The Upper Tribunal has ruled on the relevance of spent convictions and 'fit and proper person' test.

Whilst the case’s context is property licence applications, members may still find it of interest notwithstanding.

As reported by the Local Government Lawyer, the case of Hussain & Ors v London Borough of Waltham Forest (HOUSING – licensing) [2019] UKUT 339 (LC) concerned 36 residential properties in respect of which applications for property licences under Parts 2 and 3 of the 2004 Act had been refused or in some cases revoked by the local housing authority, Waltham Forest Council.

The President of the Lands Chamber of the Upper Tribunal, Sir David Holgate and Judge Siobhan McGrath said the case raised an important issue about the effect of the Rehabilitation of Offenders Act 1974 on the consideration by the First-tier Tribunal (Property Chamber) of appeals against such decisions.

“The question is to what extent, if at all, may a conviction that has become ‘spent’ under the 1974 Act, or the behaviour upon which that conviction was based, be taken into account by the FTT when considering whether someone is a ‘fit and proper person’ to hold a licence. This question also arises when a local housing authority takes the licensing decision from which an appeal may be brought,” the judges said.

Each of the applicants had an interest in one or more of the properties as owner or manager. The London Borough of Waltham Forest determines licensing applications for properties within its area.

The appellants before the FTT applied to strike out part of Waltham Forest’s pleadings and evidence. That application was transferred to the Upper Tribunal for determination under rule 25 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013.

The council’s decision letter had stated:

“On 12 May 2017, Mrs Nasim Hussain was convicted of four offences under s.238 Housing Act 2004 for supplying false or misleading information in that you informed the Housing Authority that four flats you rented at 109/111 Old Church Road E4 did not have any gas appliances, when they in fact did have gas appliances.

On 29 June 2018 Mr Tariq Hussain, was convicted of four offences under the Forgery and Counterfeiting Act for falsifying Gas Safety certificates for rental properties at 109/111 Old Church Road E4.”

In their statement of case, the applicants contended that in making its decisions the respondent council had erred in law by relying upon spent convictions. Mrs Hussain’s convictions became spent under the 1974 Act from 12th May 2018, while Mr Hussain’s became spent from 29th June 2019.

The Upper Tribunal concluded that:

(i)      On a proper construction of the 1974 Act the FTT may receive and take into account in its determination of the applicant’s appeal, evidence or submissions dealing with relevant conduct of a rehabilitated person, including conduct which has been treated under the criminal law as an offence and resulted in a conviction which is now spent;

(ii)     The correct legal test to be applied to an application by the Respondent to the FTT under s. 7(3) of the 1974 Act to rely upon the convictions, offences or sentences of the Applicants is that laid down in the provision itself, as explained by the Court of Appeal in Dickinson v Yates (unreported, 27 November 1986) (see paragraphs [150] to [157] of the Upper Tribunal’s judgment). “There is no justification for this Tribunal to strike out material falling within the scope of s. 4(1) which may be the subject of such an application by the Respondent”;

(iii)    Decisions by a local housing authority under Parts 2 or 3 of the 2004 Act to grant or refuse applications for a licence, or to revoke such a licence, involve “proceedings before a judicial authority” as defined in s.4(6) of the 1974 Act;

For these reasons the Upper Tribunal decided that the Applicants’ application to strike out must be dismissed.

James Findlay QC and Riccardo Calzavara of Cornerstone Barristers appeared for Waltham Forest. Justin Baker and Nicholas Grant of Landmark Chambers appeared for the applicants.