Banning Order upheld by Upper Tribunal
In Jahangir Hussain v London Borough of Newham [2023] UKUT 287 (LC) the landlord’s appeal against a banning order was dismissed.
Andy Lane acted for the successful local authority in this appeal, and Dean Underwood acted for them in the First-tier Tribunal (Property Chamber) when the banning order application was accepted.
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On 6 December 2023, Upper Tribunal Judge Elizabeth Cooke dismissed an appeal against a banning order imposed by the First-tier Tribunal (Property Chamber) on 15 February 2023, taking effect for 3 years from 16 August 2023.
The novel issue in this matter was that all the convictions relied upon were spent by the time the order was made. In the FTT it was not disputed by the parties that section 7(3) of the Rehabilitation of Offenders Act 1974 allowed evidence of spent convictions if “justice cannot be done” otherwise, the dispute centering on whether that hurdle was overcome on the facts of the case, and whether a banning order should in any event be made.
By the time of the landlord’s appeal his position had changed. His primary argument on appeal was that for the purposes of sections 15 and 16 of the Housing and Planning Act 2006 – which deal with the application and notice of intended proceedings and making of the banning order – the references to “has been convicted of a banning order offence” should be interpreted so that this only concerned “live” and not spent convictions. In particular it was said that:
- The non-statutory guidance at 3.4 supported this interpretation when it said that “a spent conviction should not be taken into account when determining whether to apply for and/or make a banning order”;
- Section 20 of the 2006 Act, which allows for the revocation or varying of a banning order once made, including if the convictions relied upon have subsequently become spent. This, it was said, suggested that Parliament could not have intended an order to be made solely on the basis of a spent conviction(s).
This was rejected by the Upper Tribunal Judge who found that the Guidance was not a tool of construction and if anything, the wording suggested the opposite to which the landlord sought to argue. As for the section 20 argument, this fared no better:
“34. Nor does section 20. I agree with Mr Lane’s observation that section 20 shows that Parliament had spent convictions in mind. It could easily have provided expressly in sections 15(1) and 16(1) that only unspent convictions were relevant but it chose not to do so. And the availability of an application for revocation or variation under section 20 does not generate any unfairness for the reason Mr Lane gave.”
The second ground, which argued that it was irrational for the FTT to have concluded that justice could not be done without admitting the evidence of the spent convictions, was similarly rejected.
Andy and Dean were instructed by Asifa Butt on behalf of oneSource and the lead officer for the London Borough of Newham was Julie Cannard, a Team Leader in Private Sector Housing Standards.
About the barristers
Andy Lane’s practice focuses on social housing, local government and public law, and he works primarily for local authorities and housing associations. He is consistently ranked in the top band of leading juniors in social housing in Chambers and Partners and The Legal 500.
Dean Underwood is marked out by the legal directories as a leading junior in landlord and tenant, property, public and administrative law, and has a particular expertise in housing and related administrative law.
