First-tier Tribunal Decides on Licence Revocation and Management Orders

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case references : LON/00BH/HSL/2019/0002-0014 LON/00BH/HSV/2019/0002-0024 LON/00BH/HXO/2019/0001-0007

Properties : Multiple properties as identified in the schedule annexed to this decision

Applicants : [redacted] [NAME] (2) [COMPANY] (3) [NAME] (4) [COMPANY] : [NAME] Respondent : [redacted] Forest Representative : In [NAME] Legal Department Types of applications : Multiple Appeals relating under the Housing Act 2004 concerning: (a) refusal to grant licences; (b) revocation of licenses; and (c) the imposition of Interim and Final Management Orders Tribunal : Judge [NAME] of Decision : 16 August 2021

2

DECISION

Covid-19 pandemic: description of hearing This was a remote video hearing which has not been objected to by the parties. The form of remote hearing was V: FVHREMOTE. A face-to-face hearing was not held because it was not practicable, and all issues could be determined in a remote hearing. Decisions 1. [NAME]’s appeal against the revocation of licences previously granted to her in respect of the [COMPANY] identified below is refused, and the Respondent’s decisions confirmed. 2. [NAME]’s appeal against the revocation of her licences of the First Floor Flat at 44 [NAME], London [POSTCODE] is allowed. The Respondent’s decision is reversed, and her [NAME] reinstated. 3. [NAME]’s appeal against the Respondent’s refusal to grant her licences in respect of the [COMPANY] identified below is refused, and the Respondent’s decisions confirmed.

4. The appeal made by [COMPANY] (“[NAME]”) against the Respondent’s refusal to grant licenses to it in respect of the [COMPANY] identified below is allowed. The Respondent’s decisions are reversed, so as to provide for the grant of three-year licences to [NAME] for each of the properties. That three-year time period is to run from 14 days after the date of this decision. 5. [NAME]’s appeal against the Respondent’s decision to make interim management orders in respect of the [COMPANY] is refused, and the Respondent’s decisions confirmed.

6. The appeal pursued by [COMPANY] (“[NAME]”) against the Respondent’s decision to make final management orders (“FMO’s) regarding the [COMPANY] is refused. In respect of Flats 3 and 4, [ADDRESS], the [NAME] are varied as set out below. Background 7. These appeals concern decisions taken by London Borough of Waltham Forest (“the Council”), under the licensing regime in Parts 2 and 3, Housing Act 2004 (“the 2004 Act”) to: (a) revoke licences previously granted to [NAME] in respect of the [COMPANY] identified at rows 8-29 in the schedule annexed to this decision at Annex 2 (“the [COMPANY]”), and to revoke a

3 property [NAME] granted to her daughter, [NAME] in respect of the First Floor Flat at 44 [NAME], London [POSTCODE] (row 36 in the schedule); (b) refuse to grant [NAME] licences in respect of [COMPANY] identified at rows 1 – 7 in the schedule (“the [COMPANY]”), and to refuse to grant licenses to [NAME] in respect of the [COMPANY] identified at rows 30 – 35 (“the [COMPANY]); (c) to impose interim management orders (“[NAME]”) in respect of the [COMPANY]; and (d) then to make final management orders (“FMO’s) regarding the [COMPANY].

8. Page numbers in bold and in square brackets below refer to pages from the electronic hearing bundle provided by the Applicants, 9. The appeals were considered at a case management hearing (“CMH”) on 12 January 2021. That hearing followed an application by the Applicants to strike out portions of the Respondent’s statement of case referring to [NAME]’s spent convictions, for non-compliance with the Rehabilitation of Offenders Act 1974. The application for strike-out was unsuccessful before the Upper Tribunal, and, on appeal, before the Court of Appeal (Hussain v Waltham Forest LBC [2020] EWCA Civ 1539). The substantive applications then returned to this Tribunal for determination. At the CMH, the Council was granted permission to rely on convictions and sentences imposed on [NAME], and her husband, [NAME], and to ask questions about the convictions, sentences and ancillary circumstances 10. The appeals were heard on 24 and 25 May 2021. The Applicants were represented by [NAME] of counsel. [NAME], and her brother [NAME], were present, their mother, [NAME] did not attend. [NAME], a director of the Second Applicant, [NAME], was present. [NAME] QC represented the Council, supported by [NAME], of counsel. Mr [NAME], an [NAME] and Director of Enforcement employed by the Council was also present. We heard oral evidence from [NAME], and [NAME].

11. The following chronology is drawn, in part, from the Respondent’s Statement of Case dated 15 February 2021. 12. [NAME] was the previous freehold owner of most of the subject properties, including the [COMPANY]. The current freehold ownership of the subject properties is identified in the final column of the schedule at Annex 2. [NAME] is married to [NAME]. She was the sole director of the Fourth Respondent, [COMPANY] until 9 January 2020, when she was replaced by [NAME] and her son, [NAME]. [NAME] remains the sole shareholder. [NAME] was the owner of five properties, some of which have been transferred into the ownership of [COMPANY], a company solely owned and directed by [NAME]. [NAME] was the sole

4 director of [NAME], until 3 February 2021, when [NAME] was appointed as a co-director.

13. On 12 June 2015, [NAME] submitted 23 [NAME] applications to the Council in which she stated, falsely, that the properties did not have gas appliances. She subsequently provided 21 gas safety certificates that post-dated the [NAME] applications, following which the Council granted her property licences and took no further action.

14. Between August 2015 and Feb 2016, [NAME] was granted Part 2 [NAME] in Multiple Occupation licences and Part 3 (Selective Licensing) licences in respect of the [COMPANY].

15. On 19 May 2016, [NAME] submitted [NAME] applications for different properties (at 109-[ADDRESS]) declaring that the properties did not have gas appliances. On 13 September 2016, after this was challenged by the Council, she asserted, falsely, that it had not been possible to attach the gas safety certificates to her online applications and provided gas safety certificates dated 19 May 2016. 16. [NAME] was interviewed by the Council under PACE on 28 September 2016 [403], in the presence of [NAME]. [NAME] and [NAME] were interviewed by the Council on 27 March 2017 and gave wholly “no comment” responses [479, 494], although [NAME] provided a written statement [493]. [NAME] was interviewed again on 11 April 2017 [449], this time without [NAME]. She provided the Council with a written statement [448] but did not comment on the substantive questions asked.

17. On 12 May 2017, [NAME] pleaded guilty to four offences of knowingly or recklessly supplying false information to the Council in connection with her licensing applications submitted on 19 May 2016, and was fined £40,000.

18. On 6 February 2018, [NAME] submitted [NAME] applications for [COMPANY] at 158 [NAME] (“the [COMPANY]”).

19. On 29 June 2018, [NAME] pleaded guilty to four offences under s.1 Forgery and Counterfeiting Act 1981, for fraudulently backdating the gas safety certificates provided by [NAME] on 13 September 2016. He was fined £1,000.

20. On 4 October 2018, the Council gave notice of its intention to revoke and to refuse licences to both [NAME] and [NAME].

21. On 23 November 2018, the Council refused to grant licences to [NAME] (for the [COMPANY]) and to [NAME] (for the [COMPANY]) and revoked the licences previously granted to [NAME] for the [COMPANY].

22. On 6 December 2018, the Council served [NAME] for the [COMPANY] under s.102(2) of the 2004 Act. A preliminary assessment of the properties identified a lack of routine repair and maintenance and a

5 further unannounced visit by the Council to the properties on 14 December 2018, identified management failings including regarding the installation and maintenance of smoke alarms.

23. On 20 December 2018, the appeals against the revocations and refusals were lodged at the tribunal.

24. On 1 February 2019 [NAME], via their solicitors, [NAME], proposed [NAME] as an appropriate alternative [NAME] [882]. The Council responded to that proposal in a letter dated 20 February 2019 [1059], in which it stated that it was prepared to consider that request in the event that further information was provided.

25. On 4 July 2019, [NAME] was convicted of failing to comply with a [NAME] condition in respect of the installation and maintenance of smoke alarms at the licensed property at [ADDRESS], contrary to s.95(2) Housing Act 2004. She was fined £5,000.

26. On 8 August 2019, [NAME] pleaded guilty to two further charges of failing to comply with a [NAME] condition in respect of the installation and maintenance of smoke alarms at the licensed properties at Ground Floor Flat, [ADDRESS] and [ADDRESS]. She was fined £10,000.

