Cornerstone on Social Housing Fraud

Only or Principal Home…again

INTRODUCTION

In my last court appearance before Christmas I was instructed to act on behalf of a housing association in a 2-day possession trial, primarily reliant upon an allegation that the (sole) tenant no longer lived at the demised premises as their only or principal home at the expiry of a notice to quit. In particular they had spent much of the last 2 to 3 years out of the country.

Judgment was reserved and handed down a few days after the conclusion of the parties’ cases and submissions, the Judge ultimately finding for the claimant association.

PREVIOUS BLOGS

When dealing with ‘misuse’ of social housing, one of the most difficult areas to explain, and demonstrate, can be the concept of only or principal home. I have written on this topic previously:

“Only or principal home” and an outright order for possession – 1 May 2018

Briefing paper for the Tenancy Fraud Forum Midlands Conference – 22 November 2019

Only or Principal Home…as a tenant? – 30 December 2024

The last blog was inspired by the Court of Appeal decision in The London Borough of Hackney v Yisroel Weintraub [2024] EWCA Civ 1561; [2025] 1 W.L.R. 1766. In the first appeal before Zaccaroli J, as he then was, reported in [2024] EWHC 845 (Ch) at [38], it was said:

“The facts of this case are unusual: there was a highly specific reason for ceasing to occupy the Property as a principal home – the fear of sleeping in the Property alone – which can readily be overcome by the alterations which Rabbi Weintraub plans to carry out on his return. The reason for ceasing to use the Property overnight, and the proposed solution, reinforce that there is a real and genuine intention by Rabbi Weintraub to restart occupying the Property as his principal home.”

I would conclude this section by emphasising that mere use of demised premises is not necessarily sufficient to defeat an only or principal home argument (i.e. complete abandonment is not a requirement). In Havering LBC v Dove [2017] EWCA Civ 156; [2017] P.T.S.R. 1233 Lewison LJ said:

“22. In my judgement these principles are engaged not only where the tenant is absent from the property in the sense of not being physically present at all. They are also engaged where the tenant ceases to occupy the property as his or her only or main home even if he or she continues to occupy it as a home; as, for example, where what had once been the tenant’s only home becomes no more than a weekend or holiday home. Moreover the question of an intention to return (which often features in these cases) is in reality an intention to revert to a previous pattern of existence. This was the case for instance in Crawley BC v Sawyer (1987) 20 H.L.R. 98(the tenant had occupied the dwelling as his only home for three years and went to live with his girlfriend temporarily but intending to return); Camden LBC v Goldenberg (1996) 28 H.L.R. 727(D lived with his grandmother for four years and after an absence abroad returned to live with her. He stayed in a friends’ house while they were on holiday, intending to find accommodation of his own, but when that failed he moved back into his grandmother’s flat).”

EVIDENTIAL ISSUES

The above section and my previous blogs on this topic explain sufficiently, I hope, the law and jurisprudence behind this legal concept. What I want to address here in relatively short form is some key practice factors and deficiencies in the defendant’s case which enabled the landlord to succeed in the recent trial I mentioned in the introduction. These can be summarised as follows:

A failure to address the complete body of evidence.
So much of the landlord’s evidence was not responded to in the defence or the witness statements filed on behalf of the defendant. Of course, a claimant faced with such omissions may choose to be pro-active pre-trial and make a Part 18 Request for Further Information and/or seek the strike out of the defence for not complying with the content requirements to be found in CPR r. 16.5.
Here it was rather used to demonstrate the inherent implausibility in the defendant’s case and failure to overcome the reversed (LB Islington v (1) Boyle (2) Collier [2011] EWCA Civ 1450; [2012] P.T.S.R. 1093) ‘burden of proof’.
Gaps in evidence. Following on from that last comment, if the demised premises remained the tenant’s principal home, they had not sub-let or parted with possession of it and despite a period of extended absence they intended to return to live there then why could they not produce positive evidence of this?
It especially does not help if 3rd party evidence is produced in the form of a witness statement but that individual does not attend and no good reason is provided for their absence. Not only can it lead the court giving little or no weight to such evidence (see s. 4 of the Civil Evidence Act 1995) but the non-attendance may add to any scepticism and/or concern a court may already have about the bona fide nature of the defendant’s case.
Evidence of 3rd party deception.
For example, somebody had attended an earlier hearing and originally claimed to be the defendant. Similarly a 3rd party had attended the landlord’s offices and rang them, claiming to be the defendant. In oral evidence the defendant denied any knowledge of these deceptions but as already noted, failed to produce the individual who did act in this manner.
Unexplained communications.
For example, when contractors rang the tenant’s mobile number a 3rd party answered and said that tenants were about to move into the premises. On another occasion the tenant’s daughter spoke to the landlord’s solicitors and said she did not know where her father was and they did not get on. This was in direct opposition to their case that she had come to the UK to look after him.
Multiple inconsistencies. Further to the above, 2 other individuals were connected to the premises when a credit reference search was undertaken on behalf of the landlord. In many cases on this and related topics there is no one compelling piece of evidence. However, the build-up of inconsistencies, omissions and lack of positive evidence on the defendant’s part and in their case can be sufficient to ‘tip the balance’.

