Episode 54:

Hello and Welcome to the Part3 with me podcast, 

The show that helps part 3 students jump start into their careers as qualified architects and also to provide refresher episodes for practicing architects. I am your host Maria Skoutari and this week we will be talking about the ARB Complaints Process. Todays episode meets PC1 of the Part 3 Criteria.

As mentioned in previous episodes, the Architects Registration Board was set up by Parliament to regulate architects in the UK and their powers are governed by the Architects Act 1997. 

So one of the ARBs duties is dealing with complaints about the conduct of architects and their ability and competence as professionals to do their job. 

Lets start with looking into the process of making a complaint to the ARB. 

Firstly, when someone contacts the ARB to make a complaint, they must first determine if the complaint falls within their regulatory remit, which should fall under two types of allegations: unacceptable professional conduct and serious professional incompetence. 

Unacceptable Professional Conduct is deemed when:

The conduct of the architect falls short of the standard required of an architect in the circumstances. The general standard of conduct expected of architects is set out in the Architects Code of Conduct and Practice, which was covered in a previous episode. Not every shortcoming, or failure to meet the standards of the Code will necessarily give rise to disciplinary proceedings, but a failure of an architect to comply with the Code will be taken into account when considering whether they have committed an offence.

And then its up to the Professional Conduct Committee, to decide whether an architect has been guilty of unacceptable professional conduct. The general test is whether they have fallen seriously short of the standard of conduct expected of a member of the profession in the circumstances. The conduct complained of must be very serious for it to be deemed as unacceptable professional conduct. The question of what is serious or not is up to the judgment of the Professional Conduct Committee.

And Serious Professional Incompetence is deemed when:

Professional competence relates to the quality and application of the professional skills architects need to do their job. In certain circumstances some acts or omissions may amount to both incompetence and unacceptable conduct. Serious professional incompetence is a serious failure to meet the required standard of skill expected of a member of the profession.

Because the facts and circumstances of each case are different, its not possible to identify the exact point where incompetence becomes serious incompetence, some occasions involve:

• When the consequences are, or could have been, particularly serious
• Where the architect’s standard of competence falls significantly below that expected
• Where a number of failings, while not serious individually, together demonstrate a pattern of incompetence
• Where a pattern of incompetence suggests an architect may not act competently in the future

Both types are very serious disciplinary matters. Initially, as part of the screening process, the ARB will refer to the Architects Code of Conduct which is a guide for architects in their professional lives. The ARB doesn’t take disciplinary action against architects if they fall below the standards but would review how serious the failings were. When the screening process takes place the ARB decides whether it is an allegation the ARB must investigate. 

But what it the difference between a complaint and allegation? 

So when someone raises concerns about an architect this is initially referred to as a complaint, if the complaint is serious enough it then becomes an allegation as recognised under the Act of either unacceptable professional conduct, serious professional incompetence or if an architect has committed a relevant criminal offence. 

So before a complaint reaches the investigation stage and becomes an allegation, it must follow certain criteria and should include:

• The information of the architect against whom the complaint is made to determine they are on the Register;
• The complaint must be in writing;
• The nature of the complaint must be clear and sufficiently detailed in order that the architect can understand the concerns raised;
• Unless in exceptional circumstances, the events complained about must be no more than six years old;
• The evidence provided must be credible in respect of the complaint as a whole; and
• The complaint must be sufficiently serious that it may constitute an allegation of unacceptable professional conduct, serious professional incompetence and/or a relevant criminal conviction.

If the complaint relates to a period when the architect wasn’t registered, in such circumstances the ARB won’t be able to investigate the matter further. 

So once the allegation criteria has been met:

The ARB will draft the allegation and send it to the architect with supporting evidence for their formal response. The allegation will contain information from the original complaint and potentially additional information which are of importance to raise and being of serious regulatory concern. If the complaint doesn’t meet the required criteria mentioned then the matter will be closed and will be communicated to the individual that raised the concern in writing together with advice on how they can review the decision and any other organisations that may be able to assist. 

The complaint can be made by sending the ARB details of the complaint in writing by email or post or by filling in the online complaints form. The information to be provided includes the individuals name, address and contact details, the name and address of the architect they wish to complain about, their relationship with the architect, the specific allegations to be made against the architect and any documents or evidence to support the claim. 

So how does the ARB then deal with these complaints:

The first start by screening complaints and carrying out and initial investigation:

So when they receive the complaint, they will first assess the concerns raised to determine whether it is indeed a matter to be investigate. If the complaint falls within their remit they will raise an allegation of unacceptable professional conduct and/or serious professional incompetence and invite the architect to comment. If necessary the individual may be invite to provide further comments and from the architect, before referring the matter to the Investigations Panel (IP).

The Investigations Panel is made up of three people – one is an architect and the other two are not on the Register of Architects. The IP looks at the allegation raised, along with the information provided by the individual and the architect. They will then decide whether the architect has a case to answer at the Professional Conduct Committee (PCC). This means it decides whether there is sufficient evidence to suggest the architect did what is alleged, and if so, whether such a failing might be so serious that it could amount to unacceptable professional conduct or serious professional incompetence.

