Professional Conduct Committee Decisions

ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

IN THE MATTER OF

MR DOUGLAS HUGH STUART (038335J)

held on

21 & 22 June and 15 July 2011

Novotel
181 Pitt Street, Glasgow

and

Architects Registration Board
8 Weymouth Street
London

Present:

Mr Julian Weinberg (Chair)
MsLinda Read (PCC Lay Member)
MrJames Cuthberston(PCC Architect Member)

Mr Stephen Battersby (Clerk to the PCC)

MrJonathan Goodwin of Jonathan Goodwin Solicitor Advocateappeared on behalf of the Board

Mr Stuart attended the hearing and was represented by Mr Charles McGregor of Simpson & Marwick

The Charge against the Respondent is that he is guilty of unacceptable professional conduct and/or serious professional incompetence in that:

Contrary to Standard 2.2 and/or 11.3 of the 2002 Architects Code of Conduct and Practice (“The Code”) he failed to ensure that the person carrying out the work on his behalf and under his control was sufficiently competence and/or failed to have in place appropriate and effective internal procedures, including monitoring and review procedures and/or failed to exercise adequate supervision;
Contrary to Standard 11.1 of the Code he failed to adequately or at all set out his terms of engagement in writing;
Contrary to Standard 11.4 of the Code he failed to carry out his work without undue delay and/or in conjunction with costs limits agreed with the client;
Contrary to Standard 11.5 of the Code he failed to keep his client informed of the progress of work undertaken on her behalf and/or issues significantly affecting its quality or cost.

DECISION

In this matter, the Board was represented by Mr Jonathan Goodwin. Mr Douglas Stuart was present and was represented by Mr McGregor of Simpson & Marwick Solicitors.

Mr Stuart faces 2 allegations of unacceptable professional conduct and serious professional incompetence based on four allegations of fact as set out in the charges.

No preliminary applications have been made.

The allegations in this case arise from an initial complaint made by Ms Pegrum (“the Complainant”) against the Respondent with whom she had contracted in January 2007 to design and administer a barn conversion at her home address. He was a registered architect practising under the style of Douglas Stuart Chartered Architect in Inverness. It was accepted by the Complainant, that she was made aware that there would be a delay in the Respondent starting work on the project because of his workload at that time. The project was to be worked on extensively by an employee of the Respondent who had passed her architect’s exams but who at the time of the commencement of the project, had not registered with ARB. Mr Stuart was responsible for supervising her work.

It is alleged that an initial estimated costs of the works was given at £104,220 which the Complainant thought to be very low, but when tender bids were made, they exceeded £200,000. A re-tendering process took place, but the reduced tender of £155,000 did not include many essential items such as stairs, sanitary ware, kitchen furniture or heating on one of the floors of the building. The Complainant eventually found her own builder to carry out the construction.

It is then alleged by the Complainant that there were substantial delays in the works progressing, the Building Warrant being forthcoming and other concerns about the quality of the service being provided by the Respondent, for example about the design of and the level of additional cost of a staircase that was to be fitted in the barn. This has led to concerns as to whether the employee was being effectively supervised by Mr Stuart as required. In due course, Mr Stuart ceased to work on the project. It is not clear whether he resigned or his contract was terminated by the Complainant.

In reaching its decisions, the Committee has carefully considered all the documentary evidence presented to it in the Report of the Board’s Solicitor together with submissions made by him. The bundle includes a statement from the Complainant together with the Respondent’s detailed written responses to the allegations and a letter dated 14 June 2011 sent by Simpson & Marwick Solicitors on behalf of the Respondent together with its enclosures. The Committee has also carefully considered the live evidence given by the Complainant and that given by the Respondent together with the submissions made by both Mr Goodwin and Mr McGregor. All the allegations are denied, but we note from the response document received from Simpson & Marwick Solicitors, that the Respondent, whilst contesting the allegations, makes admissions to a number of facts. We have accepted the advice of our clerk and have had regard to both the burden on the Board to prove its case and the standard of proof, namely proof on the balance of probabilities. In reaching its decision, the Committee notes that it has received a great deal of evidence during the course of the hearing, some of which does not impact on the Respondent’s culpability for the specific charges as alleged against him. We have therefore confined our consideration of the evidence to those facts that go to the particular allegations faced. Our findings are as follows:

Allegation a:

The Committee finds the allegation proved in part in that it finds the allegation alleging a breach of Standard 2.2 not proven, but proven so far as it relates to Standard 11.3 of the 2002 Code (“the Code”). Our reasons are as follows:

