In determining whether to grant a licence to a person in control of or managing a house that is required to be so licensed, the relevant local housing authority must consider whether the applicant is a fit and proper person to be a licence holder under section 88(3)(a)(i) of the Housing Act 2004. In London Borough of Waltham Forest v Hussain and others [2022] UKUT 241 (LC) the Upper Tribunal (Lands Chamber) has considered the extent of the powers of a local housing authority when determining that issue and the First-tier Tribunal when conducting a re-hearing of the same on appeal.
The appellant authority determined that the first and second respondents were not fit and proper persons to hold a licence under section 88(3)(a)(i). The appellant had based its decision on the respondents close association with persons who had been convicted of offences involving fraud and dishonesty in relation to the licensing of properties under part 2 and 3. The respondents appealed.
The FTT found that at the date of the appeal the first and second respondents were fit and proper persons to hold licences. The appellant authority appealed on four grounds, one of which concerned whether the FTT had misdirected itself by assessing the question of whether the first and second respondents were fit and proper persons as at the date of the appeal rather than at the date of the original decisions. Additionally, the appellant argued that the FTT had erred in failing to give due weight to its findings about the second respondent’s fitness at that relevant date.
If a prospective licence holder appeals a decision by a local housing authority to grant or revoke a licence, pursuant to paragraph 34(2) of schedule 5 the appeal must be by way of a re-hearing and “may be determined having regard to matters of which the authority was unaware”. The appellant argued that the natural meaning of paragraph 34(2) of schedule 5 was that the only new matters which the FTT could have regard to on appeal were matters that existed at the time of the authority’s original decision. To find otherwise would effectively cut the primary decision-maker out of the process because the appellate tribunal could overturn the authority’s decision based on circumstances that did not exist at the time. The UT disagreed.
The UT acknowledged that an appeal by way of a rehearing did not permit the FTT to start with “a clean sheet of paper” and effectively ignore the authority’s decision and reasons for arriving at the same. Yet, it did not mean that the FTT was limited solely to an assessment of whether the authority’s decision-making process and conclusions were valid in law. The FTT was entitled to have regard to maters which the authority was unaware and that could be matters that existed after the date of the original decision.
The UT also found that the deference to be shown to the authority’s original decision by the FTT was qualified by the fact that the FTT was empowered under paragraph 34(2) of schedule 5 to have regard to matters that were not known by the authority. The deference to be shown was on a sliding scale. If highly relevant evidence came to light at the re-hearing, which the authority was unaware, deference to the original decision would be significantly reduced. If no new evidence came to light then the deference to be shown to the original decision would be greater.
Elizabeth Dwomoh is a barrister at Lamb Chambers
