Carmine Salamone v Borough Council of King's Lynn and West Norfolk [2026] UKUT 230 (LC)

[2026] UKUT 230 (LC)Case No LC-2025-660
IN THE UPPER TRIBUNAL (LANDS CHAMBER)
AN APPEAL AGAINST A DECISION OF THE FIRST-TIER PROPERTY CHAMBER
Ref: CAM/33UE/HRA/2024/0600 and CAM/33UE/HBA/2025/0001
Venue Royal Courts of Justice, Strand, London, WC2A 2LL
Between
MR CARMINE SALAMONEAppellantBOROUGH COUNCIL OF KING’S LYNN AND WEST NORFOLKRespondent
15 June 2026
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
CATCHWORDS HOUSING – banning order – previous convictions - Rehabilitation of Offenders Act 1974 - spent convictions
103 Bagge Road,King’s Lynn,NorfolkHis Honour Judge Neil Cadwallader9 June 2026Julian Hunt (Direct Access Counsel) for appellantDouglas Scott, Counsel for respondent, instructed by Borough Council of King’s Lynn and West Norfolk© CROWN COPYRIGHT 2026The following cases were referred to in this decision:Adamson v Waveney District Council[1997] 2 All ER 898Dickinson v Yates 1986 WL 406872Hussain and others v Waltham Forest LBC[2019] UKUT 339(LC)Hussain v LB Waltham Forest[2019] UKUT 339 (LC), [2020] EWCA Civ 1539 (CA)Hussain v Newham LBC[2023] UKUT 287 (LC)Knapp v Bristol City Council[2023] UKUT 118 (LC)R v Hastings Magistrates' Court ex parte McSpirit (1998) 162 JP 44Reynolds v. Phoenix Assurance Co. Ltd. [1978] 2 LLR, 22Truter v Ministry of Justice[2024] EWHC 1668 (KB)Date 2026-06-15

Introduction

[1]Following a hearing on 11 June 2026, this is the decision of the Tribunal on the appeal of the appellant from the decision of the First-tier Tribunal (“the FTT”) dated 16 September 2025 to ban the appellant under section 16 of the Housing and Planning Act 2016 from letting housing in England, engaging in English letting agency work and engaging in English property management work and, under section 18 of the 2016 Act, and from being involved in any body corporate that carries out any of the said activities for 5 years starting on and including 1 October 2025 and ending on and including 30 September 2030.

The appeal

[2]The appellant appeals to this Tribunal pursuant to section 11 of the Tribunals, Courts and Enforcement Act 2007. Permission to appeal was granted by this Tribunal on 3 December 2025 on the following two grounds, but refused in relation to other grounds.[3]Permission to appeal was granted on the following grounds.(1) The FTT failed to identify a sufficient basis for admitting evidence of the appellant’s conviction for two offences in 2013 although they were spent convictions, and in particular, that it was not sufficient for it to hold that justice could not be done without the admission in evidence on the ground merely that they were ‘pertinent to the direct pattern of offending on which the council relies’.(2) If the respondent had not been entitled to rely on the 2013 convictions, a shorter period of the ban might have been appropriate.[4]The appeal proceeds by way of review of the decision of the FTT. The appellant’s case is that there was a gap in logic or identifiable flaw in admitting the 2013 convictions: Knapp v Bristol City Council [2023] UKUT 118 (LC) at para 39.[5]The parties were in agreement that in the interests of saving time and costs, if this Tribunal concluded that a shorter period should have been ordered, it should not remit consideration of that issue to the FTT, but should decide the matter itself.