The project was to be handled on a day to day basis by an employee of the respondent. She had worked for the Respondent since October 2004 without any incident when at the time, she was a graduate working towards her part 3 examinations. She passed those exams in 2006. It is common ground between the parties that having done so, she failed to register with ARB at which point, she would not have been entitled to describe herself as an architect. The Respondent stated that he assumed that she would have done so and was surprised that she hadn’t. Having said that, the Respondent stated that he had found the employee to be conscientious, competent and enthusiastic, she got on well with clients and considered her to be his “number 1 assistant”. He had no reason to doubt her competency for this project. Prior to qualification, she had worked on not dissimilar projects of domestic extensions and alterations without any difficulties. In his letter of 30 October 2009 to the Board, he stated that he felt he was “entitled to have confidence in [the employee’s] work based on past experience”. She had been externally assessed as being suitable to qualify as an architect by virtue of her having passed her exams. In these circumstances, the Committee is satisfied that that it was reasonable for the Respondent to conclude that the employee was competent to undertake the project in question.

Having reached this decision, the Committee went on to consider whether, if necessary, she had been adequately supervised. The Respondent’s view as to the level of supervision required of the employee was set out in the above dated letter. His view was that withthe employee being the job architect, he “would be relieved of some of the burden of day to day supervision. She was expected to check her own work for errors and omissions and carry out all necessary corrections”. His role was “to oversee her work and check that any notified corrections had been carried out”. Mr Stuart was heading a small practice and believed that by employing a qualified architect, the employee could be trusted to work largely unsupervised. The committee has borne in mind that by this stage, the Respondent had employed her for some 2½ years and clearly felt that reduced supervision was appropriate given her satisfactory performance to date. The Committee heard no evidence that at the early stages of the project, a higher level of supervision was warranted. The Committee has considered whether the contents of the email from the Complainant to the employee, a copy of which was sent to the Respondent dated 22 October 2007 (page 26 of the Board’s report) should have “raised the alarm” with the Respondent that increased supervision was required at that stage. The Committee has concluded that that letter was not a letter of complaint and that highlighting the discrepancies in question was not unusual and was not sufficiently concerning so as to suggest that the project was not being effectively managed. The evidence suggests that the Respondent first became aware of problems with the project when he spoke to the Complainant in February 2008 when she raised a number of concerns with him. He asked that they meet to discuss the problems and that in the meantime, she put her concerns in writing which she did. These are set out in her letter of 11 February 2008. Following that meeting, the Respondent took a more active role in the project: he asked to be copied in on emails between the Complainant and the employee and took a much closer interest in how the job was progressing. He discussed the problems with her as he could see that her performance wasn’t as good as was expected of her. The employee accepted that she had not been as focussed as she should have been, that she “had taken her foot off the pedal” and that she had lost motivation. The Committee accepts that once problems had been brought to his attention he increased his level of supervision and that until then, given the circumstances at the time and without the benefit of hindsight, he had no reason to believe that such increased supervision was necessary. Accordingly the Committee finds that the Respondent’s conduct did not breach Standard 2.2.

However, the Committee does find that the Respondent acted in breach of Standard 11.3 of the Code. In reaching this decision, the Committee is mindful that it may well be appropriate that the supervision and monitoring safeguards required of a small practice may well be less formalised than would be required in a larger firm. However, that does not obviate the need for appropriate and effective internal procedures to be in place, which include monitoring and review procedures. The Respondent accepted that random file reviews were never done and there was no strict policy requiring staff to keep detailed, dated file notes. He accepted that supervision consisted of looking over technical drawings without necessarily checking that what was being produced was in accordance with what the client wanted. He accepted that an improved dialogue between himself and his staff was required, as were more detailed file notes and that his informal supervision procedures were both inappropriate and ineffective.

Allegation b:

The Committee finds the allegation proved. Our reasons are as follows:

The contract between the parties is exhibited at pages 10-16 of the Board’s bundle and is a document referred to as an “Assessment of Fees for Architectural Services”. There was no other contractual documentation between the parties. On the face of it, it is apparent that that document does not provide all the information required to be recorded in order to comply with Standard 11.1 of the Code. That is conceded by the Respondent. What is disputed is that such failure amounts to unacceptable professional conduct, which issue is addressed later. In reaching its decision, the Committee has accepted the advice of its clerk that the requirement to record in writing the allocation and limitation of responsibilities, relates to both responsibilities between the architect and third parties, as well as between staff within the practice. The above referred to contract did not record either the allocation of, or limitations of responsibilities for staff within the Respondent’s firm. Furthermore, it omitted any provisions for termination and further failed to inform the Complainant that architects are subject to the disciplinary sanction of the Board in relation to complaints of unacceptable professional conduct or serious professional incompetence. In the circumstances, the Respondent has breached of Standard 11.1 of the Code.

