(General Regulatory Chamber)
Date of Hearing: 19 December 2024. Date of Decision - delivered on: 19 December 2024. |
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B e f o r e :
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DAVIS ESTATE AGENTS LIMITED |
Appellant: |
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- and - |
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THE LONDON BOROUGH OF ENFIELD |
Respondent: |
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Crown Copyright ©
In a Matter under the Consumer Rights Act 2015 – Chapter 3 Ss. 83 -88 Financial Penalty.
Result: The Tribunal dismiss the appeal.
Introduction:
Background to this Appeal:
www.onthemarket.com/agents/branch/davis-estate-agents-london/, where the Appellant advertised properties to let and it was found that Davis Estate Agent Limited had failed to comply with the requirements of the duty imposed by Section 83(3C) of the Consumer Rights Act 2015 as follows:
- A failure to publish your relevant fees on a third-party website (S83(3C)
- A failure to publish with the list of fees a statement that indicates that you are a member of a client money protection (CMP) scheme and giving the name of that scheme (s83.6)
The Legal Framework:
The Appeal:
a) The Appellant was not aware that it was compulsory to display the accreditations on a site which does not belong solely to the Respondent. When they signed up for the website this information was not provided to them by the company. The Appellant argues that the obligation partially lies with the 3rd party, and the 3rd party should have been up to date with digital legislations considering that they are in the digital industry.
b) The Respondent has failed to comply with its own enforcement policy because according to paragraph 5.1 (stage 2; informal action) an informal letter of advice should have been issued to my company prior to serving the 'Notice of Intent to impose a financial penalty'
c) The Appellant argues it has not been provided with adequate or sufficient reasons as to why they have been issued a 'Formal Warning' prior to receiving an Informal Warning or guidance to resolve the issue.
d)The Respondent has failed to comply with the Secretary of States Guidance (issued by The Ministry of Housing, Communities & Local Government, dated April 2018) without reasonable excuse as according to paragraphs 3.4 and 3.5 of the Guidance, 'an assessment of the letting agents or landlords' income and factors should be taken into consideration when determining an appropriate level of civil penalty fine.' There is no sufficient reason on the Notice of Intent provided by the Respondent as to how a fine of £5,000 is decided appropriate for my business without considering the Respondents income factors.
(i) The Department for Communities and Local Government Guidance (DCLG) (now known as the Department for Levelling Up, Housing and Communities (DLUHC), states that, "in the early days of the requirement coming into force, lack of awareness can be considered'. However, this legislation came into force on the 27 May 2015 and was updated to include all third-party websites in 2019.
(ii) Under "the Guidance" the expectation is that a £5,000 fine (per breach) should be considered the norm and that a lower fine should only be charged if the enforcement authority is satisfied that there are extenuating circumstances.
(iii) In the Appellants' representations they have referred to the Council's 'Private Rented Sector Enforcement' Policy' dated 2020 and have made several observations regarding this policy in relation to these specific penalties. The Private Rented Sector Enforcement Policy solely relates to the enforcement work that is carried out by our Private Sector Housing Team. In the introduction of that policy, it states that 'the policy outlines the extent to which the Council will intervene to make use of the powers in Parts 1 to 4 of the Housing Act 2004 and Housing Act 1985'. The penalty that has been issued against the Appellant company, has been issued by the Trading Standards department, who are not included in this policy and the penalty is not related to Housing Act offences or breaches; therefore, this policy does not have to be considered when issuing these penalties. Furthermore, the policy relates to prosecutions, whereas the Appellant have been issued with a civil penalty.
(iv) The Appellant have also stated in their letter, that the Council should consider the agent's financial ability to pay the penalty when determining the level of the penalty; however, the Appellant had not supplied any financial information in their representations, such as accounts or bank statements, therefore these could not be considered.
(v) The Respondent has taken into account the fact that the Appellant are now compliant with the legislation and have uploaded the details of which the CMP the Appellant are a member of. The Respondent currently cannot check whether the fees would be published, as there are no properties to rent listed on the portal; however, simply rectifying a breach following on from the Notice of Intent does not negate the penalty.
(vi) As previously stated by the Respondent, letting agents as professionals are expected to be aware of the law that applies to their business. It is not for Trading Standards to issue warnings or advise agents regarding the legislation that they need to comply with. Furthermore, it is not a legal requirement for the third-party websites and portals to make businesses aware of the legislation they need to comply with.
(vii) Under "the Guidance" the expectation is that a £5,000 fine (per breach) should be considered the norm and that a lower fine should only be charged if the enforcement authority is satisfied that there are extenuating circumstances.
(viii) In the Appellants' representations they have referred to the Council's 'Private Rented Sector Enforcement' Policy' dated 2020 and have made several observations regarding this policy in relation to these specific penalties. The Private Rented Sector Enforcement Policy solely relates to the enforcement work that is carried out by our Private Sector Housing Team. In the introduction of that policy, it states that 'the policy outlines the extent to which the Council will intervene to make use of the powers in Parts 1 to 4 of the Housing Act 2004 and Housing Act 1985'. The penalty that has been issued against the Appellant company, has been issued by the Trading Standards department, who are not included in this policy and the penalty is not related to Housing Act offences or breaches; therefore, this policy does not have to be considered when issuing these penalties. Furthermore, the policy relates to prosecutions, whereas the Appellant have been issued with a civil penalty.
(ix) The Appellant have also stated in their letter, that the Council should consider the agent's financial ability to pay the penalty when determining the level of the penalty; however, the Appellant had not supplied any financial information in their representations, such as accounts or bank statements, therefore these could not be considered.
(x) The Respondent has taken into account the fact that the Appellant are now compliant.
Brian Kennedy KC
19 December 2024.
Promulgated: 03 January 2025.