Waltham Forest London Borough Council v Nasim Hussain & Ors

On an appeal against a local housing authority’s licensing decision under Parts 2 or 3 of the Housing Act 2004, the First-tier Tribunal must decide whether the authority’s decision was wrong when made. It may consider matters unknown to the authority, including later events, only insofar as they illuminate the position at that time.

The tribunal makes its own assessment, but must give appropriate weight and respect to the authority’s evaluative judgment. It must engage carefully with the authority’s reasons. The challenger bears the burden of showing that a different decision should have been made. A subsequent improvement in fitness and propriety should ordinarily be addressed through a fresh application rather than the pending appeal.

The Council revoked a selective licence held by Farina Hussain and refused licence applications made by FHCO Ltd. It considered that Farina was not fit and proper because of her association with criminal wrongdoing in her family’s property business, and that FHCO was her alter ego.

The First-tier Tribunal allowed their appeals after considering evidence and developments arising after the Council’s decisions. The Upper Tribunal, in [2022] UKUT 241 (LC), upheld that approach, although it remitted FHCO’s fitness for reconsideration because relevant questions about the company had not been answered.

The Council appealed. The central issues were the date at which fitness and propriety had to be assessed, the relevance of later material, the weight due to the Council’s evaluative judgment, and the relevance of Farina’s failure to answer questions about FHCO.

1. Appeal allowed on all three grounds. Paragraph 34 of Schedule 5 to the Housing Act 2004 required the First-tier Tribunal to decide whether the Council’s licensing decisions were wrong when made. The tribunal was not entitled to decide the different question whether the proposed licence holders were fit and proper at the date of its hearing.

2. The words “by way of a re-hearing” did not prescribe a rehearing in the fullest sense. The proviso permitting regard to matters of which the authority was unaware showed that, without it, such matters could not have been considered. The statutory context entrusted licensing decisions and the associated evaluative judgments primarily to the local housing authority.

3. Unknown or later material was admissible only if relevant to whether the original decision was right or wrong at the time it was taken. A later conviction for earlier dishonesty could illuminate the earlier position. By contrast, subsequent qualifications, management experience or corporate restructuring could not establish that an earlier refusal or revocation was wrong merely because fitness had since improved. A person who later becomes fit and proper may make a fresh application.

4. The tribunal was required to make up its own mind, but only after giving the authority’s decision appropriate weight and respect. It had to engage with the authority’s reasons and explain any disagreement. The challenger bore the burden of showing that a different decision should have been made. The First-tier Tribunal failed to give sufficient weight to the Council’s assessment of direct evidence about Farina’s involvement and silence.

5. Farina’s failure to answer questions concerning FHCO could bear on both the company’s fitness and her own character. The Upper Tribunal’s contrary treatment of her individual position was inconsistent.

6. The correct approach required dismissal of Farina’s and FHCO’s First-tier Tribunal appeals. The Court confirmed the Council’s decisions to revoke Farina’s licence and refuse FHCO’s applications under paragraph 34(3), and set aside the inconsistent decisions below.

1. Court of Appeal (Civil Division): Allowed the Council’s appeal on all grounds, confirmed the revocation and refusals, and set aside the inconsistent decisions below: [2023] EWCA Civ 733.

2. Upper Tribunal (Lands Chamber): Dismissed the Council’s principal grounds concerning the assessment date and deference, but allowed two other grounds and remitted FHCO’s fitness for reconsideration: [2022] UKUT 241 (LC).

3. First-tier Tribunal (Property Chamber): Held that Farina and FHCO were fit and proper, purported to reinstate Farina’s licence and granted FHCO three-year licences.