Allegation c:

The Committee finds this allegation proved. Our reasons are as follows:

It has been alleged that there was a delay in progressing the works in question at a number of stages of the project: in drawing up initial plans, in obtaining planning permission, putting out tenders for the work and in securing the Building Warrant. We shall deal with each of these in turn.

The background to this project is that the Complainant met the Respondent on 5 January 2007 when the conversion was discussed. This was done at a time when the Respondent was very busy with the pressure of work and the Complainant was told, and she accepted, that he wouldn’t be able to start work on her project for a month. In the Respondent’s notes of the meeting produced by him, he noted that he proposed drawing up plans by March. At that time, the Respondent stated that “the practice workload and workloads generally throughout the Highland area were increasing at an unprecedented unforeseeable rate” and that “I would accept that my practice was very busy at the time which led to some delays in progressing matters”. What transpired was that plans were not in fact produced and sent to the Complainant until 26 April 2007, a month later than estimated. The Committee concludes that whilst a month’s delay at this early stage of the project was undesirable, and is on the cusp of what is acceptable delay, on the balance of probabilities, it was not of such length that it amounts to undue delay in all the circumstances.

The application for planning permission was lodged on the 24 May 2007 and was granted on the 27 August 2007. Prior to that the Complainant stated that she had had to contact the Planning Officer to find out why planning permission had not been granted. She stated that she was told that the Planning Office had contacted the Respondent for further information for the application to progress, but that he had not responded to either the letter sent to him or returned two telephone messages for him to call the office. The Respondent in evidence stated that he had no recollection of messages being left for him. So far as the correspondence received from the Planning Office was concerned, he was given an opportunity to respond within 14 days. In the absence of a response, (which he states was not necessary), the application would proceed on the basis of the information the Office then had. These two respective positions are diametrically opposed. Both the Complainant and the Respondent seemed clear and sincere in their recollection of events. However, irrespective of which version of events is in fact correct, the fact remains that Planning Permission was nevertheless granted three months after the application was submitted. That time scale was not unreasonable and the Committee therefore concludes that there was no undue delay in the Respondent securing the granting of the application.

The Committee then considered the position regarding the sending out of tenders. It notes that in her email of the 13 November 2007, the Respondent’s employee states “we are starting with the preparation of your tender document. We are in the process of identifying contractors who will be interested in submitting a tender and so far, two have expressed interest. Formal tender documents will be issued as soon as the documents are ready and a list of tenders has been compiled”. The tender documents were not in fact sent out until the 6 February 2008, almost three months later. No explanation for the delay has been given. The Committee considers that delay to be excessive and unjustifiable and as such, amounts to undue delay.

The application for the Building Warrant was submitted to The Highland Council on the 27September 2007. On 31 October 2007, a month later, the Respondent’s employee wrote to AF Cruden Associates Consulting Engineers asking them to provide a Structural Design Certificate and any other necessary details required for Building Warrant purposes. This was a company well known to the Respondent and he gave evidence that he had found their work previously to be of a good standard. They responded on the 28 November 2007 confirming that they would be pleased to act as Consulting Structural Engineers but that “due to our current workload, it will be approximately 12 weeks from date of instruction before we could commence work on this project”. A copy of their letter was sent to the Complainant who stated that she raised her concerns with the Respondent’s employee. The Respondent however, was of the view that due to the industry generally being busy, it would not be possible to find an alternative engineer who would be able to carry out the necessary work within a shorter timescale. The Committee received no evidence that any steps were taken to see whether this would in fact be true.

