Case No. UKUT-241-(LC)

[2016] UKUT 39 (LC) Marshall v Waltham Forest LBC [2020] UKUT 35 (LC)R (Gaskin) v Richmond-upon-Thames LBC [2018] EWHC 1996 (Admin); [2019] PTSR 567 (“Gaskin No.2”)Vodafone 2 v Revenue and Customs Commissioners [2009] EWCA Civ 446; [2010] Ch 77 at [37])INTRODUCTION1.In this appeal, the London Borough of Waltham Forest (“the Council”) appeals against a decision of the First-tier Tribunal (Property Chamber) (“the FTT”) dated 16 August 2021 (“the Decision”). The Decision relates to applications made by, among others, FHCO Limited (“FHCO”) to the Council for licences under Part 3 of the Housing Act 2004 (“the 2004 Act”) in relation to 158 Blackhorse Road, London E17 6RH and the revocation by the Council of such a licence previously granted to Farina Hussain in relation to 44 Westbury Road, London E17 6RH. 2.FHCO and Ms Hussain were the appellants in the FTT against the refusal of its applications for a Part 3 licence and the revocation of her Part 3 licence respectively. The FTT allowed the appeals of FHCO and Ms Hussain against the determination by the Council, by which it had refused to grant FHCO licences and revoked Ms Hussain’s licence.3.Before the FTT, there had also been appeals by Mrs Nasim Hussain (the mother of Ms Hussain) and Luxcool Limited against the Council’s refusal to grant them licences relating to other properties, but those appeals were unsuccessful and, save on one matter raised by way of cross-appeal, they have not sought to pursue their appeals further.4.The issues before the FTT in FHCO’s and Ms Hussain’s appeals were whether FHCO and Ms Hussain were fit and proper persons to be licence holders, pursuant to s.88(3)(a)(i) of the 2004 Act. 5.The Act confers the original decision-making power on such questions on the local housing authority, in this case the Council, and it provides for the applicant, licence holder or any relevant person to be able to appeal its decision. Any such appeal is specified by the Act to be by way of a re-hearing, and the FTT is given power to confirm, reverse or vary the decision of the local housing authority.6.The Council concluded that FHCO (of which Ms Hussain was the sole director at the time) and Ms Hussain herself were not fit and proper persons to be licence holders. This was because of their association with persons who had committed offences involving fraud or dishonesty, namely Ms Hussain’s mother and father. Mrs Nasim Hussain and her husband, Tariq Hussain, had been convicted of offences of dishonesty relating to the licensing under Part 2 or Part 3 of the Act of many properties owned or controlled by them in the same part of Greater London. 7.The Council concluded on the evidence it had that Ms Hussain had been closely involved in the family property rental business and was tainted by the unlawful conduct of her parents, such that she was not a fit and proper person, and neither therefore was the limited company that she owned and controlled.8.The FTT heard evidence about these matters over a hearing lasting 2 days. It reached a different conclusion so far as FHCO and Ms Hussain were concerned, namely that they were fit and proper persons to be licence holders, and therefore it allowed their appeals. As a result, the FTT reversed the Council’s decision and directed that FHCO should be granted licences for a 3 year period running from 30 August 2021 and that Ms Hussain’s licence should be “reinstated”.9.With the permission of the FTT, the Council appeals against those parts of the Decision on 3 grounds, and further seeks permission from this Tribunal to pursue a fourth ground of appeal.10.On 21 January 2022, the Deputy President of this Tribunal granted all four Respondents permission to cross-appeal on a discrete question of law arising from the facts, namely whether under the Provision of Services Regulations 2009 (“the Services Regulations”) licences were deemed to have been granted to Mrs Nasim Hussain, FHCO and Luxcool Limited because the Council did not make a decision on their applications for licences within a reasonable time. The Respondents contend that if their applications for licences were deemed to have been granted they cannot later have been refused by the Council, and so the purported refusals were of no legal effect.THE GROUNDS OF APPEAL11.The 4 grounds of the Council’s appeal are:“1.The FTT misdirected itself by seeking to assess whether FHCO was a fit and proper person as at the date of the appeal hearing rather than at the date of the decisions under appeal, and by failing to take into account the Council’s findings about FHCO’s fitness as at that relevant date.2.The FTT wrongly held that the Council had no power to pose questions directed to eliciting FHCO’s absence of assets, reserves or employees.3.The FTT erred in allowing Farina [Hussain]’s appeal, reversing the Council’s decision to revoke her licence, and “reinstating” her licence.4.The FTT misdirected itself as to the evidence about Farina [Hussain], and therefore wrongly concluded that both she and FHCO were fit and proper persons to be licence holders.”12.The ground of cross-appeal by the Respondents is that the FTT erred in its interpretation of the Services Regulations by holding that licences could not be deemed to have been granted in circumstances where the Council had not complied with its obligation under the Services Regulations to fix in advance and identify a period of time