Daniel Gough v Powys County Council [2025] UKFTT 692 (GRC)

[2025] UKFTT 00692 (GRC)Case Reference: FT/EAA/2024/0002
First-tier Tribunal
(General Regulatory Chamber)
Hearing Heard on: 11 June 2025Date 16 June 2025
Estate Agents
Heard by Cloud Video Platform
Before
JUDGE HARRISJUDGE ARMSTRONG-HOLMESMEMBER SCOTT
Between
DANIEL goughAppellantPOWYS COUNTY COUNCILRespondent(Lead enforcement authority for the purposes of s.24A of the Estate Agents Act 1979)RespondentDaniel Gough, in person for AppellantAlison Farrar for RespondentDecision: The appeal is Dismissed.REASONS
[1]Mr Gough appeals against a decision by the Respondent on 27 August 2024 to make an order under Section 3 of the Estate Agents Act 1979 (“the Act”), prohibiting him from doing any estate agent work in the UK. Background[2]Mr Gough was previously Director of MyPad Sales (Yorkshire) Limited (“MyPad”), the business of which was real estate management on a fee or contract basis.[3]On 11 October 2023, Mr Gough was convicted at Hull Crown Court on indictment, following his guilty plea, of charges of assault occasioning actual bodily harm to his partner, criminal damage and also possession of a weapon of discharge of noxious gas/liquid or other thing (a stun gun), all arising out of a single incident on 2 December 2022.[4]In his sentencing remarks on 4 April 2024, Judge Thackray made reference to a previous criminal history involving use of a pepper spray and an imitation firearm as well as previous violence (although not domestic violence). Mr Gough had at the time historic convictions for battery, common assault, destroying/damaging property, possessing prohibited weapons, possession of firearms with intent to cause fear of violence and affray, dating between 1995 and 2013.[5]Accordingly, on 4 April 2024,

the Judge imposed the following sentences:

[6]For assault occasioning actual bodily harm, 24 months imprisonment suspended for 24 months, 200 hours unpaid work, 20 rehabilitation activity requirement (RAR) days and attendance at a Building better relationship programme;[7]For criminal damage, to pay £2000 compensation; and[8]For possession of a prohibited weapon, 8 months imprisonment suspended for 24 months concurrently with the above sentence, forfeiture and destruction of the stun gun, a 5-year restraining order and a victim surcharge of £187.[9]The Respondent is the appointed lead enforcement authority for the Act. On 27 June 2024, the Respondent wrote to Mr Gough to inform him that it proposed to make a prohibition order under Section 3 of the Act. Mr Gough was given the opportunity to make representations and asked to reply by 22 July 2024.[10]On 23 July 2024, Katy Swale, Operations Director of MyPad, wrote to the Respondent stating that she believed the order should not be made. She said “I can confirm it was mutually decided that Daniel Gough resign as a director following the conviction and I am now the sole director of MyPad Accommodation. Daniel has no dealings with the general public or clients and hasn’t done for a number of months as this is my main role”. Ms Swale confirmed by email on 25 July 2024 that this should be taken as Mr Gough’s formal reply.[11]In line with its usual procedure, the respondent placed the issue of Mr Gough’s fitness to carry on estate agency work before an adjudicator. On 15 August 2024 the adjudicator gave reasons why he considered Mr Gough to be unfit to engage in estate agency work. The prohibition order was accordingly made by the Respondent on 27 August 2024, in reliance on the adjudicator’s reasoning. The appeal[12]In his grounds of appeal to the Tribunal, Mr Gough stated that he believed his case is unique. He said “My conviction was of a personal nature and happened in our family own home, this was the first domestic violence I have committed and was out of character. My ex-partner has a long history of domestic abuse and unfortunately for me I got caught up in a toxic relationship.”[13]He noted that he has since his conviction completed most of his order and there has not been any complaint since the offence, saying that he is conducting himself in a fit and proper manner.[14]Mr Gough said that “Powys have not taken into account my 20 years perfect reputation and long standing in the estate and letting agency business. I was also the longest serving chairman of the Humber Landlords association. I can obtain lots of written references to demonstrate I am a fit and proper person.”[15]He argued that a lifetime ban is unwarranted, because his offence would be spent in a few years.[16]Mr Gough made further written submissions in a form GRC5 sent to the Tribunal on 15 April 2025 arguing that a lifetime ban would breach the Rehabilitation of Offenders Act 1974 and that there is a low risk of him reoffending.[17]Mr Gough also submitted a Probation Risk Assessment dated 9 June 2025, which concluded that he posed a medium risk of serious harm to children, the public and known adults in the community. The Response[18]The Respondent filed a response to the appeal dated 6 January 2025 in which it asserted that the Mr Gough is unfit to engage in estate agency work and should be prohibited in accordance with Section 3 of the Act on the basis he has committed a relevant trigger offence under that section.