27. On 7 November 2019, the Council served notices of their proposals to make [NAME] over the [COMPANY].

28. On 28 November 2019, [NAME], via [NAME], made representations and proposed an alternative license [NAME] for the [COMPANY] (“[NAME]”).

29. On 3 December 2019, [NAME] sought licences in respect of the [COMPANY].

30. On 5 December 2019, the Council issued [NAME] for the [COMPANY].

31. On 30 April 2020, the Council granted licences to [NAME] in respect of the [COMPANY] as a result of which the IMO’s, as extended by the [NAME], ceased to have effect. Statutory Provisions Licensing 32. S.61(1) of the 2004 Act provides as follows in respect of HMOs: (1) Every HMO to which this Part applies must be licensed under this Part unless – (a) a temporary exemption notice is in force in relation to it under section 62, or

6 (b) an interim or final management order is in force in relation to it under Chapter 1 of Part 4.

33. S.85(1) provides as follows in respect of houses that are required to be licensed under the Part 3 licensing regime: (1) Every Part 3 [NAME] must be licensed under this Part unless - (a) it is an HMO to which Part 2 applies (see section 55(2)), or (b) a temporary exemption notice is in force in relation to it under section 86, or (c) a management order is in force in relation to it under Chapter 1 or 2 of Part 4.

34. Sections 63(1) and 87(1) specify applications for either type of license must be made to a local housing authority, and sections 64(1) and 88(1) specify that upon receipt the authority must either grant a [NAME] or refuse to grant a [NAME].

35. Subsections 55(5)(b) and 79(5) impose duties on a local housing authority to ensure that “all applications for licences and other issues falling to be determined by them under this Part are determined within a reasonable time”. Fit and proper person test 36. No such [NAME] may be granted unless the authority is satisfied that the proposed [NAME] is “a fit and proper person to be the [NAME]” (ss.64(2), 64(3)(b)(i), 88(2), 88(3)(a)(i)).

37. The test for fitness is defined in sections 66 and 89. Section 66, so far as is relevant provides as follows: (1) In deciding for the purposes of section 64(3)(b) or (d) whether a person (“P”) is a fit and proper person to be the [NAME] [……] 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;

7 (c) contravened any provision of the law relating to housing or of landlord and tenant law; or (d) acted otherwise than in accordance with any applicable code of practice approved under section 233. (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 (d), 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 [NAME] […….].

38. The test for fitness in s.89 mirrors that in s.66 except that there is no equivalent provision to ss.30(2)(d).

39. The authority may revoke a [NAME] if it no longer considers that the [NAME] is a fit and proper person to be a [NAME] (ss.70(1)(b)), 70(2)(b), 93(1)(b), and 93(2)(b)). Appeals against refusal or grant of licences 40. Paragraph 31 of Schedule 5 to the 2004 Act provides as follows: 31 (1) The applicant or any relevant person may appeal to [this tribunal] against a decision by the local housing authority on an application for a [NAME] - (a) to refuse to grant the [NAME], or (b) to grant the [NAME]. (2) An appeal under sub-paragraph (1)(b) may, in particular, relate to any of the terms of the [NAME].

41. Paragraph 31 of Schedule 5 to the 2004 Act provides as follows: 31 (1) The applicant or any relevant person may appeal to [this tribunal] against a decision by the local housing authority on an application for a [NAME] - (c) to refuse to grant the [NAME], or (d) to grant the [NAME]. (2) An appeal under sub-paragraph (1)(b) may, in particular, relate to any of the terms of the [NAME].

8 42. Paragraph 32(1) of Schedule 5 confers an similar right of appeal on a [NAME], or relevant person, in respect of any decision by a local housing authority to vary or revoke a [NAME].

43. A “relevant person” is defined in paragraph 36(2) of Schedule 5 as any person (other than a person excluded by sub-paragraph (3)) (a) who, to the knowledge of the local housing authority concerned, is – (i) a person having an estate or interest in the HMO or Part 3 [NAME] in question, or (ii) a person managing or having control of that HMO or Part 3 [NAME] (and not falling within sub-paragraph (i)), or (b) on whom any restriction or obligation is or is to be imposed by the [NAME] in accordance with section 67(5) or 90(6)

44. The exclusions in sub-paragraph (3) refer to: (a) the [NAME] and (if different) the [NAME]; and (b) any tenant under a lease with an unexpired term of 3 years or less.

45. Paragraph 34(2) provides that any appeal under paragraph 31 or 32 is to be by way of a re-hearing, but may be determined having regard to matters of which the authority was unaware. Sub-paragraph 34(3) states that the tribunal may confirm, reverse or vary the decision of the local housing authority. Sub-paragraph 34(4) provides that on an appeal under paragraph 31 the tribunal may direct the authority to grant a [NAME] to the [NAME] on such terms as the tribunal may direct. [NAME]

46. S.102(2) of the 2004 Act provides as follows: “… (2) The authority must make an interim management order in respect of a [NAME] if– (a) it is an HMO or a Part 3 [NAME] which is required to be licensed under Part 2 or Part 3 (see section 61(1) or 85(1)) but is not so licensed, and (b) they consider either– (i) that there is no reasonable prospect of its being so licensed in the near future, or (ii) that the health and safety condition is satisfied (see section 104).” 47. S.102(3) provides that:

9 “(3) The authority must make an interim management order in respect of a [NAME] if— (a) it is an HMO or a Part 3 [NAME] which is required to be licensed under Part 2 or Part 3 and is so licensed, (b) they have revoked the [NAME] concerned but the revocation is not yet in force, and (c) they consider either— (i) that, on the revocation coming into force, there will be no reasonable prospect of the [NAME] being so licensed in the near future, or (ii) that, on the revocation coming into force, the health and safety condition will be satisfied (see section 104). [NAME]

48. S.113 provides as follows, in respect of the making of [NAME]: “(1) A local housing authority who have made an interim management order in respect of a [NAME] under [any provision of section 102 other than subsection (7A) of that section] (“the IMO”)— (a) have a duty to make a final management order in respect of the [NAME] in a case within subsection (2), and (b) have power to make such an order in a case within subsection (3). (2) The authority must make a final management order so as to replace the IMO as from its expiry date if— (a) on that date the [NAME] would be required to be licensed under Part 2 or 3 of this Act (see section 61(1) or 85(1)), and (b) the authority consider that they are unable to grant a [NAME] under Part 2 or 3 in respect of the [NAME] that would replace the IMO as from that date. (3) The authority may make a final management order so as to replace the IMO as from its expiry date if— (a) on that date the [NAME] will not be one that would be required to be licensed as mentioned in subsection (2)(a), and (b) the authority consider that making the final management order is necessary for the purpose of protecting, on a long-term basis, the health, safety or welfare of persons occupying the [NAME], or persons occupying or having an estate or interest in any premises in the vicinity.

10 Appeals against decisions relating to management orders 49. Paragraph 24 of Schedule 6 to the 2004 Act provides as follows: (1) A relevant person may appeal to the appropriate tribunal against— (a) a decision of the local housing authority to make an interim or final management order, or (b) the terms of such an order (including, if it is a final management order, those of the management scheme contained in it).

50. Paragraph 26(2) provides as follows in respect of the tribunal’s powers on an appeal under paragraph 24 in respect of an interim or final management order. (2) The 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 or vary the order or revoke it — (a) (in the case of an interim management order) as from a date specified in the tribunal’s order, or (b) (in the case of a final management order) as from the date of the tribunal’s order. [NAME] appeals against revocation of licences 51. [NAME] originally challenged the revocation of her licences on the basis that (a) the local authority was wrong in law to have regard to her spent convictions; and (b) she was, in fact, a “fit and proper person” for the purposes of the 2004 Act, and her licences should not have been revoked.

52. Following the decision of the Court of Appeal, point (a) is no longer arguable. In addition, [NAME] no longer wishes to be the license [NAME] of any of the subject properties. We are told that this is because of the passage of time since her appeals were lodged, her age, and her personal circumstances. Instead, she contends that the tribunal should direct that [NAME] should be granted the licences. 53. [NAME] contends that [NAME] is a “fit and proper person” because: (a) it has no convictions of the sort that concerned the Council in respect of [NAME] or her husband; (b) its two directors, [NAME] and [NAME] have no similar convictions; and

11 (c) no person with “significant control” over [NAME] has any similar convictions. 54. [NAME], on behalf of the Council raises a jurisdictional point, namely that even though the hearing before the tribunal is a de novo hearing, the tribunal cannot vary the Council’s decisions so as to allow [NAME] appeals against the revocation of her licences by appointing [NAME] as the [NAME]. Jurisdictional decision on [NAME] appeals against revocation of licences 55. We agree with the Council that we have no jurisdiction to allow [NAME] appeals against the revocation of her licences by appointing [NAME] as the [NAME].