within which it would determine licence applications.GROUNDS 1 AND 413.It is convenient to address together and first the first ground of appeal (for which the Council has permission) and the fourth ground (for which it has not). There is acknowledged on both sides to be some interplay between them. Having heard the argument, I consider that permission to appeal should be granted on the fourth ground, since it passes the test of being reasonably arguable, and I will address the argument on its merits.Background facts14.The relevant facts can be quite shortly stated.15.In 2015 and 2016, Mrs Nasim Hussain submitted licence applications under Part 2 and Part 3 of the 2004 Act for many properties. These made false statements about gas appliances. Licences were granted pursuant to the 2015 applications but not pursuant to the 2016 applications. 16.On 28 September 2016, Mrs Nasim Hussain was interviewed by the Council under caution, in the presence of Ms Hussain, in relation to misleading statements made in the 2016 licence applications. Ms Hussain was quite vocal at the interview in seeking to prevent her mother being questioned about any of the 2015 applications, but did not intervene when her mother explained that she did not know the answers to questions because her family did everything, and that the Council should instead ask her husband, son and daughter (Ms Hussain), who ran the business.17.On 19 January 2017 Ms Hussain submitted a licence application under Part 3 of the 2004 Act in respect of 44 Westbury Road. A licence was granted on 16 February 2017 that would expire on 31 March 2020. 18.Following this interview, there were further interviews under caution of Mrs Nasim Hussain, Mr Tariq Hussain, Mr Wahab Hussain (Ms Hussain’s brother) and Ms Hussain, each of whom gave “no comment” responses to almost all questions, including questions about what was stated in the licence application forms. Ms Hussain answered the question about where she lived by giving the address of the family home in Chigwell. 19.At that time, Mrs Nasim Hussain, Mr Tariq Hussain and Mr Wahab Hussain signed prepared statements, but Ms Hussain did not. Each of Mrs Nasim Hussain, Mr Tariq Hussain and Mr Wahab Hussain stated that they were not involved with the preparation and submission of licence application forms to the Council.20.However, on 12 May 2017, Mrs Nasim Hussain pleaded guilty to four offences of knowingly or recklessly supplying false information to the Council in connection with the licence applications made in 2016, and she was fined £40,000.21.Applications for Part 3 licences were made by FHCO on 6 February 2018. At the time (and when the licences were later refused), Ms Hussain was the sole director and shareholder and the company had no assets, turnover, capital reserves or employees.22.On 29 June 2018, Tariq Hussain pleaded guilty to four offences of fraudulently backdating gas safety certificates and was fined £1,000.23.On 4 October 2018, the Council gave notice to FHCO and Ms Hussain of its intention to refuse to grant and to revoke licences, allowing a period for the recipients to make submissions. Ms Hussain made representations in response but on 5 November 2018 the Council wrote to her stating that her parents were not fit and proper persons, in view of their convictions, and that her close association with them meant that she could not be regarded as a fit and proper person either. 24.The Council’s formal decision was made and communicated on 23 November 2018. The reasons for the decision were given as the convictions of Mrs Nasim Hussain and Mr Tariq Hussain. Similar decision letters were issued to Mrs Nasim Hussain and Luxcool Ltd.25.The Respondents lodged their appeals at the FTT on 20 December 2018. 26.In July and August 2019, Mrs Nasim Hussain was convicted of three further offences of failing to comply with licence conditions in respect of installation and maintenance of smoke alarms.The FTT Decision27.The FTT heard the appeal on 24 and 25 May 2021 and published the Decision on 16 August 2021. It heard evidence from Ms Hussain, Mr Wahab Hussain, Ms Tina Mitchell, who by that time had become a second director of FHCO, and Mr David Beach, an environmental health officer and director of enforcement for the Council. It did not hear evidence from Mrs Nasim Hussain or Mr Tariq Hussain.28.In its decision, the FTT first disposed of Mrs Nasim Hussain’s appeals and then turned to Ms Hussain’s appeal against the revocation of her licence in respect of 44 Westbury Road. It noted the Council’s case that the property business was a family business, of which Ms Hussain was part, and that it was likely that she was a party to the false declarations in the applications and involved in an attempt to cover up wrongdoing. It noted the Council’s reliance on Ms Hussain’s stance in the interview of her mother; her mother’s prepared statement; and Ms Hussain’s failure to respond to questions about FHCO raised in a letter dated 20 February 2019 (“the 13 questions”), despite an initial indication from her solicitors that she was willing to provide evidence of being a fit and proper person.29.The FTT then summarised the evidence given by Ms Hussain and Mr Wahab Hussain as to their not being involved in managing their mother’s properties, except that in Ms Hussain’s case, as a trainee accountant, she acted as her bookkeeper, and that it was Mr Tariq Hussain who dealt with