The issue of inconsistencies must be seen against the backdrop of the court’s well established approach, recognising that they may, to an extent at least, be explainable by the passage of time, different perspectives, or minor errors. That said, fundamental inconsistencies may affect the weight given to a witness’s evidence: Takhar v Gracefield Developments Ltd [2024] EWHC 1714 (Ch); Gestmin v Credit Suisse [2013] EWHC 3560 at [16]-[22].

As HHJ Tindal, sitting as a Deputy Judge of the High Court, summarised and approved in Takhar at [80]:

“A ‘holistic approach’ also benefits from being open to fact-finding insights from other jurisdictions, including Family and Crime. That was the approach Mr Dias KC adopted in the clinical negligence case of Powell at [25] with his ‘13 axioms of fact-finding’ (which I repeat with some citations and quotations excised):

“(1) The burden of proof rests exclusively on the person making the claim (she or he who asserts must prove), who must prove the claim to the conventional civil standard of a balance of probabilities;

(2) Findings of fact must be based on evidence, including inferences that can properly (fairly and safely) be drawn from the evidence, but not mere speculation (Re A (A child) (Fact Finding Hearing: Speculation) [2011] EWCA Civ 12, per Munby LJ);

(3) The court must survey the “wide canvas” of the evidence (Re U, Re B (Serious injuries: Standard of Proof) [2004] EWCA Civ 567 at [26] per Dame Elizabeth Butler-Sloss P (as then was)); the factual determination “must be based on all available materials” (A County Council v A Mother and others [2005] EWHC Fam. 31 at [44], per Ryder J (as then was));

(4) Evidence must not be evaluated “in separate compartments” (Re T [2004] EWCA Civ 558 at [33], per Dame Elizabeth Butler-Sloss P), but must “consider each piece of evidence in the context of all them other evidence” (Devon County Council v EB & Ors. [2013] EWHC Fam. 968 at [57], per Baker J (as then was)); such “context” includes an assessment of (a) inherent coherence, (b) internal consistency, (c) historical consistency, (d) external consistency/validity – testing it against “known and probable facts” (Natwest), since it is prudent “to test [witnesses’] veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case” (The Ocean Frost)…

(5) The process must be iterative, considering all the evidence recursively before reaching any final conclusion, but the court must start somewhere (Re A (A Child) [2022] EWCA Civ 1652 at [34], per Peter Jackson LJ…

(6) The court must decide whether the fact to be proved happened or not. Fence-sitting is not permitted (Re B… at [32], per Lady Hale);

(7) The law invokes a binary system of truth (Re B at [2], Lord Hoffmann):

(8) There are important and recognised limits on the reliability of human memory….(Gestmin…); and the court should be wary of “story-creep”, as memory fades and accounts are repeated over steadily elapsing time (Lancashire County Council v C, M and F (Children – Fact-finding) [2014] EWFC 3 at [9], per Peter Jackson J);

(9) The court “takes account of any inherent probability or improbability of an event having occurred as part of the natural process of reasoning” (Re BR [2015] EWFC 41 at [7], per Peter Jackson J); “Common sense, not law, requires… regard should be had, to whatever extent appropriate, to inherent probabilities” (In re B at [15], per Lord Hoffmann);

(10) Contemporary documents are “always of the utmost importance” (Onassis…per Lord Pearce), but in their absence, greater weight will be placed on inherent probability or improbability of witness’s accounts… (Natwest at [50])…

(11) The judge can use findings or provisional findings affecting the credibility of a witness on one issue in respect of another (Arkhangelsky);

