Regulation Matters

Investigating complaints

In common with all regulators, one of our most public facing activities is the work we do in investigating complaints about architects. We work within a fairly narrow remit, as the Architects Act only allows us to look at complaints about an architect's conduct or competence.

Complaints are assessed against the standards in the Architects Code. The Code is not a set of rules, but is intended to guide architects in their professional lives, as well as acting as a blueprint for good practice. Architects who abide by the standards set out in the Code are unlikely ever to appear before the Professional Conduct Committee. The standards in the Code are also a useful reference point for consumers, as they describe what they can expect from an architect.

It is essential for us to ensure that we operate the complaints process both fairly and transparently so that we can generate and maintain consumer confidence. Architects must also feel assured that our handling of a complaint is impartial, and shows no bias either towards them or to the person making the complaint.

Our responsibility for producing a Code of Conduct and investigating complaints about architects are key elements of the consumer protection role envisaged for us when Parliament drafted the Act. This aspect of our work helps to ensure that architects maintain good standards of conduct and competence, which in turn maintains the integrity and reputation of architects, leading to increased consumer confidence in the profession.

How we investigate complaints
When we receive a written complaint with supporting documents, we look at it closely to see whether there is any evidence that the architect may have fallen short of the standards of conduct or competence in the Architects Code.

Many of the enquiries we receive turn out not to be complaints, or if they are, they fall outside our remit to investigate. In these instances, we will always try to offer helpful advice, or suggest alternative remedies that people might like to pursue, such as mediation. However, if there appear to be issues of conduct or competence, we will send the complaint to the architect and ask them to comment.

In the interests of fairness and openness, the entire complaints process is transparent, with copies of correspondence being exchanged between the two parties to the complaint. Both the architect and the complainant are given the opportunity to comment on the other's response before we pass the complaint to the Investigations Committee.

The Investigations Committee analyses the correspondence that has passed between the parties to see whether it amounts to the architect having a case to answer before the Professional Conduct Committee (PCC). The Investigations Committee sits in a panel of three people, comprising one architect and two lay (non-architect) members. To preserve the public interest, the Chair of the Committee is always a lay member.

If a case is particularly complex or technical, or if the Committee needs more detailed information, it can appoint an independent architect to investigate further and report back to the Committee. The independent architect is drawn from a panel of architects who have been appointed specifically because of their specialist knowledge and expertise.

The Committee will try to reach a decision within 12 weeks of receiving it. It can decide to dismiss the complaint, give the architect cautionary advice about their future conduct, or refer the matter to the PCC. The acid test for referring a complaint to the PCC is whether, in the Committee's view, the architect has a case to answer.

When a complaint is referred to the PCC there is a full public hearing. After listening to the representations of both parties, the PCC will weigh the evidence carefully before deciding whether the architect behaved in the way being claimed and whether this behaviour could be considered serious enough to amount to unacceptable professional conduct or serious professional incompetence, or both. The Committee can dismiss the case if it believes that the allegations have not been substantiated or, after considering any mitigation put forward by the architect, it can impose one of four penalties if it finds the architect guilty. These penalties are laid down in the Architects Act and are:
  • a formal warning
  • a fine
  • a suspension
  • erasure of the architect's name from the Register.
In line with Section 15(4) of the Architects Act and in keeping with the principles of transparency, we will usually issue a press release in a guilty finding and publish this, along with a transcript of the decision, on our website. In a finding of "not guilty", we would only issue a press release if the architect specifically asked us to. This is covered in Section 15(5) of the Act.

How did we do in 2011?
We recognise that making a complaint about a professional and being the subject of a complaint is very unsettling, for both sides.

In the interests of fairness, it is important that we are sensitive to any potential anxiety that may arise, and that we process complaints as swiftly as possible. We have set ourselves target times for achieving closure.

Our target time for dealing with a complaint before we refer it to the Investigations Committee is 16 weeks. This includes collating the evidence from both parties and preparing a report for the Investigations Committee to consider. We achieved this target in 70% of cases we dealt with.

The Investigations Committee's target for reaching a decision on whether an architect has a case to answer before the PCC is 12 weeks. During 2011, this target was achieved in just 12% of cases. As a result, we started to look at what changes could be made to the structure of the Committee to improve these timescales. We expect this to come to fruition during 2012/13.

