The high court has ruled that the procedure recently adopted for regulating estate agency work is unlawful and must be changed.
Holman J found that a process by which oral representations from estate agents are heard by an investigator, in the first of a two-stage process, is not sufficient, and that they must be heard by the adjudicator who makes the final decision.
The judge said: “The single issue in this claim for judicial review may seem a narrow one, but it is regarded as very important by both parties.”
He said that Powys county council had recently become the “lead enforcement authority”, exercising and discharging regulatory powers and duties throughout the UK in relation to estate agency work pursuant to the Estate Agents Act 1979, as amended. One such power is the power to make an order prohibiting a person from doing any estate agency work at all, or from doing estate agency work of a description specified in the order.
He continued: “Powys have devised and promulgated a process or procedure whereby this power will be exercised 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 any person affected by the possible making of an order may give notice that he wishes to make representations orally why the order should not be made, and that in these two representative cases, each claimant has given such notice.
He said: “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 will be supplied with a tape or other audio recording and verbatim transcript of the oral representations. The claimants seek that they are permitted to make oral representations directly and face to face to the adjudicator.”
Jonathan Ashley-Norman, on behalf of the claimants, argued successfully that on its proper construction the Act requires that the oral representations are heard directly and face to face by the adjudicator.
Allowing the claim, the judge said: “I conclude and hold that the procedure, which Powys currently propose 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. If (of which I entirely approve) Powys continue to delegate the making of the decisions to an adjudicator (or, as I have been told, a separate adjudicator in the case of each claimant) then it is that adjudicator (or these adjudicators) who must personally and face to face conduct the hearing of oral representations for the purpose of Schedule 2 to the Act.
He said that this decision “may impact upon any current or future cases”, but added: “I know nothing whatsoever about the circumstances of the about 11 cases which Powys have concluded to date, and I express and imply no view whatsoever as to the regularity of any of them.
“The present proceedings are essentially a pre-emptive judicial review to avert a future irregularity if Powys had adhered to their proposed procedure. In the case of the already concluded cases, any irregularity (if any) is likely to have been remediable by an in-time appeal pursuant to section 7 of the Act.”
Littlewood and anr v Powys County Council Administrative Court (Holman J) 23 July 2015
Jonathan Ashley-Norman (instructed by direct access) for the claimants
Mr W. Robert Griffiths QC and Miss Nicola Strachan (instructed by Powys County Council) for the respondents