Background

[6]The undisputed history is as follows. The appellant is a professional landlord of 15 years or more. Two prohibition orders had been made against him in 2012 in relation to 2 of the properties which he owned and managed, being 38 Highfield and 48 Westmark, King’s Lynn.[7]On 19 September 2013 he was sentenced in respect of nine housing offences, one of which was a breach of the prohibition order relating to 48 Westmark and another of a prohibition order relating to 38 Highfield.[8]In December 2023 the respondent issued a total of nine final notices imposing financial penalties in respect of the same two properties, which the appellant appealed.[9]On 11 June 2024, the appellant pleaded guilty to breach of the two prohibition orders on those properties under s. 32 Housing Act 2004.[10]On 1 November 2024 the respondent issued a notice of intent to apply for a banning order and a notice of a decision to include the appellant’s name on the database of rogue landlords and property agents. The appellant appealed on 21 November 2024.[11]By decisions dated 14 February 2025, the FTT found that the appellant had committed all the housing offences identified across the financial penalty notices, but reduced the amount of the penalties imposed to £23,750 in relation to 38 Highfield and £28,750 in relation to 48 Westmark.[12]A few days later, on 18 February 2025, the respondent applied for a banning order under s.15 (1) of the 2016 Act on the basis of the 2024 convictions for breaching the prohibition orders in respect of those two properties.[13]On 16 September 2025 the FTT imposed the 5-year banning order which is the subject matter of this appeal.