(12) However, the court must be vigilant to avoid the fallacy that adverse credibility conclusions/findings on one issue are determinative of another and/or render the witness’s evidence worthless. They are simply relevant: “If a court concludes that a witness has lied about a matter, it does not follow that he has lied about everything.” (R v Lucas [1981] QB 720, per Lord Lane CJ); Similarly, Charles J: “a conclusion that a person is lying or telling the truth about point A does not mean that he is lying or telling the truth about point B…” (A Local Authority v K, D and L [2005] EWHC 144 at [28]). What is necessary is (a) a self-direction about possible “innocent” reasons/explanations for the lies (if that they be); and (b) a recognition that a witness may lie about some things and yet be truthful “on the essentials … the underlying realities” (Re A (No.2) [2011] EWCA Civ 12 at [104].

(13) Decisions should not be based ‘solely’ on demeanour (Re M [2013] EWCA Civ 1147 at [12], per Macur LJ); but demeanour, fairly assessed in context, retains a place in the overall evaluation of credibility: see Re B-M, at [23] and [25]: “a witness’s demeanour may offer important information to the court about what sort of a person the witness truly is, and consequently whether an account of past events or future intentions is likely to be reliable”; so long as “due allowance [is] made for the pressures that may arise from the process of giving evidence”. But ultimately, demeanour alone is rarely likely to be decisive. Atkin LJ said it almost 100 years ago (‘The Palitana’) (1924) 20 Ll. L. Rep. 140, 152): “… an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.”

CONCLUSION

My recent trial experience has confirmed yet again the importance of case preparation starting well before the issue of proceedings. Thorough, fair and relevant investigations – including the use of an external agency – and careful preparation of statements of case, disclosure and witness statement evidence (including the question of who to rely upon) was unsurprisingly an important factor, and particular credit must therefore go to the officers of the social landlord and Kelly Lloyd of Devonshires Solicitors LLP.

Right to buy fraud – an overview of the criminal dimension

Local authorities have long been able to sell to their tenants the council home provided (since 1936). For example, there were nearly 46,000 such sales in 1972. However the practice really took off and the ‘right to buy’ acquired its name following the introduction of the Housing Act 1980 in the first Thatcher government.

The significant discounts on offer made it a popular option for many tenants although there was always a concern about the depletion of stock and potential for family exploitation of elderly tenants. Scotland ended this right with effect from 31 July 2016 and Wales followed suit on 26 January 2019. In England, last year saw the Housing (Right to Buy) (Limits on Discount) (England) Order 2024/1073 which reduced the discounts significantly to 2012 levels.

The high levels of discount formerly available also meant that there was a real financial incentive to apply and this almost inevitably meant that whilst the vast majority of applicants are honest there would be some who even where there was no right they would still “chance their arm”. As the National Housing Federation said in March 2016:

“Since the discounts for the statutory right to buy (RTB) scheme were increased in 2012 there has been a reported increase in suspected RTB fraud. This has largely been driven by the potential for profit created through a combination of large discounts and increasing property values, particularly in high value areas.”

I well remember a case in my early years of practice where the tenant had ‘jumped the gun’ and moved out of his council property to live with his partner months before his right to buy application would have concluded. Instead of enjoying the right he become the subject to an outright possession order reliant on a notice to quit.

It can, of course, be a criminal offence if the right to buy is pursued based on false information. To give one example, the London Borough of Enfield warns:

“All applications will be checked by our Counter Fraud Investigation Team. If you apply and give false or misleading information, or withhold information, you may be prosecuted under the Fraud Act 2006, with a maximum sentence of 10 years or an unlimited fine or both.”

To put that in its legislative context, the Fraud Act 2006 provides:

1 Fraud

(1)A person is guilty of fraud if he is in breach of any of the sections listed in subsection (2) (which provide for different ways of committing the offence).

(2)The sections are—

(a)section 2 (fraud by false representation),

(b)section 3 (fraud by failing to disclose information), and

(c)section 4 (fraud by abuse of position).

(3)A person who is guilty of fraud is liable—

(a)on summary conviction, to imprisonment for a term not exceeding [F1the general limit in a magistrates’ court]or to a fine not exceeding the statutory maximum (or to both);

(b)on conviction on indictment, to imprisonment for a term not exceeding 10 years or to a fine (or to both).