the management of the business. Ms Hussain is recorded as explaining that she was advised by her solicitors not to answer the 13 questions because they were intrusive and irrelevant and not the usual questions asked when a licence application was made.30.The FTT noted that the Council’s decision was founded on Ms Hussain’s sharing culpability for the provision of false information, her playing a vital role in the family business and being probably party to the false declarations and central to an attempt to cover them up. It then stated that “the evidence does not support those assertions”, pointing out that there was no evidence of any wrongdoing by Ms Hussain and that the evidence did not support Mr Beach’s assertions of close involvement in wrongdoing. Although it was likely that Mrs Nasim Hussain needed help in completing the application forms, the FTT accepted the evidence of Ms Hussain and Mr Wahab Hussain that this was probably provided by Mr Tariq Hussain.31.The FTT concluded that Ms Hussain’s conduct during her mother’s first interview was not, properly analysed, such as to create an inference adverse to her about her role in her parents’ business, and that her own “no comment” interview was explained by her solicitor’s advice not to answer questions. The FTT did not accept that Mrs Nasim Hussain’s unfitness to be a licence holder was directly relevant to Ms Hussain’s fitness, absent any impropriety established against Ms Hussain herself. If the failure to answer any of the 13 questions about FHCO, on advice, might be some evidence relating to FHCO’s fitness, it was not in relation to Ms Hussain personally. In relation to her management of her flat at 44 Westbury Road, there was nothing unsatisfactory about her performance of her role. Ms Hussain had, by the time of the hearing, almost qualified as an accountant and was, on the basis of what the FTT saw of her, “an intelligent and responsible individual”.32.The FTT expressed its conclusion as follows:“We do not agree that her mother’s unfitness to be a licence holder is directly relevant to her own fitness to be a licence holder. The Council’s conclusion that Farina was a vital part of the family business and that she was likely to have been involved in giving the false gas safety declarations is not, in our view, supported by the evidence. On the evidence before us, we determine that she is a fit and proper person to hold a licence.”33.Turning to FHCO’s appeal, the FTT noted that in the decision letters no reasons specific to FHCO were identified by the Council as to why it was not a fit and proper person and it reminded itself of FHCO’s separate legal personality. It noted that only one of two directors was said to be tainted by association with Mr and Mrs Hussain. The FTT held that FHCO was a fit and proper person since it had not contravened any duty or committed any offence and neither had either of its two directors. FHCO was a member of the National Residential Landlords Association and the Property Redress Scheme. It noted Ms Mitchell’s relative lack of experience as a director but did not consider that that cast doubt on FHCO’s fitness.34.As for the failure by FHCO to answer any of the 13 questions, the FTT considered that the information sought went beyond what, under The Licensing and Management of Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions) (England) Regulations 2006, as amended (“the 2006 Regulations”), a local housing authority was entitled to require as a condition of making an application for a Part 2 or Part 3 licence. By analogy with the case of R (Gaskin) v Richmond-upon-Thames LBC [2018] HLR 8 (“Gaskin No.1”), the FTT held that the 13 questions had wrongly been “the imposition of a condition precedent to the acceptance of an application” and not a request for voluntary further information, and for that reason – and because Ms Hussain had not answered on the basis of legal advice not to do so – the failure to answer was not relevant to the issue of FHCO’s suitability to be a licence holder.The statutory provisions35.Ground 1 of the Council’s appeal is that the statutory provisions in the Act required the FTT to decide the appeal on the basis of facts that existed at the date of its own decision, 25 November 2018, disregarding any matters that post-date that decision. It accepts that the FTT could properly take into account matters that existed but were not known to the Council at the time of its decision but disputes that anything that happened after that time could properly be taken into account by the FTT.36.Section 88 in Part 3 of the 2004 Act provides:“(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) to 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…” (emphasis added)Where a valid application is made, the authority therefore must grant or refuse a licence, and, where satisfied as to the matters required to be established by the applicant, they may grant a licence.37. Section 89 of the Act provides:“(1) In deciding for the purposes of section 88(3)(a) or (c) whether a person (“P”) is a fit and proper person to be the licence holder or (as the case may be) the manager of the house, 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 …..…..