Renfrewshire landlord removed from register succeeds in petition challenging lawfulness of Upper Tribunal decision to uphold removal

About this case:

• Citation:
  [2023] CSOH 40
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lady Carmichael

Petitioner Anu Sharma argued that the “fit and proper person” test had been conducted without a forward looking element, in line with other statutory regulatory schemes. The petition was opposed by Renfrewshire Council, which considered the decisions of the First-tier and Upper Tribunal to be correct.

The petition was considered by Lady Carmichael. Byrne, advocate, appeared for the petitioner and Blair, advocate, for the respondent.

Public protection

On 13 March 2019, the respondent removed the petitioner from its register of private landlords. The written decision of the respondent’s Regulatory Functions Board recorded that a submission by the petitioner that the “fit and proper person” test under the 2004 Act contained a forward looking element was considered but ultimately considered not to be the appropriate test. Additionally, the jurisdiction of the FT on appeal to it under section 92(2) was by way of rehearing and not confined to assessing whether the decision was reasonable.

The petitioner appealed, unsuccessfully, to the First-tier Tribunal under section 92(2) of the Antisocial Behaviour (etc) Scotland Act 2004. The Tribunal also did not accept that the forward looking test was the correct one to be applied in the context of the 2004 Act and was not persuaded that the Board’s decision was unreasonable. The Upper Tribunal also took the view that the test, as it was phrased in the present tense, functioned in the context of whether the “fit and proper person” criteria no longer applied.

For the petitioner it was submitted that the test ought to contain a forward looking element because the purpose of the scheme was one of public protection, not to punish bad landlords. Alcohol licensing decisions were forward looking, as the licensing objections under the relevant legislation were related to public protection. Support was also drawn from Scottish Government guidelines in which it was stated that any assessment should consider whether problems are likely to occur again.

The respondent’s position was that whether a person was a fit and proper person was a question of judgment for the local authority. The phrase related to present character, and related to the character, attitude and aptitude of the individual concerned assessed against an established regulatory history. The jurisprudence on which the petitioner relied arose from schemes which were not precisely similar to the 2004 Act, some of which allowed for a range of outcomes other than removal.

Consider of new

In her decision, Lady Carmichael began by noting: “In considering the matters relevant to his decision to refuse to allow amendment, the [UT] judge took into account a number of matters that are unexceptionable. He was entitled to take into account the timing of the proposed amendment and the explanation or lack of it for a change of position, and as to the timing of the change or position. He took into account, but did not attribute weight to, the joint position of parties that the issue was an important one. He gave reasons for doing so.”

However, she continued: “What is unclear from the decision is what the judge made of the competency of the application to amend. At paragraph 19 of his decision he indicated that he was proceeding on the assumption, without deciding, that there was a power to allow applications to be made to amend the grounds of appeal. At paragraph 25, however, he says that in making his decision he has brought his doubts about the competence of the application into the balance in determining how to proceed. This apparent contradiction makes it impossible to be sure that he did not take those doubts into account, and vitiates his decision.”

Addressing the jurisdiction of the FT, Lady Carmichael said: “If the role of the FT were only to review the decision of the local authority, it would be determining whether the local authority was entitled to reach the conclusion that the person was not, or was no longer, a fit and proper person. The appeal would be determined without anyone having positively determined that the individual was a fit and proper person, at a point when the local authority had not been satisfied that he was such a person.”

She concluded: “It would be contrary to the purpose of part 8 of the 2004 Act were the FT to be able to require a local authority to enter a person on the register where neither the local authority nor the FT had been satisfied that the person was a fit and proper person. Unless the FT is empowered to make a decision in substitution for that of the local authority, rather than just setting it aside, it cannot make a determination that a person is a fit and proper person. I therefore conclude that the jurisdiction of the FT in an application under section 92 is to consider the question of whether the person is a fit and proper person of new.”

The case was then put out by order for parties to address the judge on what orders, if any, may be appropriate in light of these conclusions.