56. Our powers, under paragraph 34 of Schedule 5 to the 2004 Act, on an appeal against a revocation of a [NAME] brought under paragraph 32(1), allow us to confirm, reverse or vary the decision of the local housing authority. 57. [NAME] argued that as a “relevant person” that meets the definition in paragraph 36 can bring an appeal under paragraph 32(1) against a decision to revoke or vary (or to refuse to revoke or vary) a license, the tribunal’s power is not limited to deciding whether or not the original [NAME] should have their [NAME] reinstated. In his submission we can vary the licenses in question so as to grant them to [NAME].

58. We do not accept that submission. In our determination, the plain meaning of the statute is that the power to vary a [NAME] is confined to a variation in the terms of the [NAME], which may include its duration. Whilst a ‘relevant person’, other than the [NAME], may pursue an appeal, our powers do not allow us to direct that a [NAME] be granted to a completely different person to the original [NAME]. To do so would go beyond the scope of a variation, and would constitute the grant of a completely new [NAME] to a new person. We therefore determine that we have no power to direct that [NAME] is to be named as the [NAME] of the [COMPANY].

59. As [NAME] no longer wishes to be the [NAME] of those properties, it follows that her appeals must be dismissed, and the Council’s decisions confirmed. In any event, as [NAME] conceded, her convictions are such that she clearly cannot be considered a fit and proper person to hold a [NAME] for these properties. [NAME]’s appeal against the decision revoke her [NAME] for First Floor Flat, 44 [NAME], London [POSTCODE] . 60. [NAME] was notified of the decision to revoke her [NAME] by letter dated 23 November 2018 [30] in which the reasons given were identified as being her mother’s convictions for supplying false or misleading information, and her father’s conviction for falsifying gas safety certificates. No wrongdoing on [NAME]’s part was suggested.

12 The Council’s Case 61. In the Council’s Statement of Case dated 9 March 2021, it asserts that [NAME] is not a fit and proper person because: (a) she was a vital part of the family business. She lived at the same address as her mother and father, and her use of her mother as a front person was demonstrated at her mother’s interview under caution on 28 September 2016; (b) it is likely that she was a party to the false declarations as to gas safety which underlay the convictions of both her parents. Each other family member submitted a prepared statement denying their involvement, but she did not; (c) she was central to the attempted cover-up of the false declarations. She sought to protect [NAME] from telling the truth about them when she was interviewed under caution, and she refused to answer questions when herself interviewed under caution; (d) having advanced her company, [NAME], as an alternative [NAME], she persistently failed to give information which was reasonably requested in order to demonstrate her alleged distance from [NAME] and her wrongdoing.

62. At paragraph 30 of [NAME]’s first witness statement dated 25 March 2019 [1127] he refers to section 2.3 of the Council’s internal policy document “[NAME] applications made under Part 2 or Part 3 Housing Act 2004 [524] which references draft Government guidance “A guide to the licensing and Management provisions in Parts 2,3 and 4 Housing Act 2004”.

63. Paragraphs 85 – 87 of the government guidance says as follows: Consideration of ‘persons associated or formerly associated’ with the proposed [NAME] or manager 85. If there is evidence that a person associated, or formally associated, with the person proposed to be the [NAME] or manager of the property, has committed any wrong doings, that evidence may be taken into account in determining the proposed [NAME]’s or manager’s fitness (even if that person has himself or herself an unblemished record). The purpose of this requirement is to ensure that only fit and proper persons hold licences or are in any way involved in the management of licensed properties. It would not be appropriate for a [NAME] to be granted to someone, or for someone to be the manager of a property, if that person was merely acting as a ‘front’ for someone else who, if he or she were not unfit, would be entitled to be the manager or [NAME].

13 86. An example might be that of a husband and wife, where the husband is the landlord (or indeed both he and his partner are joint landlords), but only the wife has applied for the [NAME]. If there is evidence that the husband has committed wrong doings and those wrong doings are relevant to the wife’s management of the property or [NAME] then the [NAME] may refuse to grant her a [NAME]. Likewise if a landlord with an unsatisfactory record nominated a ”manager” who had a clean record, but had acted for him whist the wrong doings were committed, the [NAME] may consider the managing agent by association to be unfit too.

87. A refusal to grant a [NAME] in these circumstances should only be made if: • there is actual evidence of wrong doing by the associated person and • the associate’s fitness is directly relevant to the applicant or proposed [NAME]’s fitness to manage the property or [NAME].

64. At paragraph 2.4 of the Council’s guidance it is stated that: “ In applying the fit and proper person test, the Council will take into account any identified wrong doings of relatives and other associates of the [NAME] and any separate manager that it believes are relevant to the [NAME] under consideration.” 65. At paragraph 14 of his second witness statement dated 31 May 2019 [178] [NAME] says that the Council took the view that [NAME] was “…a person associated with the First Applicant and her husband such that she did not meet the fit and proper person test”. In particular, the Authority had due regard to the interview under caution of the First Applicant on 28 September 2016, when she was questioned in respect of the offences for which she was later convicted. The [NAME] Applicant was also present at that interview. During the interview, the First Applicant repeatedly declined to answer questions regarding her own role in managing the properties for which she was the [NAME] but instead indicated that officers should speak to her husband, son and daughter (the [NAME] Applicant) who ran the property business.

66. At paragraph 15, [NAME] went on to say: “ The Authority was, and remains, of the opinion that the [NAME] Applicant is inextricably linked to the business and practice of the First Applicant, and that she is an ‘associated person’.”

14 67. The Council set out its concerns about [NAME] being an alternative [NAME] in its letter to the Applicants’ solicitors, [NAME], dated 20 February 2021 [1059]. In that letter, it stated that it considered [NAME] failed the fit and proper person test because she shared responsibility for the failings connected with all of the family held properties in the past, and because there was a demonstrably close association with her parents, who the Council properly considered had failed the test. The reason given as to why the Council believed [NAME] shared this responsibility was because of the answers given by her mother at the interview under caution on in September 2016. 68. [NAME] was present at [NAME] interview under caution on 28 September 2016. The transcript of the interview [403] records that [NAME] was present, as was an interpreter. During the course of that interview [NAME] is recorded as stating that although the properties she owned were in her name, “…her family … run it, her husband, her son and her daughter, they run the business.” The assertion that her husband, [NAME] and [NAME] run the business is repeated on several occasions during the course of the interview, but nothing was said about the individual functions they performed in the business.

69. In [NAME] second interview under caution on 11 April 2017, she gave a ‘no comment’ response to the questions asked of her. In the written statement she gave to the Council that day [448] she said: “ My family, namely my husband ([NAME]) son ([NAME]) and daughter ([NAME]) and sometimes others assist with the day-to-day running of the business, which includes the preparation of applications and corresponding with the council.” 70. In the Council’s letter of 20 February 2019 [1059], it stated that despite its concerns over the proposal of [NAME] as an alternative [NAME], due to [NAME]’s perceived unfitness, it was prepared to consider the request upon receipt of a response from her to the following questions: “ a. Her precise day-to day involvement in management of the family properties at all material times;

b. Her means of income at the material times;

c. Whether she or her company own any of the properties the subject to the appeals and, if so, precisely how they were financed;

d. If any other family member owns the properties, what are the contractual arrangements by which she or the company now have any connection with them;

e. [COMPANY] own any of the addresses;

15 f. How many properties does [NAME] manage, details of those properties, details of the addresses and owners of those properties;

g. Confirmation that she consents to the Council making enquiries of the clients of [NAME] to obtain references from them;

h. Details of her experience of letting and managing properties;

i. Details of her professional qualifications, is she engaged in any other employment other than operating [NAME], if so by whom and in what capacity?

j. How much time does she devote to company business and what is her role in the company business;

k. Information about [COMPANY] where does it trade from? How many staff are employed? Does it have a trading name?

l. If staff are employed what are their names and roles?

m. Copy of the Management Agreement that [COMPANY] uses for the purposes of its’ business with landlords.

