Being a 'fit and proper person'
c.jermyn • November 19, 2019
The Housing Act 2004 requires the holder of a property licence to be a 'fit and proper person', so can a Landlord with spent convictions hold a property licence?
Waltham Forest London Borough Council made the decision to revoke or not grant housing licences under Parts 2-3 to the Housing Act 2004 for 36 residential properties owned by a Mrs Hussain and her husband following convictions for housing related offences.
Those convictions had however been spent. Mrs Hussain and her husband took the matter to the Tribunal and it was for the Tribunal to consider the extent to which a conviction has become 'spent' under the Rehabilitation of Offenders Act 1974 and whether the council could take into account the behaviour upon which that conviction was based in deciding if Mr and Mrs Hussain met the test of a 'fit and proper person'.
The decision in this case (Hussain & Ors v London Borough of Waltham Forest [2019]) clarifies an area of law where there is very little authority and gives an indication as to how councils should exercise their statutory powers when considering the test that is in fact common to a variety of licensing regimes.
By way of background, Mrs Hussain pleaded guilty to 4 charges brought under Housing ACT 2004 s238 for knowingly or recklessly supplying false information regarding gas appliances. Mr Hussain also pleaded guilty to four charges under section 1 of the Forgery and Counterfeiting Act 1981 having fraudulently backdated gas certificates. Both in my view very serious offences.
The council took the view that the conduct underlying those convictions was relevant to determining whether they were deemed a 'fit and proper person'. Mr and Mrs Hussain took the view that the council should not be able to rely on those convictions to refuse or revoke their licences and that when the matter went to the First Tier Tribunal, they should not be able to rely on the evidence in respect of those convictions to support their decision to exercise their statutory duty.
The matter proceeded to the Upper Tribunal who took the view that the council were able to consider evidence of conduct that underlies those spent conviction. Essentially although the conviction is no longer legally relevant the underlying conduct is.
The case is key to licensing in the property sector and supports the drive to improve housing standards which, with the expected introduction of mandatory electrical safety checks and increased licensing, seems set to continue.
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