The target for preparing cases and listing hearings at the PCC was met in 77% of cases.

PCC hearings - learning points for architects
The role of ARB's Professional Conduct Committee is not to punish architects for their wrongdoing, but to protect the public interest and the reputation of the profession.

After all, without any restriction of function over the practice of architecture in the UK, the only thing that separates architects from their unregistered and, in many cases, unqualified, competitors is the reputation that comes with the title.

To foster good practice among the profession, it is important to identify learning points from those cases where the PCC makes a "guilty" finding and to share this information with architects to help them avoid finding themselves in a similar position.

The most common complaint we receive about architects is the failure to provide proper terms and conditions to a client before any work commences. Proper written terms, setting out an architect's responsibilities, how much and on what basis the client is going to have to pay, professional indemnity insurance arrangements and dispute handling procedures, leave very little scope for subsequent disputes to arise. Too often, architects frequently rely on verbal instructions or a simple email. While this may be sufficient for some of the time, it may leave them badly exposed if a dispute does arise while a project is in progress.

Many of the issues that emerge - for example, confusion over the architect's responsibilities, levels of fees, or unclear budgets - do so simply because of this lack of clarity. Architects often forget that members of the public are likely to be wholly unaware of facts that construction professionals take for granted - such as the 'supervision' of contractors, the difficulty of estimating costs and the requirements of VAT - and they should always bear this in mind when dealing with clients to avoid misunderstandings arising.

Apart from being a legal requirement under the EU Services Directive, these minimum requirements are as much, if not more, to the benefit of the architect as to their client. It is much easier to deal with reluctant fee-payers when there is a clear contract to rely on, and dealing with complaints arising from misunderstandings is not the best use of an architect's valuable time or money.

This latter point leads to another recurring theme at PCC hearings, which is a failure to deal with complaints or disputes appropriately. It is unfortunately and unavoidably the case that complaints are an inevitable part of any professional's life. Even the most successful and careful architectural practices will have to deal with unhappy clients at some point. Whether an architect is a sole practitioner or a director of a large practice, it makes sound business sense to ensure that there is a procedure in place that sets out how to deal with complaints, including a timescale for providing a substantive response to a client's concerns. Settling complaints at an early stage can prevent a situation where both parties become entrenched, and the matter is referred to us for a formal investigation. It also means that architects are more likely to retain a client's goodwill if they respond promptly, courteously and sympathetically to a client complaint.

While it is important that a client's concerns are acknowledged and dealt with, it is equally important for an architect to seek advice from their professional indemnity insurers at the earliest opportunity to avoid invalidating their insurance cover. Those architects who are able to deal with their client's concerns properly - regardless of their merits - are often those who are able to avoid disputes escalating into regulatory complaints and litigation.

Complaints 2011 : facts and figures

complaints-01 complaints-02
Investigations Committee*
Total number of decisions: 55 (59)
* No Further Action: 15 (16)
* Cautionary Advice: 22 (23)
* Professional Conduct Committee: 18 (20)
Professional Conduct Committee*
Total number of decisions: 16 (16)
* Reprimand: 5 (8)
* Penalty Order: 9 (4)
* Suspension: 2 (0)
* Erasure: 0 (2)
* Not guilty: 0 (1)
* No sanction: 0 (1)

complaints-03 *Figures for 2010 in brackets
Total number of enquiries: 1623 (1925)
* Title: 352 (320)
* Company formations: 303 (391)
* Potential complaints: 647 (478)
* PII: 240 (481)
* Other: 81 (255)

Regulating title
Our work on regulating use of the title "architect" goes hand in hand with our work on investigating complaints. Both are a fundamental part of our consumer protection role.

The burgeoning number of websites offering the services of "architects" has made our work in regulating use of the title much more difficult, partly because of the transient nature of such sites but also because we simply do not have the human or financial resources to check whether they are genuine or whether they have been set up by some unscrupulous individual to deliberately mislead members of the public. We would need to increase the retention fee quite dramatically if we were to do this.