71. [NAME] replied to the Council’s letter of 20 February 2019 on 4 March 2019, in which it was stated that [NAME] was “willing to provide written representations to evidence that she is ‘fit and proper’ to be a [NAME] but that this would not be possible prior to a case management hearing of these applications that had been listed for 7 March 2019. However, to date, the Council has not received a response to the 13 questions made in its letter of 20 February 2019 (“the 13 Questions”). At paragraph 23 of his fourth witness statement dated 16 February 2021, [NAME] said that as [NAME] had declined to provide this information, the Council considered that there was no basis upon which to conclude that she, or her company, [NAME], met the fit and proper person test. [NAME]’s Evidence 72. [NAME] referred to the 13 Questions in her witness statement dated 16 May 2019 [190] in which she stated that whilst she was very happy to tell the Council about [NAME], she did not feel able to share her clients’ private information. She said that she had spoken to some of her clients who said they were uncomfortable about their details being provided to the Council. She also stated that she felt many of the questions were irrelevant, and that she did not understand why she was required to provide additional information other than what was requested in the [NAME] application form.

16 73. In her witness statement, [NAME] said that she previously helped her mother to manage her properties by acting as her bookkeeper. She also said that she was not involved in managing her mother’s properties, except in relation to the First Floor Flat at 44 [NAME], which she took on as a trial property. In oral evidence, she said that as she enjoyed managing that flat, she set up [NAME], in November 2017, in order to manage properties on behalf of other landlords.

74. In cross-examination, she agreed that [NAME] did not trade for the first year after its incorporation, and that it had no assets or staff as at November 2018. This, she said, was because during the first year she was studying and taking exams. As to the 13 Questions set out in the Council’s letter of 20 February 2019, she stated that her solicitors, after considering the questions, had advised against answering them because they were intrusive and not relevant, as they were not the usual questions asked when a [NAME] application is made.

75. Her evidence was that following a discussion with [NAME], she did, in fact, subsequently ask her clients for their consent to provide information required to answer the Council’s questions. They refused, and one by one, over the course of six months, they asked her to stop managing their properties as they were not happy with being asked for such consent.

76. In her first witness statement [NAME] stated that she was working on [NAME] matters five days a week, as well as training, part time, to become an accountant, studying for the Association of Chartered Accountants qualification. At the hearing before us she stated that she had now passed 12 out of the 14 examinations in order to qualify as an accountant. She is currently on maternity leave, her daughter being three months old. [NAME]’s Evidence 77. [NAME] rejected the assertion that the subject properties were run as a collective family business in the way suggested by the Council. In his witness statement dated 9 March 2021, he explained that he has been the director of the Fourth Appellant, [COMPANY], since 9 January 2020, when his mother resigned as a director. Prior to that he said he ran his own restaurant business, working around 100 hours per week. He agreed that he provided assistance to his mother in managing the financial aspects of her portfolio, but that this was limited to helping obtain loans from banks and other financial matters that his mother could not fully comprehend because of her limited English. He said that it was his father, whose command of English was a lot better than his mother’s, who dealt with the management side of the business.

78. In his witness statement, [NAME] goes on to say that his restaurant business, which at one point numbered 48 restaurants spread over the UK, struggled in 2018 and 2019, with administrators appointed in December 2019. At that point, following discussions with his mother, he agreed to take over the management of her properties. In December 2019, his mother transferred the remaining parts of her portfolio into

17 companies over which she had no control, and his father also stopped having any role in managing the properties. [NAME] replaced her as director of [NAME], and also runs [COMPANY] and [COMPANY], the owners of some of the other properties formerly owned by [NAME]. He denied that he is in any way a “front” for his mother and asserted that he is perfectly capable of running the business himself. Decision on [NAME]’s appeal against the decision revoke her [NAME] for First Floor Flat, 44 [NAME] 79. [NAME]’s appeal is allowed and the Council’s decision to revoke her [NAME] is reversed.

80. The Council’s decision was founded on the basis that [NAME] shared culpability for the provision of the false, misleading and fraudulent information that had led to her mother and father’s convictions. It is said that she played a vital role in the family business, that it was likely that she was a party to the false gas safety declarations that led to her parents’ convictions, and that she was central to the attempted cover-up of the false declarations.

81. We find that the evidence does not support those assertions. Critically, there is no evidence at all of any wrongdoing by [NAME]. There is no suggestion in the sentencing remarks made on her father’s conviction [1055], or the summary of the sentencing remarks made on her mother’s conviction [1068] of any wider family involvement, or any culpability in the false gas safety declarations, other than that of her parents. When sentencing [NAME], the judge described her as being a woman of great experience in property management whose involvement in the false certificates was clear and obvious. No mention is made of any involvement by [NAME] or [NAME]. 82. [NAME]’s oral evidence was that [NAME] was being used as a front for a criminally run family business. He accepted that there was no evidence of [NAME] having received any convictions, but, in his opinion, she was implicated in the wrongdoings committed during the course of what he saw as a family-run business. He believed that [NAME] played a much more active role in the business than just book-keeping, but that the extent of that further involvement was unclear due to the lack of co- operation from any members of the family. He suggested that given her mother’s limited English, [NAME] was the most likely person to have submitted the [NAME] applications for the subject properties.

83. We find that the evidence does not support [NAME]’s assertions. [NAME] and [NAME] denied any involvement with preparation of the [NAME] applications and, on the balance of probabilities, we find their evidence to be credible. The Council’s suggestion that [NAME] was involved appears to us to be speculation, the origin of which appears to be [NAME] answers during her first interview under caution and her written statement [448] that others assisted her with the running of her properties, including the preparation of [NAME] applications. In cross-

18 examination, [NAME] said that given [NAME] response, her husband’s statement [493] that he was not involved in the preparation of applications, and [NAME]’s statement to the same effect [1058], that the only person left was [NAME], and that it was therefore likely to have been [NAME] who prepared the [NAME] applications.

84. We accept, given her limited English, that it is likely that [NAME] received help with completing the [NAME] application forms. But even if she did, that help may have come from her husband, as opposed to [NAME]. Given his conviction, and its impact on his credibility, we consider little evidential weight can be placed on [NAME]’s statement. [NAME] and [NAME]’s evidence that their father had a very good command of English was not challenged by the Council. [NAME]’s evidence was that when she had asked her mother who had completed the [NAME] application forms, her mother’s response was that she had done so with the help of [NAME]’s father. When [NAME] was asked who completed the application forms for his mother, his response was that his father worked together with his mother, and that it was his father who dealt with the management of his mother’s properties.

85. Unlike their parents, neither [NAME]’s or [NAME]’s evidence is tainted by any conviction or evidence of any wrongdoing on their part. Whilst both agreed that they were involved in their parents’ property business, we do not accept that the evidence supports the Council’s view that [NAME] was being used as a front by [NAME]. The Council has no direct evidence that [NAME] assisted in completing the [NAME] application forms and given [NAME] and [NAME]’s evidence we find that it is more likely than not that [NAME] completed the application forms with the assistance of her husband, [NAME]. We agree that [NAME] responses when interviewed under caution on 28 September 2016 suggest that other family members had a greater role in managing her properties than she did, but we find that the person who is most likely to have done so is [NAME], rather than [NAME] or [NAME]. It was, after all, [NAME] who was convicted of fraudulently backdating the gas safety certificates provided by [NAME], and there is no evidence of any deeper involvement by the two children, other than the roles they have stated they performed.

86. It is suggested that [NAME] lived at the same address as her mother and father and that this supports the Council’s belief that [NAME] used her mother as a front for her business activities. In her two witness statements dated 16 May 2019 and 9 March 2021, [NAME] gave an address in Gerrards Cross, Buckinghamshire. However, when she was interviewed under caution on 27 March 2017, she gave her address as her parents’ address in Chigwell, Essex.

87. When cross-examined on this, her response was that she lived at the Gerrards Cross address with her then boyfriend, but then returned to her parent’s home at the weekends where she stayed in a ‘granny flat’. We accept her evidence on that point as being credible. There is some corroboration at paragraph 12 of [NAME]’s witness statement [252] where he says that [NAME] used to help their mother reconcile the

19 accounts for her properties at weekends. It appears to us more likely than not that she did so when visiting her parents at the weekend. In any event, there was no suggestion by the Council that [NAME] was not living at the Gerrards Cross property, and we are not persuaded that the use of her parent’s address at the interview under caution, can be seen as evidence supporting her deeper involvement with her mother’s property business.

