5 & 7 Saltwell Place and others Gateshead, NE8 4QY: MAN/00CH/HMV/2019/0001 & MAN/00CH/HMV/2019/0002

Northern Region Judge S Moorehouse and Members Mr I D Jefferson and Mrs A K Usher Sitting on 10 September 2019

From:
HM Courts & Tribunals Service and First-tier Tribunal (Property Chamber)
Published
28 October 2021
Category:
Housing Act 2004 and Housing and Planning Act 2016
Sub-category:
Housing Act 2004 and Housing and Planning Act 2016 - Selective licensing
Decision date:
15 January 2020

Read the full decision in [

Case Reference : MAN/00CH/HMV/2019/0001 & MAN/00CH/HMV/2019/0002

Property : 5 & 7 Saltwell Place, 294 & 296 Whitehall Road, 10, 12, 14, 16, 22 & 24 Trevethick Street and 42 Hyde Park Street, Gateshead.

	52, 54, 63, 65, 75, 77 & 117 Windsor Avenue, 20, 22, 82, 84 & 108 Westbourne Avenue and 41 & 43 Brinkburn Avenue, Gateshead.

Applicant : Mr Samuel Adler

Representative : Jacksons Law

Respondent : Gateshead Council

Type of Application : Housing Act 2004 - Schedule 5 Paragraph 31(1) and 32(1)

Tribunal Members : Mr S Moorhouse LLB Mr ID Jefferson TD BA BSc FRICS Mrs A.K. Usher

Dates and venue of : 10 September 2019 and 10 December 2019 Hearing Manorview House, Kings Manor, Newcastle upon Tyne

Date of Decision : 15 January 2020

DECISION ____________

© CROWN COPYRIGHT 2020

DECISION

A. The tribunal reverses the decision of the Respondent dated 25 March 2019 to revoke the selective licences previously granted to the Applicant in relation to the following properties:

5 & 7 Saltwell Place, 294 & 296 Whitehall Road, 	10, 12, 14, 16, 22 & 24 Trevethick 	Street and 42 Hyde Park Street, Gateshead.

B. The tribunal reverses the decision of the Respondent dated 12 April 2019 to refuse to grant selective licences to the Applicant in relation to the following properties:

52, 54, 63, 65, 75, 77 & 117 Windsor Avenue, 20, 22, 82, 84 & 108 Westbourne 	Avenue and 41 & 43 Brinkburn Avenue, Gateshead.

The tribunal directs that within 28 days of the date of the tribunal's decision the 	Respondent grant selective licences to the Applicant in 	relation to each of these 14 	properties for a term of 5 years effective from 12 April 2019 and upon the following 	conditions:

(i)  the mandatory conditions prescribed in relation to selective licensing schemes  	by Schedule 4 to the Housing Act 2004, together with

(ii) such other lawful conditions 	as the Respondent may consider appropriate 	having regard, inter alia, to section 90 of the Housing Act 2004 and to 	the Court of 	Appeal decision in 	Brown -v- Hyndburn Borough Council [2018] 1 	W.L.R. 4518.

REASONS

Introduction 1. The Applicant is the sole director of property management company Eagle Residential Limited and has submitted to the tribunal two related applications (‘the Applications’). 2. The first of these is submitted pursuant to paragraph 32 of Schedule 5 to the Housing Act 2004 (‘the Act’) by way of appeal against a decision by the Respondent Authority dated 25 March 2019 to revoke 11 licences that had been granted by the Respondent to the Applicant on 21 September 2018. The licences in question were held by the Applicant in connection with his management of the following properties, situated within an area designated by the Respondent as a selective licensing area and referred to as Central Area Phase 2 (Redesignated Area): 5 & 7 Saltwell Place, 294 & 296 Whitehall Road, 10, 12, 14, 16, 22 & 24 Trevethick Street and 42 Hyde Park Street, Gateshead. For ease of reference these properties are referred to as the ‘Revocation Properties’. 3. The second application is submitted pursuant to paragraph 31 of Schedule 5 to the Act by way of appeal against a decision by the Respondent Authority dated 12 April 2019 to refuse to grant 14 licences sought by the Applicant. The licences in question were sought in connection with the management of the following properties within a different selective licensing area designated by the Respondent as ‘the Avenues Phase 1’: 52, 54, 63, 65, 75, 77 & 117 Windsor Avenue, 20, 22, 82, 84 & 108 Westbourne Avenue and 41 & 43 Brinkburn Avenue, Gateshead. For ease of reference these properties are referred to as the ‘Refusal Properties’.

  1. The basis for the Respondent’s revocation of the Applicant’s licences for the Revocation Properties is given within the notice of revocation dated 25 March 2019, an example of which was included within the Respondent’s bundle (page 42) along with the covering letter relating to all Revocation Properties (page 39). The reason given for revocation was that the Respondent no longer considered the Applicant to be a fit and proper person to be the licence holder following a conviction of Eagle Residential, of which the Applicant is the sole director, under the Environmental Protection Act 1990.
  2. The basis for the Respondent’s refusal to grant licences to the Applicant for the Refusal Properties is given within the notice of the decision to refuse dated 12 April 2019, an example of which was included within the Respondent’s bundle (page 35), along with the covering letter relating to all of the Refusal Properties (page 32). The reason given for the refusals was that the Respondent did not consider the Applicant to be a fit and proper person, following the convictions of Eagle Residential Limited of which the Applicant is the sole director, under the Environmental Protection Act 1990.
  3. The issues before the tribunal therefore concerned the fitness of the Applicant - whether he is a fit and proper person to hold selective licences. The tribunal’s reasons for reaching its decisions on the Applications are given in the sections that follow. Relevant procedural matters are noted, followed by summaries of the parties’ cases and record of the tribunal’s findings of fact and reasons. The relevant extracts from the Act and relevant regulations are reproduced within the Appendix to this decision document. In particular: • section 88 of the Act sets out the circumstances in which an authority may grant or refuse a selective licence and introduces the requirement that a licence holder must be a ‘fit and proper person to be the licence holder’; • section 89 sets out the test for fitness; • section 90 makes provision for an authority to impose licence conditions; • section 93 makes provision for revocation; • paragraphs 5 and 22 of Schedule 5 to the Act make provision for consultation prior to a final decision to refuse or revoke a licence; • paragraphs 31, 32 and 34 of Schedule 5 to the Act make provision for appeal to first-tier tribunal and prescribe the remit of the tribunal; and • Schedule 2 to the Licensing & Management of HMOs etc (Misc Prov) (England) Regulations 2006 prescribes mandatory content for licensing applications.