(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 with P (whether on a personal, work or other basis) has done any of the things set out in subsection (2)(a) to (c), and(b) it appears to the authority that the evidence is relevant to the question whether P is a fit and proper person to be the licence holder or (as the case may be) the manager of the house.” (emphasis added)Thus, the authority must have regard to a relevant conviction of the proposed licence holder and must have regard to a relevant conviction of a person associated with the proposed licence holder but only if they consider that such conviction is relevant to the fitness of the proposed licence holder. What weight the authority gives to any such evidence is, however, a matter for its reasonable discretion.38.Section 93 provides:“(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) …..(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 ….”39.By para 31 of Schedule 5 to the Act, the applicant for a licence or any relevant person may appeal to the appropriate tribunal against a decision by the local housing authority to refuse to grant the licence or to grant it, or in relation to the terms of the licence.40.By para 32 of Schedule 5, the licence holder or any relevant person may appeal to the appropriate tribunal against a decision by the local housing authority to vary or revoke a licence or to refuse to vary or revoke a licence.41.Para 34 of Schedule 5, headed “Powers of tribunal hearing appeal”, states:“(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 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) On an appeal under paragraph 31 the tribunal may direct the authority to grant a licence to the applicant for the licence on such terms as the tribunal may direct.”Ground 142.Mr Underwood QC, on behalf of the Council, while accepting that the appeal was a re-hearing and not just a review of its decision, submitted that the natural reading of the words of para 34(2) is that any new matters to which the tribunal can have regard are matters that existed at the time of the authority’s decision, albeit the authority was unaware of them when it made its decision. He suggested that it is an unnatural use of language to refer to matters that did not yet exist or had not happened as being matters “of which the authority were unaware”, as para 34(2)(b) does. 43.Mr Underwood further submitted that that reading was one that gave best effect to the degree of deference that Parliament must have intended the tribunal to have to the decision of the decision-maker identified by the statute. He submitted that it would be odd if an appeal allowed a tribunal to overturn an authority’s decision based on things that did not exist at the time, which would have the effect of cutting the primary decision-maker out of the process. 44.He submitted that what Parliament must have intended was that although the matter would be re-heard, the FTT would defer to the judgment of the primary decision-maker, and that meant effectively reviewing the decision that the local housing authority made at the time that it made it, not making a new decision in what might be rather different circumstances a year or more later, without regard to the authority’s reasons for making the decision that it did at the time that it did.45.Mr Underwood referred in his written submissions to the open judgment of the Special Immigration Appeal Commission in Y1 v Secretary of State for the Home Department (unrep) (13.11.13) on a deprivation of nationality appeal as supporting such an interpretation. It is clear that that decision is the basis for his submission about the relevance of “after-coming material”, as his skeleton argument described it. 46.That appeal was pursuant to s.2B of the Special Immigration Appeals Commission Act 1997, which merely states that “a person may appeal” a decision, without stating the basis of the appeal. A previous court decision had determined that an appeal to SIAC was a challenge to the merits of the decision, not just a review of the exercise of discretion, such that the Commission reached its own conclusion on the facts but gave great weight to the assessment of the Secretary of State. The Commission accepted that it should be very careful in considering material that came into existence after the decision, save where it could found an inference as to the correctness of the Secretary of State’s decision. Importantly, the reason for that was said to be to avoid the error of making a fresh decision rather than conducting an appeal.47.However, as was explained by the Supreme Court in the recent case of R (Begum) v SIAC [2021] UKSC 7; [2021] AC 765, a case concerned with an appeal under the same jurisdiction, it does not confer on SIAC or anyone else the power to re-make the Secretary of State’s decision. The power to decide is conferred only on the Secretary of State. SIAC is therefore limited to considering the correctness of the decision that has been made, which is a wider basis for challenge than judicial review but narrower than a review or re-hearing in which a tribunal has power to re-make the decision. 48.At [66] to [69] of his judgment in the Begum case, with which the other Justices agreed, Lord Reed PSC said:“[66] The discretion is one which Parliament has confided to the Secretary of State. In the absence of any provision to the contrary, it must therefore be exercised by the Secretary of State and by no one else. There is no indication in the 1981 Act or the 1997 Act, in its present form, that Parliament intended the discretion to be exercised by or at the direction of SIAC. SIAC can, however, review the Secretary of State’s exercise of his discretion and set it aside in cases where an appeal is allowed, as explained below.