The law

[14]By s.15 Housing and Planning Act 2016 a local housing authority in England may apply for a banning order against a person who has been convicted of a banning order offence.[15]By s.14 of that Act, a banning order is an order made by the FTT banning a person from letting housing in England, engaging in English letting agency work, engaging in English property management work, or doing two or more of those things. What amounts to a banning order offence is specified in regulations, but the 2024 convictions are agreed to have been banning order offences.[16]Before applying for a banning order, the authority must give the person a notice of intended proceedings informing the person that the authority is proposing to apply for a banning order and explaining why, stating the length of each proposed ban, and inviting the person to make representations within a period specified in the notice of not less than 28 days. The authority must consider any representations made within the notice period and wait until the notice period has ended before applying for a banning order. A notice of intended proceedings may not be given until after the end of the period of 6 months beginning with the day on which the person was convicted of the offence to which the notice relates. No issue as to the procedural requirements arises in this case.[17]The FTT may make a banning order against a person who has been convicted of a banning order offence and was a residential landlord or property agent at the time the offence was committed. In deciding whether to make a banning order against a person, and in deciding what order to make, the Tribunal must consider the seriousness of the offence of which the person has been convicted, any previous convictions that the person has for a banning order offence, whether the person is or has at any time been included in the database of rogue landlords and property agents, and the likely effect of the banning order on the person and anyone else who may be affected by the order.[18]Accordingly, only one banning order offence is required in order for a banning order to be made, but the FTT must consider any previous banning order offence convictions. In the present case, two banning order offences had been committed in 2024, and a further two banning order offences had been committed in 2013 in relation to the same properties.[19]The offences which the FTT is required to consider cannot extend to convictions which are spent by virtue of the Rehabilitation of Offenders Act 1974, however. That is reflected, as the FTT explicitly recognised in the present case, by Government’s ‘Guidance for Local Housing Authorities’ titled ‘Banning Order Offences under the Housing and Planning Act 2016’ which was published in April 2018 (by the then Ministry of Housing, Communities and Local Government). At paragraph 3.4, the Guidance states:
“A spent conviction should not be taken into account when determining whether to apply for and/or make a banning order.”
[20]Convictions which result in a fine are spent after 12 months from the date of conviction under that Act. Accordingly, the 2013 offences were spent in 2014. The 2024 offences became spent in June 2025, before the FTT hearing, but after the Respondent’s application for a banning order. On the face of things, that would rule out reliance on any of them by the FTT in the present case.[21]The bar on receiving evidence about spent convictions is not absolute, however. As the decision of the FTT stated at para. 21:
“The treatment of spent convictions in the context of a housing offence was considered by the Upper Tribunal in Hussain v LB Waltham Forest [2019] UKUT 339 (LC), a decision upheld by the Court of Appeal [2020] EWCA Civ 1539. The Upper Tribunal found that on a proper construction of the 1974 Act the First-tier Tribunal may receive evidence of conduct which resulted in a conviction, even if that conviction is now spent. Section 7(3) of the 1974 Act also allows a judicial authority to admit evidence of spent convictions if it is satisfied that justice cannot be done in the case without it.”
So evidence of the conduct which resulted in a spent conviction may be received; and evidence of the fact of a conviction may be received under s. 7(3) of the 1974 Act even if it is spent, if the FTT is satisfied that justice cannot be done in the case without it.[22]Purchas LJ described s. 7 of the 1974 Act in the following terms in Dickinson v Yates (1986) WL 406872. “Its purpose would appear to be to prevent the possibility of an injustice occurring if in special circumstances the provisions of section 4(1) of the Act were rigidly applied in every case. I go back to the subsection, which I have already read, merely to emphasise these words. First of all that the judge [I use the word “judge” instead of “authority”] must be satisfied in the light of any considerations which he thinks relevant, including evidence already led or to be anticipated, that justice cannot be done. That is the reason for my venturing the opinion that this section is a safety valve to prevent an injustice occurring through the rigid application of section 4. Therefore the judge's approach must be, first of all, to see if there is a danger of an injustice being committed as a result of the rigid application of section 4 and unless he is satisfied that that is the case, in other words that justice cannot be done without avoiding the provisions of section 4 , then the provisions of section 4 ought to stand unaffected by the provisions of section 7).” Citing Reynolds v Phoenix Assurance Co. Ltd. [1978] 2 LLR, 22, Nourse LJ added:
“What section 7(3) says is that the court must be satisfied that justice cannot be done except by letting in evidence of the spent conviction. I do not think that it is open to us to hold that the subsection does not mean what it says. In my view it is clear that it has imposed a further requirement which must be satisfied in addition to that of materiality.”
[23]The power to admit spent convictions is not a discretion but a matter of judgment. In Adamson v Waveney District Council [1997] 2 All ER 898 Sedley J stated:
“It is misleading to describe the power conferred by s 7(3). Section 7(3) creates a specific and limited exception to an otherwise overriding statutory exclusion of evidence of spent convictions. It is an exception that has to be applied with regard both to the letter of s 7(3) and to the overriding purpose of the Act itself. It is a matter of judgment, not discretion.”
He also referred to the Reynolds case.[24]R v Hastings Magistrates' Court ex parte McSpirit (1998) 162 JP 44, Sedley J, referring again to the Reynolds case, stated:
“From the decision of the Court of Appeal, in the judgment of Lord Denning in the righthand column at p 24, it is clear, as indeed it is from the language of the subsection itself, that it is for the party seeking to put the spent conviction in evidence to satisfy the court concerned that justice otherwise cannot be done. That is an important starting point.”
[25]Hussain and others v Waltham Forest LBC [2019] UKUT 339 (LC), a decision of this Tribunal, conducted a useful analysis of the provision. It dealt with an application to strike out part of the respondent’s pleadings and evidence. It identified (among others) two protections which the 1974 Act provided: requiring the fact of the conviction (and the charge, prosecution and sentence) to be disregarded for all purposes in law; and making the same matters inadmissible in judicial proceedings. Neither of those protections applied to the conduct resulting in the offence, however. The power to admit evidence relating to a spent conviction could only be exercised if the judicial tribunal was satisfied that justice could not be done otherwise; and the identification of the issues to which the evidence was said to be relevant was critical for the application of s. 7(3) of the 1974 Act. The burden of satisfying the judicial tribunal that the test is satisfied lies on the person making the application. The decision was upheld on appeal.[26]In Hussain v Newham LBC [2023] UKUT 287 (LC) this Tribunal stated, on the facts of that case:
“44. In my judgment the FTT's decision to admit the evidence of spent convictions was not irrational. Certainly neither section 20 of the 2016 Act nor the MHCLG guidance renders such a decision irrational. The FTT took into consideration other relevant factors, in particular the fact that the convictions were not spent when the application was made and that they were very recently spent. The FTT will no doubt not invariably decide to admit evidence of spent convictions; it will have regard to the circumstances of the case before it, for example to whether only spent convictions are in issue or a mixture of spent and live convictions, to the time when the offences were committed, and to the time when the convictions became spent. It will have in mind the Court of Appeal's decision in Hussain v Waltham Forest that evidence of circumstances surrounding past convictions is admissible, which will be of assistance in doing justice in cases where there are both spent and live convictions. 45. Where the FTT does admit evidence of spent convictions it will then give very careful consideration (as it did in the present case) to whether a banning order should in fact be made on the basis of such convictions. The statute does not prevent a banning order being made on that basis, but it is unlikely that that will happen except in a very serious case, as the FTT held that this was.”
[27]Truter v Ministry of Justice [2024] EWHC 1668 (KB) was simply cited as reiterating the ‘safety valve’ point already made in the Dickinson case.