The hearing and procedural matters 7. Following receipt of the Applications directions dated 20 May 2019 were issued to the parties. Pursuant to these a statement of case and accompanying documents were submitted on behalf of the Applicant and the Respondent in turn (referred to as ‘the Applicant’s bundle’ and ‘the Respondent’s bundle’ respectively). A right to reply to the Respondent’s submission was not exercised on the Applicant’s behalf. 8. The Applications were listed for hearing (without inspection) on 10 September 2019. Both parties were represented by Counsel, Mr Barton appearing for the Applicant and Mr Crowe for the Respondent. Also present were the Applicant and the following officers and representatives of the Respondent authority: Mrs Crosby, Mr Christer and Mr Currie.

  1. On 10 September the tribunal addressed a number of preliminary matters, referred to below. Mr Barton then presented the Applicant’s case, the Applicant giving oral evidence and being subject to cross-examination. Mr Crowe’s presentation of the Respondent’s case followed. Following Mr Crowe’s submission the tribunal made reference to the Court of Appeal decision of Brown -v- Hyndburn Borough Council [2018] 1 W.L.R. 4518. This had not been cited by either party but appeared to the tribunal to be potentially relevant in the present case having regard to the emphasis placed by Mr Crowe on a total of 33 alleged breaches by the Applicant of licence conditions.

  2. The hearing was adjourned, to be reconvened at the earliest convenient date, as there was insufficient time for Mr Barton to make a further submission in reply to Mr Crowe’s submission, and to allow the parties to submit any comment they may have on the Brown case and its relevance in the present case (in particular to the various alleged non-compliances with licence conditions raised on the Respondent’s behalf). Further directions were issued in this regard. Submissions were made on behalf of both parties.

  3. The hearing reconvened on 10 December 2019 at which time Mr Crowe made a further submission on the relevance of Brown, addressing issues raised in Mr Barton’s submission. Mr Barton commented further on Brown also and went on to make his submission in reply to the Respondent’s case presented on 10 September.

