In a recent case the Court of Appeal has held that when a First-tier Tribunal (Property Chamber) (“the FTT”) hears an appeal against a decision under the Housing Act 2004 as a ‘rehearing’, the FTT must consider whether the authority’s decision was wrong by reference to facts that existed at the time of its decision, and must also give sufficient deference to the authority’s original decision. Simon Kiely and Francesca Gallagher analyse the ruling.
Background to Waltham Forest LBC v Hussain [2023] EWCA Civ 733
In June 2015, Mrs Nasim Hussain (“NH”) submitted license applications in which she falsely asserted that the properties she rented out did not contain gas appliances. NH was prosecuted for supplying false information on those applications. Subsequently, her husband, Mr Tariq Hussain (“TH”) arranged for gas certificates to be provided to purportedly show that the gas appliances in the property had been tested at the time of the application. However, it transpired that TH had arranged with a rogue gas safe engineer for the certificates to be fraudulently backdated, and he was then prosecuted under the Fraud Act 2006. Following these prosecutions, the Council revoked NH’s property licences. The Council also revoked licences held by NH an TH’s daughter, Farina Hussain (“FH”) and refused licence applications made by a company called, “FHCO”, which had been set up by FH. The Council’s reasoning for this was that neither NH nor TH were “fit and proper” persons to hold property licences, and that as FH was their daughter, and therefore an ‘associated person’ to them, both FH and her company FHCO were not “fit and proper persons” to hold property licences either.
In December 2018, NH, FH and FHCO appealed against the Council’s decisions to refuse and revoke their licences to the FTT. A preliminary issue in the appeal relating to councils’ ability to take into account spent convictions when assessing fitness and propriety to hold licences was heard by the Upper Tribunal (Lands Chamber) (“the UT”), and then subsequently by the Court of Appeal in 2020; you can read our summary of that case here.
Following the Court of Appeal’s decision in 2020, the appeal was remitted back to the FTT, who dismissed Nassim’s appeals but allowed FH’s and FHCO’s appeals in part. The FTT found that whilst at the time of the Council’s decision to revoke FH’s licences and refuse FH and FHCO’s licence applications, FH had been inexperienced as a property manager, and that as FHCO was a new company solely owned and operated by FH, and therefore would not have been ‘fit and proper’ persons to hold licences, that by the time of the appeal hearing FH had gained property management experience, and FHCO had taken on staff and obtained property management accreditations, that they were, at that point in time, ‘fit and proper’ persons.
The Council appealed against the FTT’s decision to the UT, arguing that it was incorrect for the FTT to have taken into consideration the fact of FH and FHCO’s increased property management experience at the time of the appeal hearing, and should have instead only decided the appeal on the facts that existed at the time of the Council’s original decision. The UT part-allowed the Council’s appeal in relation to FH, but refused the Council’s appeal in relation to FHCO, and refused to find that the FTT had erred in taking its own view on the question of whether FH and FHCO were fit and proper persons at the time of the appeal hearing.
The Council appealed the UT’s decision to the Court of Appeal.
Issues for Court of Appeal to consider
There were two issues for the Court of Appeal to consider:
- Was the FTT entitled to consider facts that existed at the time of the appeal but had not existed at the time of the authority’s decision?
- To what extend was the FTT required to defer to the authority’s decision?
In regard to the first issue, the Court of Appeal, with Lady Justice Andrews giving the leading judgment (with which Lord Justices Lewison and Snowden concurred), held at [73-74] that “the UT was wrong to find that it was open to the FTT to decide the appeal by addressing fitness and propriety as at the date of the appeal … [and] on the basis of material that did not exist at the time of the decision”. The correct task for the FTT was therefore to decide whether the authority was wrong when it made its decision by reference to matters that existed at the time of its decision, rather than when the FTT happened to be hearing the appeal against that decision.
In relation to the second issue, the Court of Appeal held that “the FTT must pay careful attention to the reasons why the authority reached the decision that it did, and explain why it disagrees with them. Since Parliament intended such decisions to be taken by the authority, the FTT must afford the decision the weight and respect that must be afforded to any decision involving a value judgment made by the decision maker which was also the finder of primary fact”. This point reinforces the importance of councils’ decision-making powers, and that the FTT should not just dismiss the reasons for their decisions. In this case, it was held that the FTT had failed to pay sufficient deference to the original decision of the Council.
The Court of Appeal therefore allowed the council’s appeal on both grounds.