(4)Subsection (3)(a) applies in relation to Northern Ireland as if the reference to 12 months were a reference to 6 months.

2 Fraud by false representation

(1)A person is in breach of this section if he—

(a)dishonestly makes a false representation, and

(b)intends, by making the representation—

(i)to make a gain for himself or another, or

(ii)to cause loss to another or to expose another to a risk of loss.

(2)A representation is false if—

(a)it is untrue or misleading, and

(b)the person making it knows that it is, or might be, untrue or misleading.

(3)“Representation” means any representation as to fact or law, including a representation as to the state of mind of—

(a)the person making the representation, or

(b)any other person.

(4)A representation may be express or implied.

(5)For the purposes of this section a representation may be regarded as made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention).

3 Fraud by failing to disclose information

A person is in breach of this section if he—

(a)dishonestly fails to disclose to another person information which he is under a legal duty to disclose, and

(b)intends, by failing to disclose the information—

(i)to make a gain for himself or another, or

(ii)to cause loss to another or to expose another to a risk of loss.

In March of this year the London Borough of Barking & Dagenham reported on a successful prosecution they had brought against one of their tenants who had misled them when seeking to exercise the right to buy his 3-bedroom council property.

This followed on from the news of the former London Borough of Islington tenant who was ordered to pay back over £260,000 Proceeds of Crime Act compensation and costs after he was found to have withheld the information that he had bought a 3-bedroom home before being allocated council accommodation. This fraud was discovered when he applied to exercise the right to buy.

The best illustration of the pitfalls of false right to buy applications is seen by consideration of an interesting Court of Appeal case heard in 2023 – R v Monica Williams [2023] EWCA Crim 1236:

2006 local authority tenancy
2010, 2016 right to buy applications
Local authority investigated due to suspicions
In February and April of 2019, a tenancy audit officer made 6 unannounced visits to property, finding nobody there.
It was ascertained that Land Registry records showed that from 25 November 1988 the appellant and someone else were the registered owners of a property in Ilford. From 23 September 1998 the appellant’s Student and Graduate Services account was registered to that address and on 7 February 2002 a mortgage application form was submitted to the Abbey National in respect of that property in the names of the same other person and the appellant purporting to bear their signatures. At the time the property was mortgaged to Santander PLC.
Land Registry records further showed that from 25 April 2003 the appellant and other person were the registered owners of another property also in Ilford. On 26 February 2006 a personal bank account in the appellant’s name was registered at this address. In February 2018 a flexible savings account was registered at number 76 South Park Road in the names of the appellant and the other person, and children’s savings accounts were also registered at this address in the names of the appellant and each of her children. At the time of trial this property had a charge in favour of The Mortgages Business PLC.
On 16 May 2019 the tenancy audit officer went to this other property where a woman answered the door but declined to produce ID and shut the door on him.
He later went back to the Council property. On a couple of visits he found nobody at home. When he attended on 3 June 2019 by appointment, he was met by a woman wearing a blonde wig whom he said was the same woman who had answered the door in the owner occupied property 18 days earlier. He said he had seen that same woman leaving the Council property that evening without the wig. The prosecution case was that this woman was the appellant.

The tenant claimed in interview that the other properties had been put into her name without her knowledge, and that a friend completed her right to buy application for her. She was acquitted on one count:

“Count 1 alleged that, dishonestly and intending to make a gain for herself or another the appellant failed between 15 January 2007 and 16 May 2019 to disclose to the Council information which she had a legal duty to disclose namely that she had stopped using 44 Etta Street as her only or principal home.”

but convicted on the other:

“Count 2 alleged that on or about 3 January 2016 the appellant committed fraud in that, dishonestly and intending thereby to make a gain for herself or another, she made a representation within her Right to Buy application which she knew to be untrue or misleading, namely that she was occupying Etta Street as her only or main home.”

These may seem contradictory positions, as the appellant maintained, but the Court of Appeal disagreed and explained:

“(1) The one critical factual issue in the case, as everyone agreed, was whether the appellant was living at Etta Street as her main residence throughout the period covered by count 1. If the jury found that this was or might be the case the appellant was entitled to be acquitted on both counts. She could not be found guilty of any failure to disclose, nor could the representations she made in the Right to Buy form be found to be false. The appellant could not be convicted on either count unless the jury was sure that she was not living at Etta Street as her main residence at the time stated in that count.