  4. The preliminary matters referred to above are set out in the paragraphs that follow:
  5. Mr Crowe asked that the tribunal accept a further written submission to accompany the oral presentation of his client’s case. This went beyond skeleton arguments and included various statutory and regulatory extracts and a report of a case cited in the submission: LBC Waltham Forest v Khan [2017] UKUT 153(LC). Mr Barton objected to its admission on the basis that it was non-compliant with the tribunal’s directions, had been received by him late the previous evening without prior notification and was therefore unfair to the Applicant. The tribunal admitted the submission on the basis that this provided a written summary to assist the tribunal in relation to the presentation by Mr Crowe of his client’s case, including a case report to be cited, but advised Mr Barton that extra time would be allowed to him to consider this and take instructions if required.
  6. Mr Crowe sought to introduce late evidence in the form of two witness statements by officers of the Respondent. The first related to information obtained on 19 August 2019 and the second related to information obtained on 29 August 2019. Both statements had been made on 9 September 2019, the day before the hearing. The tribunal refused to admit these statements on the basis that both were extremely late, they could have been submitted earlier, and this was exacerbated by neither witness being present and available to answer questions.
  7. Mr Crowe requested that certain matters raised in the Applicant’s written statement of case be dealt with separately as a preliminary matter. These concerned the Respondent’s decision-making and specifically the procedure that was followed by the Respondent. Mr Barton submitted that it was a matter for the tribunal, it was accepted that the appeal was by way of re-hearing and that procedural matters may not be relevant to the direct issues. The tribunal considered that it would be unlikely to expedite matters to address these aspects of the Applicant’s case separately at the outset, and this request was therefore denied.
  8. The Applicant’s solicitors had submitted further evidence on 12 August 2019 in the form of a letter and attached article (dated 7 August 2019) relating to a fine imposed on the manager of a public house for waste disposal offences. It was submitted in the accompanying letter that the article would be relied upon by Mr Barton at the hearing to demonstrate inconsistency in the Respondent’s treatment of the Applicant and the pub manager. The Respondent had written to the tribunal to object to its admission on the basis of relevance. The tribunal admitted the article as late evidence since it had been submitted in a reasonably timely manner however, having admitted the article, it was not relied upon by Mr Barton at the hearing.
  9. The tribunal noted that TAB 7 within the bundle of documents submitted on the Applicant’s behalf had been omitted. It transpired that the Respondent had not received this part of the submission either. TAB 7 took the form of a total of 51 waste transfer notes provided to the Applicant’s company by waste disposal company Bells. These had been omitted in error. The missing documents were obtained during the course of the first hearing day, admitted by the tribunal and reviewed by the Respondent in time for Mr Crowe to refer to them in cross-examination and in his presentation of the Respondent’s case. The Applicant’s case
  10. The Applicant’s case was presented by Mr Barton at the hearing, with reference to the written submission beginning at page 105 of the Applicant’s bundle. The Applicant’s main arguments concerned the issue of whether he was a fit and proper person to be a licence holder and as such related to both the revocation of licences and the refusal to grant new licences.
  11. The convictions of Eagle Residential under the Environmental Protection Act 1990 related (i) to a failure to secure that a transfer of waste from 108 Westbourne Avenue, Gateshead (a property managed by the company) was only to an authorised person or to a person for authorised transport purposes and (ii) to a failure to keep written records for a period of 2 years. It was submitted that the Applicant was a fit and proper person despite these and that the surrounding circumstances should be taken into consideration.
  12. It was submitted that whilst waste had accumulated at 108 Westbourne Avenue there was no suggestion that the waste was abnormal, dangerous or a health risk - it was household waste. The tenant had been unable to deal with it for a number of reasons and the Applicant had visited the tenant and dealt with it at her request. Mark Hillary (using the business name ‘Mark’s Clearances’) had been used by the Applicant previously to dispose of waste and was used in this case. It was submitted that it was clear from the witness statement of Mark Hillary, relied upon in securing the convictions, that all of the waste ended up either at the tip or in a skip on the drive of the Applicant’s house. It was accepted by the Applicant that the use of an unlicensed waste carrier brings a risk of fly tipping, but it was submitted that Mark Hillary had worked with the Applicant’s company for a number of years and that all of the waste had ended up where it was meant to.
  13. Within the Applicant’s bundle (page 108) it was stated that the District Judge had found that the breaches were not intentional and that the company had failed in its duties through negligence rather than disregard for law and order, that the Applicant had shown true remorse, was of previous good character, had learned a lesson and had been educated by the experience, putting in place measures to prevent such breaches happening again and providing evidence of the same, in particular evidence that authorised waste carriers were now being used.
  14. Neither party had been able to obtain a transcript of the proceedings in the Magistrates Court. There were differences between the parties’ submissions as to the District Judge’s sentencing remarks. It was submitted for the Applicant that the most poignant evidence as to the District’s Judge’s view was the sentence, and that this had been modest relative to what could have been imposed.
  15. It was submitted for the Applicant that in considering whether the Applicant is a fit and proper person there must be some appreciation that nobody gets things right all of the time otherwise anyone falling foul of a requirement would immediately be deemed unfit. It was submitted that there had been no offence of fraud or dishonesty, or discrimination - areas specifically referred to in the legislation. The Applicant had no prior convictions. He had cooperated with the investigation and the company had pleaded guilty to the waste management offences at the first opportunity. Following the convictions, a press statement had been issued by the Respondent, published as part of an article (copy at page 80 of the Applicant’s bundle) that was, in the Applicant’s submission, inaccurate and misleading.
  16. ‘TAB 7’ in the Applicant’s bundle comprised 51 waste transfer documents provided by ‘Bells’, a licensed waste disposal contractor. It was submitted that these evidenced a change in practice by the Applicant in relation to waste management. It was submitted also that the Applicant had taken steps to advise other management companies in the region of their responsibilities concerning waste management.
  17. A total of 6 personal and professional references were submitted on the Applicant’s behalf as evidence of good character, 5 of which post-dated the Respondent’s decisions.
  18. In the written submission within the Applicant’s bundle it was contended that the Respondent had relied upon certain indeterminate matters in reaching its decision to revoke licences and that these had not been identified in the consultation notices issued by the Respondent pursuant to paragraph 22 of Schedule 5 to the Act. These indeterminate issues were mentioned in the letter dated 25 March 2019 at paragraph 5 (page 20 in the Applicant’s bundle) and related to a total of 27 alleged breaches of licence conditions. It was submitted within the Applicant’s bundle that the decision-making process was therefore flawed, breaching the rule of natural justice and Article 6 of the Human Rights Act, and that the procedural error was of such importance the action that followed was unlawful.
  19. These alleged licence breaches were referred to by Mr Barton at the hearing. It was submitted that it would be unfair, in determining fitness, to rely on allegations which had not been presented in a way that would allow the Applicant to respond formally. Mr Barton commented further on this issue within his written submission on the relevance of the Brown case, and orally at the reconvened hearing: -
  20. It was submitted that the alleged 27 breaches (or 33 as claimed for the Respondent at the hearing) had not been particularised in any written document and the Applicant had not therefore been able to properly answer each alleged breach. Mr Barton stated that whilst these allegations had been raised with the Applicant by Mr Crowe in cross-examination the Applicant had not been invited to comment on all of the matters alleged. An allegation relating to furniture safety had not been raised nor had an alleged breach relating to the requirement to keep up to date with housing issues. On the latter point the Applicant had brought relevant documents in case the matter arose in cross-examination, but it had not been relevant to produce these.
  21. It was further submitted that an alleged failure to obtain a reference related (on the Applicant’s testimony) to a former tenant whom the Applicant had taken back in good faith due to previous experience - the Applicant had learnt from this. It was submitted that alleged failures to produce gas safety certificates referred to alleged failures to meet a deadline, not failures to provide the certificates at all - there was a stark difference. These and other alleged breaches related to properties part-managed with the owner and there had been issues where the owner had not done what was required of them - this had been addressed by the Applicant who no longer engaged in shared management arrangements. The Applicant had also improved his company’s own processes through the introduction of new property management software to help manage matters such as gas safety compliance and licence renewal.
  22. A matter had been put to the Applicant in cross-examination, later referred to by Mr Crowe as ‘revenge tipping’. It was submitted for the Applicant that this had involved returning property to a former tenant following previous advice by the police.
  23. In reply to criticism by the Respondent of the waste management documentation produced by Bells (the 51 items at TAB 7), it was submitted that the use of a licensed contractor showed that the Applicant was taking his responsibilities seriously. It was submitted that Bells were a large licensed waste disposal company covering a large geographical area. Waste collection from a managed property was often completed when the Applicant was not present - he could not possibly be at each location. It was asked rhetorically whether, in view of the deficiencies identified by the Respondent in the paperwork produced by Bells, the many other clients of Bells were being pursued - or indeed what action was being taken by the Respondent against the contractor itself. It was submitted that referring to the Applicant as committing criminal offences and slurring his name, as a consequence of his use of Bells was unfair, wholly disproportionate and not what the legislation intended.
  24. In conclusion it was submitted that the Applicant was doing his best to run his business in a professional way, he had taken numerous positive steps and actions as a consequence of the issues he had faced and had learnt a great deal, all of which should be taken into consideration in deciding whether he was a fit and proper person to hold licences. The Respondent’s case
  25. The Respondent’s case was presented at the hearing by Mr Crowe, based upon his written submission (admitted as a preliminary matter by the tribunal).
  26. Mr Crowe submitted that the powers and processes of the tribunal are set out within Schedule 5 to the Act and that any application pursuant to paragraphs 31 or 32 (as in the present case) should be dealt with by way of re-hearing, i.e. not review. Further the tribunal may ‘confirm, reverse or vary the decision’ of the Respondent by making its own determination as to whether the Applicant is a fit and proper person. The case of LBC Waltham Forest v Khan [2017] UKUT 153(LC) was cited. It was submitted that there was no power to make any declaration of unlawfulness, procedural irregularity or breach of human rights.
  27. Mr Crowe referred to the ‘non-exhaustive’ issues set out at section 89(2) of the Act, stating that the single relevant issue in this case concerns any provision of the law relating to housing or of landlord and tenant law.
  28. Mr Crowe made reference also to the provisions of paragraph 3(c) of Schedule 2 to the Licensing & Management of HMOs etc (Misc Prov) (England) Regulations 2006 (‘the 2006 Regulations’). These regulatory provisions require licence applicants to give details of any contravention of any enactment relating to housing, public health, environmental health or landlord and tenant law which led to civil or criminal proceedings resulting in judgement against him. Mr Crowe commented that these regulations were drafted more broadly than the Act. This issue was addressed specifically by the Respondent in its written statement of case (page 7 of the Respondent’s bundle) where it is stated ‘Gateshead Council hold the view that if this is to be considered as part of the application process then it should consider the same legislative contraventions if information subsequently becomes available to them in reassessing whether the licence holder or applicant remains a fit and proper person to hold a licence’.
  29. Mr Crowe submitted that the Applicant could not establish that he is a ‘fit and proper’ person within the meaning of the legislative framework. The Respondent argued that the Applicant’s history of licence compliance is poor, and that the recent convictions demonstrated a serious and continuous course of action.
  30. It was submitted that the Applicant was well known to the Respondent having sustained more than 27 breaches of licence conditions for over 8 properties in the selective licensing area from 2012 to 2017, with some relating to safety of residential premises themselves. Reference was made to correspondence in this respect included at pages 76 to 79 of the Respondent’s bundle. The number ‘27’ was amended to ‘33’ in the course of the hearing, and clarified to represent the total number of alleged breaches (on the basis that 5 alleged breaches all relating to 6 properties were counted as 30 breaches etc.).
  31. The Applicant had contended that these alleged licence breaches had been improperly taken into consideration by the Respondent in its decision-making. The Respondent stated in response to this (at page 17 of the Respondent’s bundle) that the issue of whether a licence would be refused or revoked was based upon the likelihood of conviction for the offences under section 34 of the Environmental Protection Act 1990 and that the reference to previous breaches of licence conditions was in response to a representation made by the Applicant within the consultation process i.e. it was not used as a reason for refusal or revocation.
  32. It was submitted that the Applicant and his company were on the ‘Priority Landlord’ list and had been once before - the list being an assessment of demand and justifiable complaints made to the Respondent by tenants in relation to poor property standards and/or management practices.
  33. In relation to the criminal convictions of Eagle Residential, it was submitted that these represented the culmination of years of unlawful/illegal conduct - it was not a single isolated conviction.
  34. Mr Crowe submitted that the particular offences for which the Applicant was convicted were important to the fit and proper person test. One of the main stated aims of the licensing scheme in the area in question related to environmental purposes, namely reduction of fly tipping and other poor waste disposal practices. The conviction of the company was inextricable from the character of the Applicant as the sole director and controlling mind of the company.
  35. Mr Crowe submitted that the environmental matters were part of the licence conditions, referring to Appendix 4 of the Respondent’s bundle. This point was emphasised by the Respondent within its written statement of case (page 15 of the Respondent’s bundle). The Respondent stated: ‘the Council decided that the criminal convictions were a gross breach of the conditions of the existing licences.’
  36. It was further submitted that the offences involved the maintenance, standard and wellbeing of the local community and residents of it, particularly in areas which are a hotspot for environmental problems. Reference was made to the covering letter for the final refusal notices at page 32 of the Respondent’s bundle. In this the Respondent responds to representations made by the Applicant and states (amongst other things) that the offences are landlord and tenant and housing related offences, having been committed in the course of the Applicant’s housing management function as managing agent of private rented property.
  37. Mr Crowe submitted that the offending was continuous referring to a witness statement by Enforcement Officer Keith Balloch (page 54 in the Respondent’s bundle) and items of correspondence (at pages 56-61). It was submitted that the Applicant operated both illegally and in violation of licence conditions from 2014 to 2018 despite the Respondent’s intervention and advice.
  38. It was submitted further that the offending was motivated by financial gain, demonstrating a willingness to flout the law to save money. Reference was made to a written note taken by one of the Respondent’s in-house solicitors (not present before the tribunal) at the sentencing hearing before District Judge Bagley. The note stated, ‘the Judge considered the company to have been reckless, bordering on deliberate in their actions, believes the acts were committed so as to avoid paying the going rate for authorised waste disposal companies, and makes particular note of the fact that Keith Balloch gave the company advice about their responsibilities in 2014 and 2016.’ It goes on to state ‘but judge also bears in mind that since the offence was committed action has been taken to ensure that the company has the proper waste transfer notes and they are complying with their responsibilities.’
  39. It was submitted that the 51 waste transfer documents supplied by Bells represented further evidence of non-compliance. Various alleged deficiencies in the documents were referred to in cross-examining the Applicant, such as omissions of SIC codes deficiencies in describing the quantity or container and the time of transfer, and missing signatures. It was submitted that there were various non-compliances with the regulations and that there was a duty on both parties to comply.
  40. The tribunal asked Mr Crowe to clarify the extent to which the issues fell within section 89(2) and (3) of the Act in the Respondent’s view. It was confirmed that the references in section 89 to fraud and discrimination did not apply in this case. It was submitted that offences did not have to fall into ‘landlord and tenant’ or ‘housing’ law to be taken into account, the offences fall into paragraph 3(c) of Schedule 2 to the 2006 Regulations. Additionally, fly tipping and leaving waste would qualify as anti-social behaviour and fall within the landlord & tenant and housing legislation. In this respect reference was made specifically to a number of incidents brought up in cross-examination of the Applicant and referred to as ‘revenge tipping’ by Mr Crowe. It was submitted that these incidents involved rubbish being left at a former tenant’s new home on multiple occasions, on one of which the police had been called. It was submitted that this might also be viewed as harassment in the context of landlord and tenant law.
  41. In the written submission by Mr Crowe pursuant to the tribunal’s direction concerning the relevance of the Brown case, points were raised concerning collateral attacks and public law principles, the scope of the tribunal’s discretion and the decision in Brown. It was not necessary for the tribunal to address these for the reasons given later and therefore they are not summarised here. At the reconvened hearing Mr Crowe commented on Mr Barton’s equivalent written submission, including points of clarity around the content of Appendix 4 to the Respondent’s bundle and the 33 alleged licence breaches, a contention on the Respondent’s behalf that all of the 33 alleged breaches had been put to the Applicant in cross-examination, a submission that alleged breaches of gas safety requirements related to mandatory licence conditions, and the Respondent’s contention that the 51 Bells waste transfer notices had not been completed in accordance with waste transfer regulations.
  42. In summary, it was submitted for the Respondent that the Applicant had decided to act in breach of the law from 2014 onward and was still failing to comply with waste management requirements. The Applicant had an appalling history of compliance with licence conditions, had led a company to criminal convictions and had demonstrated a wholesale disregard for advice and warnings issued by the Respondent in pursuit of cost-cutting. It was submitted that it was not known what it would take for the Applicant to comply or what more the Respondent could reasonably do. The Applicant was not a fit and proper person to hold a licence.

