to be delivered if the client cannot contact her architect.

While the architect does not have to answer every call, we accept that on occasion it was not possible for messages to be left on the mobile phone used by Ms Chadha. We take no account of Ms Chadha’s request for fax communication rather than email, as this was some years ago and we accept Ms Chadha’s explanation that a fax was immediately apparent to her whereas she might not see an email if not logged on. Further, there is an almost complete absence of any paper trail about meetings and this is not adequate.
Undue delay, time scale, cost limit

The timetable was unrealistic; it was never going to be practicable to gain planning consent for such an imaginative design within a conservation area in the timescale of 12 weeks set out in the letter of engagement. The letter does state that it is a “minimum” period, but the client expectation should be managed better than that. It was always going to take very many months to obtain planning consent. Even the client felt the works would take nine months. The drawing of such a scheme took much longer than she envisaged, and there were alterations such as the Mansard roof blind alley.

Undue delay: there were a lot of problems. Planning was tricky. There was also a “bubble” at the time, so that instead of builders clamouring for work, they were too busy to quote, or overpriced the work. Ultimately there was a fixed price contract for a fixed period, and the builder was unable to comply with the time scale. However when all the periods are added up, while there are reasons for each section, the total elapsed time between start and finish is simply too long, especially against what the client was led to believe in the original 2003 letter of appointment, which expectation was never revised.

Cost limit: The budget was £350,000. This was October 2003 and never revised. The underground work was to be included “if possible”. It turned out that it was not, at that price. The client accepted a quote at £480,000 in April 2006, with very high specification, including the underground work. It was two and a half years later. Prices had risen by inflation. There was also a “bubble”. The client opted for a fixed price contract at high specification delivering an imaginative project, with the expensive underground work, not a basic refurbishment. This was her choice. Ms Chadha was naive, and her inexperience showed. While Ms Chadha has 12 years’ experience, this was her biggest project ever. However she failed to manage her client’s expectations. We bear in mind that it is by no means unusual for such projects to exceed budget, especially so in the boom times of 2007.
Failure to keep informed from May 2006 to December 2007: This period is from the start of the building work until Ms Chadha ceased to be involved. There were 15 site meetings, but there were no minutes of them. There were no progress reports, and while the client was fully engaged in the work and liaising with the builder, both at owner and site level, Ms Chadha let the client cope on her own, and left it to her to work out for herself that she had a problem with not having accommodation in her house when expected.

Secondly from 5th November 2003 to 2 August 2005 (from appointment to when tenders were available): This is, in essence, a recapitulation of other allegations. There is no record of discussion. In summary there is no evidence of the client being advised and guided by the architect as one would expect.
Complaint

The letter of 10th January 2006 set out concern at lack of progress. Ms Chadha was out of the country, returning on that date. Ms Chadha sent no reply, at any time. The letter asked for a meeting. There was no meeting about the complaint, but there were meetings. Ms Chadha ignored the letter, as the work and the relationship improved and the contract was let in May 2006. Therefore the letter of complaint received no reply, but the substance of the complaint was resolved.

The issue of the lack of information about the ARB is made out. The ARB is referred to in document SFA 99, a RIBA document sent to the client in 2003 with the letter of appointment. The letter of 10th January 2006 refers to detail within this document, so that the client had read it. However the standard requires a response to be sent (therefore implicitly in writing) within 30 days, and this was not done. It also requires at 12.1.c that the architect should tell the complainant that she could refer to the ARB, and she did not do so.
Was that complaint was not dealt with sympathetically and courteously and within 30 days?

The meetings were apparently not acrimonious, so the only point is the possibility of 30 days - the issue causing the complaint was, on the balance of probabilities, dealt with within 30 days even if not by the correct procedure.

On those facts we now consider whether there was unacceptable professional conduct and or serious professional incompetence.

We do not feel that there is any element of moral turpitude in this case. We do not believe this to be unacceptable professional conduct. The matters where we find fault are of professional competence.

We then consider whether cumulatively they are serious unprofessional incompetence. While we note the architect’s reservations about her client, this client had an experience over a period of years that was unacceptable, and we so find, that it is serious professional incompetence.

We invited Ms Chadha to address us as to what sanction, if any, we should impose. Ms Chadha had received and read the ARB leaflet about this stage of proceedings.

In mitigation, we note that Ms Chadha had delivered a successful scheme that had enhanced the value of her client’s property. She agreed that our decision was fair. She had learned a lot. She had declined similar residential work unless from developers. She had not worked for the last year and more, had not decided whether to resume practise as an architect. Her means were limited. There seems little prospect of a recurrence.

It was an aggravating factor that Ms Chadha had not engaged with the process of this disciplinary matter in any significant way although it had been commenced some two years ago. However she had travelled from India specifically for the hearing.

We considered that it would not be appropriate to impose no sanction, and then considered whether to impose a reprimand. In all the circumstances we decided that this was the appropriate sanction.

Accordingly, we reprimand Ms Chadha.

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