(2) If, on the other hand, the jury were sure that Etta Street was not the appellant’s main residence throughout the period specified in count 1 a finding of non-disclosure for the purposes of that count was logically inevitable, and if the jury were sure she was not living there on 3 January 2016 a finding of misrepresentation for the purposes of count 2 was equally inevitable.

(3) But that was not the whole picture. Even on these assumptions count 2 would still raise the further issues of whether any positive misrepresentation was not just false but also dishonest and made for to gain. Count 1 would raise the further issues of whether any passive failure to disclose the true position amounted to a breach of a legal duty and, if it did, whether that was dishonest conduct engaged in with a view to gain.

(4) On some of those matters the appellant had made concessions in the course of her evidence. But these were not binding on the jury, nor did the judge direct them to that effect. He did direct them to focus on what we have described as the critical factual issue. But he did not direct them that if they were persuaded of the prosecution’s case on that issue they must convict on each count. What he said about that scenario was that in the light of the concessions made by the appellant it “would be open” to the jury to convict.

(5) There was evidence on the basis of which a reasonable jury could be sure that Etta Street was not the appellant’s main residence on 3 January 2016. As a matter of logic, a jury sure of that would have to conclude that the representation made in the appellant’s Right to Buy form was false. It will be irrational to do otherwise. Although it did not follow necessarily, that jury might well conclude that the representation was not only false but also dishonest, and made with a view to gain, so that count 2 was made out.

(6) That analysis would explain the verdict on count 2.

(7) The same jury might, however, have been unpersuaded that the appellant had a positive legal duty to disclose to the Council that she was non-resident on 3 January 2016, or indeed any other date within the period covered by count 1. This was a question of law which seems never to have received any detailed attention from Counsel or the judge in court during the trial. We have explored the issue in the course of argument today. It has emerged from scrutiny of the trial bundle by counsel for the appellant that there was a term expressly imposing on her an obligation to disclose within 28 days any long-term change in the persons occupying the property. But we have not been shown that this was drawn to the jury’s attention, other than being placed in the jury bundle. It seems that all the jury was ever told about the issue was that the prosecution’s case was that the duty arose because residing somewhere else would have affected the appellant’s right to remain as a tenant of Etta Street, and that the defendant did not dispute this. The judge did not direct the jury that they must accept the prosecution’s point of law.

(8) A rational jury might, further or alternatively, have been unsure that the appellant was aware that she had any legal duty to disclose the fact of her non-residence at Etta Street. The jury might consequently or for some other reason, have been uncertain that the appellant’s failure to make such a disclosure was dishonest. We have not been shown the detail of the concessions she made on the issue of dishonesty. But it is clear that her concessions on that issue must necessarily have been hypothetical and so far as the information before us goes, they appear to have gone only to count 2. The issue of dishonesty on that count was not the same as the issue on count 1.

(9) These considerations would explain the verdict on count 1.”

Only or Principal Home…as a tenant?

INTRODUCTION
Over 5 years ago I wrote on this blog about the important housing concept of ‘only or principal home’. It included reference to the question of future potential changes of behaviour, and by way of example therein 2 cases:

(1) LB Havering v Dove [2017] P.T.S.R. 1233 – 2 sisters were joint tenants. They however ultimately and effectively lived at their partners’ accommodation, and the appeal was against the making of a possession order (primarily in reliance on a notice to quit). The Court of Appeal rejected their appeal, Lewison L.J. concluding in the lead judgment at [35]:

“In my judgment on the facts that he found the judge was entitled to conclude that neither Ms Elaine Dove nor Ms Evelyn Dove was occupying the flat as her principal home when the notice to quit was served and took effect. Neither, therefore, was a secure tenant. It follows that Havering was entitled to possession without the need to prove a statutory ground. I would dismiss the appeal.”

(2) LB Camden v Goldenberg (1996) 28 H.L.R. 727 – this earlier authority was cited in Dove. It’s an assignment case where this action was refused because the proposed assignee was looking after a house belonging to friends rather than staying at the demised premises. The tenant won the appeal – on the facts the proposed assignee had retained the flat as their postal address and any prospect of their finding anywhere else to live following the period of house-sitting had not displaced their intention to return.

