Local Government Lawyer Home Page


Sharpe Edge Webpage Banner

Welcome to Sharpe Edge, Sharpe Pritchard’s local government legal hub on Local Government Lawyer.

Sharpe Edge features news, views and analysis from our team of specialist local government lawyers working at the heart of the latest legal developments. Sharpe Edge platform is also the only place where local government lawyers can get e-access to two law books by our Head of Local Government Rob Hann: The Guide to Local Authority Charging and Trading Powers (‘LACAT’) and The Guide to Local Authority Companies and Partnerships (‘LACAP’).

 

                                                                                                  

Slide background

HMO licensing, the ‘fit and proper’ test and spent convictions

The Court of Appeal has provided clarity for the test of a ‘fit and proper’ licence holder for houses in multiple occupancy (HMOs), write Simon Kiely and Christian Grierson.

Can a local authority consider the underlying conduct behind spent convictions when deciding whether a person making an application for HMO or other property licence is ‘fit and proper’? Yes – as confirmed by the Court of Appeal in Hussain v Waltham Forest LBC [2020] EWCA Civ 1539, upholding the earlier decision by the Upper Tribunal (Lands Chamber) (the “UT”), in Hussain v London Borough of Waltham Forest [2019] UKUT 339 (LC).

In that earlier decision, the UT had found that a local authority could consider the behaviour underlying a conviction which would otherwise be deemed as ‘spent’ under the Rehabilitation of Offenders Act 1974 (the “ROA 1974”) when applying the ‘fit and proper person’ test under Parts 2 and 3 of the Housing Act 2004 (the “HA 2004”), and the Court of Appeal has now upheld that decision.

Background

A local authority in determining whether to grant a licence for a House in Multiple Occupation must be satisfied that “the proposed licence holder… is a fit and proper person to be the licence holder” [1] under the HA 2004.

In 2016, Mrs Nasim Hussain submitted seven applications for selective property licences under Part 2 of the HA 2004 to the London Borough of Waltham Forest (the “Council”).  In her application, Mrs Hussain asserted that none of the properties had any gas appliances. However, for four of the properties this was not correct, and as such, the Council asked Mrs Hussain to provide gas safety certificates for these properties. Certificates were provided, but it subsequently transpired that these had been forged and fraudulently back dated by a rogue gas servicing engineer to appear as though the gas safety checks had been done at a much earlier date.

As a result of providing the forged certificates, her husband, Mr Tariq Hussain was convicted under the Forgery and Counterfeiting Act 1981, and Mrs Hussain was convicted of knowingly or recklessly supplying false information to the Council.

On 23 November 2018, the conviction of Mrs Hussain was deemed ‘spent’ under the RAO 1974. However, in reliance upon the facts behind those convictions, the Council refused the outstanding applications for property licences on the basis that she was not a ‘fit and proper’ person. Mrs Hussain sought to appeal this decision to the First Tier Tribunal (the “FtT”) and to strike out reliance on their convictions, arguing this was in contravention of RAO 1974.

In their claim, the Appellants placed weight on the decision of R (YA) v Hammersmith and Fulham LBC [2016] EWHC 1850 (Admin). It was submitted that YA, when read with S.4(1) ROA 1974, meant the Council could not rely on any evidence in respect of a conviction that had become spent under the ROA 1974. The Council applied for the claim to be transferred to the UT on the basis that YA was wrong and should not have been followed.

The UT dismissed the action to strike out finding that although a rehabilitated person could be treated as not having committed, been charged with, prosecuted for, or convicted of an offence, the underlying conduct of that offence remains relevant to the decision of a local authority in considering the grant of a licence. Similarly, the UT held that a local authority in making a decision to revoke or refuse a licence did amount to ‘proceedings before a judicial authority’ for the purposes of the ROA 1974, and that so the Council was permitted to allow spent convictions to be considered. It is this decision that was appealed.

Judgment

Lord Justice Hickinbottom gave the lead judgement and made a determination on the two key issues of the appeal.

The Scope of ROA 1974

The Court held that S.4(1)(a) ROA 1974 does not prevent the conduct of a spent conviction as being admissible. Crucially, a distinction between conduct and conviction was drawn by the Court.