Findings of fact and reasons for the tribunal’s decision The tribunal’s remit 51. The discretion of a local housing authority to grant or refuse a licence and the requirement that a proposed licence holder must be a ‘fit and proper person to be the licence holder’ are set out in section 88 of the Act. The power to revoke an existing licence is set out at section 93 of the Act, including the power to revoke ‘where the authority no longer consider that the licence holder is a fit and proper person to be the licence holder’ (subsection (2)(b)). 52. The test for fitness is set out at section 89 of the Act. This provides that in deciding whether a person is a fit and proper person to be the licence holder the authority must have regard (among other things) to any evidence within subsection (2) or (3). The matters identified in subsections (2) and (3) are not exclusively to be taken into consideration, however if they apply the authority must have regard to them. 53. The matters listed in subsection (2) encompass offences committed involving fraud or dishonesty, violence or drugs, or certain sexual offences (subsection (2)(a)); the practice of unlawful discrimination in connection with the carrying on of any business (subsection (2)(b)); and contravention of any provision of the law relating to housing or of landlord and tenant law (subsection (2)(c)). Subsection (3) is relevant where an associate of the person whose fitness is under consideration has done any of the things in subsection (2). Subsection (3) has not been relied upon in the present case. 54. It is notable that whilst subsection (2)(c) mentions the law relating to housing, and landlord and tenant law, it does not mention the law relating to environmental health or public health. This is in contrast with the 2006 Regulations which prescribe certain information to be included in a licence application, prescribing that this must include ‘details of any contravention on the part of the proposed licence holder……..of any provision or enactment relating to housing, public health, environmental health and landlord and tenant law which led to civil or criminal proceedings resulting in judgement being made against him’ (Schedule 2, paragraph 3(c)). 55. A contravention of the law relating to public health or environmental health is not a matter therefore that is required under section 89 of the Act to be considered in determining fitness. If it were, it would be included in section 89, as it is in the 2006 Regulations. The inclusion of such contraventions within the prescribed content for a licence application supports the Respondent’s contention that these are relevant matters that can appropriately be considered, even though they are not required to be considered under section 89. 56. It is possible that an act or omission giving rise to a contravention of the law relating to public health or environmental health might also give rise to a contravention of the law relating to housing or landlord & tenant. This latter contravention must be taken into consideration under section 89. This scenario potentially arises in this case since it is contended that the circumstances giving rise to the convictions (contravening the law relating to environmental health and public health) gave rise also to breaches of licence conditions (in contravention of housing law). 57. It was suggested for the Respondent that the offences committed by Eagle Residential were linked to the carrying out of management functions, and stated in correspondence (page 32 of the Respondent’s bundle) that the Respondent considered the convictions to be landlord and tenant and housing related offences, having been committed in the course of carrying out a housing management function. The tribunal did not accept that a breach of the law relating to housing or landlord & tenant is established simply because a contravention of the law relating to environmental health or public health arises in the course of managing private rented property. 58. The Respondent authority explained within the Respondent’s bundle (at pages 7-8) that as a consequence of the reference to public and environmental health in the 2006 Regulations, they had added contraventions of the law relating to public and environmental health alongside the reference to contraventions of housing law and landlord & tenant law as matters to be considered within their internal guidance. The guidance (at page 27 of the Respondent’s bundle) is based upon section 89, but the provisions of section 89 are supplemented. The tribunal noted that the effect of this (in the context of environmental and public health) would be to remove a distinction, in the Respondent’s decision-making process, between matters that have been deemed to be of such significance as to be included in section 89 and other matters that might appropriately be considered but have not been deemed to be of such significance. 59. The tribunal noted that emails from the Respondent’s Senior Environmental Health Officer to the Respondent dated 9 May 2018 and 12 February 2019 (pages 76 and 86 in the Applicant’s bundle) indicated that the Respondent was of the view that a conviction under the Environmental Protection Act 1990 would mean that the Applicant would automatically no longer meet the fit and proper person criteria to apply for and hold a licence. Therefore, although consultation notices were issued pursuant to paragraphs 5 and 22 of Schedule 5 to the Act, it is considered that the Respondent had either reached an earlier decision on fitness, or was of the view that the outcome when it came to a final decision would be inevitable. Neither interpretation would be consistent with the intention behind the legislation. A local housing authority is expected to consider any representations made and to then to reach a decision on fitness having regard (among other things) to the matters in section 89(2) and (3). 60. Whilst these observations concerning the Respondent’s decision-making process are noted, it is not the tribunal’s remit to determine the Applications by way of review. Paragraph 34(2) of Schedule 5 to the Act provides that appeals are to be by way of re-hearing, but may be determined having regard to matters of which the authority were unaware. The argument within the Applicant’s written submission that the Respondent’s process was so flawed as to be unlawful (breaching the Applicant’s right to a fair hearing and the rule of natural justice) is not, even if it were to succeed, a ground on which the Respondent’s decisions might be reversed under paragraph 34(3) of Schedule 5 to the Act. 61. In the words of Martin Rodger QC in the Waltham Forest case cited by the Respondent (at paragraph 21 of the decision): ‘the FTT must make its own decision….and is not simply to ask itself whether the decision made by the local housing authority was open to it on the material it considered.’ 62. In considering the Applicant’s fitness to hold a licence the tribunal divided the various challenges to the Applicant’s fitness raised on the Respondent’s behalf into three categories: issues associated with convictions for waste management offences; issues concerning any associated or other alleged non-compliances with licence conditions; and alleged anti-social behaviour. 63. Additionally, the tribunal had the benefit of a number of character references. All but one of these post-dated the decision and had not therefore been available to the Respondent at the time of the final decisions. Waste management convictions 64. On 11 February 2019 at Gateshead Magistrates Court the Applicant pleaded guilty on behalf of Eagle Residential Limited to two offences under section 34 of the Environmental Protection Act 1990. The first offence was a failure to take such measures as were applicable to the company as a person disposing of controlled waste to secure that the transfer was only to an authorised person or to a person for authorised transport purposes. The offence related to the disposal of waste at 108 Westbourne Avenue, Gateshead, between 6 December 2017 and 7 February 2018. 65. The second offence was of failing to complete and keep a written description of waste and failing to keep written information for two years as required by Regulation 35(6) of the Waste (England and Wales) Regulations 2011 contrary to section 34(6) of the Environmental protection Act 1990. This second offence related to the period 15 March 2016 to 15 March 2018. 66. The company was fined £1250 for each offence plus a victim surcharge of £120 and costs of £470. 67. The Applicant had also received a summons personally. This was withdrawn upon payment of £300 pursuant to a Fixed Penalty Notice. 68. The tribunal did not have the benefit of a transcript of the hearing in the Magistrates Court. The parties’ submissions as to the comments of the District Judge differ, for instance as to whether the company was viewed as acting recklessly, bordering on deliberate (as per an in-house solicitor’s note) or whether the Judge viewed the failure as negligent - not intentional or involving a disregard for the law. 69. The first offence related to the removal of waste from 108 Westbourne Avenue, a tenanted property managed by Mr Adler’s company on behalf of the owner and landlord. On the evidence before the tribunal the waste concerned, had it been removed by the tenant, would have qualified as domestic waste. It was regarded as commercial waste, requiring the use of a licensed waste carrier, because Eagle Residential made the arrangement for the removal of the waste in the course of their business as managing agent. 70. Eagle Residential used Mark Hillary for the removal of the waste as it had on other occasions, evidenced by examples of invoices in the name ‘Marks Clearances’ within the Applicant’s bundle relating to the removal of waste at properties in Trevethick Street (pages 125 to 127). 71. The Respondent’s written statement of case indicated that litter, waste and fly tipping were identified as significant issues by residents in the consultation on selective licensing proposals, proving to be one of the biggest causes of dissatisfaction amongst residents. It was submitted by the Respondent that waste collected by unlicensed waste carriers invariably ends up as fly tipped waste elsewhere in the Gateshead Council area or further afield (page 5 in the Respondent’s bundle). In a press statement relating to the Applicant following the company’s conviction, the Respondent stated, ‘unlicensed waste carriers are believed to be responsible for the vast majority of fly tipping that takes place across Gateshead and its local Council Tax payers who pay the price…’ 72. There was no evidence that the Applicant’s company or Mark Hillary had engaged in fly tipping. No specific allegation was made by the Respondent to this effect. Fly tipping was denied by the Applicant. The witness statement of Mark Hillary, taken in the context of criminal proceedings, stated that waste was always taken by him to the ‘Council tip in Wrekenton’. The Applicant stated in his testimony that some had been placed in a skip on the Applicant’s drive. The tribunal accepted the Applicant’s contention that there had been no fly tipping. 73. It was the Respondent’s case that the offence of failing to use a licensed waste carrier had been committed despite advice given to the Applicant on earlier occasions. The Applicant accepted in cross-examination that in 2014 Keith Balloch, from the Respondent’s Environmental Enforcement Team had talked to him. The Respondent supplied copies of letters to the Applicant from Mr Balloch dated 17 September 2014 and 3 October 2014 together with an email from Mr Balloch dated 10 February 2016 addressed to an individual with an Eagle Residential email address and copied to the Applicant (pages 56-61 in the Respondent’s bundle). In cross-examination the Applicant indicated that in the case of the email he might have relied on the person to whom the e-mail was addressed, or not given it his full attention. 