Proceedings before the FTT

[28]In the present case, the respondent initially sought to rely only on the 2024 convictions in its application for a banning order. They had become spent after the making of its application, and only a few months before the hearing before the FTT. It was the appellant himself who raised the 2013 convictions, in his witness statement dated 19 May 2025, para. 2, and in his statement of reasons for opposing entry on the (rogue landlords) database and banning order appeal prepared by his then solicitors. In the latter document he stated as follows. “2. The Respondent does not dispute the criminal convictions recorded against him. It is observed, however, that there is a gap of several years between the two conviction dates. It is contended that the second set of offences (breach of Prohibition Notices) were instances of the Respondent failing to comply with the strict terms of the Notices while undertaking requisite remedial works which he honestly believed fulfilled the practical requirements of the Notices. To that extent, the breaches were not the most flagrant of their type. 3. … 4. After the first conviction, it had been the Respondent’s resolve to ensure that the properties of which he was a landlord were correctly managed. He had taken what he believed were adequate steps to ensure compliance, including taking some properties out of the scope of HM regulation.”[29]The appellant was therefore seeking to deploy his self-described reaction to the 2013 offences in his own defence to the application for a banning order. The respondent had not raised the 2013 convictions.[30]The respondent did, however, reply to this attempt, in a document dated 20 May 2025 In that document it gave details of all 9 offences of which he had been convicted on 19 September 2013, stating:
“Far from being a mitigating factor, the length of time between conviction dates is an aggravating factor…to suggest that the second set of convictions were obtained because Mr Salamone merely failed to comply with the “strict terms” of the Prohibition Orders and that they are not the most flagrant of their type is flippant and concerning. Both Prohibition Orders were served owing to the imminent risk of serious harm to the health and safety of occupiers from fire. Individuals were prohibited from occupying the rooms because there was a risk of death. In respect of 38 Highfield the occupants of the prohibited room included two children. This is in combination with other fire safety failures at both properties …which the Tribunal stated …were “very serious offences”
. Similarly, the breach of the Prohibition Orders for the second time were also very serious offences.” The same document submitted that Mr Salamone’s evidence of his alleged resolve to ensure that the properties of which he was a landlord were correctly managed was unfounded.[31]At the banning order and rogue landlord database hearing, Mr Salamone was not present or represented. After referring to the proactive role which the FTT had taken in view of Mr Salamone’s absence, its decision stated (para.12):
“At the hearing, the Tribunal flagged up that the convictions relied upon by the Council had all become spent under the Rehabilitation of Offenders Act 1974 on 11 June 2025. This was 12 months after conviction as the penalty was a fine. In consequence, evidence of the convictions could only be admitted if the Tribunal made an order under section 7(3) of that Act. The Council was referred to Hussain v London Borough of Newham [2023] UKUT 287 and invited to make submissions on its application to this case.”
[32]After outlining the legal background to the making of banning orders, it returned to the topic at paras. 20 and 21 of its decision in the following terms:
“20. As evidence of convictions must be considered under section 16(4), it is important to also consider the Rehabilitation of Offenders Act 1974. Under that Act, convictions which result in a fine are “spent” after 12 months from the date of conviction. Government ‘Guidance for Local Housing Authorities’ titled ‘Banning Order Offences under the Housing and Planning Act 2016’ was published in April 2018 (by the then Ministry of Housing, Communities and Local Government). At paragraph 3.4, the Guidance states: “A spent conviction should not be taken into account when determining whether to apply for and/or make a banning order.” 21. The treatment of spent convictions in the context of a housing offence was considered by the Upper Tribunal in Hussain v LB Waltham Forest [2019] UKUT 339 (LC), a decision upheld by the Court of Appeal [2020] EWCA Civ 1539. The Upper Tribunal found that on a proper construction of the 1974 Act the First-tier Tribunal may receive evidence of conduct which resulted in a conviction, even if that conviction is now spent. Section 7(3) of the 1974 Act also allows a judicial authority to admit evidence of spent convictions if it is satisfied that justice cannot be done in the case without it. In Hussain v LB Newham [2023] UKUT 287 (LC), the Upper Tribunal upheld the First-tier Tribunal’s decision to allow such evidence in deciding whether to make a banning order in that case.”
