Housing – Selective licensing – Provision of Services Regulations 2009 – Appellant local authority appealing against decision of First-tier Tribunal (FTT) concerning refusal and revocation of licences under Part 3 of Housing Act 2004 – Whether facts post-dating appellant’s decision relevant – Whether FTT erring in deciding that second and third respondents fit and proper persons – Whether licences deemed granted on expiry of reasonable time where no fixed time for determination published – Appeal allowed in part – Cross-appeal dismissed
The appellant local authority appealed against a decision of the First-tier Tribunal (FTT) relating to applications made by, among others, the second respondent company to the appellant for licences under Part 3 of the Housing Act 2004 in relation to 158 Blackhorse Road, London E17 and the revocation by the appellant of such a licence previously granted to the third respondent in relation to 44 Westbury Road, London E17.
The issues before the FTT were whether the second and third respondents were fit and proper persons to be licence holders, pursuant to section 88(3)(a)(i) of the 2004 Act. The FTT allowed appeals against the refusal and the revocation respectively.
The appellant had concluded that the second respondent (of which the third respondent was the sole director at the time) and the third respondent herself were not fit and proper persons to be licence holders because of their association the second respondent’s mother and father (the first respondent and her husband (T)), who had been convicted of offences of dishonesty relating to licensing under Part 2 or Part 3 of the 2004 Act.
The appellant appealed. The respondents cross-appealed contending that the FTT erred in its interpretation of the Provision of Services Regulations 2009 by holding that licences could not be deemed to have been granted where the appellant had not complied with its obligation under the Services Regulations to fix in advance and identify a period of time within which it would determine licence applications.
Held: The appeal was allowed in part. The cross-appeal was dismissed.
(1) Under paragraph 34 of schedule 5 to the 2004 Act, an appeal from a decision of a local housing authority under Parts 2 and 3 of the 2004 Act was expressly stated to be a re-hearing. The FTT might have regard to matters of which the authority was unaware. As a matter of principle, the appropriate tribunal would be expected to have regard to the decision of the authority and its reasons as well as to any relevant evidence given to it at the re-hearing.
The degree of deference due to the authority was qualified and would be on a sliding scale, depending in particular on the nature of the evidence that the tribunal heard, and the authority did not have, and its bearing on the decision: Clark v Manchester City Council [2015] UKUT 129 (LC); [2015] PLSCS 44 and Hastings Borough Council v Turner [2021] UKUT 258 (LC) considered.
The statute merely provided that the appeal “may” be determined having regard to matters of which the authority was unaware. It was wrong in principle to have regard only to the facts at the date of the appeal hearing: Herefordshire Council v Rhode [2016] UKUT 39 (LC) and Sheffield City Council v Hussain [2020] UKUT 292 (LC); [2020] PLSCS 200 considered.
Where the question was, as here, whether the authority was wrong to refuse to grant, or to revoke, a licence on the basis that the proposed licensee was not a fit and proper person, evidence that tended to show whether that person was now a suitable person was likely to be relevant and should be taken into account, whether the factual matters occurred before or after the authority’s decision. Therefore, paragraph 34(2) of schedule 5 was not to be read as limiting the appropriate tribunal to consideration of matters that existed at the date of the authority’s decision.
(2) All the relevant facts and further evidence were before the FTT, which was required to reach its own decision. The FTT simply disagreed, on the basis of all that it had heard, with appellant’s conclusion about the third respondent’s involvement in her parents’ wrongdoing. On the evidence, it was entitled to decide that the appellant was wrong to have concluded that the third respondent was implicated in the wrongdoing and that her parents’ wrongdoing did not result in her being unsuitable to hold a licence: Marshall v Waltham Forest London Borough Council [2020] UKUT 35 (LC) considered.
The third respondent having been found to be a fit and proper person herself, the main plank in the case for second respondent not being a fit and proper person fell away. The FTT was entitled to take into account the financial standing, experience and additional director that the second respondent had by the time of the appeal hearing.
(3) The failure of the third respondent to answer questions relating to the suitability of the second respondent, with the third respondent as its director, to be a licence holder was therefore relevant to the question that the FTT had to decide, namely whether the appellant was wrong to conclude that the second respondent was not a fit and proper person: The appellant and the FTT lacked information about how the business of the second respondent was run and what its assets were and the failure to answer questions on its behalf might have some bearing on an assessment of the character of the company’s directors.
The FTT was wrong to conclude that it had no power to ask questions about the second respondent’s assets, reserves and employees, and to reject the failure to answer those questions as irrelevant. Therefore, the appellant’s appeal succeeded to the extent of remitting the question of whether the second respondent was a fit and proper to the FTT for a further decision.
(4) Where a licence holder appealed in time against the revocation of a licence, the revocation did not take effect until the appeal was disposed of: section 93(5) of the 2004 Act. The licence therefore still existed until the FTT dismissed the appeal. But if the appeal was allowed, the revocation never took effect and the licence continued in existence. The language of “reinstatement” was therefore inappropriate, save where an appeal had been brought out of time.
The words “and her licence reinstated” in the decision of the FTT were inappropriate. It was sufficient that the decision of the appellant to revoke the third respondent’s licence was reversed. That meant that her licence expired in accordance with its terms and was not revoked.
The appellant’s appeal therefore succeeded on that ground but that only had the limited effect of varying the terms in which the FTT summarised its decision.
(5) The effect of regulations 19 and 20 of the 2009 Regulations was that, on making an application, the authority was required to identify in its acknowledgement a reasonable period for processing the application, which had to be a fixed period that it had previously publicised. The authority could not specify whatever period it thought was appropriate for that application, or say that the period applicable was “a reasonable period of time”. By virtue of regulation 19(5), there was deemed grant of authorisation upon failure to deal with the application within that previously publicised fixed period of time, which point of time would be identifiable by both authority and applicant by reason of compliance with regulation 20(1) and (2)(a): Vodafone 2 v Revenue and Customs Commissioners [2009] EWCA Civ 446; [2010] Ch 77 considered.
The FTT was only entitled to decide, on a re-hearing, whether the appellant was wrong to refuse to grant the respondents licences and whether, on the facts, a licence was deemed to have been granted to any respondent under regulation 19(5).
Ashley Underwood KC and Riccardo Calzavara (instructed by Sharpe Pritchard LLP) appeared for the appellant; Justin Bates and Nick Grant (instructed by Anthony Gold Solicitors) appeared for the respondents.
Eileen O’Grady, barrister
Click here to read a transcript of Waltham Forest London Borough Council v Hussain and others