Under S.7(3) ROA 1974, it is possible for a ‘judicial authority’ to admit evidence otherwise inadmissible under S.4(1) ROA 1974. The Appellants submitted that S.4(1)(a) should be read in accordance with S.7(3) and that S.7(3) can act as a ‘safety valve’. It was also submitted simply that in the case of YA the “Deputy Judge was right; and the tribunal panel were wrong” [2].

The Court held that the words of ROA 1974 are clear, and the wording of S.4(1)(a) is unambiguous. The Court therefore concluded that YA was wrong, and that the UT has been correct in their judgment.

Judicial Authority

Although in obiter, the Court gave its view on whether a local housing authority is a ‘judicial authority’, and confirmed the decision of the UT.

The correct statutory interpretation of the provisions of the HA 2004 was held to be unambiguous. A local authority when determining whether to grant a licence must “determine any question affecting the rights, privileges, obligations or liabilities of any person, or to receive evidence affecting the determination of any such question” [3]. The Court dismissed the submission by the Appellants that the correct interpretation was that a local authority is not adjudicating on rights as between third parties or rights conferring any form of status on third parties, as the scope of the above definition encompasses such activity and more.

As such, when a local authority exercises its licensing functions under Parts 2 and 3 of the HA 2004 it is doing so as a ‘judicial authority’ and consequently is able to consider the underlying conduct of spent convictions, overriding S.4(1)(a) ROA 1974.

Comment

The case is of real significance to local authorities as it provides clarity to the practice of determining the grant and revocation of licences under Parts 2 and 3 of the HA 2004. The judgment is unambiguous in confirming that an authority can consider behaviour underlying a conviction that is spent when deciding on an application for a licence.

The judgment will certainly be met with support from local authorities as the consequences of finding that the conduct that led to spent convictions could not be considered for the ‘fit and proper’ test, would have led to absurd and negative results. There are strong public policy reasons that it is right for a local authority to be able to consider an applicant’s convictions, especially those concerning the forgery of gas safety certificates, when deciding whether that individual is ‘fit and proper’ to hold an HMO licence.

The case will also be of interest for its interpretation of the ROA 1974. It is a recurring issue across a number of different local authority service areas as to the extent to which spent convictions can be considered, if at all. Although, the statutory interpretation focused on the HA 2004, it may well assist in other service areas too.

Simon Kiely is a Senior Associate and Christian Grierson is a Trainee Solicitor at Sharpe Pritchard. They acted for the London Borough of Waltham Forest in this case and instructed Ashley Underwood QC and Riccardo Calzavara of Cornerstone Barristers. Sharpe Pritchard has a number of experienced Housing Litigators who are available to answer any queries local housing authorities may have arising from this Judgment. Please contact This email address is being protected from spambots. You need JavaScript enabled to view it. if you wish to discuss the implications of this case in more detail.

[1] Section 64(2), (3)(b)(i) HA 2004

[2] [34]

[3] S.4(6) HA 2004

For further insight and resources on local government legal issues from Sharpe Pritchard, please visit the SharpeEdge page by clicking on the banner below.

sharpe edge 600x100

This article is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published. If you would like further advice and assistance in relation to any issue raised in this article, please contact us by telephone or email This email address is being protected from spambots. You need JavaScript enabled to view it.

LACAT BookFREE download!

A Guide to Local Authority Charging and Trading Powers

Written and edited by Sharpe Pritchard’s Head of Local Government, Rob Hann,

A Guide to Local Authority Charging and Trading Powers covers:

• Updated charging powers compendium          • Commercial trading options

• Teckal ‘public to public’                                    • Localism Act

FREE DOWNLOAD

LACAT BookAvailable to buy:

A Guide to Local Authority Companies and Partnerships

An invaluable, comprehensive toolkit for lawyers, law firms and others advising
on or participating in Local Authority Companies and Partnerships”

- Local Authority Chief Executive

BUY NOW

  More Articles

Icons Court

The importance of due process, communication and fairness in employee conduct investigations – what you need to know.