88. Nor do we accept the Council’s submission that at her mother’s interview under caution, [NAME] sought to protect [NAME] from telling the truth about the false declarations. The transcript of that interview indicates that [NAME] intervened frequently on behalf of her mother, but that her primary concern in doing so was that her mother had been asked to attend the interview because of concerns that she had provided false or misleading information about properties at Flats 1 – 5, 109 – [ADDRESS], but the Council wished her mother to answer questions about additional properties that she owned. [NAME], on behalf of her mother, objected to this. In our view, [NAME]’s interjections appear to be designed to limit the Council’s questioning to questions regarding the licensing of the properties identified in the Council’s letter to her mother, asking her to attend for interview. We do not consider they evidence that her role in her mother and father’s business was wider than she acknowledges.

89. Nor do we consider the fact that both [NAME] and [NAME] gave no comment responses when subsequently interviewed under caution evidences [NAME]’s deeper involvement. [NAME]’s evidence was that her solicitor advised her to provide a no comment response. In the context of these applications, we do not consider we can infer any deeper involvement by [NAME] from her no comment responses, and our attention has not been drawn to any specific responses that would provide any support such an inference.

90. As to [NAME]’s failure to answer the 13 Questions, those questions were asked by the Council in order to consider [NAME] suitability to be an alternative [NAME] of [NAME] properties that had been made subject to an IMO. The questions were not asked in the context of the Council’s decision to revoke [NAME]’s [NAME] for the property at First Floor Flat, 44 [NAME], London [POSTCODE]. [NAME]’s evidence was that she did not answer the questions because of legal advice from her solicitor. She was entitled to follow that advice. Even if the lack of response is relevant to [NAME] fitness to be a [NAME], we do not consider we can infer from it that [NAME], as an individual, is not herself a fit and proper person to be the [NAME] for the subject property.

91. The government’s guidance, which is reflected in the Council’s internal guidance, is that a [NAME] should only be refused if there is actual evidence of wrong doing by a person associated with the [NAME] applicant, and where the associate’s fitness is directly relevant to the proposed [NAME]’s fitness to manage the property. Clearly, [NAME] convictions constitute evidence of wrongdoing, but we do not

20 agree that her mother’s unfitness is directly relevant to [NAME]’s fitness to manage First Floor Flat, 44 [NAME]. 92. [NAME] held a [NAME] of that flat, in her own name, between January 2017 and 23 November 2018, when it was revoked. [NAME] agreed that there is no suggestion of any impropriety in her [NAME] application or any mismanagement of the property by her. He acknowledged that no enforcement action had been taken by the Council regarding the flat, although he suggested that [NAME]’s application should probably have been held in abeyance given that the falsity of her mother’s licences had been discovered in August 2016, and were under investigation at the time [NAME]’s [NAME] was granted.

93. In cross examination [NAME] said that she was responsible for dealing with maintenance issues in relation to the First Floor flat at 44 [NAME], including liaising with tenants, appointing contractors and dealing with the normal work of a property manager. There is no evidence of any complaints regarding her management of the flat and nothing to suggest that she did not perform those tasks to a good standard. This contrasts with her mother, who mismanaged and committed offences in respect of the Ground Floor Flat at that address by failing to install and maintain a smoke alarm as well as failing to remedy significant disrepair [884]. The Council’ suggestion that [NAME] was a front for a criminally run family enterprise, in which [NAME] played a leading role, is not supported by the evident difference in management of the two flats in the same [NAME].

94. On her evidence, which was not challenged, [NAME] has almost qualified as an accountant. She has also completed a London Landlord Accreditation scheme course [1034]. She appeared to us to be an intelligent and responsible individual, who is a fit and proper person to be the [NAME] for this flat.

95. We do not agree that her mother’s unfitness to be a [NAME] is directly relevant to her own fitness to be a [NAME]. The Council’s conclusion that [NAME] 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 [NAME]. We therefore allow her appeal, and reverse the Council’s decision of 23 November 2018. Her [NAME] is reinstated. [NAME] appeals against the decision to refuse her licences for the [COMPANY] and [NAME] appeals against the decision to refuse licences for the [COMPANY] 96. [NAME]’ primary case, for both [NAME] and [NAME] appeals against their refusal decisions, was that the effect of EU Directive 2006/123, and the Provision of Services Regulations 2009 (SI 2009/2999), was that, because of the Council’s delay in dealing with the [NAME] applications, the licences were deemed to have been granted, and so the refusals were a nullity. He

21 argued that we should therefore quash the Council’s decisions. If that was wrong, he submitted that we should: (a) allow [NAME] appeals by granting licences for the [COMPANY] to [NAME]; and (b) allow [NAME] appeals.

97. It was not in dispute that: (a) the act of letting and managing private sector residential property is a “service” for the purposes of EU Directive 2006/123 and the Provision of Services Regulations 2009; and (b) the operation of a licensing scheme under Parts 2 and 3, Housing Act 2004, is an “authorisation scheme” for the purposes of the 2009 Regulations.

98. Regulation 19 of those regulations reads as follows: “19 Authorisation procedures: time for dealing with application

(1) Authorisation procedures and formalities provided for by a competent authority under an authorisation scheme must secure that applications for authorisation are processed as quickly as possible and, in any event, within a reasonable period running from the time when all documentation has been submitted.

(2) That period must be fixed and made public in advance.

(3) When justified by the complexity of the issue, that period may be extended once, by the competent authority, for a limited time.

(4) The extension and its duration must be notified to the applicant, with reasons, before the original period has expired.

(5) In the event of failure to process the application within the period set or extended in accordance with the preceding provisions of this regulation, authorisation is deemed to have been granted by a competent authority, unless different arrangements are in place.

(6) Any different arrangements must be justified by overriding reasons relating to the public interest, including a legitimate interest of [NAME] parties.”

[NAME] 99. [NAME] applications were made on 19 May 2016, but were not refused until November 2018. In cross-examination, [NAME] acknowledged that the Council could have rejected [NAME] applications in August 2016, when the fraud regarding the gas certificates was discovered, or in May 2017, after her conviction. However, his evidence was that the Council delayed determination of the applications until further investigations had been carried out

22 100. [NAME] contended that the Council’s delay after May 2017 in order to investigate other potential offences was contrary to the Council’s duty under Regulation 19(1) to determine them as quickly as possible, and in any event, within a reasonable period. The consequence, he argued, was that the applications were deemed to have been granted by virtue of Regulation 19(5). It followed, he said, that there was no power to refuse to grant the licences, which had already been granted by operation of law, and which remain in effect as they have not been revoked. According to [NAME], the position was the same in respect of [NAME] applications for the [COMPANY], submitted on 6 February 2018, although the period of delay was, he acknowledged, shorter. 101. We do not accept [NAME]’ primary submission. We agree with [NAME] that there can be no deemed grant in circumstances where the Council did not fix a period for processing the [NAME] applications. Whilst its failure to do so may well constitute a breach of sub-regulation (2), the appropriate forum for a challenge to such non-compliance, or for undue delay in processing [NAME] applications, is judicial review. 102. [NAME] pointed out that on its website the Council asserts that it will not permit authorisation to be deemed to be automatically granted under sub-regulation (5), on the basis that there is an overriding public interest regarding public safety under sub-regulation (6). Whether or not such public interest exists is a question of public law, and not within this tribunal’s jurisdiction. 103. [NAME] also argued that, in any event, the period of delay was not, unreasonable in the circumstances of this case. We do not need to address that question given our determination that no deemed grant can arise in respect of these applications. Nevertheless, we agree that the delay between 19 May 2016 and the September 2016 interviews was not unreasonable given the pre-interview investigations required. It is also clear from the transcripts of the March and April 2017 interviews that there had been substantial further investigations by the Council leading up those interviews. However, it appears to us that after [NAME] 2017 convictions, it should have been obvious to the Council that she was not a fit and proper person to hold a [NAME], meaning that her [NAME] applications could have been determined in short order. As [NAME] applications were not submitted until February 2018, we do not consider the period between then and November 2018 to be unreasonable given the enquiries needed into its fitness to be a license [NAME]. 104. [NAME] secondary position was that we should allow these appeals and grant licences to [NAME]. As far as [NAME] appeals are concerned, he contended that as with the revocation of her licences, we have jurisdiction to do so because [NAME] is a relevant person who could have pursued an appeal against the relevant decisions, this time under paragraph 34 of Schedule 5. We reject that submission for the same reasons as set out above in respect of the revocation of [NAME] licences, namely that our power under paragraph 34(3) to confirm, reverse or vary the decision of

