The Fit and Proper Test

In a recent judicial review brought by private landlord, Anu Sharma, the Court of Session has provided useful clarification on the nature of the fit and proper person test to be applied by local authorities when determining whether or not to permit, refuse or remove a landlord from the register.

In 2019 Ms Sharma was removed from the landlord register following Renfrewshire Council’s decision that she was not a fit and proper person. Ms Sharma appealed to the First-tier Tribunal (Housing and Property Chamber) (FTT) and then again to the Upper Tribunal (UT). She was unsuccessful in both cases.

The appeal both to the FTT and the UT focused on what test should be applied when establishing a fit and proper person. The local authority, FTT and UT all proceeded on the basis that the test was whether or not the local authority considered the landlord to be a fit and proper person at the time of the decision (looking to the past history and existing position), whereas it was Ms Sharma’s position that a forward looking approach should have been applied. This would involve consideration of the mitigations put in place to avoid future problems and consideration of whether there would be a recurrence of the behaviour of concern.

The Court of Session determined that “decisions about registration generally look to the future”. The UT had therefore erred in law.

Jurisdiction of the First-tier Tribunal

This case also considered the jurisdiction of the FTT in connection with appealing the decision of local authorities where they have determined that a landlord is not fit and proper. Earlier decisions have proceeded on the basis that the Tribunal is assessing whether or not the decision was one which no reasonable authority would have reached (known as the Wednesbury unreasonableness test).  However, the Court of Session has confirmed that in an application of this nature the FTT should take its own view on whether the person is a fit and proper person.

This means that in an appeal application, the FTT is not restricted to the information before the council at the time the decision was made. The FTT can take their own view of the whole application.

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