However, we will always follow up those instances where it is suspected that the title is being used unlawfully when they are referred to us. We are very reliant on architects themselves to pass this information on to us, as we are conscious that not only is it the title that sets architects apart from the other non-registered practitioners operating in the market, but it is also just as important for us to ensure that consumers are protected from impostors who are using the title unlawfully. Architects should continue to tell us of instances where they suspect that someone is using the title unlawfully. We will follow up every referral we receive.

We are constantly exploring alternative, more cost-effective ways for us to regulate use of the title. Chief amongst these is the enhanced online Register, mentioned elsewhere in this report. We are also continuing our drive to inform members of the public of the benefits of using an architect for their building project, and the difference between a genuine architect and those individuals who call themselves, for example, an "architectural consultant", through our attendance at consumer shows such as Grand Designs and the Homebuilding & Renovating Show. One of our key messages is that

"if they're not on our Register, they're not an architect"

and we encourage consumers to use our Register if they are looking for an architect.

Hand in hand with our work on regulating title is that of raising awareness of ARB's website. We have been making a concerted effort to secure links from other organisations' websites to our own, so that consumers can link through to ARB's website if they need to check our Register or find an architect. By the end of 2011, we had achieved this link from 468 other organisations' websites, substantially increasing the opportunities for members of the public to contact ARB. We will be focusing our attention on increasing these external links during 2012 and beyond, improving accessibility to ARB's website for people to find a genuine architect.

Prosecuting in the courts
Prosecutions in the magistrates' courts for persistently misusing the title "architect" are rare. This is primarily because we have a high success rate in curtailing wrongful use of the title through correspondence. During 2011, we resolved 196 cases of wrongful use of title by this method, an increase of 36% on the previous year.

While we invariably secure a successful outcome to a prosecution, the range of fines imposed by different magistrates' courts has varied considerably. The maximum fine for each offence is set down in the Architects Act, and currently stands at £2500. However, it is the magistrates who determine the level of fine (and any costs award) after considering the nature of the offence and any mitigation that the defendant puts forward. The money raised from these fines is paid to the Treasury, not to ARB.

Before considering a prosecution, we apply two tests:

The 'evidence' test
Magistrates need clear evidence - for example, business cards, websites, planning applications or headed notepaper - that clearly shows that the individual or practice was claiming to be an architect when they weren't on our Register.

The 'public interest' test
Prosecutors have to ask themselves whether a prosecution would be in the public interest. If, for example, the offender posed as an architect to make money and is likely to offend again, a prosecution would probably be in the public interest. If the offender gave a reasonable explanation why they called themselves an architect and it was unlikely to happen again, it may not be in the public interest to prosecute.

If we don't have enough evidence to prosecute, we ask the individual or firm to give us a written guarantee that they won't repeat the offence. Very often, they may be unaware that the title "architect" is a protected one. Once we let them know that they are using the title unlawfully, they are usually happy to cooperate with us. If that doesn't work, we tell them that if they continue to use the title, they will be prosecuted in the courts, which tends to have the desired effect. It is a simple, straightforward and cost effective method for regulating use of the title that not only delivers results, but also avoids the costly and often time-consuming process of running a prosecution. It also helps us to meet our responsibilities for safeguarding the public interest.

We successfully prosecuted one case in 2011. Leeds Magistrates handed down a guilty finding on a company whose director represented himself as an "architect" to ARB's agent. He indicated that he would be able to carry out architectural work on the company's behalf.

The magistrates made clear that the public had a right to know that they were dealing with genuine architects, and the Architects Act was in place precisely to prevent this type of mischief. They found that Section 20 of the Architects Act had been breached, and ordered the respondent to pay a fine of £600, with a further £1400 in costs.

Fraud and Bribery Prevention
The long-awaited Bribery Act came into being during 2011, and mindful of its responsibilities as a public body, the Board introduced a Fraud and Bribery Prevention Policy. We took the opportunity to remind architects themselves to consider the implications of the new Bribery Act through an article in our regular eBulletin. It would be easy to assume from press reports that the new Act only impacts on overseas business, but this is not the case. It was therefore important for us to remind architects to consider whether their own policies and procedures needed updating to avoid falling foul of the legislation.