Fit and Proper Person Guidance
Before granting a licence, we must be satisfied that the proposed licence holder, proposed manager and any other person involved in the management of a House in Multiple Occupation (HMO) is a fit and proper person. This ensures those responsible for operating and/or managing an HMO are the most appropriate persons to do so.
Where we believe the licence holder and/or manager is not a fit and proper person upon application, the licence may be refused. Alternatively, where a licence is already held and the council believes the licence holder and/or manager is no longer a fit and proper person to hold the licence, the licence may be revoked.
Which properties does this affect?
All properties in North Devon requiring a mandatory HMO licence under Part 2 of the Housing Act 2004.
What is meant by “involved in the management”?
The council must consider licence holders, managers and others involved in the management of the property.
A person involved in the management, is a person who is able to comply with the licence conditions and deal with the day-to-day management of the HMO, as well as being able to deal with longer term management issues.
Where the licence holder and manager are two different people, both individuals will be subject to the fit and proper person test.
What will the council consider?
The council must consider whether the proposed management arrangements for the house are otherwise satisfactory. As such, the council must consider whether:
- Any person involved in the management of the house has a sufficient level of competence to be so involved
- Any other person involved in the management of the house (other than the manager) is a fit and proper person to be so involved
- If proposed management structures and funding arrangements are suitable
The council will determine whether a person has sufficient competence to be involved with the management of the property. This involves considering the applicant’s previous experience of managing HMOs, the complexities of the management challenges proposed at the property, and the proposed management arrangements.
Moreover, the council must have regard to (among other things) whether a person has:
- 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)
- 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
- Contravened any provision of the law relating to housing or of landlord and tenant law
- Acted otherwise than in accordance with any applicable code of practice approved under section 233
Please note, if there is evidence that a person associated, or formally associated with the person proposed to be the licence holder or manager of the property, has committed any offence etc., that evidence may be taken into account in determining the proposed licence holder’s or manager’s fitness.
A person will not be considered fit and proper if a banning order under section 16 of the Housing and Planning Act 2016 is in force against the person. The council must revoke a licence if a banning order is in place.
You will be required to complete a fit and proper person declaration within the application form.
A criminal records basic disclosure (the disclosure must have been issued within the previous 6 months) must be provided for the licence holder and all those associated with the management of the property. Basic Disclosures can be obtained from the Disclosure and Barring Service (DBS): https://www.gov.uk/request-copy-criminal-record
A basic DBS allows the council to confirm if the applicant holds a current criminal conviction, and is used as part of the fit and proper person test. Only unspent convictions will be considered.
Where a business or organisation is to be the licence holder or manager, then a DBS check will be required from the director(s) of the company that is involved in the management of the property. A nominated director will also be required to sign the fit and proper person declaration on behalf of the company, charity or trust. Any employee who is involved in the management of the HMO can be considered as an associate, but the director must be satisfied that the employees would be able to sign the declaration themselves, for example by requesting a DBS check.
Where a company or managing agent operates out of more than one office, an additional fit and proper person declaration must be signed by the manager of the local office in control of the property.
How will the council determine if the proposed licence holder/ manager is a fit and proper person?
The council will take into account relevant convictions and contraventions in relation to the list above. A conviction will not necessarily mean that the person will not be considered fit and proper. The council will consider the nature of the conviction(s), weight of the conviction(s), and nature of the contravention(s).
For example, where the person has committed multiple offences, or a series of offences over a period of time, this is likely to give greater cause for concern. Moreover, where the victim of any offence is vulnerable, a particularly serious view will be taken.
If someone is found not to be fit and proper, this will normally remain the case for a period of five years.
Can a Licence be revoked?
The council can revoke a licence under the circumstances outlined under Section 70 of the Housing Act 2004.
The licence can be revoked:
- in agreement with the licence holder
- if the licence holder has committed a serious breach, or repeated breaches, of a condition
- if the council considers the licence holder or manager no longer 'fit and proper'
- where the property ceases to be an HMO, and where the council believes that if the licence were to expire at that time, they would, for a particular reason relating to the structure of the HMO, refuse to grant a new licence to the licence holder on similar terms in respect of it.
Moreover, the council must revoke the licence if a banning order is made against the licence holder, or anyone who owns an estate or interest in the house or part of the house.