On 21 December 2007, the Respondent received a letter from Butler & Young who had been appointed by The Highland Council to assist in providing assistance with the backlog of Building Warrant applications in view of the “unacceptably long delays” that were being experienced. In their letter they raise a number of requisitions. A response was sent on 6 February 2008. On 12 February, further requisitions were raised requesting a structural certificate and other documentation which was to be provided by the Structural Engineers. On the 19 February, a response was sent confirming in response to a number of questions that “Structural certificate / design calculations will be forwarded to you separately”. That certificate was not forthcoming until 17 July 2008, some nine months after the Engineers were first contacted and some five months after the end of the twelve week period during which the Engineers would not have been able to start work on the project. The Building Warrant was therefore not issued until 29 August 2008. The Respondent accepted that such a delay was unacceptable, but denied that he was responsible for it. He stated in evidence that he had spoken to them on a number of occasions about the delay, (this had occurred when talking to them about other matters), but he gave no indication of the detailed steps he took to press them to ensure that the work was completed by them in a timely fashion. He had not kept any notes of his telephone conversations nor had he written to them at any time throughout that period to exert appropriate pressure on them to carry out the work quickly. So concerned was she about the delay, that the Complainant asked her father to contact the Engineers directly which he did. The Committee cannot say with any certainty that his intervention was the catalyst that ensured that the necessary documentation was forthcoming or whether it was coincidental, but the Committee was satisfied that the Respondent had not taken reasonable steps to ensure that this work was carried out expeditiously, by either instructing a different firm or by taking appropriate steps to ensure that they completed their work within a reasonable time frame. Consequently, the Committee finds that the Respondent acted with undue delay in breach of Standard 11.4 of the Code.

The Committee then considered whether the Respondent had failed to carry out his work other than in accordance with costs limits agreed with the client. Certainly so far as the Respondent’s firm’s costs were concerned, his fees had been set out in the Assessment of Fees document referred to above. His agreed firm’s costs were not exceeded. This case was somewhat unusual however, in that it appears that no costs limit for the construction costs of the client were ever agreed. The Complainant stated in evidence that she had a costs limit in her mind of about £150,000, but that this was not communicated to the Respondent who it appears, never enquired whether the Complainant had a financial limit. In the absence of any evidence that there was an agreed costs limit, the Respondent cannot be said to have exceeded it. As such, the Committee finds that that the Respondent has not acted in breach of this limb of Standard 11.4 of the Code.

Allegation d:

The Committee finds the allegation proved. Our reasons are as follows:

The Committee recognises that the Respondent’s employee had written to the Complainant at many stages during the project. She had certainly not been left in the dark throughout. Having said that, we have set out above a detailed summary of the time scale for the obtaining of the Building Warrant. The Committee has seen no evidence that over the nine month period it took to obtain the Warrant, the Respondent kept the Complainant adequately appraised of the progress of the work being undertaken on her behalf. The Respondent accepts that that was not done. Mr McGregor submitted on the Respondent’s behalf that the Complainant had not asked for an update on what was happening and that she should have done if she was not being kept informed. The Committee finds this argument unattractive. Standard 11.5 places the onus to keep the client informed of the progress of work undertaken on the Architect. He is not absolved of that responsibility simply because the client does not ask. The Committee therefore finds that the Respondent by his conduct has acted in breach of this Standard.

The Committee then considered whether the Respondent had kept the Complainant informed of any issue that may significantly affect the quality or cost of work undertaken on her behalf. The Committee concluded that he had not for the following reasons:

The Committee notes from the Assessment of Fees document that in the applicable fee section, the Respondent has written: “Estimated Project Cost for fee calculation purposes - £104,220”. The Complainant stated that she understood that figure to represent an estimate of the costs of the project. No other costs estimate was provided by the Respondent. She entered into her agreement with the Respondent’s firm on the basis of that costs estimate. She thought that that figure was low and raised her concerns with the Respondent’s employee who, she states, told her that it was an accurate quote for a basic specification finish. However, according to the Respondent, the meaning of the wording was different, but quite clear. The figure was not intended to be an estimate of costs at all, but merely an amount that represented a figure upon which his costs would be calculated. It was based on a mathematical formula provided by The Highland Council. The Respondent accepted that he knew that this figure would not be representative of the true cost of the building work which he had estimated to be in the region of £150,000. That awareness was not passed on to the complainant. As it transpired, the two tenders subsequently received were for a substantially higher figure, namely £201,000 and £206,000 respectively. Even after a re-tender, that figure was only reduced to £155,000. This came as a shock to the Complainant who took the £104,000 figure to represent an estimate of the true cost of the project. In cross examination by Mr Goodwin, the Respondent accepted that the wording used might have given rise to scope for confusion and that he had since changed his practice of using that wording. By failing to make clear to the Complainant that the estimate of costs would inevitably be substantially higher than the amount quoted on the Assessment of Fees document, the Respondent had acted in breach of Standard 11.5 of the Code.