[19]The Respondent asserted that Mr Gough has committed (and been convicted of) an offence of assault occasioning actual bodily harm. This is not disputed and Mr Gough acknowledged this offence in his application to appeal at paragraph 2 of section 7.1 of the GRC1 form. The Respondent says this satisfies the trigger in Section 3(1)(a)(i) of the EAA, i.e. that Mr Gough has committed an offence ‘…involving fraud, violence, or other dishonesty’. Mr Gough’s rehabilitation date is deduced to be the 4th April 2030 and the Respondent submits that this conviction is not spent and can therefore be taken into account by virtue of paragraph 1 of Schedule 1 to the EAA.[20]The Respondent says that it referred this case to its Adjudicator following receipt of the written representations from the Appellant. The adjudication report dated 15th August 2024 concludes by finding that there was a serious prospect that Mr Gough would pose a risk to the public should he be permitted to engage in estate agency work and determined that that Mr Gough was unfit, at the time of the report, to engage in estate agency work. A copy of this report was provided to Mr Gough with the prohibition order documents.[21]After the Adjudicator had determined Mr Gough to be unfit to engage in estate agency work, the matter was referred to the Respondent’s Senior Manager. An assessment was then made as to whether or not to impose a prohibition order, including whether to restrict the scope or geographical extent of any order. The assessment took into account the trigger event, Mr Gough’s representations, the determination of unfitness and other circumstances such as Mr Gough’s employment and his proximity (including potential future proximity) to estate agency work. It was decided that a prohibition order without restrictions was appropriate in this case. Such orders are not time limited but the person affected may seek a variation or revocation of the order at any point in the future by virtue of section 6 of the EAA. Procedural matters relating to the determination of this appeal[22]The appeal was heard by Cloud Video Platform (CVP)[23]The Tribunal considered a bundle of documents (102 pages). Mr Gough also submitted a Probation Risk Assessment dated 9 June 2025 as late evidence, Legal Framework[24]‘Estate agency work’ is defined by section 1 of the Act as follows:
“1.— Estate agency work. (1) This Act applies, subject to subsections (2) to (4) below to things done by any person in the course of a business (including a business in which he is employed) pursuant to instructions received from another person (in this section referred to as “the client”) who wishes to dispose of or acquire an interest in land— (a) for the purpose of, or with a view to, effecting the introduction to the client of a third person who wishes to acquire or, as the case may be, dispose of such an interest; and (b) after such an introduction has been effected in the course of that business, for the purpose of securing the disposal or, as the case may be, the acquisition of that interest; and in this Act the expression “estate agency work” as mentioned above to which this Act applies.”
[25]The ability to make a prohibition order arises at section 3, the relevant parts of which read:
“3— Orders prohibiting unfit persons from doing estate agency work (1) The power of the lead enforcement authority to make an order under this section with respect to any person shall not be exercisable unless the lead enforcement authority is satisfied that that person— (a) has committed — (i) an offence involving fraud or other dishonesty or violence, […] and the provisions of Schedule 1 to the Act shall have effect for supplementing paragraphs (a) and (b) above. Subject to subsection (1) above, if the lead enforcement authority is satisfied that any person is unfit to carry on estate agency work generally or of a particular description it may make an order prohibiting that person— (a) from doing any estate agency work at all; or (b) from doing estate agency work of a description specified in the order; and in determining whether a person is so unfit the lead enforcement authority may, in addition to taking account of any matters falling within subsection (1) above, also take account of whether, in the course of estate agency work or any other business activity, that person has engaged in any practice which involves breaches of a duty owed by virtue of any enactment, contract or rule of law and which is material to his fitness to carry on estate agency work.”
[26]In Littlewood v Powys County Council [2015] EWHC 2125, Holman J held as follows:
“32…decision making under section 3 requires a three-stage process. First, the decision maker must be satisfied that the person concerned has done or failed to do one of the trigger matters in section 3 (1) (a) – (d). That clearly involves reaching a finding or conclusion of fact. Second, and next, the decision maker must be satisfied, as required by section 3 (2), that the person concerned is "unfit to carry on estate agency work generally or of a particular description". That clearly reaching a finding or conclusion of fact, whilst applying also an exercise of judgment. A person either is or is not "unfit", but fitness is not a hard-edged or black and white quality, so, at least in any marginal case, the decision maker has to exercise a judgment in deciding whether he is satisfied that the person is unfit. At that stage, however, the decision maker is not exercising a discretion.