23 Council do not allow us to direct that a [NAME] be granted to a completely different person other than the [NAME] applicant. [NAME] 105. No such jurisdictional barrier exists in respect of [NAME] appeals against the Council’s decision to refuse licences for the [COMPANY]. [NAME] was notified of the Council’s decision by letters dated 23 November 2018 [28], in which the reasons given were identical to those stated in the letter sent to [NAME] revoking the single [NAME] held by her. These were [NAME] convictions for supplying false or misleading information and [NAME]’s conviction for falsifying gas safety certificates. No reasons as to why [NAME] was not a fit and proper person to be a [NAME] were identified. 106. We agree with [NAME]’ submission that when considering [NAME] fitness to be a [NAME] it is important to bear in mind that a company is a separate legal entity, with a separate legal personality from its directors and officers. 107. We also note that the primary reason why the Council appears to contend that [NAME] is not “fit and proper” is because it considers that a person associated with the company, namely [NAME], one of the two directors of [NAME], is not a fit and proper person. However, for the reasons stated above, we reject the Council’s contention as to [NAME]’s fitness. Further, as [NAME]’ suggests, even if [NAME] fails the fit and proper test, it does not automatically follow that the same is true of [NAME]. 108. In our determination, [NAME] is a fit and proper person to hold the licences for the subject properties. There is no suggestion that [NAME] has committed any offences, or contravened any provision of the law relating to housing or of landlord and tenant law that would prevent it from being a fit and proper person. Neither of its two directors, [NAME] and [NAME], have any relevant convictions. [NAME] now has relevant experience in property management and is a fit and proper person to hold a property [NAME]. [NAME] is a member of the [COMPANY] (“[NAME]”) [1035] and the Property Redress Scheme, the government approved consumer redress scheme for estate, [NAME] and property agents[1036] . 109. [NAME] argued that [NAME]’s evidence indicated that she was not exercising directorial functions independent of [NAME]. We accept that [NAME] lacks experience, having only started to manage properties in 2020, and was only able to do so for the nine-month period prior to the Council revoking the licences for Flats A,B,C, and D, [ADDRESS]. However, her oral evidence as to how she conducted her duties during those nine months demonstrated a professional attitude and understanding of her responsibilities. She also appears to have put her time to good use after the licences were revoked by attending and completing various relevant courses, as well as studying towards a Level 3 Award qualification in [NAME], organised by the [NAME]. Given our conclusion regarding [NAME]’s fitness to be a license [NAME], we

24 do not consider [NAME]’s lack of experience as a Director casts doubt upon [NAME] fitness. 110. Nor do we consider that the fact that the Council has not received answers to the 13 Questions casts doubt on [NAME] fitness to be a [NAME]. Firstly, we agree with [NAME]’ submission, that the questions asked went beyond the closed list of permissible questions for [NAME] applications. 111. Section 63(5) of the 2004 Act gives the Secretary of State the power to make regulations regarding the making of [NAME] applications. 112. S.63(6)(c) provides that such regulations may specify the information that must be provided in connection with an application for a [NAME]. 113. The Licensing and Management of Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions) (England) Regulations 2006 (“the 2006 Regulations”) were made pursuant to s.63(5). Any application for a [NAME] must include the information set out in Sch.2 para.2: reg.7(2)(a). 114. The 2006 Regulations were amended by the Licensing and Management of Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions) (Amendment) (England) Regulations 2012, but the amendments made are not relevant to these applications. 115. [NAME] relied upon the decision in R. (on the application of Gaskin) v Richmond upon Thames LBC, [2018] H.L.R. 8 (2017) in which the Divisional Court held, at paragraph 36, that the use of the definite article in s.63(6)(c) is highly significant: the words “specify the information which is to be supplied” meant that it is only those items of information listed in the Regulations whose provision can be made mandatory by the local housing authority. The list is a maximum, not a minimum. At paragraph 37, the Court said that there would be nothing wrong with an application form that invited the provision of additional information so long as it was made clear that this was voluntary. 116. The fact that none of 13 Questions comprised information set out in Sch.2 para.2: reg.7(2)(a) was not in dispute. [NAME] sought to distinguish Gaskin on the basis that the case concerned the information that is required to be provided in a [NAME] application form. This, he argued, was distinct from the present case, which concerned the Council’s obligation to consider evidence and whether it is permissible to ask questions and draw inferences from the failure to answer such questions. He relied upon the [NAME] of Lord’s decision in [NAME] v Crown Court at Warrington , Ex parte RBNB (an unlimited company) [2002] 1 WLR 1954, a case concerning whether RBNB was a fit and proper person to hold a [NAME] to sell intoxicating liquor. At paragraph 18, Lord Bingham referred to the potential relevance of questions that cast doubt on the integrity of a proposed licensee. There was, said [NAME], nothing wrong with the Council asking questions, and then having regard to the failure to respond to them.

25 117. As [NAME]’ argued, the problem with those submissions, is that the 13 Questions were not questions asked following acceptance of a [NAME] application, they were, in our view, the imposition of a condition precedent to the acceptance of an application. In its letter of 20 February [1059] the Council said that it would be necessary for written representations and materials addressing the 13 Questions needed to be provided before it was prepared to consider [COMPANY] as an alternative [NAME]. That was an inappropriate filter on the Council’s consideration of [NAME] as an alternative [NAME]. The Council was entitled to require [NAME] to provide the information specified in Sch.2 para.2: reg.7(2)(a) of the 2006 Regulations in connection with its application, and it was entitled to ask the 13 Questions so long as it made clear that the provision of that information was voluntary. It did not do so in this case, and we conclude that the failure to answer the 13 Questions, which [NAME] was said was made on legal advice, is not relevant to the question of [NAME] suitability to be a [NAME]. 118. In any event, several of the 13 Questions appear to us to be irrelevant to the question of [NAME] fitness as they are directed to the question of [NAME]’s fitness, rather than that of [NAME] as a corporate identity. We recognise that [NAME] was, at the time, the sole director of [NAME], but it is hard to see why questions such as [NAME]’s source of income and how the purchase of the subject properties was financed are relevant to the question of [NAME] fitness. 119. We therefore allow [NAME] appeals and reverse the Council’s decision to refuse it licences in respect of the [COMPANY]. However, we consider the grant of three-year licences to be appropriate, rather than the usual five- years, in order for [NAME], a fairly new company with limited [NAME] experience, to demonstrate its suitability for the grant of longer licences. [NAME] appeals against the decisions to impose [NAME] for the [COMPANY] 120. The Council made [NAME] for the [COMPANY] on 6 December 2018 [258]. These were all properties for which [NAME] application for a [NAME] had just been refused. The Council changed the locks to the properties and directed the occupiers to pay the rental income to the Council. The [NAME] were to cease to have effect on 5 December 2019, unless revoked before that date. 121. [NAME]’ primary submission was that the Council was wrong to make [NAME] under s.102(2) as the properties were already deemed to be licenced because of the effect of the EU Directive 2006/123 and the Provision of Services Regulations 2009. His position was that if the Council wanted to impose IMO’s, the appropriate course of action was to revoke the licences that were deemed to have been granted, and then proceed to make [NAME] under s.102(3). As the primary difference between s.102(2) and s.102(3) is that an IMO under s.102(3) does not come into effect until any appeal is determined (see s.105), [NAME] would have been entitled to continue to deal with the properties during the period of the [NAME], meaning that the

26 Council had been unlawfully dealing with the properties. As we have determined above that [NAME]’ deemed grant of licences point fails, we reject this submission. 122. [NAME] also argued that the Council was wrong to conclude that there was no reasonable prospect of the properties being licensed in the near future, as there was no reason to believe that an alternative [NAME] could not be found. He pointed out that [NAME] was a fit and proper person. 123. The Council’s position is that it could not be satisfied that [NAME] was a fit and proper person to hold a [NAME] as it did not receive answers to the 13 Questions. It also considered that [NAME] had demonstrated that she was complicit in the management and control of [NAME] properties, as well as in the attempted coverup of illegality. 124. [NAME] also argued that the appeals against the [NAME] was academic, because when the [COMPANY] were licensed to [NAME] on 30 April 2020, the [NAME] ceased to have any effect. Decision on [NAME] 125. We confirm the Council’s decision to make [NAME] for the [COMPANY]. 126. After the Council refused to grant licences to [NAME] for the [COMPANY] on 23 November 2018, it was under an obligation to make [NAME] if it concluded there was no reasonable prospect of the properties being licensed in the near future. We conclude that its decision to make the IMO’s on 6 December 2018 cannot be criticised on the information available to it at that time. It had decided, correctly, that [NAME] was not a fit and proper person to be a [NAME]. [NAME] was proposed as alternative [NAME], that proposal was not made until 1 February 2019 [884], nearly two months after the making of the [NAME]. No alternative [NAME] was proposed between 23 November 2018 when licences were refused and 6 December 2018, when the IMO’s were made. It would clearly be undesirable for the subject properties to remain unlicensed for a significant period of time and the Council’s conclusion that there was no reasonable prospect of the [COMPANY] being licensed in the near future was, in our view, one that it was entitled to make. 127. In any event, it is doubtful that as at 6 December 2018, [NAME] would have been an appropriate alternative [NAME]. Although it had been incorporated on 16 November 2017 [1143] its first accounts for the period up to 30 November 2018 [1144] show that it had no assets or reserves and no employees. [NAME] appeals against the decisions to impose [NAME] for the [COMPANY] 128. The [NAME] were converted to [NAME] on 5 December 2019 [32]. [NAME] is now the entity responsible for these properties, and pursues the appeals. It is now the freeholder for Flats 1 — 5, 109-[ADDRESS] and it has

