The Court of Appeal Provides Clarity for the test of a ‘Fit and Proper’ Licence Holder for Houses in Multiple Occupancy

Hussain v Waltham Forest LBC [2020] EWCA Civ 1539

Can a local authority consider the underlying conduct behind spent convictions when deciding whether a person making an application for HMO or other property licence is ‘fit and proper’? Yes – as confirmed by the Court of Appeal in this recent case upholding the earlier decision by the Upper Tribunal (Lands Chamber) (the “UT”), in Hussain v London Borough of Waltham Forest [2019] UKUT 339 (LC).

In that earlier decision, the UT had found that a local authority could consider the behaviour underlying a conviction which would otherwise be deemed as ‘spent’ under the Rehabilitation of Offenders Act 1974 (the “ROA 1974”) when applying the ‘fit and proper person’ test under Parts 2 and 3 of the Housing Act 2004 (the “HA 2004”), and the Court of Appeal has now upheld that decision.

Background

A local authority in determining whether to grant a licence for a House in Multiple Occupation must be satisfied that “the proposed licence holder… is a fit and proper person to be the licence holder[1] under the HA 2004.

In 2016, Mrs Nasim Hussain submitted seven applications for selective property licences under Part 2 of the HA 2004 to the London Borough of Waltham Forest (the “Council”).  In her application, Mrs Hussain asserted that none of the properties had any gas appliances. However, for four of the properties this was not correct, and as such, the Council asked Mrs Hussain to provide gas safety certificates for these properties. Certificates were provided, but it subsequently transpired that these had been forged and fraudulently back dated by a rogue gas servicing engineer to appear as though the gas safety checks had been done at a much earlier date.

As a result of providing the forged certificates, her husband, Mr Tariq Hussain was convicted under the Forgery and Counterfeiting Act 1981, and Mrs Hussain was convicted of knowingly or recklessly supplying false information to the Council.

On 23 November 2018, the conviction of Mrs Hussain was deemed ‘spent’ under the RAO 1974. However, in reliance upon the facts behind those convictions, the Council refused the outstanding applications for property licences on the basis that she was not a ‘fit and proper’ person. Mrs Hussain sought to appeal this decision to the First Tier Tribunal (the “FtT”) and to strike out reliance on their convictions, arguing this was in contravention of RAO 1974.

In their claim, the Appellants placed weight on the decision of R (YA) v Hammersmith and Fulham LBC [2016] EWHC 1850 (Admin). It was submitted that YA, when read with S.4(1) ROA 1974, meant the Council could not rely on any evidence in respect of a conviction that had become spent under the ROA 1974. The Council applied for the claim to be transferred to the UT on the basis that YA was wrong and should not have been followed.

The UT dismissed the action to strike out finding that although a rehabilitated person could be treated as not having committed, been charged with, prosecuted for, or convicted of an offence, the underlying conduct of that offence remains relevant to the decision of a local authority in considering the grant of a licence. Similarly, the UT held that a local authority in making a decision to revoke or refuse a licence did amount to ‘proceedings before a judicial authority’ for the purposes of the ROA 1974, and that so the Council was permitted to allow spent convictions to be considered. It is this decision that was appealed.

Judgment

Lord Justice Hickinbottom gave the lead judgement and made a determination on the two key issues of the appeal.

The Scope of ROA 1974

The Court held that S.4(1)(a) ROA 1974 does not prevent the conduct of a spent conviction as being admissible. Crucially, a distinction between conduct and conviction was drawn by the Court.

Under S.7(3) ROA 1974, it is possible for a ‘judicial authority’ to admit evidence otherwise inadmissible under S.4(1) ROA 1974. The Appellants submitted that S.4(1)(a) should be read in accordance with S.7(3) and that S.7(3) can act as a ‘safety valve’. It was also submitted simply that in the case of YA the “Deputy Judge was right; and the tribunal panel were wrong[2].

The Court held that the words of ROA 1974 are clear, and the wording of S.4(1)(a) is unambiguous. The Court therefore concluded that YA was wrong, and that the UT has been correct in their judgment.

Judicial Authority

Although in obiter, the Court gave its view on whether a local housing authority is a ‘judicial authority’, and confirmed the decision of the UT.

The correct statutory interpretation of the provisions of the HA 2004 was held to be unambiguous. A local authority when determining whether to grant a licence must “determine any question affecting the rights, privileges, obligations or liabilities of any person, or to receive evidence affecting the determination of any such question[3]. The Court dismissed the submission by the Appellants that the correct interpretation was that a local authority is not adjudicating on rights as between third parties or rights conferring any form of status on third parties, as the scope of the above definition encompasses such activity and more.

As such, when a local authority exercises its licensing functions under Parts 2 and 3 of the HA 2004 it is doing so as a ‘judicial authority’ and consequently is able to consider the underlying conduct of spent convictions, overriding S.4(1)(a) ROA 1974.

Comment

The case is of real significance to local authorities as it provides clarity to the practice of determining the grant and revocation of licences under Parts 2 and 3 of the HA 2004. The judgment is unambiguous in confirming that an authority can consider behaviour underlying a conviction that is spent when deciding on an application for a licence.

The judgment will certainly be met with support from local authorities as the consequences of finding that the conduct that led to spent convictions could not be considered for the ‘fit and proper’ test, would have led to absurd and negative results. There are strong public policy reasons that it is right for a local authority to be able to consider an applicant’s convictions, especially those concerning the forgery of gas safety certificates, when deciding whether that individual is ‘fit and proper’ to hold an HMO licence.

The case will also be of interest for its interpretation of the ROA 1974. It is a recurring issue across a number of different local authority service areas as to the extent to which spent convictions can be considered, if at all. Although, the statutory interpretation focused on the HA 2004, it may well assist in other service areas too.

Simon Kiely at Sharpe Pritchard acted for the London Borough of Waltham Forest in this case and instructed Ashley Underwood QC and Riccardo Calzavara of Cornerstone Barristers. Sharpe Pritchard has a number of experienced Housing Litigators who are available to answer any queries local housing authorities may have arising from this Judgment. Please contact Simon Kiely if you wish to discuss the implications of this case in more detail.

[1] Section 64(2), (3)(b)(i) HA 2004

[2] [34]

[3] S.4(6) HA 2004

This article is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published. If you would like further advice and assistance in relation to any of the issues raised in this article, please contact us today by telephone or email enquiries@sharpepritchard.co.uk.

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