Desmond McGranaghan v Powys County Council

Background

1. Powys County Council is the appointed ‘lead enforcement authority’ under section 24 A of the Estate Agents Act 1979 (“ the Act ”). The regulatory powers and duties of the lead enforcement authority are undertaken by the National Trading Standards Estate Agency Team (“NTSEAT”) within Powys County Council.

2. The Appellant seeks to challenge a decision of the Respondent made on 27 June 2025 (“the Decision”) to issue a Warning Order against him under section 4 of the Act in relation to estate agency work.

3. The Warning Order was issued on the basis that the Appellant had engaged in unfair commercial practices. It warns that if the Appellant were to engage again in such conduct or practice, he will be considered unfit to engage in estate agency work and a Prohibition Order may be made against him under section 3 of the Act . The Appeal

4. The Appellant’s case is that he had requested to make both oral and written representations to the Respondent before the decision was taken to issue the Warning Order. The Respondent proceeded to adjudicate on the issue without allowing the Appellant his statutory right to make oral representations. This happened despite the Appellant indicating in writing his wish to make oral representations. Therefore, the Appellant considers the decision to be procedurally flawed. The Response

5. The Respondent opposes the appeal. It states that the Appellant was offered the opportunity to have an oral hearing and failed to respond to its Adjudicator’s requests to agree a date and time for the hearing. The Appellant did send in written representations which were taken into account by the adjudicator and by the senior manager making the final decision to issue the Warning Order. Documents

6. The Respondent submitted a bundle formed of two parts. Part 1 contains 184 pages and Part 2 has 96 Pages. Regrettably, the bundle does not conform with the Tribunal’s guidance. It is difficult to navigate, and it appears to omit the Decision, the notice of appeal, the Rule 23 Response, and the Tribunal’s directions. These missing documents have been provided to the Tribunal panel by its administration team.

7. After granting the Appellant’s request for an extension of time to file observations, further evidence and/or comments on the bundle prepared by the Respondent, the Tribunal was notified that the Appellant does not intend to provide any further documents or comments on the bundle. The Hearing

8. The Appellant was represented at the hearing by Sean O’Hare, Counsel. Alison Farrar, Operations Manager with NTSEAT appeared for the Respondent.

9. As a preliminary matter, Mr O’Hare confirmed to the Tribunal that the Appellant’s primary ground of appeal relies upon a procedural flaw, as summarised above. The remedy sought is for the Decision to be sent back to the lead enforcement authority for an oral hearing to address the matters raised in writing.

10. This raised an important procedural point for the Tribunal on how the hearing should proceed and whether a full merits hearing could fairly take place.

11. As Ms Farrar saw it, there were three options available to the Tribunal : (1) to keep the Warning Order as it is; (2) to send the Warning Order back for an oral hearing and for NTSEAT to re-take its decision-making process; or (3) to treat the Tribunal hearing as the oral proceedings and for the Tribunal to make the final determination, which could include a full Prohibition Order if the Tribunal sees fit. For the avoidance of doubt, the Tribunal has not limited its consideration to these options.

12. Representations were heard from the parties on their position if the Tribunal were to exercise its discretion to remedy any procedural defect by conducting the hearing on the basis that the Appellant could adduce evidence to the limited extent of points already made in his written representations.

13. Ms Farrar indicated that she could proceed without further notice of the issues, albeit the Adjudicator was not present at the hearing. If necessary, arrangements could be made for their attendance on another day.

14. Mr O’Hare submitted that if the Tribunal proceeded with a “rolled-up hearing”, the Appellant would lose his ability to have an oral hearing at first instance. He would lose an appeal right and thereby suffer prejudice. Mr O’Hare added that if the Appellant was heard by the lead enforcement authority, he may not need to return to the Tribunal.