When the panel has enough information to make a decision, it can:

• dismiss the allegation;

• give the architect advice about their future conduct or practice; or

• refer the allegation to the Professional Conduct Committee and provide its reasons for its findings.

Now if the allegation is referred to The Professional Conduct Committee a Case Presenter (which is a solicitor) will prepare a report and a public hearing will be held. It is likely the Case Presenter will take a witness statement from the individual and require then to attend the hearing to give live evidence under oath.

The case will then be considered by three people – one architect, one non-architect person and a legally qualified Chair. After hearing the evidence, the PCC will decide whether the architect did what is alleged, and if so, whether they acted in a way that amounts to unacceptable professional conduct, serious professional incompetence, or both. The PCC can dismiss the case if it believes there is not enough evidence to support it or that any failings are not serious enough to warrant a disciplinary finding. If it does find the architect acted in a way which amounts to unacceptable professional conduct and/or serious professional incompetence, it will impose a sanction according to how serious the case is.

The possible sanctions under the Architects Act 1997 that can be imposed by the PCC are:

• a reprimand (a formal warning) and the least severe sanction;

• a fine – currently up to a maximum of £5000 (payable to HM Treasury) and the PCC will specify the period within which the sum must be paid;

• suspension from the Register of Architects for up to two years is considered for serious offences; or 
• permanent erasure from the Register for very serious offence to protect the public and/or uphold public confidence in the profession. 

There are also instances where architects are referred to the PCC when they have been convicted of a criminal offence or received a caution that the Registrar considers is relevant to their fitness to practise as an architect. If the PCC receives a signed certificate of a conviction or determination from a criminal court in the United Kingdom or a foreign court for an offence, which, if committed in England and Wales, would constitute a criminal offence, it must accept the certificate as conclusive evidence that the offence was committed. The architect can then make submissions as to why no further action or a more lenient sanction should be made by the PCC. As a general principle, where an architect has been convicted of a serious relevant criminal offence, they should not be permitted to resume practice until they have completed their sentence.

The primary purpose of sanctions is to protect members of the public, to uphold public confidence in the profession, and to declare and uphold proper standards of conduct and competence. Sanctions are not imposed to punish architects, but they may have a disciplinary effect. The PCC may also choose to make no disciplinary order.

In deciding what sanction to impose, the PCC should consider the principle of proportionality, weighing the interests of the public with those of the architect. The interference with the architect’s right to practise whilst using the title ‘architect’ must be no more than necessary to achieve the PCC's purpose of protecting the public and upholding public confidence in the profession and proper standards. Once the PCC has reached what it considers to be the necessary and proportionate sanction it should then ‘test’ its decision by considering the more severe sanction and determine why that would not be appropriate or proportionate in the circumstances of the case. 

So before considering which sanction, if any, it should impose, the PCC must consider the aggravating and mitigating factors in the case. Aggravating factors are features of the case which make it more serious. Mitigating factors are features which make it less so. The PCC will weigh the aggravating and mitigating factors thoroughly, paying the required attention to the weight that it has given to those factors in demonstrating the proportionality of any sanction it determines to impose.

Some common examples of aggravating and mitigating factors:

• Substantial risk of harm to clients and/or the wider public

• A pattern of poor conduct/competence

• Refusal or inability to acknowledge failings

• Failure to engage with the disciplinary process constructively

• Failure to take appropriate remedial steps

• A lack of sufficient insight and/or remorse

• Previous disciplinary history

• A finding of dishonesty

• Misconduct involving the commission of a criminal offence

• Conduct or actions that were repeated or deliberate

• Conduct affecting someone vulnerable

• Concealment of wrongdoing

And Mitigating Factors that can be considered include:

• Little or no risk of harm to clients and/or the wider public

• Conduct/incompetence representing an isolated failing or brief duration in an otherwise unblemished career

• Evidence of insight and/or remorse

• Personal circumstances such as periods of stress or illness

• Evidence of remedial action taken to prevent repetition

• Evidence of good character

• The architect voluntarily notifying ARB of the facts giving rise to the disciplinary proceedings

• Open and frank admissions at an early stage

• Acted under duress or deception from another party (including client)

As a general principle, the PCC will be less able to take mitigating factors into account when the concern is about public safety, or is of a more serious nature, than if the concern is about public confidence in the profession.

To assist with their case architects may submit references and testimonials as mitigation evidence. The PCC will then assess the usefulness of such references, considering factors such as:

• The availability of referees;

• the seriousness of the offence;

• the relationship of the referee to the architect;

• whether the referee is aware of the allegation(s) faced by the architect;

• whether the referee is aware their testimonial will be submitted to the PCC in mitigation.

The PCC will then need to take account the evidence of both insight and remediation – that is, whether the architect has demonstrated an accurate and full understanding of their failings and whether they have taken steps to set things right. They may have taken steps to remedy the issues which led to the complaint, or taken steps to improve their future practice, or both.

