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Local housing authorities have general responsibility for the regulation of the private rented sector in their local areas. Specific examples include housing standards (Part 1, Housing Act 2004) and landlord licensing (Parts 2 and 3, Housing Act 2004). Most decisions of local authorities under those provisions are capable of being appealed to the First-Tier Tribunal (Property Chamber) where the appeals are by way of re-hearing and may be decided by reference to matters of which the authority was unaware.
Earlier this week, in Waltham Forest LBC v Hussain and others [2023] EWCA Civ 773, the Court of Appeal handed down a judgment about the nature of those appeals. The case itself concerned licensing appeals under Part 3, Housing Act 2004. The authority had determined that a landlord and her their associated company were not “fit and proper” persons to hold landlord licences. Those decisions were appealed to the FTT.
Due to the pandemic and associated satellite litigation, the FTT appeal did not come on for hearing immediately. During that time, the landlord undertook a series of relevant training courses and also made progress with obtaining relevant professional qualifications. The FTT held that – whilst at the time of the decision under appeal – the authority had been right to conclude that the landlord and her company were not fit and proper persons, the subsequent steps taken by her to improve her professional skills were relevant and demonstrated that she was now a fit and proper person. Accordingly, the FTT allowed her appeal. The Upper Tribunal upheld that decision on appeal.
The Court of Appeal allowed an appeal by the local authority. The FTT had erred in two significant respects. First, it was not entitled to have regard to evidence which had only come into existence after the decision of the authority which was under appeal; the question was whether the decision of the authority was correct based on evidence which existed at the time of that decision. Secondly, the FTT was not free to make its own decision on the appeal; rather, it had to ask itself whether the decision of the authority was wrong, giving due deference to the role of the authority as primary decision-maker.
The landlord has sought permission to appeal to the Supreme Court.
Justin Bates and Nick Grant acted for the landlord, as they did in the Upper Tribunal. Justin also acted in the FTT.
The judgment can be found here.
