Lands Chamber appeal refused

12 Sep 2022

The Upper Tribunal (Lands Chamber) has held that in considering an appeal against the local housing authority’s refusal of a licence application or revocation of a licence the First-tier Tribunal (Property Chamber) is entitled to take into account matters that did not exist at the time of the authority’s decision.

Waltham Forest LBC v Hussain [2022] UKUT 241 (LC)

Nasim Hussain made licence applications in which she asserted that the subject properties did not contain gas appliances; she subsequently pleaded guilty to four offences of knowingly or recklessly supplying false information, and was fined £40,000. She later supplied gas safety certificates in relation to those properties; her husband, Tariq Hussain, subsequently pleaded guilty to four offences of fraudulently backdating those certificates, and was fined £1,000.

By reason of the behaviour underlying those offences the Council determined that Nasim Hussain was not a fit and proper person to be a licence-holder. She asserted that the Council was not entitled to rely on convictions that were, by the time of the appeal before the First-tier Tribunal (Property Chamber), spent. That argument was rejected by the Upper Tribunal (Lands Chamber) (see Hussain v Waltham Forest LBC [2020] 1 WLR 2723) and the Court of Appeal (see Hussain v Waltham Forest LBC [2021] 1 WLR 922; our note here). The underlying appeal was therefore remitted to the FTT.

In the meantime, Nasim Hussain’s daughter, Farina Hussain, was granted a licence and her company, FHCO Ltd, sought a number of licences. The Council subsequently revoked the licence and refused the applications. They each subsequently appealed.

An appeal to the FTT is a rehearing “but may be determined having regard to matters of which the authority were unaware” (sch.5 para.34(2) Housing Act 2004). On appeal, the FTT held that it was entitled to take account of matters of which the Council was unaware because they did not exist at the time of its decision; that the Council had impermissibly asked questions in response to an offer to settle; that it was appropriate to “reinstate” Farina Hussain’s licence; and that she was fit and proper notwithstanding her association with her parents, whose criminality was beyond doubt. It also held that there can be no deemed grant of a licence where an authority has not fixed a period for processing applications in advance.

The Council appealed to the Upper Tribunal; there was also a cross-appeal. The President agreed with the Council that there was no restriction on its ability to ask questions; that there was no statutory power to “reinstate” a licence; and that there could be no “deemed” grant of a licence. It then went on to hold that the question for the FTT was whether the appellant was now a fit and proper person, not whether she had been at the time of the decision of the Council which is the subject of the appeal. And that the FTT had been right to hold that it was entitled to have regard to matters that did not exist at the time of the Council’s decision.

Riccardo Calzavara appeared as junior counsel for Waltham Forest LBC, instructed by Simon Kiely of Sharpe Pritchard LLP.

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