Banning Orders: An Interesting Legal Case

Landlord banning orders are quite rare with only about a dozen or so a year on average having been issued. But they are a risk that all PRS landlords should be aware of. Now a recent legal case has provided us with more insight on when banning orders can be imposed.

What exactly are banning orders and when can a landlord be banned?

Local housing authorities can use a number of enforcement measures against landlords. Banning orders, which are court orders which legally prohibit someone from being involved in letting property, are generally the ultimate measure. Banning orders can be made after offences such as unlawful eviction, harassment, failing to comply with an improvement or prohibition order, fire and gas safety offences and HMO licensing and management offences. Banning orders are covered by the Housing & Planning Act 2016 and were introduced in April 2018.

Banning orders can only be applied for once a landlord (or agent) has been found guilty of a banning order offence. Local authorities must consider a number of factors when applying for them.

A local authority must serve notice of intent to seek a banning order within six months of the original conviction. To obtain a banning order they apply to the First-tier Tribunal (Property Chamber) which has the legal powers to grant them. The law sets down that the Tribunal must not only consider the offence but also the seriousness of it when deciding whether to grant the order.

Banning orders must last for at least 12 months and there is no maximum ban period.

The Jahangir Hussain v London Borough of Newham case

This recent case will hopefully give us a better understanding of not just how and when banning orders can be used. But also about the law which underpins them and about when they may or may not be valid. It involves a landlord who, after being convicted of banning order offences and being issued with a banning order, then appealed against the order.

The original offences

On 1 October 2021 at East London Magistrates’ Court Jahangir Hussain was found guilty of seven offences under the Housing Act 2004 relating to a property in Forest Gate, London. He was fined £10,000 and ordered to pay costs and a victim surcharge.

The offences concerned HMO licensing and management issues including health and safety issues and occurred in 2018. They were offences which can be used to apply for a banning order under the Housing and Planning Act 2016.

The banning order

Subsequently Newham Council applied for a banning order against the landlord. They served notice of their intention to do so in March 2022 and applied for the order in May 2022. The First-tier Tribunal (Property Chamber) heard the application on 30 November 2022 and issued its decision on 15 February 2023. The Tribunal imposed a banning order of three years, to take effect on 16 August 2023.

An important point to note is that when the application was made the original convictions were unspent but when the Tribunal heard the application on 30 November 2022 and issued its decision on 15 February 2023 the original convictions had been spent.

The decision of the First-tier Tribunal can be found here.

The appeal

Through his legal advisers Jahangir Hussain subsequently appealed against the banning order. The appeal was heard in the Upper Tribunal (Lands Chamber) on 28 November 2023 before Upper Tribunal Judge Elizabeth Cooke.

A basis of the appeal was that the original convictions based on the events in 2018 had become spent under the Rehabilitation of Offenders Act 1974 by the time the First-tier Tribunal heard the application for a banning order. Therefore the banning order should not be valid.

Complex legal arguments including case law were considered. These included whether and how spent convictions can be taken into account when a banning order is considered.

The appeal examined the wording of the relevant legislation, and considered Parliament’s intention regarding spent convictions when the law was made. They also considered Ministry of Housing, Communities and Local Government (MHCLG) guidance on the matter, although it does not have the force of law.

The appeal also looked at the decision of the First-tier Tribunal. It looked at whether they had correctly considered the spent convictions as evidence using a legal concept surrounding ‘whether justice can be done’. It also looked at their power to disregard them and their duty to take into account the seriousness of them.

The appeal failed and the decision of the First-tier Tribunal to impose a three year banning order was upheld in a decision issued on 6 December 2023.

The decision of the Upper Tribunal can be read in full here.

What we might learn from this case

At the end of the day, this case involved some very complex legal arguments which only legal experts in this field will fully appreciate. However, it raised several issues around the use of landlord banning orders, which we will try to briefly summarise here.

Firstly it should be said that a relevant issue is the length of time taken from the original offences to the granting of the banning order. There was quite a long history of previous interactions between the local authority and the landlord in addition. Perhaps also (although it is not mentioned in the cases) Covid may have played a part.

A key issue surrounded when and how a spent conviction can be taken into account or not. Usually they cannot be, but there are some situations in which they can including relating to banning orders in some cases. The appeal found they could be in this case.

Another question regarded the seriousness of offences and how the First-tier Tribunal considers them. The appeal found this had been done correctly.

Lastly, this case also brings into focus a general problem with landlord banning orders: The law seems simple in theory – but it is not so simple in operation. That is perhaps because there have been so few banning orders issued. Even legal experts and the courts are not all that familiar with them, and there are still many definitions and legal points that are yet to be tested.

Any landlords faced with the prospect of having a banning order made against them should certainly take expert advice at an early stage.