The PCC should focus on whether there is real evidence that the architect has been able to look back at their conduct with a self-critical eye and that they have acknowledged fault, expressed contrition and/or apologised. It should consider whether the architect has truly understood their failings, any underlying reasons for them, and the impact their actions had. In effect, they need to demonstrate to the PCC that there is a real reason to believe they have learned a lesson from the experience.

So once a decision has been reached by the PCC, full written reasons should be on the PCC’s decision, including all relevant considerations in reaching that conclusion.

So if and when the PCC makes a finding of unacceptable professional conduct and/or serious professional incompetence, the ARB will then publish the decision and a press release may be issued. During the investigation process the complaint process remains confidential and the the complaint is made public only if it reaches a Professional Conduct Committee hearing.

The process/complaint can take many months to investigate, especially if it is complicated or technical. The ARB will typically inform the individual how long each stage is likely to take, and keep them updated of any changes to the timescales. Once the individuals receive correspondence from the ARB they should aim to reply within 14 days and the ARB will then keep them updated of the progress at least every six weeks. 

If there are a number of complaints made against a single architect, the ARB will consider whether they should be dealt with as a single case at the PCC or as two or more cases. Generally, where the allegations are based on the same facts and circumstances, they will all be dealt with together.

Once allegations against an architect have been determined by the PCC, ARB will not attempt to bring a further case based on the same alleged misconduct even if new complaints are received from different individuals, different sections of the Code of Conduct could be referred to, or new evidence relating to the same conduct comes to light.

Where the issues to be determined are not the same as in a previous case, but the allegations are connected with allegations previously as the the subject of a determination by the PCC, ARB will consider whether in the circumstances the allegations could and ought to have been included in the earlier case and whether as a result it would be unfair and inappropriate to bring a further case against the architect concerned.

There are instances when the aspects of the complaint may be outside the ARB’s powers, including: 

• Ordering the architect to put right something which has gone wrong, or award compensation for poor service. Only the courts can award compensation.
• Become involved in disputes about a contract or fee levels, or decide whether the architect may have been negligent. These are legal issues and must be dealt with through the courts.
• Deal with complaints about matters that are covered by general law (for example, employment, criminal activity or copyright disputes).
• Investigate complaints that are more than six years old, unless there are special circumstances.
• Intervene in a planning dispute.
• Give you legal advice about your complaint, or ask a solicitor to act for you.

Individuals should always try and resolve the complaint with their architect first before raising it with the ARB. Raising the complaint directly with the architect is typically the quickest and best way to deal with the problem. But before raising the complaint with the architect, the ARB recommends:

• Checking what was said in writing about roles and responsibilities on the project and check the terms and conditions of the contract or agreement
• Put the complaint in writing so that both the individual and the architect have a record of the concerns. Y
• Set out the details of the complaint clearly
• If the individual has more than one complaint, list them and give them numbers
• Ask who will deal with the complaint, and how long it is likely to take
• Make notes of any meetings, and keep copies of any letters sent to the architect
• Tell the architect the preferred settlement outcome of the complaint.

So, as an architect, what should you do if you receive such a complaint:

If an agreement or settlement can’t be reached between the architect and the client, the architect might want to consider whether it is something that could be settled by mediation or arbitration and the architect should contact their professional indemnity insurers to notify them of the concerns raised.

So when dealing with a complaint, the architect is advised:

• To acknowledge it immediately if it has been received in writing.

• Tell the complainant who will be dealing with the complaint, and let them know how long it is likely to take.

• Provide the complainant with a copy of the practices written complaints procedure.

• Find out what they expect from the complaints process, and whether their expectations are reasonable.

• If the complainant asks for a meeting, try to arrange one as quickly as possible.

• Open a complaint file, and keep a record of the steps taken to settle the matter.

• Make sure they are kept informed of the progress of their complaint.

• And remember that dealing with complaints quickly helps to maintain good will and is often the most cost-effective solution.

Architects must also always remember that they should always keep Standard 9 of the Architects Code of Conduct in conducting themselves in away which does not bring either themselves of the profession into disrepute. If the architects doesn’t manage to resolve the complaint internally they should advise the complainant sends their complaint to the ARB if it involves the architects conduct or competence. 

So to sum up what I discussed today:

• When someone contacts the ARB to make a complaint, they must first determine if the complaint falls under two types of allegations: unacceptable professional conduct and serious professional incompetence.
• Unacceptable Professional Conduct is when the conduct of the architect falls short of the standard required of an architect in the circumstances
• Serious professional incompetence is a serious failure to meet the required standard of skill expected of a member of the profession
• When someone raises concerns about an architect this is initially referred to as a complaint, if the complaint is serious enough it then becomes an allegation 
• The Investigations Panel looks at the allegation raised, along with the information provided by the individual and they will then decide whether the architect has a case to answer at the Professional Conduct Committee 
• Possible sanctions include a reprimand, a fine, suspension from the Register of Architects for up to two years or permanent erasure from the Register
• Complaints can be made by sending the ARB details of the complaint in writing by email or post or by filling in the online complaints form
• Individuals should always try and resolve the complaint with their architect first before raising it with the ARB.