UTLC LC-2023-262 - [2023] UKUT 287 (LC)

On 1 October 2021 at the East London Magistrates’ Court the appellant was found guilty of seven offences under the Housing Act 2004. One was an offence under section 72 of the 2004 Act, the offence of managing or being in control of a house in multiple occupation (76 Cranmer Road, London E7) that was required to be licensed and was not so licensed. The other offences were all breaches in respect of the same property of the Management of Houses in Multiple Occupation (England) Regulations 2006. The breaches included the presence of fire hazards, black mould spores, and material that rendered the property unsafe. The appellant was fined a total of £10,000 and also ordered to pay costs and a victim surcharge.

The offences were all committed in 2018. They are “banning order offences”, meaning that they can be the basis of a banning order made under the Housing and Planning Act 2016. Section 14 of the 2016 Act provides:

“(1)

In this Part “banning order” means an order, made by the First-tier Tribunal, banning a person from—

(a)

letting housing in England,

(b)

engaging in English letting agency work,

(c)

engaging in English property management work, or

(d)

doing two or more of those things.

…

(3)

In this Part “banning order offence” means an offence of a description specified in regulations made by the Secretary of State.

Section 15 of the 2016 Act provides:

“(1)

A local housing authority in England may apply for a banning order against a person who has been convicted of a banning order offence.”

Section 15 goes on to set out the procedure to be followed by the local housing authority if it seeks to have a banning order made. Within six months of the date of the conviction for the relevant offence the authority must give the person concerned notice of its intention to seek an order, inform them of its reasons for doing so and invite him to make representations within a period of at least 28 days. The authority must then consider any representations it receives during the notice period.

Section 16 provides:

“(1)

The First-tier Tribunal may make a banning order against a person who—

(a)

has been convicted of a banning order offence, and

(b)

was a residential landlord or a property agent at the time the offence was committed (but see subsection (3)).

(2)

A banning order may only be made on an application by a local housing authority in England that has complied with section 15.

Section 16(4) provides:

“(4)

In deciding whether to make a banning order against a person, and in deciding what order to make, the Tribunal must consider—

(a)

the seriousness of the offence of which the person has been convicted,

(b)

any previous convictions that the person has for a banning order offence,

(c)

whether the person is or has at any time been included in the database of rogue landlords and property agents, and

(d)

the likely effect of the banning order on the person and anyone else who may be affected by the order.”

That is a non-exhaustive list; the FTT may consider other relevant matters. Section 17 provides that a banning order must specify the length of the ban being imposed, which may not be less than 12 months.

 In April 2018 the Ministry of Housing, Communities and Local Government issued non-statutory guidance entitled “Banning Order Offences under the Housing and Planning Act 2016”. The guidance is addressed to local housing authorities, but paragraph 5.2 states that tribunals may also have regard to it. At paragraph 3.4 it says:

“A spent conviction should not be taken into account when determining whether to apply for or make a banning order.”

We now have to turn to the provisions of the Rehabilitation of Offenders Act 1974. Section 1(1) provides for offences to become “spent”:

Section 4 provides that once a conviction is spent, certain evidence is inadmissible and certain questions cannot be asked of the rehabilitated person in any proceedings:

“(1)

Subject to sections 7 and 8 below, a person who has become a rehabilitated person for the purposes of this Act in respect of a conviction shall be treated for all purposes in law as a person who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offence or offences which were the subject of that conviction; and, notwithstanding the provisions of any other enactment or rule of law to the contrary, but subject as aforesaid—

(a)

no evidence shall be admissible in any proceedings before a judicial authority exercising its jurisdiction or functions in England and Wales to prove that any such person has committed or been charged with or prosecuted for or convicted of or sentenced for any offence which was the subject of a spent conviction; and

(b)

a person shall not, in any such proceedings, be asked, and, if asked, shall not be required to answer, any question relating to his past which cannot be answered without acknowledging or referring to a spent conviction or spent convictions or any circumstances ancillary thereto.”

In Hussain v Waltham Forest LBC [2020] EWCA Civ 1539 the Court of Appeal upheld the Upper Tribunal’s decision that section 4(1)(a) makes evidence of spent convictions inadmissible but does not prevent evidence of the circumstances surrounding those convictions being adduced. It also upheld the Upper Tribunal’s finding that a local housing authority is a “judicial authority” when considering whether to grant an HMO licence. The issue in that case was whether the appellant was a “fit and proper person” to hold an HMO licence; conduct such as the forgery of gas safety certificates was obviously relevant to that issue, and the effect of the decision was that it could be taken into account by the local authority in deciding whether to grant a licence and by the FTT in hearing an appeal from the refusal of a licence, even though evidence of the conviction itself was inadmissible.

Section 4(1) is expressly subjected to section 7 which specifies in sub-sections (1) and (2) certain circumstances in which evidence of spent convictions is admissible, and goes on to say:

“(3)

If at any stage in any proceedings before a judicial authority in England and Wales [other than proceedings already specified in subsections (1) and (2)] the authority is satisfied, in the light of any considerations which appear to it to be relevant (including any evidence which has been or may thereafter be put before it), that justice cannot be done in the case except by admitting or requiring evidence relating to a person's spent convictions or to circumstances ancillary thereto, that authority may admit or, as the case may be, require the evidence in question notwithstanding the provisions of subsection (1) of section 4 above, and may determine any issue to which the evidence relates in disregard, so far as necessary, of those provisions.”

The length of the rehabilitation period (i.e. the time it takes for a conviction to become spent) varies with the sentence imposed. Section 5 of the 1974 Act sets out certain sentences, such as life imprisonment, which are “excluded from rehabilitation”, and goes on to provide for the periods applicable in other cases. Where the sentence imposed is a fine, then the rehabilitation period is 12 months. That means that the appellant’s six convictions became spent on 30 September 2022. Therefore they were not spent when the respondent served notice under section 15, in March 2022, nor when it applied to the FTT for a banning order in May 2022, but were spent when the FTT heard the application on 30 November 2022 and issued its decision on 15 February 2023.

The FTT has power to revoke or vary a banning order if the underlying convictions have become spent since the order was made (section 20):

“(4)

If the banning order was made on the basis of one or more convictions that have become spent, the First-tier Tribunal may—

(a)

vary the banning order, or

(b)

revoke the banning order.”