RECENT CASE
This issue came again before the Court of Appeal in December 2024 in LB Hackney v Weintraub [2024] EWCA Civ 1561, citing Dove amongst other authorities. It consisted of relatively unique factual circumstances, looking at 2 “homes” (the demised premises and his daughter’s property) and Lady Justin Asplin explained at [5]:

“The central question before HHJ Saunders and on appeal was whether Rabbi Weintraub was occupying his council flat at 45a Forburg Road, London N16 6HP
(the “Property”) as his “only or principal home” at the time of his first and second applications to exercise his right to buy the Property. HHJ Saunders held that he was not and that the Appellant, Hackney London Borough Council (the “Council”) was entitled to possession of the Property. On appeal, Zacaroli J held that the “tenant condition” was met and accordingly, that Rabbi Weintraub was entitled to exercise the right to buy a lease of the Property.”

Lord Justice Males set out the primary trial findings of fact at [71] (as does Asplin L.J. at [6]):

i. The claimant had lived in the property for many years.

ii. After his wife died, he continued to live there on his own for nine years, arranging for people to stay overnight with him because he was afraid to sleep there by himself.

iii. When it became problematical to get people to stay overnight, he formulated a plan to buy the property with the genuine intention of converting the basement into a separate flat where someone else, such as a grandchild, could live, so that he could continue to sleep in the property.

iv. In the meanwhile, he began to spend nights elsewhere, usually at his daughter’s house nearby; however, when his daughter had other guests to stay, as she often did, he arranged to stay with friends.

v. The regular pattern of the claimant’s days was that he would attend the synagogue in the morning, would go on most days to the property in order to study his scripture, would attend the synagogue in the evening, and would sleep at his daughter’s house or, if necessary, elsewhere.

vi. He would eat his meals at his daughter’s house, except for a packed lunch which she would prepare for him to eat at the property.

vii. He would bathe at the synagogue where there were facilities available.

The right to buy application was therefore a deliberate and genuine route to Rabbi Weintraub which would allow him to “convert the basement into a separate flat in which a grandchild or someone else could live so that he would not be alone at night and would be able to return to the Property”.

The key issue was whether the required objective intention to return to the subject premises had to be as a tenant or whether, as with Rabbi Weintraub’s plan, it could be as the (right to buy) owner. In delivering the primary judgment Asplin L.J. rejected the local authority’s argument for the former. Lord Justice Males further doubted whether the daughter’s house was ever his home having said at [72]:

“Although many of the cases cited to us were concerned with the question whether a tenant who is temporarily absent from the property nevertheless continues to occupy it as his only or principal home, this is not such a case. The claimant was not absent from the property. On the contrary, he went there every day or almost every day, precisely because it was his home. The trial judge described this as ‘akin to a library environment’, but in my judgment the judge’s findings of primary fact do not justify this view. There is a qualitative difference between spending your days in a home where you have lived for many years, which can be regarded as your own personal space, and visiting a library.”

In dismissing the local authority’s appeal Asplin L.J. simply explained at [48]:

“It seems to me that there is nothing in the wording of section 81, or its heading when read in context and adopting a purposive approach, which requires the tenant to intend to return to the property as tenant.”

Whilst Males L.J. confirmed at [68] that the court was merely adopting established principle:

“…a tenant who is temporarily absent from the property but who has a genuine and realistic intention to return within a reasonable time may continue to occupy the property and need not show that when he does return it will be in his capacity as a tenant”.

Whilst this case does not make any change to the established only or principal home jurisprudence it does raise interesting questions of statutory construction and housing policy.

Looking at the former, only or principal home is a statutory construct. If a secure tenant does not live at the demised premises as their only or principal home, or at least one of joint tenants does, then they lose security of tenure (see sections 79(1) and 81, Housing Act 1985). For periodic tenancies that would allow the authority landlord to serve a notice to quit to bring to an end, at its expiry, the remaining contractual tenancy.

I don’t know if there’ll be any further attempt to appeal this matter but there is an interesting and somewhat uneasy difficulty for me in equating the fact that demised premises cannot be used as a principal home with the answer that the tenant will return there but not whilst the tenancy – to which the concept applies – persists.

I acknowledge the seemingly comparable scenario of a tenant being absent, say for work purposes, for a long period – as raised in the court below and at [54] of the judgment – more uncontroversially allowing for a retention of security of tenure but one difference there is that the premises’ unsuitability relates to the circumstances of employment not the fundamental lay-out of the “former” home itself.