74. The two letters related to 10, 14 and 16 Trevethick Street. The first requested information on the contractor used by the Applicant to collect and dispose of waste. The second letter advised that documentation related to the waste disposal did not contain sufficient information and stated that a ‘section 34(5) Notice and Producer’ was enclosed relating to the three properties. These enclosures were included in the Respondent’s bundle. The letter also had an extract from waste management regulations attached, which was supplied to the tribunal (page 59). 75. The email dated 10 February 2016 included hyperlinks to relevant guidance and a specific note stating ‘if you find yourself dealing with a ‘white van man’ who either cannot produce a waste carrier licence or won’t give a proper transfer note (i.e. in the format above, not a scrap of paper with Mark’s clearances or something equally non-descript) chances are they are not a legitimate waste carrier and if you use them you risk failing to comply with your duty of care…’ 76. The tribunal found that advice had been given to the Appellant leading up to his convictions, face to face and in writing. 77. It was suggested by the Respondent that the Applicant had failed to use a licensed waste carrier for financial reasons. Under cross-examination the Applicant stated that this was not the case - given that his company took a percentage management fee on repairs etc., the fee would have increased if the cost of waste disposal had increased. The tribunal accepted that the use of Mark’s Clearances had not been motivated by financial gain. 78. The Applicant provided evidence that from April 2018 he had been using an established and licensed waste management company on the occasions his company had to dispose of waste from managed properties in its role as agent. The evidence took the form of 51 waste transfer notes from ‘Bells’, being the documents missing from the Applicant’s bundle at ‘Tab 7’. The waste transfer notes were reviewed by the Respondent and it was submitted that in parts the notes had not been fully completed. The tribunal accepted that the use of Bells, a contractor licensed by the Respondent indicated that the Applicant was taking his responsibilities seriously notwithstanding deficiencies in the paperwork identified by the Respondent. 79. The Applicant also provided evidence that he had been communicating waste management requirements to other landlords and agents to help them avoid the same pitfall. 80. The tribunal’s findings as to the relevance of and weight to attach to the waste management convictions in determining fitness are summarised as follows: 81. The convictions are not of such significance as to be captured by section 89(2) or (3) of the Act as matter to which the tribunal must have regard. It is appropriate however to have regard to them given the inclusion of contraventions of enactments relating to public health and environmental health in the prescribed information to be provided at the application stage. 82. The issue of a Fixed Penalty Notice to the Applicant and the level of the company’s fine suggest that the convictions related to offences considered to be relatively low level. The Respondent placed strong emphasis, in establishing areas for selective licensing, upon fly tipping and upon tackling litter and waste build up. The Applicant had responded to waste build up at tenanted properties by arranging disposal, had not been littering and had not been fly-tipping. 83. The Applicant had not taken sufficiently seriously the advice given by the Respondent prior to his convictions. He had been at fault, but not been motivated by financial gain and had moved to an established waste carrier 11-12 months before the Respondent issued final decisions to revoke and refuse licences (albeit with some deficiences in paperwork noted). He had also made efforts to communicate waste management requirements to others. Non-compliances with licence conditions 84. Section 95(2) of the Act provides that the holder of a selective licence commits an offence if he fails to comply with any condition of the licence. A breach by a licence holder of a condition would therefore give rise to a contravention of a provision of the law relating to housing, included within section 89(2) of the Act as a matter to which a local authority must have regard in assessing fitness. 85. The reasons for revocation and refusal given by the Respondent within its notices (consultation and final decision) were that the Respondent no longer considered the Applicant to be a fit and proper person following his convictions. The written submission within the Respondent’s bundle (at page 15) stated that the Respondent decided that the criminal convictions were a gross breach of the conditions of the existing licences, suggesting that the Respondent considered the convictions to have given rise to breaches of licence conditions, and had taken this into account in its decision making. 86. This written submission appeared to be inconsistent with the wording of the consultation notices, the responses to these and the wording of final decision notices (pages 29 to 43 in the Respondent’s bundle). Nevertheless, in considering the Applications by way of rehearing, it was relevant for the tribunal to consider on the evidence before it whether the convictions had given rise to breaches of licence conditions. In Mr Crowe’s submission, in using Marks Clearances the Applicant operated in violation of licence conditions from 2014 to 2018 (para 16(3)(b) of Mr Crowe’s written submission). 87. The conditions applicable to any selective licence granted by the Respondent are unclear on the evidence before the tribunal. Appendix 4 of the Respondent’s bundle is headed ‘Licence Conditions’ however this Appendix sets out a number of requirements relating to refuse and waste management only. It was confirmed at the reconvened hearing that these are merely an extract. 88. The Respondent is required to impose in granting a selective licence the mandatory licence conditions prescribed by Schedule 4 to the Act. However, it was not apparent from the evidence before the tribunal whether the Respondent had done so, whether there had been any amendment to the mandatory conditions, or the extent to which other conditions had been introduced. In the case of the conditions set out at Appendix 4, the Respondent’s submission states that these conditions have been imposed (page 5) but it is unclear when they were introduced. 89. The tribunal did not have before it the full history of the Respondent’s selective licensing schemes. There was no evidence of selective licences being in place for 108 Westbourne Avenue (the property to which the first conviction related) or 10, 14 or 16 Trevethick Street (the properties referred to by Mr Balloch in the letters of September and October 2014) at the relevant times: on the evidence before the tribunal 10, 14 and 16 Trevethick Street became licensed on 21 September 2018 along with the other Revoked Properties and the application for 108 Westbourne Avenue was refused on 12 April 2019 along with the applications relating to the other Refused Properties. 90. Even if selective licences were in place for 108 Westbourne Avenue and for 10, 14 and 16 Trevethick Street at the times the matters leading to the convictions and the issues referred to in Mr Balloch’s letters occurred, there is a lack of clarity around the licence conditions that would have applied. In conclusion, no breach of a licence condition has been established related to the convictions or the matters referred to in Mr Balloch’s letters. 91. Aside from the waste management issues, the Respondent has alleged a total of 33 breaches of licence conditions concerning issues unrelated to waste management. These were referred to in 3 copy letters at pages 76 to 79 of the Respondent’s bundle dated 25 September 2017, 24 August 2017 and 6 May 2014 respectively. The first referred to a failure to meet the accreditation standard in relation to 2 properties and referred to outstanding works not having been ‘signed off’. There was no indication of the works that were alleged to be outstanding or their materiality. An earlier letter dated 11 September 2017 is referred to but not supplied. 92. The second letter related to 6 properties and set out 5 areas in which the Respondent had been unable to confirm compliance with conditions of licences: whether gas certificates had been obtained annually and supplied to tenants and on request to the Respondent within 14 days of issue; the provision of electrical inspection reports; confirming furniture is compliant with fire safety regulations and inspecting; confirming smoke alarms are fitted and in working order; and keeping up to date by attending training courses. The final letter related to 1 property and an alleged failure to provide references. 93. The total of 33 alleged non-compliances was reached by multiplying the number of properties referred to in each letter by the number of alleged non-compliances. Of the properties referred to, 2 were Revocation Properties, none were Refusal Properties. 27 of the alleged breaches related to properties that were not within the 25 properties that were the subject of the Applications. 94. The Respondent confirmed in its written submission (page 17) that these alleged breaches of licence conditions were not taken into consideration by the Respondent in reaching its decisions to revoke and refuse licences. Whilst they had been raised by the Respondent, this was in response to points raised by the Applicant prior to the final decisions. The 33 alleged breaches were not relied upon in the written submission within the Respondent’s bundle as evidence of unfitness. They were however relied upon by the Respondent at the hearing and formed a significant part of the Respondent’s cross-examination of the Applicant. 95. It has been noted already that there was a lack of clarity on the evidence before the tribunal around the licence conditions imposed by the Respondent at any particular point in time. There was also a lack of detail concerning the alleged breaches and it was unclear in all cases whether the Respondent was alleging a breach had occurred or that it might have occurred. For example, the letter dated 24 August 2017 stated that requested information had not been supplied and that as a consequence compliance could not be confirmed in certain areas - it was unclear whether it had been established subsequently that there had been a non-compliance. In view of the lack of clarity around the applicable licence conditions the tribunal could not ascertain whether a failure to provide information would itself have given rise to a breach. In the case of gas safety certificates, referred to in the letter of 24 August 2017, it was stated that a copy of the current certificate must be provided to the Respondent on request but unclear whether this had been requested. 96. The 33 alleged breaches were referred to in cross-examination, although not all of the areas of alleged breach were referred to specifically. Overall the Applicant accepted that there had been shortcomings. In relation to the letter dated 6 May 2014 he accepted that he had not obtained valid references for a tenant. In mitigation he stated that he had not done so because it was a former tenant of his that he was content to accept back in good faith because of his previous experience of them. He stated that he had learnt from this mistake.

