Upper Tribunal Affirms Decision Allowing Consideration of Spent Convictions in Housing Banning Orders

Citation: [2023] UKUT 287 (LC)
Judgment on

Introduction

In the case of Jahangir Hussain v London Borough of Newham [2023] UKUT 287 (LC), the Upper Tribunal (Lands Chamber) was tasked with determining whether a banning order under the Housing and Planning Act 2016 could be made on the basis of convictions that have become spent according to the Rehabilitation of Offenders Act 1974. This matter raised significant questions pertaining to the construction of housing legislation, the admissibility of spent convictions, and the discretion of the tribunal.

Key Facts

The appellant, Jahangir Hussain, was convicted of offences under the Housing Act 2004, which were deemed “banning order offences” under the Housing and Planning Act 2016. The convictions, related to property management breaches, became spent by the time the First-tier Tribunal (FTT) heard the application for a banning order. The local housing authority, London Borough of Newham, applied for the banning order despite the spent status of convictions. The FTT made a preliminary decision to admit the evidence of spent convictions and subsequently imposed a three-year banning order, reasoning that justice could not be done without such admission. This decision was made in light of considerations including the seriousness of the appellant’s offences and potential effects of the banning order.

The key legal principles discussed in the case revolve around the intersection of the Housing and Planning Act 2016 and the Rehabilitation of Offenders Act 1974. The tribunal focused on the interpretation of sections 15 and 16 of the Housing and Planning Act, which do not explicitly state whether spent convictions can be the basis of a banning order. Further insight was drawn from section 7(3) of the Rehabilitation of Offenders Act, which permits the admission of evidence of spent convictions if justice cannot be done otherwise. The FTT’s decision referenced Hussain v Waltham Forest LBC [2020] EWCA Civ 1539, underscoring the admissibility of surrounding circumstances of a spent conviction.

The Ministry of Housing, Communities and Local Government’s non-statutory guidance suggests that spent convictions should not be taken into account when determining a banning order. Despite this guidance, the FTT considered that for justice to be effectively served, it was critical to evaluate the appellant’s spent convictions.

Outcomes

The Upper Tribunal upheld the FTT’s decision, rejecting the appellant’s arguments on two grounds:

  1. The statutory interpretation of sections 15 and 16 does not preclude spent convictions from being the basis of banning orders, so long as the evidence of such convictions is admitted lawfully.
  2. The FTT did not act irrationally in admitting evidence of spent convictions under section 7(3) of the 1974 Act, deeming that justice could only be done by considering these convictions.

The Tribunal clarified that the admissibility of evidence under section 7(3) was not arbitrary but necessitated thorough assessment. It highlighted that such decisions are case-specific and that the tribunal must carefully deliberate whether to impose a banning order based on spent convictions.

Conclusion

The Upper Tribunal, in Jahangir Hussain v London Borough of Newham, has reaffirmed the interpretative stance that the text of the Housing and Planning Act 2016 allows for spent convictions to be considered in making a banning order, provided that the tribunal exercises its discretion lawfully under section 7(3) of the Rehabilitation of Offenders Act 1974. The decision emphasizes the FTT’s ability to consider all relevant factors, including the recency of the spent status of convictions. This outcome is notable for landlords, property agents, and legal professionals who must recognize that even spent convictions can impact their ability to operate in the housing market if the admission of such evidence is deemed necessary to achieve justice.