Licensing system for mobile home sites with permanent residents: guidance for local authorities

Chapter 5 - Fit and proper person test

Purpose

5.1. The purpose of the fit and proper person test is to ensure that the person holding a site licence and the person managing a site (if they are not the same person) is an appropriate person to do so. Local authorities will be aware of a number of other situations where a fit and proper person test is run on those holding a licence, such as in relation to landlord registration and Houses of Multiple Occupation.

When it is applied

5.2. The fit and proper person test is applied:

• when someone applies for a first site licence; ^[29]
• when someone applies to renew a site licence; ^[30]
• when someone applies to transfer a site licence; ^[31]
• if a local authority is considering revoking a licence. If someone is not a fit and proper person to hold a licence that can be a reason for a local authority to consider revoking a licence. ^[32]

Who does it apply to?

5.3. For a first site licence application the fit and proper person test is applied to:

• the applicant;
• if the applicant is not an individual ( e.g. a company, partnership or a charity), the test is also applied to the person who holds the most senior position within the management structure of the body applying for a licence (for example, the Chief Executive of a company);
• any person to be appointed by the applicant to manage the site; and
• if the person to be appointed to manage the site is not an individual then the test is also applied to any individual who is to be directly concerned with the management of the site on behalf of that manager.

5.4. For a licence renewal application the fit and proper person test is applied to:

• the applicant;
• if the applicant is not an individual ( e.g. a company, partnership or a charity), then the test should be applied to the person who holds the most senior position within the management structure of the body applying for a licence (for example, the Chief Executive of a company);
• any person appointed or to be appointed by the applicant to manage the site; and
• if the person appointed or to be appointed to manage the site is not an individual then the test is also applied to any individual who is, or is to be, directly concerned with the management of the site on behalf of that manager.

5.5. For a licence transfer application the fit and proper person test is applied to:

• the transferee, i.e. the person to whom the licence would be transferred if the application is successful;
• if the transferee is not an individual ( e.g. a company, partnership, or a charity), then the test is also applied to the person who holds the most senior position within the management structure of the body applying for a licence (for example, the Chief Executive of a company);
• any person to be appointed by the transferee to manage the site;
• if the person to be appointed to manage the site is not an individual then the test is also applied to any individual who is to be directly concerned with the management of the site.

5.6. The process for transmission of a licence is set out in section 10 of the 1960 Act. The local authority is not required to run the fit and proper person test before a licence is transmitted. However under section 32L of the 1960 Act ^[33] the local authority could run the fit and proper person test on the new licence holder once it was transmitted, and it could choose to do this if it had concerns that the new holder is not a fit and proper person to hold a licence.

Factors in making the decision

5.7. It is for a local authority to make the final decision on whether someone passes the fit and proper person test, and an authority should put in place a standard procedure that it will follow in making this decision. Section 32O of the 1960 Act sets out the fit and proper person test considerations ^[34] . A local authority must have regard to all the circumstances of the case. Some matters are specifically included but this does not prevent a local authority from considering other matters which it considers relevant. A local authority must consider material that shows that a person has:

• been convicted of any of the offences set out in section 32O (including offences involving fraud, violence, or drugs) although a spent conviction should not be considered ^[35] ;
• broken the law relating to caravans, housing, landlords and tenants;
• breached a written agreement made under the Mobile Homes Act 1983;
• broken the rules that apply to charges and reselling of electricity, gas, and water;
• breached site licence conditions;
• engaged in anti- social behaviour within the meaning of section 143 of the Antisocial Behaviour etc. (Scotland) Act 2004.

5.8 The local authority is also required to consider any complaint about such antisocial behaviour on the site if the local authority is aware of the complaint. The type of behaviour is set out in section 143 of the Antisocial Behaviour etc. (Scotland) Act 2004.

5.9. It is for each local authority to decide who will make the final decision on the fit and proper person test. There is no requirement in the 2014 Act that it be carried out by a committee of the Council (such as a licensing committee). So each authority can decide how it will handle and make decisions in relation to a site licence.

Criminal conviction certificate

5.10. Under Section 32P of the 1960 Act ^[36] if a local authority is applying the fit and proper person test to someone, the local authority can require that person to provide a criminal conviction certificate. A criminal conviction certificate will show any unspent criminal convictions. The information from a criminal conviction certificate will then be considered, along with all other relevant information, as part of considering whether someone is a fit and proper person to hold a site licence.

5.11. A local authority can only require a criminal conviction certificate to be provided if it has reasonable grounds to suspect that the information it has been given with the application is, or has become, inaccurate ^[37] . Requesting a criminal conviction certificate should not be part of a local authority's standard procedures when processing applications, and can only be used when a local authority has reasonable grounds for believing the information they have been provided (in relation to past convictions) is inaccurate.

False and misleading information

5.12. Under section 32R(1) of the 1960 Act it is an offence for a person to knowingly or recklessly provide information which is false or misleading in a material respect to a local authority in purported compliance with;

• a requirement under section 32B (this covers information which must be included in a first site licence application or in an application to renew a site licence and other information that the authority may reasonably require),
• a requirement under section 32E(3) (this covers the information required from the applicant and the transferee to allow the fit and proper test to be carried out in relation to an application for a transfer),
• a requirement under section 32H (this covers the information which must be provided on the transmission of a site licence)
• a requirement under section 32K (this covers the information regarding the appointment of a new site manager and change in circumstances)

5.13. As regards a first site application or an application to renew, the offence applies whether someone provides the false or misleading information as part of the information submitted with their application, or in response to a local authority's request for further information. The offence also applies when someone is required to inform the local authority of a change under section 32K of the 1960 Act.

5.14. Section 32K(1) of the 1960 Act ^[38] requires that a site licence holder must notify a local authority when:

• a new person is appointed to manage a site;
• if any information provided by the site licence holder to the local authority at the time of an application becomes inaccurate.

5.15. The notification regarding the appointment of a new site manager must be made at the latest on the day the appointment takes effect. For any other changes the notification must be made within 28 days of the information becoming inaccurate.

5.16. It is also important that site licence holders and others affected by the licensing system information the local authority of any important changes. It is therefore also a criminal offence for someone, without reasonable excuse, to fail to inform a local authority of a change of circumstances under section 32K(1) within the required timescales.

5.17 It is also an offence for someone to knowingly or recklessly provide information to a local authority which is false or misleading in a material respect as part of the process if a local authority has decided to transfer a licence without an application ^[39] .

5.18. All the offences related to providing false and misleading information in the new site licensing system carry a penalty of a maximum fine of level 3 on the standard scale (£1000 at time of publication), if a person is convicted of them.

5.19. If a local authority believes that someone has committed the offences above they should contact their local Procurator Fiscal, to make them aware and provide any evidence. The Fiscal will then decide whether or not to prosecute.