An interesting case nonetheless!

Day 6 – International Fraud Awareness Week

Almost the end of the week, and I am in court on a sub-letting possession matter. I have been very impressed by so many organisations’ approach to the International Fraud Awareness Week, and if I can be especially biased I have loved the Tenancy Fraud Forum’s top tips series.

But fraud is an issue throughout the year and not just for a week, and I hope in my field of housing fraud it continues to be dealt with enthusiastically and persistently. Attending events such as the Oxford Annual Fraud Conference demonstrates what talent there is, especially on the investigation side.

I am going to leave this blog with reference to a recent successful prosecution carried out by the London Borough of Islington. A former tenant was ordered to back £242,705 plus £18,000 in costs at Snaresbrook Crown Court on Wednesday 11 September 2024. Why?

He became a tenant of the Council in 2011.
He failed to advise however that his circumstances had changed since applying for social housing.
He had bought a 3-bedroom home in Haringey.
Rather than live in that property with his family, he sub-let it.
Not only was he receiving up to £2000 in rent but he was also claiming full housing benefit on his Council property.
His fraud was discovered when he applied for the right to buy.
He pleaded guilty to 4 counts of fraud in December 2022.
He received a suspended sentence of two years, plus 30 Rehabilitative Activity Days days and 250 hours of unpaid work.
The Council pursued Proceeds of Crime Act proceedings.

Islington have been especially proactive and successful in detecting housing fraud and between April and September 2024 recovered 41 properties.

#fraudweek

Day 5 – International Fraud Awareness Week

For day 5 of the International Fraud Awareness Week I thought I would highlight 5 suggestions for improving the prospects of a successful fraud possession action. There will be many others of course but this is a start!

Use court processes effectively – for example, the Part 18 Request for Further Information. Defences are frequently (and perhaps understandably) brief and leaving many important questions unanswered. Raise these unanswered questions in a Part 18 letter – if still not answered or answered sufficiently an unless order can be applied potentially leading to a strike out of the defence/debarring of the defendant from defending the claim. I wrote about this in March 2022.
Prepare a detailed pre-action protocol letter – remember, this is not only a procedural requirement but also gives the landlord a final chance to properly understand the prospective defendant’s response to the allegations made against them. If it is not responded to, or done so only in a very cursory manner, then there is plenty of opportunity to raise a poor and insufficient response in submissions and by way of cross examination.
Understand and ‘use’ hearsay – there is at times very little direct evidence available to the claimant and even where there potentially is, such as where a client officer visits a property and finds sub-tenants there, those sub-tenants frequently decline to attend court such that their statement or evidence of their presence and status is entirely hearsay. Direct evidence is inherently best but litigants should not be put off by its absence, remembering in particular the question of weight addressed in section 4 of the Civil Evidence Act 1995 and the inherent hearsay nature of much crucial evidence such as credit reference records and bank statements.
Identify inconsistencies in the defendant’s case – not every case has a ‘knock-out blow’ and some require a proper weighing up of the evidence. To that end it is often helpful, if only to seek to undermine the defendant’s overall credibility, to identify the number of inconsistencies in their account. It may be in respect of comparatively insignificant or non-determinative matters but it can assist to demonstrate the likely greater force of the claimant’s case. I recall a succession case where the Council’s position was that the tenant had moved back (as opposed to merely visited) to his country of birth before he died such that he was no longer a secure tenant and there was no longer any statutory succession right. His death was only in fact reported many years after it happened and there was limited evidence of his activities in his country of birth. There were though 13 instances where the would-be successor’s evidence was inconsistent either with their own testimony or previous position, or with that of their family witness. The court allowed the possession order and determined that there was no succession right extant at the time of the tenant’s death.
Understand the judicial approach to the determination of facts – in 2021 I wrote about this following the judgment of Warby J in R (Dutta) v General Medical Council [2020] EWHC 1974 (Admin), especially at paragraph 39. The case is worth a read.

What are your top tips?

#fraudweek

Day 4 – International Fraud Awareness Week

In April 2023 Lost homes, lost hope: social housing fraud in England – recovering social homes for those in need – a research report produced by the Tenancy Fraud Forum and Fraud Advisory Panel – was produced.