[67] The statutory condition which must be satisfied before the discretion can be exercised is that “the Secretary of State is satisfied that deprivation is conducive to the public good”. The condition is not that “SIAC is satisfied that deprivation is conducive to the public good”. The existence of a right of appeal against the Secretary of State’s decision enables his conclusion that he was satisfied to be challenged. It does not, however, convert the statutory requirement that the Secretary of State must be satisfied into a requirement that SIAC must be satisfied. That is a further reason why SIAC cannot exercise the discretion conferred upon the Secretary of State.[68] As explained at paras 46-50, 54 and 66-67 above, appellate courts and tribunals cannot generally decide how a statutory discretion conferred upon the primary decision-maker ought to have been exercised, or exercise the discretion themselves, in the absence of any statutory provision authorising them to do so (such as existed, in relation to appeals under section 2 of the 1997 Act, under section 4(1) of the 1997 Act as originally enacted, and under sections 84-86 of the 2002 Act prior to their amendment in 2014 …..). They are in general restricted to considering whether the decision-maker has acted in a way in which no reasonable decision-maker could have acted, or whether he has taken into account some irrelevant matter or has disregarded something to which he should have given weight, or has erred on a point of law: an issue which encompasses the consideration of factual questions, as appears, in the context of statutory appeals, from Edwards v Bairstow [1956] AC 14. They must also determine for themselves the compatibility of the decision with the obligations of the decision-maker under the Human Rights Act, where such a question arises.[69] For the reasons I have explained, that appears to me to be an apt description of the role of SIAC in an appeal against a decision taken under section 40(2). That is not to say that SIAC’s jurisdiction is supervisory rather than appellate. Its jurisdiction is appellate, and references to a supervisory jurisdiction in this context are capable of being a source of confusion. Nevertheless, the characterisation of a jurisdiction as appellate does not determine the principles of law which the appellate body is to apply. As has been explained, they depend upon the nature of the decision under appeal and the relevant statutory provisions. Different principles may even apply to the same decision, where it has a number of aspects giving rise to different considerations, or where different statutory provisions are applicable.”49.An appeal from a decision of a local housing authority under Parts 2 and 3 of the Act is a very different exercise from the appeals in these nationality cases. In the first place, the appeal under the 2004 Act is expressly stated to be a re-hearing. While an appeal by way of re-hearing does not mean that the FTT starts with a clean sheet of paper and ignores the authority’s decision and reasons, it does mean that the question for it is not limited to whether the authority’s decision-making process and conclusion were valid in law. The FTT may have regard to matters of which the authority was unaware. Most significantly, the FTT is given power to re-make the decision, even to the extent of directing the local housing authority to issue a licence where it had refused to do so. That clearly indicates the nature of the re-hearing that is to be conducted, and the discretion and degree of responsibility for the ultimate decision that the FTT has. 50.Although, as Mr Underwood further submitted, the formulation in para 34 of Sched 5 to the 2004 Act as to the nature of the appeal, or formulations to the same substantial effect, are found in many statutes and statutory instruments, the right approach is to construe the words used in their immediate context, with regard to the nature of the decision under appeal. Exactly the same formulation appears in various places in the 2004 Act, including appeals against notices relating to emergency remedial action, overcrowding decisions, declarations of HMOs, improvement notices, prohibition orders and interim and final management orders, as well as the immediate context relating to grant, refusal and revocation of Part 2 and Part 3 licences. I accept that Parliament must have intended that essentially the same approach to an appeal would be taken by the appropriate tribunal in all such cases under the 2004 Act. But still, the approach of the FTT in an individual case must be expected to be coloured by the nature of the decision under appeal and the statutory provisions in issue. 51.There is, in my judgment, no reason to read para 34(2) of Sched 5 as if it said that matters that occur after the date of the authority’s decision are to be disregarded, even if they are relevant to the question of whether the authority’s decision was wrong. I do not agree that the words “matters of which the authority was unaware” signify that the matters must have been in existence at the time of the authority’s decision. On an appeal, the appellant will not yet have had a hearing of their case, though they will have had the chance to make representations to the local housing authority and place documents before the authority’s relevant officer for consideration. In enacting para 34 in the terms that it did, Parliament would have expected that the appropriate tribunal would hear evidence about the licensing issue from all parties concerned and reach its decision taking into account the evidence that was relevant to the issue. 