Furthermore, on closer inspection by the Complainant, it transpired that the specification represented by the amended tender of £155,000 was such that the building would not be habitable as it excluded sanitary ware, the supplying and fitting of a new kitchen, stairs or heating to one of the floors. The Committee finds that by the Respondent failing to keep the Complainant informed of this aspect of the project which significantly affected both the quality and cost of the work, the Respondent has acted in breach of Standard 11.5 of the Code.

Additionally, the Complainant wanted to construct a spiral staircase in the barn. She was advised by the Respondent’s employee that due to building regulations, that that could not be done and that she would design a bespoke U shaped staircase. The Complainant was not advised that that would have cost implications for her. However, when the builder tried to have the staircase made, he could not obtain a quote for less than £24,000. The Respondent has produced an estimate form Fraser Joinery dated 10 May 2011 suggesting that the staircase could have been built for a significantly lower sum in the region of £7,000. Irrespective of which sum is more realistic, the Respondent failed to bring to the Complainant’s attention the cost implications of building the staircase. As such, the Respondent has acted in breach of Standard 11.5. The Committee does note however that it subsequently transpired that there was no need to construct this bespoke staircase and a spiral staircase would in fact have sufficed.

Given our findings of fact, the Committee has gone on to consider whether the Respondent’s conduct fell short of the standard required of a registered person and whether the service provided by him fell short of the standard required of a registered person. In reaching its decision, it has regard to the submissions made by Mr McGregor on behalf of the Respondent, particularly in regard to whether his conduct regarding the alleged breach of Standard 11.1 amounts to unacceptable professional conduct. We have carefully considered the legal authority handed to the Committee, namely the case of 662 Council of the Law Society of Scotland v J, and his legal submissions, together with Mr Goodwin’s response on behalf of the Board. Mr McGregor has submitted that no finding of unacceptable professional conduct should be made where no prejudice is established, although he accepts that it is a matter for the tribunal to assess in the light of all the facts of the case. The Committee finds that the Respondent’s conduct in relation to the allegation 1b which the Committee has found proved, does amount to unacceptable professional conduct. The Introduction to the Code clearly states that “a failure to follow the guidance of this Code is a factor that will be taken into account should it be necessary to examine the conduct or competence of an architect”. The requirements of Standard 11 are unambiguous in the sense that the information is either provided, or it is not. Failure to provide this information, as the Respondent has conceded, gives rise to doubt and uncertainty and fails to inform clients of their rights in the event of complaints of unacceptable professional conduct or serious professional incompetence. For these reasons, the Committee finds the Respondent’s conduct in breach of Standard 11.1 does amount to unacceptable professional conduct.

In the light of our other findings of breaches of the Code as set out above, the Committee finds that the Respondent is guilty of unacceptable professional conduct. The Committee considers that the breaches found proved can all appropriately be categorised as matters of conduct rather than competence, and hence the Committee makes no finding of serious professional incompetence against him.

The Respondent spoke in mitigation.

SANCTION

In reaching our decision, and in considering whether to impose a sanction, we have had regard to the public interest and that of the Respondent. We have had regard to the fact that the Respondent has engaged with the process, and has no adverse regulatory findings made against him over a career spanning 40 years. He has shown insight into his failings and has recognised that he could and should have provided a better service on this occasion. He stated that he was sympathetic with the complainant’s frustration. He has, very responsibly, taken numerous steps to remedy his deficiencies, for example, he has stated that he has amended his standard letter of appointment to comply with the Code and now requires his staff to keep more comprehensive file notes. He has installed new management IT software to make file management more efficient and he has introduced weekly, minuted staff meetings. These, and other changes, will undoubtedly assist him in ensuring that such problems do not reoccur, and the Respondent has expressed his wish that that should be the case. The committee has had regard to the contents of the numerous testimonials from clients who speak highly of him, which would suggest that his conduct on this occasion was atypical of him.

We have first of all considered whether no sanction should be imposed but considered that as the Respondent has been found guilty of a number of breaches of the Code, that it would be inappropriate for that not to be marked by the imposition of a sanction. The Committee has then considered whether to impose a reprimand and considers that this is the appropriate and proportionate sanction to impose in all the circumstances. Such a sanction is necessary to protect the consumer and to uphold the reputation of the profession.

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