15. The Tribunal adjourned to consider and decide this preliminary issue. Upon resumption, Judge Dwyer delivered an extempore judgment allowing the appeal to the extent that there was a procedural defect. The matter is remitted back for oral representations to be heard before a final decision is re-made. This decision sets out the Tribunal’s full reasons for that decision. Main issues

16. Given that the Appellant’s case rests entirely upon an alleged procedural flaw, the main issues for determination by the Tribunal were: • Was there a procedural flaw by non-compliance with the procedural requirements within Part I of Schedule 2 to the Act ? • If so, how should that procedural flaw be addressed? The Law

17. The lead enforcement authority may issue a Warning Order under section 4 of the Act if satisfied that any of the subsections (1A), (1B) or (1C) apply. The Decision in this case relies upon section 4 (1A). It provides: (1A) This subsection applies in relation to a person if — (a) in the course of estate agency work, he has engaged in conduct falling within paragraph (a)… of section 3(1) ; and (b) were he again to engage again in any conduct falling within that paragraph, the lead enforcement authority would consider him unfit and proceed to make a prohibition order.

18. ‘Estate agency work’ is defined in of section 1 the Act . An order under section 4 must state whether, in the opinion of the lead enforcement authority, further conduct as mentioned in sub section (1 A) or engaging again in the practice specified in the order, is addressed unfit to carry on estate agency work generally or of a description specified in the order ( section 4(2) ).

19. The procedural requirements are set out within Part I of Schedule 2 to the Act . Before issuing a Warning Order, the lead enforcement authority must give notice (under paragraph 2) informing the person of the proposal, the substance of the proposed order and reason for it. This is called a ‘notice of proposal’.

20. The right of the person affected by the notice of proposal, under paragraph 2(3), is: (a) to submit to the lead enforcement authority written representations as to why the order should not be made or should be varied or revoked, and (b) to give notice to the lead enforcement authority, if he thinks fit, that he wishes to make such representations orally. The person affected must give notice under paragraph 2(3) within the period specified in the notice, which must not be less than 21 days. Where notice is given under paragraph 2(3)(b), “the lead enforcement authority shall arrange for the oral representations to be heard.”

21. Paragraphs 3, 4 and 5 of Part I to Schedule 2 provide for the “hearing of representations”. Not less than 21-days’ notice shall be given to the person affected (unless he consents to a shorter period) of the date, time and place at which representations are to be heard (paragraph 3). Paragraph 4(1) provides that “In the course of the hearing or oral representations” the person affected is permitted to have any other person make representations on his behalf or to give evidence or to introduce documents for him.

22. Any written or oral representations must be taken into account by the lead enforcement authority in deciding whether to proceed with its proposal (paragraph 6 of Schedule 2).

23. The requirements of Schedule 2 were considered by Mr Justice Holman in Littlewood v Powys County Council [2015] EWHC 2125 (Admin) . In his judgment at paragraph 30, it was noted that the right created by sub-paragraph (3)(b) “ says nothing about ‘a hearing’. The only right given by it is …’to make such representations orally’. ” Mr Justice Holman went on to say: “ In my view, however, paragraphs 3 and 4 of Schedule 2, which are headed ‘Hearing of representations’ clearly do contemplate a process or event which has the quality or hallmarks of a hearing, even if it is inquisitorial and not adversarial.” [31]

24. This is reinforced by the requirements of paragraph 4 including the reference to the giving of evidence.

25. Upon appeal, the Tribunal may under section 7(2) of the Act , give such directions for disposing of the appeal as it thinks just. Findings and Conclusions

26. NTSEAT has adopted a three-stage process in the exercise of the Respondent’s regulatory powers under the Act . Firstly, an investigation is carried out by an investigator. Secondly, a decision is taken by an adjudicator on (i) behaviours resulting in the ‘trigger offence’ and; (ii) whether the person is unfit to do estate agency work. Thirdly, a senior manager of NTSEAT takes the final decision, which is subject to appeal to the Tribunal.