27 an interest in the reversion of the assured shorthold tenancies for Flats A and Flat B, 158 [NAME], under an arrangement with [NAME], which the current freeholder, [COMPANY] has accepted. 129. [NAME] is also pursuing a separate appeal before this tribunal, brought on 9 December 2019 (LON/00BH/HXL/2019/0001-0007) in which it has challenged the accounts maintained in respect of [NAME] at the [COMPANY] (“the Accounting Appeal”). 130. [NAME] argued that the Council was wrong to make [NAME] because the [NAME], which were a condition precedent to an FMO, were themselves invalid. In addition, he submitted that the Council’s decision failed to take into account the fact that there was another person who could have been granted the licences. This was either [NAME], which had been proposed as an alternative [NAME] on 1 February 2019, or [NAME], which had been proposed as an alternative [NAME] on 28 November 2019, having made a made a formal application on 3 December 2019. 131. He also argued that the quality of the management of the properties by the Council during the [NAME] had been poor and of a lower standard than another manager (such as [NAME] or [NAME]) would have provided so that it was irrational for the Council to conclude that another person could not be granted a [NAME]. 132. Finally, he pointed out that Flats 3 and 4, [ADDRESS] were vacant when the [NAME] were made and had been for several months. As a FMO can only be made under s.113(2) where the property requires a [NAME], and because, as at 5 December 2019, neither flat required one as they were unoccupied, it was, he said, wrong to make a [NAME] for those two flats. 133. The Council’s position is that [NAME] is not, and never has been a fit and proper person to hold a [NAME]. As to the suitability of [NAME]’s submission was that the proposal was made too late in the day for the applications to be processed in time to avoid the Council’s duty to make [NAME] under s.113(2). He accepted that Flats 3 and 4, [ADDRESS], were vacant as at the date of the [NAME], but argued that temporary vacancy does not avoid the requirement for a [NAME]. In his submission, to succeed on this argument, the Applicants would need to establish they had no intention of letting the flats, which they could not do in circumstances where [NAME] had specifically granted consent to let one of the flats and its case in the Accounting Appeal is that the Council erred in not seeking to let the other flat. Decision on [NAME] 134. We confirm the Council’s decisions to make [NAME] for the [COMPANY]. 135. [NAME] first submission, that the [NAME] were invalid because the [NAME] were invalid fails given our conclusion on the validity of the [NAME]. As to the suggestion that the Council should have granted licenses to [NAME] made representations regarding the notices of proposal to

28 make [NAME] in its letter of 28 November 2019 to the Council [1114]. Whilst the author of that letter referred to [NAME] having previously been proposed as an alternative license [NAME], he also stated that both [NAME] were suitable [NAME] holders. The letter then ends with a section entitled “Conclusion” in which the author states, referring to [NAME]: “We have made a proposal for the appointment of a [NAME] party as the [NAME] and their credentials, experience and past dealing with the borough will give the Council confidence that these properties will be managed well…… In the event that you are not willing to grant a [NAME] to [COMPANY] we expect a further Notices of Proposals to make Final Management Orders to be served, with proper management schemes.” 136. Construing that letter as a whole, it appears to us that the Applicants’ position, when the letter of 28 November 2019 was sent, was that they wished the Council to consider [NAME] as an alternative [NAME], and not [NAME] or [NAME] personally. 137. The Council responded to [NAME]’s letter of 28 November by email dated 29 November [1122] in which it said that if formal applications from [NAME] were submitted as a matter of urgency they would be progressed as quickly as possible. It was also pointed out that the Council was under an obligation to issue [NAME] the following week, but that if licences were subsequently granted to [NAME], that the [NAME] would be revoked in accordance withs section 122 of the 2004 Act. Formal applications were then submitted on 3 December 2019 [1121]. 138. We agree with [NAME] that these applications were made too late in the day for them to be determined before the Council’s duty to make [NAME] under s.113(2) arose, two days later, on 5 December 2019. [NAME] accepted that the Council’s letters of 5 December 2019, enclosing the [NAME], incorrectly stated that no further application for a [NAME] had been received since the [NAME] was issued. Applications had, in fact, been received on 3 December, but there was obviously no realistic prospect of these being determined by 5 December, and the error in the letter is therefore not material. As at 5 December, the Council was right to decide that it was unable to grant a [NAME] to [NAME]. The need for further enquiries is evident from the Council’s email of 12 December 2019 to [NAME] [984] in which a copy of the management agreement between [NAME] and the landlord was requested as part of the Council’s fit and proper person checks. 139. Nor do we consider that the making of the [NAME] was erroneous because licences could have been granted to [NAME] or [NAME]. [NAME] had been proposed as an alternative [NAME] on 1 February 2019, there is no evidence before us to suggest that either it, or [NAME], made formal

29 applications for licences in compliance with requirements of Section 63(5) of the 2004 Act and the 2006 Regulations. 140. Turning to Flats 3 and 4, [ADDRESS], [NAME]’s evidence [185] was that the Council’s view was that the fact these flats were temporarily vacant did not mean that they ceased to be rental properties for which a [NAME] was required. He also pointed out that [NAME] submitted [NAME] applications for the two flats amongst those received on 3 December 2019. Alternatively, he contended that it would have been appropriate for the Council to impose [NAME] for the two flats under s.113(3)(b) on the basis that they were necessary for the purpose of protecting, on a long-term basis, the health, safety or welfare of persons occupying the [NAME], or persons occupying or having an estate or interest in any premises in the vicinity. [NAME] argued that to successfully argue that temporary vacancy meant that no [NAME] was required, the Applicants would need to establish that they had no intention of letting the flats. 141. The Council’s decisions concerning these two flats were made under s.113(2). We agree with [NAME] that it had no jurisdiction to do so as the s.113(2) duty to make a FMO only arises if a [NAME] is required to be licensed under Part 2 or 3 of this Act. The question of licensing for these flats arises in the context of Part 3 of the Act. S.85(2) provides that a [NAME] under Part 3 is a [NAME] authorising occupation of the [NAME] concerned under one or more tenancies or licences within s.79(2)(b). S.79(2)(b) provides that Part 3 applies to a [NAME] if the whole of it is occupied either (i) under a single tenancy or [NAME] that is not an exempt tenancy or [NAME] …. or (ii) under two or more tenancies or licences in respect of different dwellings contained in it, none of which is an exempt tenancy or [NAME] […]. 142. The flats therefore needed to be occupied under a tenancy or [NAME] in order be subject to licencing under Part 3. As they were not occupied, they were not subject to the Part 3 regime, no [NAME] was required, and the s.113(2) duty did not arise. As this is a question of jurisdiction, there is no need for the Applicants to show that they did not intend to let the flats. 143. The Council would, however, have had jurisdiction to make [NAME] for the two flats under s.113(3), as under ss.113(3)(a) it has a discretion to do so where, on expiry of an IMO, a [NAME] is not one that needs to be licensed, but the authority considers making a FMO to be necessary for the reasons specified in ss.113(3)(b). 144. Mr [NAME] addresses this at paragraph 14 of his witness statement dated 16 February 2021, where he says that it would have been right for the Council to have imposed [NAME] under s.113(3) if it was wrong to do so under s.113(2). In his oral evidence he also emphasised the importance of licensing properties to address anti-social behaviour and to ensure borough-wide licensing of properties.

