A local housing authority can grant, refuse or revoke a licence required under parts 2 and 3 of the Housing Act 2004 following an assessment of whether an individual was “a fit and proper” person to hold a licence.
When determining if the LHA’s decision was wrong on appeal, the First-tier Tribunal must consider the question as at the date the decision was made by the LHA and not as at the date of the appeal.
In Waltham Forest London Borough Council v Hussain and others [2023] EWCA Civ 733; [2023] PLSCS 110 the appellant LHA had designated the area in which the respondents’ properties were situated as being subject to selective licensing.
In 2018 the appellant revoked licences it had granted to the third respondent in respect of a property she owned.
Further, it refused to grant licences for seven properties owned by the second respondent company, of which the third respondent, at the material time, was the sole director.
The LHA found that that the third respondent was not “a fit and proper” person to hold the licences due to acts of fraud and dishonesty committed by her father and mother, who was the first respondent and director of the second respondent company.
On appeal, the FTT found that both the second and third respondents were “fit and proper” persons to hold licences taking into consideration matters as they stood at the date of the appeal.
This decision was upheld by Upper Tribunal (Lands Chamber). Additionally, the UT rejected the LHA’s submission that the FTT failed to have proper regard to its judgements and conclusions based on the matters that were known to it at the material time.
The LHA appealed.
Construing the language of paragraph 34 of schedule 5, which concerned the powers of the FTT hearing an appeal, the Court of Appeal found that the task of the FTT was to determine whether the decision under appeal was wrong at the time when it was taken by the LHA.
“Wrong” in this this sense did not mean “wrong in law”, but whether the appellate tribunal considered that the LHA should have decided the application differently.
The Court of Appeal also held that the UT had erred in finding that the FTT could take into consideration material that did not exist at the time the LHA made its decision and that was irrelevant to whether the LHA’s decision was wrong.
Elizabeth Dwomoh is a barrister at Lamb Chambers
