Hussain and Others v Waltham Forest London Borough Council
| Jurisdiction | UK Non-devolved |
| Judgment Date | 2019 |
| Neutral Citation | [2019] UKUT 339 (LC) |
| Date | 2019 |
| Year | 2019 |
| Court | Upper Tribunal (Lands Chamber) |
Housing - Private rented sector - Licensing of houses - Local housing authority refusing or revoking housing licences on grounds applicants not fit and proper persons - Applicants appealing on grounds authority erring in relying on spent convictions - Whether conduct giving rise to spent convictions to be taken into account in determining appeal -
The local housing authority refused to grant or revoked licences for 36 houses that were owned or managed by one or other of the applicants, under either Part 2 or Part 3 of the Housing Act 2004F1. The first applicant was the mother of the third applicant, who was the sole director of the second applicant company. The applicants appealed to the First-tier Tribunal against the local authority’s decisions, contending that it had erred in law by improperly relying, as relevant evidence falling within section 66 of the 2004 Act, upon spent convictions of the first applicant and her husband as showing that the applicants were not “fit and proper persons” to hold a licence for the purposes of sections 64(3) and 88(3). The convictions related to the giving of false information and the forgery of gas safety certificates in relation to earlier licence applications. The applicants applied to strike out parts of the local authority’s pleadings and evidence on the appeal in so far as they contravened the protections for rehabilitated persons contained in section 4 of the Rehabilitation of Offenders Act 1974F2. The application was referred to the Upper Tribunal for determination.
On the application—
Held, refusing the application, (1) that the first protection which the Rehabilitation of Offenders Act 1974 afforded to a rehabilitated person, as set out in the first part of section 4(1), required to be disregarded in relation to that person for all purposes in law the fact that the person had committed or been charged with, prosecuted for, convicted of or sentenced for an offence which was the subject of a spent conviction; that, likewise, the second protection which the 1974 Act afforded to a rehabilitated person, as set out in section 4(1)(a), rendered inadmissible in any proceedings before a judicial authority evidence of the same matters; that, however, neither the first nor the second protection applied to the conduct or behaviour which constituted the criminal offence that had resulted in the spent conviction; that, therefore, under the first and second protections the conduct which constituted a criminal offence which was the subject of a spent conviction was not disregarded for all legal purposes nor was evidence of such conduct rendered inadmissible in proceedings before a judicial authority; that it followed that on the applicants’ appeal to the First-tier Tribunal, subject to any decision by the tribunal to disapply the section 4(1) protections pursuant to section 7(3) of the 1974 Act, the local authority would be prevented from referring to, leading evidence about or relying upon the spent convictions of the first applicant and her husband and the tribunal would be required to disregard them; but that the tribunal would be entitled to receive and take account of evidence or information dealing with relevant conduct of the first applicant and her husband, including the conduct which had resulted in those spent convictions (post, paras 83–85, 88, 90–94, 110–111, 135, 181).
(2) That a judicial authority’s power under section 7(3) of the 1974 Act to admit evidence relating to a person’s spent conviction notwithstanding the provisions of section 4(1) could only be exercised if the judicial authority was satisfied that justice could not be done except by admitting that evidence; that, further, the identification of the issues in respect of which the evidence was said to be relevant was critical for the application of section 7(3); that, in the present case, the conduct of the first applicant and her husband which constituted the offences that had resulted in their spent convictions was relevant to the applicants’ suitability to manage or control premises licensable under Parts 2 or 3 of the Housing Act 2004; that, accordingly, it was properly arguable that justice could not be done in the appeal to the First-tier Tribunal except by admitting evidence of such conduct, pursuant to section 7(3); and that, accordingly, there was no justification for striking out material falling within the scope of the section 4(1) protections which might be the subject of an application by the local authority under section 7(3) (post, paras 151, 157, 161, 167–170, 181).
Per curiam. A decision by a local housing authority under Parts 2 or 3 of the 2004 Act to grant or refuse an application for a licence, or to revoke such a licence, involves “proceedings before a judicial authority” as defined in section 4(6) of the 1974 Act (post, paras 139, 141, 143, 145, 181).
The following cases are referred to in the judgment of the tribunal:
Adamson v Waveney District Council [
Arif v Excess Insurance Group Ltd
Claimant v First Defendant
Clifford v Clifford (Practice Note) [
Dickinson v Yates (unreported) 19 June 1986; [1986] CA Transcript No 554,
Francey v Cunninghame District Council [
Gilchrist v Revenue and Customs Comrs
Kingsbridge Pension Fund Trust v Downs
Leeds City Council v Hussain
McCool v Rushcliffe Borough Council [
NT1 v Google llc (Information Comr intervening)
Pepper v Hart [
R v Crown Court at Warrington, Ex p RBNB
R v Hastings Justices, Ex p McSpirit (
R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [
R (Cart) v Upper Tribunal (Public Law Project intervening)
R (YA) v Hammersmith and Fulham London Borough Council
Reynolds v Phoenix Assurance Co Ltd [
Robertson v Webb
Secretary of State for Justice v RB
Thomas v Comr of Police of the Metropolis [
The following additional cases were cited in argument or referred to in the skeleton arguments:
Harris v Registrar of Approved Driving Instructors
R (Westminster City Council) v National Asylum Support Service
APPLICATION
The first applicant, Nasim Hussain, the second applicant, FHCO Ltd, and the third applicant, Farina Hussain, each of which had an interest as owner or manager in one or more of 36 residential properties, appealed to the First-tier Tribunal (Property Chamber) against decisions dated 23 November 2018 of the local housing authority, Waltham Forest London Borough Council, refusing or revoking property licences in respect of those properties for houses in multiple occupation under Part 2 of the Housing Act 2004 or licensable houses in a selective licensing area under Part 3 of that Act. On the appeal the authority relied in its pleadings and evidence on spent convictions of the first applicant and her husband, relating to the giving of false information and the forgery of gas safety certificates on earlier licence applications, as showing that the applicants were not a “fit and proper person” to hold a licence within the meaning of sections 64(3) and 88(3) of the 2004 Act. The applicants applied to strike out all those parts of the statement of case, witness statement and exhibits filed by the authority as contravening the Rehabilitation of Offenders Act 1974, the issue on that application being the extent to which, if at all, a conviction that had become “spent” under section 1(1) of the 1974 Act, or the behaviour on which that conviction was based, could be taken into account when considering whether someone was a fit and proper person to hold a licence. On 13 May 2019 Judge Vance directed the applicants to identify clearly those parts of the authority’s statement of case and evidence which they sought to have struck out and on 22 May 2019 the applicants complied with that order. The authority requested that the strike-out application be transferred to the Upper Tribunal for determination pursuant to rule 25 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 (SI 2013/1169). The applicants resisted the transfer of all issues to the Upper Tribunal but were content for their strike-out application to be so transferred. Pursuant to an order dated 28 June 2019, and with the concurrence of the Upper Tribunal, the application was transferred for determination as a preliminary issue, the remainder of the appeal being stayed for later...
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Revisiting the Precedential Status of Crown Court Decisions
...UKUT 441 (AAC), [32]; R (MS) v Secretary of State forthe Home Department [2019] UKUT 9 (IAC), [107]; Hussain v Waltham Forest LBC [2019] UKUT 339 (LC); [2020] HLR 14,[59]. For two discussions on tribunal precedents, see T Buck, ‘Precedent in Tribunals and the Development of Principles’ (200......