52.As a matter of principle, the appropriate tribunal will be expected to have regard to the decision of the authority and its reasons: it is on the authority that Parliament confers the primary decision-making power. But the fact that the tribunal is expressly empowered to have regard to matters that were not known by the authority demonstrates that the degree of deference due to the authority is qualified. The degree of deference will be on a sliding scale, depending in particular on the nature of the evidence that the tribunal hears that the authority did not have and its bearing on the decision. If highly relevant material of which the authority was unaware is in evidence before the tribunal, deference to the original decision is likely to be significantly reduced; whereas, if no new material is put before the tribunal, the degree of deference is likely to be greater.53.The position is in my judgment correctly stated in previous decisions of the Deputy President of this Tribunal.54.Clark v Manchester City Council [2015] UKUT 129 (LC) was an appeal under the same statutory provisions as in issue in this appeal, but in that case against a refusal by the local housing authority to vary the terms of a Part 2 licence. The issue was whether the FTT had approached its task on review in the wrong way, by reviewing the decision of the authority rather than undertaking a rehearing. The Deputy President said that Parliament was likely to have had in mind, when enacting para 34 of Schedule 5, the previous law under the Housing Act 1985 (where the appeal provisions referred only to the jurisdiction of the county courts “on appeal”). As such, the appeal was a complete rehearing, with the tribunal hearing evidence and making up its own mind in place of the decision made by the authority, though with proper regard to the views expressed by the authority. The Deputy President considered that the amount of deference due from the FTT to the authority would depend on the subject matter of the decision under challenge, but might be less than was due from the county court, in view of the fact that the FTT was a specialist tribunal. 55.Hastings Borough Council v Turner [2021] UKUT 258 (LC) was an appeal against the grant of a Part 2 licence, in which the same statutory provisions were in play. The issue was whether the FTT had failed to accord the authority’s decision sufficient respect by requiring the authority to bear the burden on the appeal of justifying its own decision, instead of placing the burden on the appellant to satisfy the FTT that the authority’s decision was wrong. It was argued by the respondent that because the appeal was a re-hearing, the FTT was right to require the authority to prove its case that the grant of the licence was justified, in particular that the licence holder was a fit and proper person. 56.Unsurprisingly, the Deputy President held that the FTT had fallen into error. The fact that the appeal was a re-hearing did not mean that the authority was required to start again and prove that its decision was justified:The Deputy President explained that the tribunal does not start with a blank sheet of paper and disregard the authority’s decision:“The Tribunal has often explained … that on a re-hearing it is for the FTT to make up its own mind on the basis of the material presented to it and giving proper weight to the decision of the authority. Its task is not to conduct a review of the authority’s decision-making … At the stage of the FTT’s determination of the appeal the task of deciding whether there were suitable management structures or funding arrangements and of forming a view on any relevant allegations was that of the FTT, and not of the authority. That task was to be performed on the basis of the material put before the FTT, which could include material which was not provided to the authority when it made its decision (paragraph 34(2)(b), Schedule 5, 2004 Act”.57.Why then should material that is relevant to the correctness of the decision but which post-dates the decision be excluded from consideration in all cases? 58.The answer given by Mr Underwood, apart from what he says is the natural reading of the words of the statute and deference due to the authority’s decision, is that taking such factual material into account would lead to absurd results. 