Julie Bann and James Hughes discuss the importance of fairness in employee conduct investigations, taking a look at the London Borough of Hammersmith and Fulham -v- Mr S Keable case.
<a href=

Becoming More Inclusive: VAT and the Public Procurement (Agreement on Government Procurement) (Thresholds) (Amendment) Regulations 2021

Juli Lau, Natasha Barlow and Beth Edwards examine the recently published Public Procurement Regulations 2021, focussing upon amendments to the thresholds within various procurement regimes.
<a href=

The LADs are Alright

Laura Campbell discusses liquidated damages in construction contracts, focussing upon the long-running Triple Point saga which ended in the Supreme Court this year.
<a href=

Procurement Policy Note 08/21

Juli Lau and Beth Edwards outline Procurement Policy Note 08/21, recently published by the Cabinet office.
Icons Court

Hard Times: Improving Air Quality with Clean Air Zones

Rob Hann and James Goldthorpe examine the introduction of Clean Air Zones to improve air quality across the UK.
<a href=

Autumn Budget Spending Review 2021 – What Public Bodies Need To Know

Rob Hann and James Hughes examine the Autumn Budget Spending Review 2021, looking at what Public Bodies need to know.
<a href=

Net Zero – What’s new for local authorities?

Steve Gummer and Sophie Drysdale look at two major climate publications: the Heat and Buildings Strategy and the Net Zero Strategy.
Icons Hazard

Jumping to conclusions: Final Statements, liquidated damages and material breaches of natural justice

Michael Comba looks at a recent Technology and Construction Court case that provides useful guidance on the JCT’s procedural requirements on disputing Final Statements.
Icons Court

Three times one equals one: Several disputed payment applications amount to a single dispute

Michael Comba considers a case in which the High Court dismissed an employer’s argument that an adjudicator lacked jurisdiction because the referral concerned three separate payment applications and, therefore, comprised three separate disputes.
<a href=

Warm feelings or hot air: the Heat and Buildings Strategy and Heat Networks

This week the government published its Heat and Buildings Strategy (Strategy). This contained vital innovations and essential step changes in terms of how heating is provided, writes Steve Gummer.
<a href=

Procurement reforms: update from Cabinet Office

Rob Hann, Nicola Sumner and Juli Lau assess the Cabinet Office's update on the progress of the government's public procurement reforms.
Icons Court

Bond, Performance Bond. Delivering value for the Public Sector?

Justin Mendelle examines whether public sector clients achieve value for money from the provision of performance bonds.
Icons Hazard

Not so personal messages: R. (on the application of Good Law Project Ltd) v Secretary of State for Health and Social Care and Abingdon Health Plc [2021] EWHC 2595 (TCC)

Nicola Sumner, Juli Lau and Beth Edwards look at The Good Law Project's challenge of the direct award by the Secretary of State for Health and Social Care of three contracts for the production and supply of rapid Covid-19 antibody tests (the “Contracts”).
<a href=

Insolvency – Termination and Beyond

Rachel Murray-Smith and Clare Mendelle consider the potential warning signs of, and the compliant manner for dealing with, contractor insolvency.
Icons Court

Settlement agreements – waiving Personal Injury claims

In the case of Farnham-Oliver v RM Educational Resources LTD, the Queen’s Bench Division of the High Court allowed a Personal Injury claim (“PI claim”) to be pursued by an employee against his former employer despite the parties signing a Settlement Agreement in respect of an Employment Tribunal claim on the same issue. Julie Bann and James Hughes report.
Icons Hazard

Mandatory Vaccination for Care Home Workers in England – Update

Rachel Murray-Smith and Francesca Gallagher look at the detail of the government's guidance on compulsory vaccination for care staff.
<a href=

Make your mind up! Liquidated Damages clause upheld despite Employer’s challenge

In the recent case of Eco World Ballymore (EWB) v Dobler[1] , an Employer took the unusual position of challenging their own entitlement to liquidated damages (LDs) on the ground that the LDs provision constituted an unenforceable penalty clause. Clare Mendelle and James Goldthorpe investigate.
<a href=

Are Collateral Warranties Construction Contracts? Timing is Key.

Clare Mendelle and Anna Sidebottom examine the recently decided case of Toppan v Simply[1], which has provided guidance on when collateral warranties may be considered “construction contracts” under the Housing Grants, Construction and Regeneration Act 1996 and so give the warranty holder the right to adjudicate.
Icons Court

Climate emergency or climate catastrophe?