It proceeded on the basis that the average cost of tenancy fraud in England was £42,000 per property and found:

148,000 social homes were subject to some sort of tenancy fraud.
That’s 1 in 20 of all social homes in London, and 1 in 30 elsewhere in England.
Tenancy fraud detections fell 55% between 2013/14 and 2019/20.
76% of frauds go undetected over the same period, at a cost to the public purse of £500 million.

In this International Fraud Awareness Week this is a report worth a re-read!

Day 3 – International Fraud Awareness Week

As we go into day 3 of the International Fraud Awareness Week I go home to Northampton. On 24 July 2024 West Northamptonshire Council reported that they had successfully prosecuted a man who had unlawfully attempted to secure social housing by failing to disclose that he was the sole tenant of a property in Bletchingdon, Oxfordshire.

He pleaded guilty to making false claims and providing false information to commit fraud under the Fraud Act 2006 and was required to complete 25 days of rehabilitation activities and pay £1,315 in fines and costs by Wellingborough Magistrates’ Court on 17 July 2024.

I wrote about the civil side of this issue in 2020 – Tenancy by false statement & Second Tenancy – highlighted a fraudulent misrepresentation claim in 2018 and the same year reported on a section 171, Housing Act 1996 prosecution.

#fraudweek

Day 2 – International Fraud Awareness Week

The increasing popularity of short-term lets has added a new dimension to sub-letting problems faced by social housing landlords. I have written previously on this subject 3 times: August 2019, August 2022 and December 2023.

Over 4 years ago I ran my first webinar on this issue and last month ran my latest event along with Stephanie Toghill:

By way of practical application, in August of this year Birmingham City Council reported on a successful prosecution of a tenant that had unlawfully sublet their local authority flat after advertising the property for rent via Airbnb. They rented out the property for a total of 158 nights, pleaded guilty to 3 offences in the magistrates’ court and signed a notice to quit to terminate their tenancy.

The value to local housing authorities of such work was seen by a press release from Brighton & Hove Council in June 2024 reporting that investigators had “saved more than half a million pounds in Brighton and Hove City Council’s housing department alone last year”. One of its councillors said:

“I’m doing a lot of door knocking at the moment and we often find the person who is supposed to be in a house isn’t in the house.”

“I think that Airbnb is quite interesting, particularly in my ward (West Hill and North Laine), which is a city centre ward. Tenants will say to me ‘that’s an Airbnb’. Someone said that to me in a council block the other day.”

“If it’s a leasehold property, there’s nothing we can do about that but obviously if it’s one of our properties then that would be very concerning.”

Follow the Tenancy Fraud Forum, who for this week are providing on LinkedIn ‘top tips’ to assist social landlords in their fight against social housing fraud.

#fraudweek

Day 1 – International Fraud Awareness Week

Yesterday I blogged about the start of the 2024 International Fraud Awareness Week today. For the next 7 days, and assuming I remember, I will seek to highlight the importance of fraud work in the social housing arena.

On a practical level, we had the report of a successful Prevention of Social Housing Fraud Act 2013 section 2 prosecution on 22 August 2024, where the defendant, who at the relevant time had been a tenant of Notting Hill Genesis, sub-let their social housing after buying their own house in 2018. For the period between March 2019 and November 2023 they received over £60,000 in rents from sub-tenants. They were fined £477 and ordered to pay £40,000 in compensation (I assume an unlawful profit order) plus £2,314.70 in costs. The London Borough of Barnet’s Corporate Anti-Fraud Team carried out the investigation.

On a more general level, on 12 September 2024 Milton Keynes Council announced that since May 2023 and following an investigation it discovered that 30 of its properties were being unlawfully sublet. These were recovered by the Council and re-allocated to those in housing need.

Finally, and by way of a reminder, my colleague Sarah Salmon and I presented a webinar for the Cornerstone Barristers’ Housing Team in December 2023 on the topic of “Housing fraud in the courts – getting the best evidence”. The link is here.

#fraudweek

International Fraud Awareness Week 2024

“I would stress that it is not compassionate to allow profiteering fraudsters indefinitely to continue to occupy premises and thereby exclude from such accommodation more needy and deserving families.”

This year’s International Fraud Awareness Week starts tomorrow (17 November) and runs through to the 23rd. Two suggested ways of getting involved are posting on social media with the tag #fraudweek and highlighting the work your organisation is doing and has done to tackle fraud.

An excellent example has been provided by Buckinghamshire Council.

in the meantime, can you identify the citation from a judgment at the head of this article?