(b) ”

[27]In essence this means the Tribunal must apply the following three stage test:[28]Has a trigger event pursuant to Section 3 of the EAA occurred?[29]Has a determination of unfitness to engage in estate agency work been made? and[30]Has there been an application of discretion, if so unfit, to issue a prohibition order?[31]Section 7 gives a right of appeal to the Tribunal: 7 – Appeals(1) A person who receives notice under paragraph 9 of Schedule 2 to this Act of— (a) a decision of the lead enforcement authority to make an order in respect of him under section 3 or section 4 above, or (b) a decision of the lead enforcement authority under subsection (4) or subsection (5) of section 6 above on an application made by him, may appeal against the decision to the First-tier Tribunal.(2) On an appeal under subsection (1) above the First-tier Tribunal may give such directions for disposing of the appeal as it thinks just.[32]In Littlewood at [43], Holman J accepted a submission that on appeal there “would be a completely fresh, wholly judicial, decision making process and decision” but this did not form part of the ratio for his decision. We consider that the correct approach is expressed by Lane J in Cook v General Medical Council [2023] EWHC 1906 (Admin):
“The relevant legal principles this court must follow in deciding an application of this kind are essentially as follows. The court must disturb the decision of the IOT only if satisfied that the decision is "wrong". This does not mean that the court is confined to acting only if a public law error is identified, such as would be the position on judicial review. The way in which the principle operates so as to prevent an unconstrained "merits" review is by requiring this court to give weight to the views of the specialist Tribunal.”
[33]Although arising in a different statutory context, it is instructive to note what Andrews LJ has said recently in Waltham Forest LBC v Hussain & Ors [2023] EWCA (Civ) 733 at paragraph 64: " 'Wrong', as Upper Tribunal Judge Cooke explained in Marshall v Waltham Forest LBC [2020] UKUT 35 (LC) means in this context that the appellate tribunal disagrees with the original decision despite having accorded it the deference (or 'special weight') appropriate to a decision involving the exercise of judgment by the body tasked by Parliament with the primary responsibility for making licensing decisions. It does not mean 'wrong in law'. Put simply, the question that the FTT must address is, does the Tribunal consider that the authority should have decided the application differently?”[34]That special weight is not fixed between types of decision nor among individual decisions of the same type. In appeals under section 7 of the Act, the Tribunal must afford appropriate weight to the procedure that has already been followed. Its procedural safeguards may make it more difficult to show that the outcome should have been different. The issues[35]The Tribunal agrees with the Respondent’s submission that the principal issue for it to determine in line with the above legislative process and relevant case law is whether to:[36]Uphold the decision by the lead enforcement authority to impose a prohibition order, or[37]Quash the decision by the lead enforcement authority to impose a prohibition order, or[38]Direct the lead enforcement authority to modify the prohibition order with restrictions on scope (section 3(2) EAA) and/or geographical extent (section 3(5) EAA) The Hearing[39]The Tribunal heard oral submissions from Mr Gough and from Ms Farrar on behalf of the Respondent.[40]Mr Gough did not dispute his conviction or the fact that the Respondent has a duty to protect the public and the reputation of the estate agency industry. He therefore did not dispute that there should be a prohibition order against him but took issue with the fact that such order is not limited in time.[41]He noted that his sentence ends on 3 April 2026, which means it will be spent on 3 April 2028 under the Rehabilitation of Offenders Act. He said that the Respondent should have made an order for a shorter period and then reviewed it and obtained evidence before making a new order. He argued that there should be a monitoring process to oversee those prohibited and enable them to recommence their estate agency work at some point in the future.[42]Mr Gough said that he would not currently pass the fitness and propriety test for being a landlord of a House in Multiple Occupation (HMO) because he has an unspent conviction, but were he to apply again once it is spent he would pass. He contrasted this with the fact that the Respondent has not put such a timescale on his prohibition order.[43]Mr Gough spoke about the steps he has taken to improve his life since his conviction in 2024, including having completed his hours of unpaid work in the first six months after his sentence. He also mentioned the work he does in the community assisting prison leavers with finding accommodation, with which the Tribunal was impressed. He emphasised that his work in this connection was not client facing, but more consultancy work, although he noted that the current prohibition order would prevent him from doing front-facing work in future.[44]Ms Farrar explained the process which the Respondent had followed in making the prohibition order. She also explained that risk assessment conducted by the Respondent looked not only at the risk which an individual might pose to the public, but also the reputational harm which that individual might cause, not only to their own reputation but that of the industry as a whole. She noted that under the statutory scheme in the Act, the restrictions which may be placed on a prohibition order are limited.