Rob Hann asks how central & local government departments and councils can work together more effectively to combat the challenges to achieve net zero by 2050.
Icons Court

Big Problems Need Radical Solutions – Time to Play Monopoly with District Heating?

Steve Gummer examines how local authorities might make district heat networks a reality.
<a href=

The Judicial Review and Courts Bill

The Judicial Review and Courts Bill was introduced to the House last week on 21 July 2021. William Rose and Anna Sidebottom discuss the potential impact of the bill.
<a href=

Liquidated damages and termination

Clare Mendelle, Francesca Gallagher and James Goldthorpe provide an outline of the Supreme Court's recent decision in Triple Point Technology vs PTT Public Company Limited.

Mandatory Vaccination for Care Home Workers in England

The Government has announced that people working in care homes in England must be fully vaccinated against Covid-19 from October 2021, unless they have a medical exemption, write Rachel Murray-Smith and Francesca Gallagher.
Icons Court

Transparency in Procurement: Procurement Policy Note (“PPN”) 07/21

Julie Lau, Clare Mendelle and Beth Edwards outline the new regime for publishing procurement notices post-Brexit
Icons Court

When procurement law and contracts for interests in land meet

Colin Ricciardiello provides a case law update examining cases that have examined the overlap between a requirement to procure and a contract for the disposal of an interest in land.
tb w74 h74 crop int a734a5aec8e0dcb7849ee8ebeb84a53d

UK granted data protection adequacy decision

Charlotte Smith summarises the new data protection adequacy decision.

First Impressions on the New Subsidy Control Bill

Last week the Government published its new Subsidy Control Bill. The Bill represents a significant shift in the way in which subsidies are assessed and also provides some clarity about the regime that will replace the EU State aid regime, writes Peter Collins.
Icons Court

Managing new enforcement powers for councils under the Traffic Management Act 2004

Rob Hann considers the recent legislative changes to traffic management in England, including the introduction of Clean Air Zones and widening local authorities enforcement powers for moving traffic offences.
Icons Court

Implementing Net Zero: Taking account of Carbon Reduction Plans in the Procurement of Major Government Contracts

The Government recently published the Procurement Policy Note 06/21. This will require suppliers bidding for major government contracts to provide a Carbon Reduction Plan at the selection stage and commit to achieving Net Zero by 2050, writes Clare Mendelle and James Goldthorpe.
tb w74 h74 crop int a734a5aec8e0dcb7849ee8ebeb84a53d

Public Procurement Update June 2021

On 3 June 2021, the Government issued the National Procurement Policy Statement (NPPS), and the associated Procurement Policy Note (PPN). George Dale explains what each document does.

What a bind: Section 106 planning obligations where there are multiple land interests

Rachel Lee and Christos Paphiti consider whether the case of R (on the application of McLaren) v Woking Borough Council impacts upon local planning authorities (LPAs) ability to properly consider the land interests and parties as regards to performance of specific obligations.
Icons Court

The use of experts only works when everyone plays by the same rules

Colin Ricciardiello looks at the use of expert witnesses in the wake of an important recent decision.
Icons Court

Unlawful Award of Contract

The High Court has ruled that the Minister for the Cabinet Office, Michael Gove, broke the law by giving a contract to a market research company, Public First, who are run by long-time associates of his. Anna Sidebottom, Francesca Gallagher and Clare Mendelle report.
Icons Date

Time after time: extending time for determination of a prior approval application

Rachel Lee and Christos Paphiti examine the time period for determination of Prior Approval (‘PA’) applications and explore how a local authority can extend the time period for determination.
Icons Date

The Cram Slam – Part 26A Restructuring Plans and Commercial Leases

David Nelson looks at the impact on landlords of a controversial High Court decision to allow a restructuring plan for a chain of health clubs.
Icons Court

The limits of an adjudicator's jurisdiction

Dr Paul Hughes and Anna Sidebottom look at the effect of Prater v Sisk [2021] on the ability of an Adjudicator to rely on previous 'out of jurisdiction' decisions between the same parties
Slide background