[33]From what has been said already, it will be apparent that it directed itself entirely properly on the law.[34]The FTT identified the main issues before it as including whether the appellant had been convicted of a banning order offence; whether there were any issues in relation to the 1974 Act; and whether to make a banning order, and if so, what order to make having regard to s. 16(4) Housing and Planning Act 2016 and the 2018 Guidance.[35]The FTT referred inter alia to the submission of the respondent that there had been multiple offences; to the appellant’s deployment of his response to his 2013 convictions in his statement of reasons for opposing entry on the database; and the respondent’s response to it. It referred also to the respondent’s submissions relying on the multiple offences (including those of 2013) as showing that a banning order of less than 5 years would insufficiently deter the appellant; as part of a pattern of behaviour. The reference to a pattern of behaviour is taken from the Guidance already mentioned, which states, “The length of the ban should be proportionate and reflect both the severity of the offence and whether there is a pattern of previous offending.”[36]The FTT’s decision in relation to the admission of the spent offences was in the following terms:
“49. By the time of the hearing the banning order offences relied upon in the Notice became spent under the 1974 Act. Having considered the evidence, the Tribunal is satisfied that justice cannot be done without admitting evidence of the convictions at Kings’ Lynn Magistrates Court on 11 June 2024. The application cannot proceed without that evidence. The statutory regime is based upon a banning order offence being committed. That regime would be ineffective if the Tribunal could not have regard to convictions upon which the application is based. It is noted that the application was made within 6 months of the date of convictions. 50. The two convictions on 19 September 2013 for the breach of prohibition orders were spent long ago. They are pertinent, nevertheless, to the direct pattern of offending on which the Council relies, including the Respondent’s knowledge of occupying the prohibited rooms. Similarly, justice cannot be done without admitting evidence of these previous convictions. 51. Pursuant to section 7(3) of the 1974 Act, the Tribunal has decided for the reasons outlined above to admit the evidence of the 2024 convictions and also the 2013 convictions (insofar as they relate to the prohibition orders). The Tribunal has had regard to those convictions so far as necessary for the purposes of determining the application.”
Accordingly, the FTT admitted evidence of both the 2013 and the 2024 convictions. There is no appeal in relation to the 2024 convictions, and the decision was plainly correct.[37]The first point to be made in relation to the 2013 convictions is that although it was the appellant himself who had first sought to rely on them, he was not present at the hearing to make an application for evidence of them to be admitted, and so it is right to say that it is the respondent which must be taken to have made such an application, and the respondent on which the burden lay.[38]The second is that the reasons given by the FTT for allowing reliance on the 2013 convictions is very sparsely expressed. It directed itself to the correct test: whether justice could not be done without it. The only explicit reason which it gave was that the 2013 convictions were pertinent to the direct pattern of offending on which the respondent relied including the appellant’s knowledge of occupying the prohibited rooms. This must be taken to refer to his knowledge that such occupation involved the commission of offences, and offences of which he had already been convicted.[39]Having admitted evidence of both sets of offences, the FTT considered whether a banning order ought to be made. It considered the 2024 offences to be very serious. It noted that although the appellant was not (for procedural reasons) on the rogue landlords database he had been convicted twice in 2013 for the same offence. That is material to persistence of approach. The FTT referred to the 9 civil penalties imposed; to his having been a professional landlord for over a decade, yet having failed to take responsibility for the proper management of his properties. It referred to his counter-productive attempt at mitigation by reference to his 2013 convictions in the following terms:
“If the Respondent had resolved to ensure his properties were managed correctly after his convictions in 2013, he did not succeed. Indeed, his conduct and the numerous failings as illustrated by the financial penalties imposed for 38 Highfield and 48 Westmark demonstrate a blatant disregard of housing standards. His tenants were exposed to the most serious of safety risks. He rented out unsafe and substandard accommodations.”