  1. The reference to keeping up to date with housing issues (final area listed in the letter dated 24 August 2017) had not been specifically raised in cross-examination. Mr Barton commented in his reply at the reconvened hearing that the Applicant denied this allegation and had relevant evidence with him when he was cross-examined in case the issue had been raised.
  2. The tribunal accepted in the absence of any evidence to the contrary, that in relation to the other alleged breaches the Applicant had been the licence holder for properties part-managed by his company with the owner, the issues raised having fallen within the agreed responsibilities of the owner. The Applicant had therefore discontinued any such shared management arrangements to avoid being held responsible as licence holder for matters the owner had agreed to handle directly.
  3. The tribunal accepted also that to assist with compliance generally the Applicant’s company had invested in new property management software.
  4. Taking into consideration the lack of clarity around the applicable licence conditions, the lack of particulars around the breaches alleged and the steps taken by the Applicant, the tribunal gave little weight to the 33 alleged breaches of licence conditions in determining whether the Applicant was a fit and proper person to be a licence holder.
  5. It was unnecessary therefore for the tribunal to go on to consider issues arising from the Brown case concerning the lawfulness of the applicable licence conditions, or indeed the arguments submitted for the Respondent concerning collateral defences and the scope of the tribunal’s discretion. The lack of clarity around the Respondent’s licence conditions and the lack of detail as to the alleged breaches would, in any event, have inhibited any attempt to determine whether the licence conditions alleged to have been breached were lawfully imposed. Anti-social behaviour
  6. It is argued for the Respondent that if anti-social behaviour on the part of the Applicant were established, this would amount to a contravention of landlord and tenant law and as such would be a matter to which the tribunal must have regard under section 89 of the Act.
  7. The Respondent alleged at the hearing that the Applicant had engaged in ‘revenge tipping’, by dumping waste left by a former tenant at their new home. This was not a matter taken into consideration by the Respondent in deciding to revoke and refuse licences, nor was it raised in the statement of case within the Respondent’s bundle. The issue arose in the course of cross-examination.
  8. The Applicant’s explanation was that upon police advice he returned everything left by former tenants. This followed a previous complaint in which he had disposed of possessions left by a departing tenant only to find that they had wanted to keep them.
  9. On the evidence before it the tribunal was not satisfied that anti-social behaviour on the part of the Applicant had been established. The issue was not material therefore in determining whether the Applicant was a fit and proper person to hold a selective licence.
  10. Additionally, the tribunal considered whether the Applicant had engaged in anti-social behaviour through fly-tipping, however as noted earlier the tribunal found that this was not something the Applicant had engaged in.