[45]She said that the probation risk assessment submitted in late evidence by Mr Gough gave cause for concern because it indicated that if Mr Gough were to be in conflict with a member of the public there would be an increased risk of harm. Taken together with his previous pattern of behaviour and previous convictions, in all the circumstances the Respondent considered that Mr Gough was unfit to practice estate agency work.[46]Ms Farrar also noted that the subject of a prohibition order may apply at any time for that order to be revoked or varied. The Respondent encourages people to do so once their rehabilitation period has ended. Discussion and conclusions[47]As Mr Gough did not contest his conviction or that there should be a prohibition order, taking into account all the circumstances we were satisfied that the prohibition order against him dated 27 August 2024 should be upheld.[48]We note that Mr Gough challenges the procedure for making and maintaining prohibition orders by the Respondent, arguing that there should be a process of mandatory monitoring and regular review/reconsideration. The Tribunal has no power to change the statutory regime for enforcement against estate agency; this is a matter for Parliament, so we are unable to address this point.[49]The outstanding question for the Tribunal is whether the prohibition order should be limited in some way or without limitation.[50]The principal purpose of a prohibition order is protection of the public. Mr Gough’s conduct demonstrates a level of violence. Several aggravating features were identified by the sentencing judge that we consider support an unlimited prohibition order, including his previous criminal history. We had regard to the length of the (suspended) sentence of imprisonment of 24 months and the 200 hours unpaid work requirement as marking its seriousness. Theconviction is not yet spent and will not be until April 2028, the relevance of which is reflected in parts of the statutoryregime.[51]While we accept that Mr Gough does not have a history of domestic violence, the fact that he has several previous convictions for other offences involving violence such as battery means that we cannot be satisfied that this was an isolated incident.[52]There are several factors that do support limiting the prohibition order. As a matterof principle, prohibition should go no further than is necessary. Mr Gough was found to pose a medium risk of re-offending, has in fact not re-offended and has been compliant with the unpaid work element of his sentence.[53]Having set out the factors specific to this appeal, we turn to wider considerations.The protection of the public goes beyond the instant risk posed by Mr Gough himself.It also depends on the integrity of the system of estate agent regulation overall andthe maintenance of public confidence in its effectiveness. Anyone may startundertaking estate agency work without prior or ongoing checks of their competenceor fitness, regulatory action only occurring when something calls those matters intoquestion – Powys describes this as ‘negative licensing’. It stands in contrast to the‘positive licensing’ undertaken before a person can even begin many other jobs: taxidriver, solicitor, teacher, pharmacist, driving instructor, and so on. We agree thatsuch relatively unintrusive and ‘soft-touch’ regulation will only maintain publicconfidence if it proves effective when invoked.[54]It would, we consider, risk damaging public confidence in the regulation of estateagents if the limited prohibition order sought by Mr Gough were made. An estate agent carrying out estate agency work comes into close contact with the public, including in some circumstances entering their homes. This is a position of trust. We consider that a notionalmember of the public would be concerned to later discover: first, that Mr Gough hadbeen prohibited from all other estate agency work due to a conviction for violence; and second, that despite this the regulator had given its explicit approvalto him continuing to undertake an essential aspect of the sale process that requiressuch trust. It is that explicit approval that damages public confidence.[55]The limits which can be imposed under the statute are restricted. Section 3(2) of the Act states that the prohibition may be from doing any estate agency work at all or from doing estate agency work of a description specified in the order. Section 3(5) of the Act sets out that if the lead enforcement authority (here the Respondent) considers it appropriate, it may in an order under this section limit the scope of the prohibition imposed by the order to a particular part of or area within the United Kingdom. We do not consider that either of these specific types of limitation is appropriate in all the circumstances of this case.[56]Balancing the above factors, we conclude that an unlimited prohibition order isnecessary. While the personal impact on Mr Gough should not be diminished, and these factorsare outweighed by the risk a limited order would pose to the public, from Mr. Gough directly and from loss of public confidence in the integrity and effectiveness of theregulatory regime. However, as the Respondent observed, under section 6 of the Act, and particularly once his conviction is spent, it will be open to Mr Gough to seek revocation or amendment of the order in future if he so wishes.