27. Following investigation, the ‘Notice of Proposal’ to make a Warning Order under section 4 of the Act was issued on 8 May 2025. The reason for proposing the Order was that NTSEAT “has reasonable evidence, and is therefore satisfied, that you have engaged in unfair commercial practices.” The Notice of Proposal set out the legislative background, the matters and evidence relied upon, and the entitlement to respond with written and/or oral representations. The Appellant was asked to reply by 2 June 2025.

28. A tickbox form was appended to the Notice of Proposal for the Appellant to select his choice of mode of making representations. The Appellant returned the completed form selecting the box: “ I wish to make written representations followed by oral representations .” He also ticked the box to request oral representations by video link. The form is undated, but it was clearly received by NTSEAT before the adjudication decision because of their attempts to organise a hearing. Indeed, it is undisputed that the Appellant requested an oral hearing within the required timescale.

29. On 20 May 2025, the Appellant submitted his written submissions by email to NTSEAT. On 29 May 2025 NTSEAT confirmed by email to the Appellant that his information was ready to be sent to the Adjudicator and asked the Appellant if he was happy for it to be sent before the close date of 2 June 2025. The Appellant replied by email on 30 May 2025 saying: “We have submitted our full reply and would be grateful if you could forward it to the adjudicator.”

30. An adjudication on the written representations was undertaken by the Lead Adjudicator to NTSEAT on 18 June 2025. The Adjudicators’ report summarises the Appellant’s written representations. The Decision to issue a Warning Order was taken by a Senior Manager within NTSEAT whose ‘Notification of decision to issue a Warning Order’ is appended to the Warning Order dated 27 June 2025.

31. The ground of appeal under section 7(1) (a) is against the Respondent’s decision to issue the Warning Order.

32. Once the Appellant exercised the right to make oral representations, the hearing provisions within paragraphs 3 to 5 of Part I to Schedule 2 to the Act were triggered. Having received the notice under paragraph 2(3)(b), the requirement within paragraph 3 was that the lead enforcement authority “shall give the person affected not less than twenty-one days’ notice, or such shorter notice as the person affected may consent to accept, of the date, time and place at which his representations will be heard.”

33. In an email to the Appellant on 10 July 2025, Ms Farrar referred to the Adjudicator on 3 June 2025 having offered six options for oral representations and invited the Appellant’s Solicitor to reply with other options for dates if none were suitable. This was chased on 9 June 2025, and no response was received by the date of adjudication. Copies of these emails were not provided in the bundle. Nevertheless, and notwithstanding the absence of a reply, no notice was given of the date, time and place at which the Appellant’s oral representations would be heard.

34. Therefore, there was non-compliance with paragraph 3 of Part I to Schedule 2 to the Act . There was also a failure to “arrange for the oral representations to be heard” as required by paragraph 2(3) of Part I to Schedule 2. These breaches amounted to a procedural defect.

35. The Tribunal’s attention turned to a consideration of the effect of that flaw. In the Tribunal’s judgement the defect was material because NTSEAT may have come to a different outcome had it heard the Appellant’s oral representations.

36. The Tribunal has wide discretion within section 7(2) of the Act to give such directions for disposing of the appeal as it thinks fit. The Tribunal dismissed the option of proceeding to hear the full merits of the appeal regardless of the defect. We were satisfied that it would be procedurally unfair to the Appellant to do so for the reasons given by Mr O’Hare. The Appellant was entitled to be heard by the lead enforcement authority with a subsequent right of appeal to the Tribunal. Continuing to hear the full merits, would not cure the procedural defect.

37. It would similarly be unfair to the Respondent to quash the decision to issue the Warning Order based on the procedural defect when it is capable of being remedied by lesser means.

38. Ms Farrar expressed concern that there could be delaying tactics in agreeing a hearing date if the decision is remitted. That should not be cause for concern when applying the notice requirements of paragraph 3 of Part 1 to Schedule 2 of the Act .

39. The conclusion reached was that the only fair option to both parties is for the Tribunal to remit the decision to issue a Warning Order back to the lead enforcement authority for the Appellant’s oral representations to be heard and for the decision to be re-taken. To that limited extent, the appeal is allowed.