It referred to evidence of the condition of the properties, the likely effect of a banning order, and the impact on existing occupiers. It went on to consider the Guidance, which stated that “We expect banning orders to be used for the most serious offenders,” and continued, “It is noted that the Respondent is a repeat offender. It is no mitigation that several years separated the convictions. If anything, the length of time that the prohibition orders were in place aggravated the offence. During the intervening years, the Respondent continued to be advised and guided by the Council on measures required at his properties within their borough. He knew the prohibition orders remained in force and has not sought to argue otherwise. Despite this, he profited by letting out prohibited rooms in two properties when he should not have done so. This continued over a prolonged period. They were long standing breaches. In doing so, he placed occupiers at very serious risk of injury or death. They were vulnerable individuals by reason of their circumstances, language barrier, or age. They included children…All things considered, the Tribunal finds that the Respondent does fall within the category of a most serious offender.”[40]There is no appeal against these findings. The sole complaint is the inclusion of evidence of the 2013 convictions. As is apparent, however, that evidence is essential to the categorisation of the appellant as a most serious offender; and that categorisation forms the basis of the making of a banning order.[41]The appellant argues that a banning order might have been made without that material: he proposes that the full details of the decision from the lengthy financial penalty notice challenge decision of the FTT dated 14 February 2025; evidence from the Council officials (with no appellant present to cross-examine); forensic details including the memorandum from the Prohibition Order convictions; photos and statements for the statement; the representations from the solicitor for the appellant; could have had that effect without including the 2013 convictions.[42]That would, however, have lacked the essential elements to a proper evaluation of his conduct and the risk he posed to the public, that the appellant had known since at least 2013 that his conduct involved the commission of offences, and that continuing the conduct involved the commissions of further offences of just the same kind as those of which he had previously been convicted; and that he had (as his Counsel accepted) continued that very conduct at the very same premises continuously over a prolonged period regardless. This Tribunal considers that, in the context of the decision whether to make a banning order at all, the FTT’s decision to admit to the 2013 convictions on the ground that justice could not otherwise be done was plainly correct.[43]Moreover, the FTT also had regard to the 2013 convictions in considering the length and extent of the banning order which it should make, matters with which, again, they would have been unable to deal justly had they been without that material. A proper appreciation of the conduct and risk posed was essential to doing justice in respect of the length of the banning order. The ‘pattern of offending’ to which the Guidance refers would have been incomplete without reference to those convictions. It is significant that the appellant himself accepts that the length of the banning order would have been for a shorter period had such evidence not been admitted.[44]This Tribunal does not accept that the FTT ought, if it admitted the 2013 convictions, to have examined the fines or sentencing details. The mere fact of the convictions was sufficient because it pointed to (at the least) a failure to learn the lesson. Fines or sentencing details would not have affected that consideration. While details of that kind may be considered, they need not always be considered. There was no need to do so in the present case.[45]It was suggested that the FTT decision sought to punish the appellant on the basis of the 2013 convictions. However, there is no indication of that within the decision. On the contrary, the 2013 convictions are relied upon for the purposes set out above, which were entirely proper.

Conclusion

[46]Accordingly, there was no gap in logic or identifiable flaw in admitting the convictions, and the appeal is dismissed. His Honour Judge Neil Cadwallader 24 June 2026. Right of appeal Any party has a right of appeal to the Court of Appeal on any point of law arising from this decision. The right of appeal may be exercised only with permission. An application for permission to appeal to the Court of Appeal must be sent or delivered to the Tribunal so that it is received within 1 month after the date on which this decision is sent to the parties (unless an application for costs is made within 14 days of the decision being sent to the parties, in which case an application for permission to appeal must be made within 1 month of the date on which the Tribunal’s decision on costs is sent to the parties). An application for permission to appeal must identify the decision of the Tribunal to which it relates, identify the alleged error or errors of law in the decision, and state the result the party making the application is seeking. If the Tribunal refuses permission to appeal a further application may then be made to the Court of Appeal for permission.