Home > News > Hussain and others v LB Waltham Forest [2019] UKUT 339 (LC) Holgate J (President of the UT(LC)); Judge McGrath (President of the FTT(PC))

The Upper Tribunal (Lands Chamber) has handed down an important decision on the operation of the Rehabilitation of Offenders Act 1974. Although a decision in the context of HMO licensing, it has much wider importance. Unusually, the UT consisted of the President of the UT(LC) and the President of the FTT(PC).

Parts 2 and 3, Housing Act 2004, make provision for the licensing of certain HMOs and other residential property. In general terms, a landlord of such a property must obtain a licence from the local authority. Such a licence can only be granted if, inter alia, the authority are satisfied that the applicant is a “fit and proper” person (ss.64, 88).

The Rehabilitation of Offenders Act 1974 (and regulations thereunder) provide that, after specified periods of time, convictions are “spent”, i.e. the person “shall be treated for all purposes in law as a person who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offence” (s.4). In R (YA) v Hammersmith and Fulham LBC [2016] EWHC 1850 (Admin); [2016] HLR 39, it was held (in the context of an allocation scheme under Pt.6, Housing Act 1996) that the 1974 Act required an authority to disregard both the spent conviction and also the facts which led to the conviction (e.g. the authority had to disregard both the previous robbery convictions and the facts which underpinned those convictions).

The applicant owned various properties in Waltham Forest. She applied for licences under Pts.2 and 3, Housing Act 2004. The authority considered that she was not a fit and proper person because she had previous convictions for making false statements in connection with an HMO licence. She contended that her convictions were spent under the 1974 Act and were required to be disregarded and appealed to the FTT against the refusal of the licence. In her appeal, and relying on YA, she contended that the effect of the 1974 Act was that neither the authority nor the FTT could take into account her spent convictions nor the conduct which led to those convictions. The local authority contended that YA was wrongly decided, but accepted that the FTT would be obliged to follow it.

Accordingly, the issue was transferred to the Upper Tribunal, which would not be bound by a decision of the High Court (see, e.g. Gilcrist v Revenue and Customs Commissioners [2015] Ch 183).

The Upper Tribunal found for the local authority. The effect of the 1974 Act was that the fact of the conviction was inadmissible, but not the underlying conduct. Thus, the authority were entitled to take into account the fact that the applicant had previously made false statements to the authority, but were not entitled to take into account (or lead evidence about) the fact of the conviction. To the extent that YA held differently, it should not be followed. The case was remitted to the FTT to have it determine whether the applicant was, in fact, a fit and proper person.

Justin Bates and Nick Grant acted for the landlord. The judgment can be found here.

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