References 107. The Applicant provided various letters from referees in support of his contention that he is a fit and proper person. These provided evidence that the Applicant is honest, reliable, honest and trustworthy, involved in his community and charity work, well liked and held in high regard as a property manager. 108. The point was raised on the Respondent’s behalf that the referees might not have known in detail the circumstances around the Applicant’s convictions. Accepting this point, the tribunal still considered it relevant to take into account the evidence provided by referees in determining fitness. 109. Section 89 of the Act requires an authority to have regard to any offence involving fraud or dishonesty. The tribunal considered it appropriate to have regard to the evidence of referees that the Applicant is considered to be honest and trustworthy, held in high regard by his community and colleagues. As mentioned previously, most of the references had not been available to the Respondent at the time of its decisions. Overall determination 110. Starting with the waste management issues, and having regard to its earlier findings (summarised at paragraphs 81-83), the tribunal did not consider the Applicant’s convictions and the surrounding circumstances to be of sufficient weight in themselves to give rise to a determination that the Applicant is not a fit and proper person. 111. The tribunal considered whether there had been a breach of a licence condition resulting from the convictions, or resulting from the matters referred to in earlier letters issued by the Respondent’s Environmental Enforcement Team, however this was not established on the evidence before it (paragraph 90). The tribunal therefore found no such breach. 112. The tribunal gave little weight to the 33 alleged breaches of licence conditions unrelated to waste management for the reasons given at paragraph 100. The tribunal found that a suggestion that the Applicant had engaged in anti-social behaviour had not been proven (paragraphs 105-106). No other material issues were raised that would suggest that the Applicant might be unfit. The tribunal’s findings in the Applicant’s favour as to his character (at paragraph 109) are considered to be relevant to the test of fitness. 113. The tribunal determined therefore that the Applicant is a fit and proper person to be a licence holder within the meaning of section 88(3)(a)(i) of the Act. 114. For these reasons the tribunal reversed the Respondent’s decisions in relation to both the Revoked Properties and the Refused Properties. 115. Pursuant to paragraph 34(4) of Schedule 5 to the Act, in relation to a refusal by an authority to grant a licence, the tribunal has the power to direct the authority to grant a licence to the applicant on such terms as the tribunal may direct. 116. The tribunal considered it appropriate to make such a direction in relation to the Refusal Properties in order to specify a timescale and term for the licence and, having regard to the lack of clarity as to the applicable conditions in the present case, to ensure that the conditions attached were specified in accordance with legal requirements.