30 145. This is a re-hearing of the Council’s decision. On the balance of probabilities, we accept that it would have been appropriate for the Council to make a FMO under s.113(3) 146. At paragraph 19 of the Respondent’s reply dated 23 March 2021 [148] the Council stated that [NAME] had specifically granted consent to let one of the flats, and that its case in the Accounting Appeal is that the Council should have let the other flat. It appears to us, therefore, that there was a clear understanding on the part of [NAME] that both flats should be let as soon as possible after they became vacant, in order to secure rental income. 147. As such, we agree that, having regard to the long-term position, the imposition of [NAME] would have been appropriate in order to protect, the health, safety and welfare of the persons who were to occupy the [NAME] in the future. Once occupied under a tenancy or [NAME] the flats would, of course, have been immediately subject to mandatory licencing under Part 3. 148. We therefore uphold the Council’s decisions to make [NAME] for these two flats but vary the grounds on which the Orders were made to refer to Section s.113(3) of the 2004 Act, and vary the reasons for making the Orders to those specified in the previous paragraph. 149. [NAME]’s complaint regarding the quality of the management of the two flats by the Council during the period of the [NAME] appears to us to be an issue for its Accounting Appeal. Amran Vance 16 August 2021

31 ANNEX 1 RIGHTS OF APPEAL

Appealing against the tribunal’s decisions above

1. A written application for permission must be made to the First-tier Tribunal at the Regional office which has been dealing with the case.

2. The application for permission to appeal must arrive at the Regional office within 28 days after the date this decision is sent to the parties.

3. If the application is not made within the 28-day time limit, such application must include a request for an extension of time and the reason for not complying with the 28-day time limit; the Tribunal will then look at such reason(s) and decide whether to allow the application for permission to appeal to proceed despite not being within the time limit.

4. The application for permission to appeal must state the grounds of appeal, and state the result the party making the application is seeking.

32 ANNEX 2 SCHEDULE OF PROPERTIES

33

LON/00BH/HSL/2019/0002-0014 LON/00BH/HSV/2019/0002-0024 LON/00BH/LXO/2019/0001-0007 IN THE FIRST TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) B E T W E E N: (1) [NAME] (2) [COMPANY] (3) [NAME] (4) [COMPANY] Applicants - and -

LONDON BOROUGH OF WALTHAM FOREST Respondent ___________________________ APPLICANTS’ UPDATED SCHEDULE OF PROPERTIES MAY 2021 ___________________________

34

Property Address Description of Property Appeal against [NAME] revocation or refusal? IMO made? FMO made? [NAME] applicant/ [NAME] before revocation as applicable Freeholder (December 2018/present) 1. [ADDRESS] [POSTCODE] 2 Bedroom flat, Living Room, Kitchen Refusal Yes – s101(2) [COMPANY] throughout 2. [ADDRESS] [POSTCODE] 2 Bedroom flat, Living Room, Kitchen Refusal Yes – s101(2) [COMPANY] throughout 3. [ADDRESS] [POSTCODE] 2 Bedroom flat, Living Room, Kitchen Refusal Yes – s101(2) [COMPANY] throughout 4. [ADDRESS] [POSTCODE] 3 Bedroom flat, Living Room, Kitchen Refusal Yes – s101(2) [COMPANY] throughout 5. [ADDRESS] [POSTCODE] Studio flat Refusal Yes – s101(2) [COMPANY] throughout 6. Flat A 158 [NAME] [POSTCODE] 2 Bedroom flat, Open Living Room and Kitchen Refusal Yes – s101(2) [NAME] [COMPANY]

7. Flat B 158 [NAME] [POSTCODE] Studio flat Refusal Yes – s101(2) [NAME] [COMPANY] 8. 160 [NAME] [POSTCODE] [First Floor Far Left 152-160] 5 Bedroom flat. Open Kitchen and Living Room Revocation Yes – s102(3)

No [NAME] [COMPANY] 9. 158 [NAME] [POSTCODE] 3 Bedroom flat. Open Kitchen and Living Room Revocation Yes – s102(3) No [NAME] [COMPANY] 10. 59A [ADDRESS] [POSTCODE] 1 Bedroom flat, Living room, kitchen. Revocation Yes – s102(3) No [NAME]/[COMPANY] 11. [ADDRESS] 1 Bedroom flat, Revocation Yes – s102(3) No [NAME]

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[POSTCODE] Living room, [NAME]/[COMPANY] 12. 61 [ADDRESS] [POSTCODE] [Front] 1 Bedroom flat, Living room, Kitchen Revocation Yes – s102(3) No [NAME]/[COMPANY] 13. 61A [ADDRESS] [POSTCODE] [Ground Floor Rear] 2 Bedroom flat. Open Kitchen and sitting. Revocation Yes – s102(3)

No [NAME]/[COMPANY] 14. 61B [ADDRESS] [POSTCODE] [First Front] 2 Bedroom flat, Living room, Kitchen Revocation Yes – s102(3)

No [NAME]/[COMPANY] 15. 61 [ADDRESS] [POSTCODE] [First Floor Front] 2 Bedroom flat, Living room, Kitchen Revocation Yes – s102(3) No [NAME]/[COMPANY] 16. 277-279 A [ADDRESS] [POSTCODE] Studio flat Revocation Yes – s102(3) No [NAME]/[COMPANY] 17. 277-279 B [ADDRESS] [POSTCODE] 2 Bedroom flat, Living room, Kitchen Revocation Yes – s102(3) No [NAME]/[COMPANY] 18. 277-279 C [ADDRESS] [POSTCODE] 1 Bed and Sitting room Revocation Yes – s102(3) No [NAME]/[COMPANY] 19. 277-279 D [ADDRESS] [POSTCODE] 2 Bedroom flat, Living room, Kitchen Revocation Yes – s102(3) No [NAME]/[COMPANY] 20. 415 A [ADDRESS] [POSTCODE] 1 Bedroom flat, Open Living room and Kitchen Revocation Yes – 102(3) No [NAME]/[COMPANY] 21. 415 B [ADDRESS] [POSTCODE] Studio flat Revocation Yes – 102(3) No [NAME]/[COMPANY] 22. 415 C [ADDRESS] [POSTCODE] 1 Bedroom flat, Living room, Kitchen Revocation Yes – 102(3) No [NAME]/[COMPANY]

36

23. 415 D [ADDRESS] [POSTCODE] 1 Bedroom flat, Living room, Kitchen Revocation Yes – 102(3) No [NAME]/[COMPANY] 24. 58 A [ADDRESS] [POSTCODE] [Ground Floor Flat] 3 Bedroom flat. Open Kitchen and Living Room Revocation Yes – 102(3)

No [NAME]/[COMPANY] 25. 58 B [ADDRESS] [POSTCODE] [ First Floor Flat] 3 Bedroom flat, Living room, Kitchen Revocation Yes – 102(3)

No [NAME]/[COMPANY] 26. [ADDRESS] [POSTCODE] 1 Bedroom flat, Living room, Kitchen Revocation No No [NAME]/[COMPANY] 27. [ADDRESS] [POSTCODE] 2 Bedroom flat, Living room, Kitchen Revocation No No [NAME]/[COMPANY] 28. [ADDRESS] [POSTCODE] Studio Revocation No No [NAME]/[COMPANY] 29. 44 [NAME] [POSTCODE] 3 Bedroom flat. Open Kitchen and Living Room Revocation Yes – 102(3) No [NAME]/[COMPANY]

30. Flat C 158 [NAME] [POSTCODE] 1 Bedroom, Open Kitchen and Living room. Refusal No No [NAME] [COMPANY] 31. Flat D 158 [NAME] [POSTCODE] 1 Bedroom, Open Kitchen and Living room. Refusal No No [NAME] [COMPANY] 32. Flat E 158 [NAME] [POSTCODE] 1 Bedroom, Open Kitchen and Living room. Refusal No No [NAME] [COMPANY] 33. Flat F 158 1 Bedroom, Refusal No No [NAME]

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[NAME] [POSTCODE] Open Kitchen and Living room. [NAME]/[COMPANY] 34. Flat G 158 [NAME] [POSTCODE] 1 Bedroom, Open Kitchen and Living room. Refusal No No [NAME] [COMPANY] 35. Flat H 158 [NAME] [POSTCODE] 1 Bedroom, Open Kitchen and Living room. Refusal No No [NAME] [COMPANY] 36. 44 First [NAME] [POSTCODE] 2 Bedroom flat, Living Room, Kitchen Revocation Yes – 102(3) No [NAME]/[COMPANY]