59.Mr Underwood gave three examples of this absurdity.60.First, where an authority gives notice under s.40 of the 2004 Act in relation to emergency remedial action in residential premises, the authority has power to enter and do the works and subsequently recover the cost of the works. If, before the appeal of the licence holder or the person having control is heard, the works are completed, such that by the date of the hearing no emergency remedial action was required, it would be absurd if the FTT were to decide the appeal taking into account that there was no longer emergency remedial action required.61.Second, an authority may make an interim management order (“IMO”) where necessary to protect the health, safety or welfare of occupiers. Once the IMO is in force, the authority may take any immediate steps that are necessary. It is entitled in some circumstances to recoup expenditure from rent or recover it from the relevant landlord. The steps taken before the hearing of the appeal might mean that, by that time, the justification for an IMO may no longer exist. It would be absurd if the FTT took into account the changes made as a result of the IMO having been actioned.62.Third, a failure to apply for a licence for an HMO or Part 3 house may result in prosecution or the imposition of a financial penalty under s.249A of the 2004 Act. The authority must first serve notice of intent and then a final notice, which can be the subject of an appeal. If, before the appeal was heard, an application had been made for a Part 2 or Part 3 licence, there would be no continuing offence. It would be absurd if the FTT had to decide whether the property was unlicensed in the context of its having become licensed since the date of the notice.63.To meet these arguments, the Respondents gave examples of cases in which it would be equally absurd if the FTT was unable to take into account matters that had occurred since the date of the authority’s decision. Where an authority decides that a person is not a fit and proper person, it would be absurd if the FTT could not take into account a relevant conviction of that person or a business associate or family member after the authority’s decision, or other events that cast light on the correctness or otherwise of the authority’s own decision. If works had been done in the interim, this would be likely to have a bearing on the terms of any continuing requirement and so on the terms of the order. Similarly, matters discovered during the works but unknown at the date of the authority’s notice or order might cast light on whether the notice or order was justified.64.It seems to me that the fallacy in the arguments of the Council based on absurdity is that the question on appeal is not considered starting with a blank sheet of paper on the basis only of the facts as they stand on the hearing date. The question is always whether the decision of the authority is wrong (Hastings BC v Turner). Depending on the nature of the decision under appeal and the statutory wording, events that have happened subsequently may be relevant or irrelevant to that assessment. For example, the mere fact that the authority has completed all specified works is likely to be irrelevant to the question of whether it was right to have served notice and entered to do the works in the first place. On the other hand, evidence of the condition of the property discovered during the works may be highly relevant to that question. The fact that a house has belatedly been licensed is irrelevant to the question of whether an offence was committed at an earlier time. So, in Sheffield City Council v Hussain [2020] UKUT 292 (LC), it was held that an assessment of the seriousness of an offence committed under the Management of Houses in Multiple Occupation (England) Regulations 2016 had to be made at the time of the offence and should not take into account later events; however, in exercising discretion as to the amount of the penalty, the tribunal could properly take into account mitigation by way of belated compliance with the authority’s requirements.65.In all cases the FTT is required to have regard to the decision of the authority and its reasons, as well as to any relevant evidence given to it at the re-hearing. It is not required to decide the appeal on the basis of facts post-dating the decision if they cast no light on the question of whether the decision of the authority was wrong: the statute merely provides that the appeal may be determined having regard to matters of which the authority was unaware. This Tribunal has already decided that it is wrong in principle to have regard only to the facts at the date of the appeal hearing (Herefordshire Council v Rhode [2016] UKUT 39 (LC)). 66.The touchstone, in my judgment, is always the nature of the decision under appeal, the statutory provisions in issue and whether matters that have happened subsequently are relevant to assessing whether the decision of the authority is shown to have been wrong. In any such appeal, the FTT should ask itself whether new evidence that it hears, including events subsequent to the authority’s decision, is relevant to the question of whether the decision is wrong, and if so should weigh that evidence with the facts known to the authority and any reasons for its decision in deciding whether, at the time of the appeal, any different outcome is justified. Where the question is, as it is here, whether the authority was wrong to refuse to grant, or to revoke, a licence on the basis that the proposed licensee is not a fit and proper person, evidence that tends to show whether that person is now a suitable person is likely to be relevant and should be taken into account by the FTT, whether the factual matters occurred before or after the authority’s decision. That is because the reality of the appeal is a contention that a licence should now be granted, or allowed to remain in place. 67.I therefore reject Ground 1 of the Council’s appeal. Para 34(2) of Schedule 5 to the 2004 Act is not to be read as limiting the appropriate tribunal to consideration of matters that existed at the date of the authority’s decision.