7BR’s Ashley Underwood KC wins housing licenses appeal in the Court of Appeal

The Court of Appeal handed down judgment in the case of LB Waltham Forest v Hussain on 26 June 2023. The appeal concerned the refusal by Waltham Forest to grant licenses under Part III of the Housing Act 2004 because it concluded that the sole director of the applicant company was not a fit and proper person to hold a license. The First Tier Tribunal (Property Chamber) (“the FTT”) had heard evidence and decided that, as at the date of the appeal, that individual was fit and proper in its opinion. It accordingly granted licences, and the Upper Tribunal upheld its decision. Waltham Forest appealed to the Court of Appeal.

The Court acknowledged that the appeal raised important issues of principle concerning the nature and scope of the statutory jurisdiction of the FTT on an appeal from licensing decisions.

It described the key issue as whether, as the Upper Tribunal held, when hearing such an appeal the FTT makes its own assessment as to whether, on the date of the appeal, someone is a fit and proper person to hold a licence; or whether, as Waltham Forest contended, the task of the FTT is to determine whether the decision of the local housing authority to grant, refuse or revoke a licence was wrong, and therefore to consider whether the individual concerned was a fit and proper person on the date on which that decision was made.

The Court was faced with a subsidiary, related issue  – is the FTT entitled to have regard to information which came into existence after the decision under appeal was taken, or must the FTT only consider information that was available at the time of that decision (though this may include information which was not then known to the local housing authority).

The Court held that the issue for the FTT was whether Waltham Forest’s decision was  wrong when made and that the FTT could have regard only to matters relevant to the correctness of the decision as at the date when it was made. It also reiterated the need for the FTT to pay careful regard to the local housing authority’s reasoning and for it to differ from the local housing authority where properly satisfied that it had gone wrong.

Waltham Forest’s appeal was accordingly allowed on all three grounds advanced. The FTT and Upper Tribunal had erred in:

1. deciding the appeal on the basis of matters that had occurred since Waltham Forest’s decision and which were irrelevant to whether that decision was right when made;
2. failing to have regard to the fact that Waltham Forest had interviewed relevant witnesses from whom the FTT had not heard evidence, and;
3. failing to regard as relevant to her fitness to hold a licence, the failure of the director of the applicant company to answer written questions about her property business.

Ashley Underwood KC of 7BR and Riccardo Calzavara appeared for Waltham Forest. The full judgment can be found here.

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