Littlewood & Anor v Powys County Council

Where legislation gives an affected person a right to make oral representations and provides for a hearing involving evidence, the hearing must be conducted by the effective decision maker when that person must find facts, assess fitness and exercise a discretion. A recording made before an investigator and later listened to by the decision maker does not satisfy that statutory requirement. The procedure must preserve the advantages Parliament intended from oral evidence, including direct observation and the ability to ask questions. Detailed modern legislation should be construed according to its own terms, without importing broader common-law or Convention requirements where the statute resolves the issue.

The claimants, estate agents facing proposed prohibition orders, challenged Powys County Council’s procedure under the Estate Agents Act 1979. Powys divided the process into investigation and adjudication. The investigator would receive the claimants’ oral representations face to face, while the adjudicator, who was the effective decision maker, would decide the case from a recording and transcript.

The claimants argued that the Act required the adjudicator personally to hear the oral representations. Powys argued that the Act required only that the representations ultimately reach the adjudicator, and that its procedure was lawful.

1. Claim succeeded. Powys’s proposed procedure did not comply with the Estate Agents Act 1979 and was unlawful.

2. The statutory decision-making process involved three stages: determining whether a trigger matter under section 3(1) was established; determining whether the person was unfit under section 3(2); and exercising the discretion whether to make a prohibition order, and if so its scope. The adjudicator was the effective decision maker for all three stages.

3. Paragraphs 2 to 4 of Schedule 2 contemplated a hearing with the hallmarks of a hearing, including the giving of evidence, representations by the affected person and others, and the introduction of documents. The statutory references to the date, time and place of the hearing, and to its adjournment, reinforced that conclusion.

4. The purpose of providing for oral representations and oral evidence was to confer the advantages which may arise when the person evaluating the material sees and hears the witnesses directly and can ask questions for clarification. That purpose would be defeated if the investigator conducted the hearing and the adjudicator later listened to a recording.

5. The authorities concerning administrative decision makers who were not generally required to hear affected persons face to face did not govern this case. Those authorities concerned whether any viva voce hearing was required. Here, Parliament had expressly provided for oral representations and a hearing. The court therefore decided the issue by statutory construction and did not need to rely on common-law fairness or the European Convention on Human Rights.

6. If Powys continued to delegate decision making to adjudicators, each adjudicator had personally and face to face to conduct the hearing of oral representations. The judgment was confined to the claimants’ proposed procedure and expressed no view on the regularity of completed cases.