Introduction

Powys County Council has recently proposed to become a lead enforcer of The Estate Agents Act 1979. They discharge and regulate regulatory powers throughout the UK in relation to this Act. One power of the Act is the ability to prohibit anyone from doing estate agent work at all, or doing estate agent work of a specified order. Powys has devised a process of procedure by which this power can be administrated and this is in two stages; the first stage is an investigation by an investigator, the second stage is a decision by an adjudicator. 

The Act provides that the person affected the claimants (Christian Littlewood and Angie Littlewood), may give notice that they wish to make representations orally, in which case Powys shall arrange for the oral representations to be heard. Each of these claimants has given such notice.

Powys propose that the oral representations of the claimants will be heard directly, face to face, by the investigator, and that the adjudicator will not meet or see or hear directly from the claimants, but instead will be given an audio recording and transcript of the oral exchange. The claimants seek that they are permitted to make oral representations directly and face to face to the adjudicator.

In short the issue is should the oral representations be heard by the investigator or instead should they be heard directly and face to face by the adjudicator?

Argument

The core argument of Mr Ashley-Norman, on behalf of the claimants, is that, based on the Act, and in particular Schedule 2, the adjudicator should hear their oral representations directly and face to face rather than the way Powys structured their procedure into an investigation stage by an investigator, and then an adjudication stage by an adjudicator.

On behalf of Powys, Mr Griffiths and Miss Strachan equally root their argument in construction of the Act. They also strongly emphasise the context. They stress the "general duties" on Powys under section 25 of the Act "generally to superintend the working and enforcement of this Act"; and their duty under section 25 (2) to keep under review and advise the Secretary of State about relevant developments and the working and enforcement of the Act, having regard "both to the national interest and the interests of persons engaged in estate agency work and of consumers". They submit that all these duties are paradigm examples of administrative functions.

Mr Ashley-Norman countered that by saying that from the perspective of his clients it certainly feels very adversarial, and he emphasised the contents and language of the "Notice of proposal to make a prohibition order …" first sent to each claimant in December 2014. These include at paragraphs 22-25 what Powys County Council "contend", namely that the offences and also other matters "demonstrate there would be significant risk to consumers if you were allowed to carry on estate agency work …" Mr Ashley-Norman submits that although the general functions of Powys under the Act may be administrative in character, the process when a notice of proposal to make a prohibition order is served then becomes clearly adversarial. Powys make their contentions. The person affected then has to deny, explain, justify or otherwise defend them.

Decision

The Judge found that the procedure, which Powys proposed to “adopt in their consideration of whether or not to make prohibition orders in relation to either or both of the claimants, does not comply with the requirements of the Act and is unlawful”. The Judge went on to say that if Powys continue to delegate the making of the decisions to an adjudicator, then it is that adjudicator who must personally and face to face conduct the hearing of oral representations for the purpose of Schedule 2 to the Act.