S Moorhouse Tribunal Judge

Appendix Extracts of relevant statutory provisions and regulations

Housing Act 2004 Section 88 - Grant or refusal of licence (1) Where an application in respect of a house is made to the local housing authority under section 87, the authority must either:- (a) grant a licence in accordance with subsection (2), or (b) refuse to grant a licence. (2) If the authority are satisfied as to the matters mentioned in subsection (3), they may grant a licence either - (a) the the applicant, or (b) to some other person, if both he and the applicant agree. (3) The matters are - (a) that the proposed licence holder - (i) is a fit and proper person to be the licence holder, and (ii) is, out of all the persons reasonably available to be the licence holder in respect of the house, the most appropriate person to be the licence holder; […………………] (4) Section 89 applies for the purpose of this section. Section 89 - Test for fitness etc. and satisfactory management arrangements (1) In deciding for the purposes of section 88(3)(a)………whether a person (‘P’) is a fit and proper person to be the licence holder………..the local housing authority must have regard (among other things) to any evidence within subsection (2) or (3). (2) Evidence is within this subsection if it shows that P has - (a) committed any offence involving fraud or other dishonesty, or violence or drugs, or any offence listed in Schedule 3 to the Sexual Offences Act 2003 (c 42) (offences attracting notification requirements); (b) practised unlawful discrimination on grounds of sex, colour, race, ethnic or national origins or disability in, or in connection with, the carrying on of any business; or (c) contravened any provision of the law relating to housing or of landlord and tenant law (3) Evidence is within this subsection if - (a) it shows that any person associated or formerly associated……………… Section 90 - Licence conditions (1) A licence may include such conditions as the local housing authority consider appropriate for regulating the management, use or occupation of the house concenrned. (2) Those conditions may, in particular, include (so far as appropriate in the circumstances) - (a) conditions imposing restrictions or prohibitions on the use or occupation of particular parts of the house by persons occupying it; (b) conditions requiring the taking of reasonable and practical steps to prevent or reduce anti-social behaviour by persons occupying or visiting the house. (3) A licence may also include - (a) conditions requiring facilities and equipment to be made available in the house for the purpose of meeting standards prescribed for the purposes of this section by regulations made by the appropriate national authority; (b) conditions requiring such facilities and equipment to be kept in repair and proper working order; (c) conditions requiring, in the case of any works needed in order for any such facilities or equipment to be made available or to meet any such standards, that the works are carried out within such period or periods as may be specified in, or determined under, the licence. (4) A licence must include the conditions required by Schedule 4. Section 93 - Revocation of licences (1) The local housing authority may revoke a licence - (a) if they do so with the agreement of the licence holder, (b) in any of the cases mentioned in subsection (2) (circumstances relating to licence holder or other person), (c) in any of the cases mentioned in subsection (3) (circumstances relating to house concerned), or (d) in any other circumstances prescribed by regulations made by the appropriate national authority. (2) The cases referred to in subsection (1)(b) are as follows - (a) where the authority consider that the licence holder or any other person has committed a serious breach of a condition of the licence or repeated breaches of such a condition; (b) where the authority no longer consider that the licence holder is a fit and proper person to be the licence holder; and (c) where the authority no longer consider that the management of the house is being carried out by persons who are……. Schedule 5 5. Before refusing to grant a licence, the local housing authority must - (a) serve a notice under this paragraph on the applicant for the licence and each relevant person, and (b) consider any representations made in accordance with the notice and not withdrawn. 22. Before revoking a licence, the local housing authority must - (a) serve a notice on the licence holder under this paragraph and each relevant person, and (b) consider any representations made in accordance with the notice and not withdrawn. 31. (1) The applicant or any relevant person may appeal to the appropriate tribunal against a decision by the local housing authority on an application for a licence 0 (a) to refuse to grant the licence, or (b) to grant the licence. (2) An appeal under sub-paragraph (1)(b) may, in particular, relate to any of the terms of the licence. 32. (1) The licence holder or any relevant person may appeal to the appropriate tribunal against a decision by the local housing authority - (a) to vary or revoke a licence, or (b) to refuse to vary or revoke a licence. (2) But this does not apply to the licence holder in a case where the decision to vary or revoke the licence was made with his agreement. 34. (1) This paragraph applies to appeals to the appropriate tribunal under paragraph 31 or 32. (2) An appeal - (a) is to be by way of a re-hearing, but (b) may be determined having regard to matters of which the authority were unaware. (3) The tribunal may confirm, reverse or vary the decision of the local housing authority. (4) O an appeal under paragraph 31 the tribunal may direct the authority to grant the licence to the applicant for the licence on such terms as the tribunal may direct.

Licensing & Management of HMOs etc (Misc Prov) (England) Regulations 2006 Regulation 7 - Applications for licences under Part 2 or 3 of the Act (2) An applicant must supply, as part of his application - (a) if the application is a renewal application, the information…….of Schedule 2; (b) if the application is not a renewal application, the information……of that Schedule; and (c) in either case, the information relating to the proposed licence holder or proposed manager of the HMO or house specified in paragraph 3 of that Schedule. Schedule 2 3. (c) details of any contravention on the part of the proposed licence holder or manager of any provision of any enactment relating to housing, public health, environmental health or landlord and tenant law which led to civil or criminal proceedings resulting in a judgement being made against him.

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Published 28 October 2021