With the Tenancy Fraud Forum about to hold its November conference in Birmingham
it is a good time to review the social housing fraud news since the last update in August.
What has been happening in the social housing fraud sphere since the last review at the end of August 2019?
With the Tenancy Fraud Forum about to hold its November conference in Birmingham
it is a good time to review the social housing fraud news since the last update in August.
This sold out conference – organised by the Tenancy Fraud Forum and Anthony Collins Solicitors, and chaired by Katrina Robinson MBE – will be held in Birmingham on Tuesday, 19 November 2019
There will be sessions on:
Short term “holiday lets” through companies such as Airbnb, Booking.com and HomeAway are increasingly common, and their use (and overuse) has attracted the attention of legislation and legislators, particularly in London.
On the social housing front, there has been much comment of late concerning a county court case in which the City of Westminster obtained a possession order against one of its (former) tenants because of his use of his local authority property (he had been reportedly advertising the local authority property on the Airbnb website since 2013, and indeed had received more than 300 reviews). Permission to appeal that decision was refused.
The two issues which attracted most publicity were:
(a) The size of the unlawful profit order (UPO) subsequently made, frequently misreported as a ‘fine’.
(b) The fact that the sub-letting alleged and proved was by way of the Airbnb bookings, rather than the more “usual” and “traditional” longer-term tenancy arrangement.
To enable a UPO to be made in a secure tenancy case, section 5(3) of the Prevention of Social Housing Fraud Act 2013 (“the 2013 Act”) provides the requirement that the tenant:
“(a) in breach of an express or implied term of the tenancy, has sub-let or parted with possession of—
(i) the whole of the dwelling-house, or
(ii) part of the dwelling-house without the landlord’s written consent,
(b) has ceased to occupy the dwelling-house as the tenant’s only or principal home, and
(c) has received money as a result of the conduct described in paragraph (a).”
In other words, in the Westminster case it must have been sufficiently demonstrated (as well as the obvious receipt of money from the Airbnb activity) that:
It is the second of those issues that has for some time led to questions as to whether such activity as allowing Airbnb-style activity is sufficient to constitute sub-letting or parting with possession. Or indeed whether the occupants are rather lodgers of sort or licensees. The reason for such questions often surrounds the short-term nature of the individual booking, and whether that impacted upon the nature of the occupation (see Koumetto below, and paragraph 57 of the court judgment).
It should be remembered at this point that in a different factual scenario, such as where a tenant allows an Airbnb-style “guest” to stay in the premises at the same time as them, or even where they move out for the period of one or more bookings without having any other “principal home”:
(a) There may still be a breach of tenancy condition (or even perhaps a sub-letting, if only of part, though see the “lodgers” section below), allowing for a possession and/or injunction claim – social landlords may well wish to bring their tenancy agreements ‘up to date’ to expressly address this form of property use, if they haven’t already done so, where existing terms are insufficiently clear. To illustrate the benefits, in Koumetto (see below) the Australian case of Swan v Uecker  VSC 313 was cited, and Croft J there ended a judgment with these concluding remarks at  (emphasis added):
“…the context provided by the terms of the particular apartment lease are important. Although this apartment lease is a residential lease, many commercial leases restrict the tenant from sub-leasing, assigning the lease, granting any licence to occupy all or part of the leased premises or otherwise parting with possession without the landlord’s prior consent. Broad terms such as this would prevent, for example, sub-letting or licensing without the landlord’s consent and would avoid the need—as in the present case—to characterise the nature of the same arrangement like the AirBnB arrangement for occupation of the whole of the leased premises as a sub-lease or a licence ”
(b) No criminal offence is committed under the 2013 Act – section 1 (secure tenancies) or section 2 (assured tenancies) – unless the tenant no longer lives at the demised premises as their only or principal home.
(c) Similarly, no (section 5) civil UPO is available if the tenant still lives there as their only or principal home (see above for the secure tenancy UPO conditions).
(d) Where there is sufficient evidence to show that the tenant has in fact moved out, and no longer lives at the subject premises as their only or principal home, then the only benefits in seeking evidence of parting with possession/sub-letting as well are:
If a tenant has a lodger, this will not be treated as a sub-letting, and by definition the tenant remains at the property and cannot therefore ordinarily be said to have parted with possession (though see the reference to the case of Stening below).
Woodfall, Landlord and Tenant says at 1.028:
“The occupier of apartments is not a tenant unless the premises are exclusively let to him, which distinguishes such a person from a lodger…The use of the expression “lodger” connotes that the lodger must lodge in the house of another person and lodge with him; if a householder retains to himself the general control of a house, with the right of interference, a person who occupies a part of that house would seem to be a lodger. The word interference simply means that the householder must retain sufficient control of the accommodation as to prevent the lodger from having exclusive possession.”
By way of example, in Monmouth BC v Marlog (1994) 27 H.L.R. 30, where a person shared a council house with the tenant, each having their own bedroom, under an informal rent sharing arrangement, the Court of Appeal held that the natural inference to be drawn from this was of a licence rather than sub-tenancy.
In Aslan v Murphy  1 W.L.R. 766 Lord Donaldson said at 770F-G:
“The occupier has in the end to be a tenant or a lodger. He cannot be both. But there is a spectrum of exclusivity ranging from the occupier of a detached property under a full repairing lease, who is without doubt a tenant, to the overnight occupier of a hotel bedroom who, however up-market the hotel, is without doubt a lodger. The dividing line — the sorting of the forks from the spades — will not necessarily or even usually depend upon a single factor, but upon a combination of factors.”
(Secure tenants have an unconditional (statutory) right to take in lodgers, and can also sub-let part with consent: see section 93(1), Housing Act 1985.)
However, when moving away from the traditional concept of lodgers and considering use of the premises for one or more licensees whilst the tenant lives elsewhere, in Stening v Abrahams  1 Ch. 470 Farwell J cautioned against a simplistic take that a licence cannot be a parting with possession at 473:
“A lessee cannot be said to part with the possession of any part of the premises unless his agreement with his licensee wholly ousts him from the legal possession of that part. If there is anything in the nature of a right to concurrent user there is no parting with possession. Retention of a key may be a negative indicium, and the authorities on the whole show that nothing short of a complete exclusion of the grantor or licensor from the legal possession for all purposes amounts to a parting with possession. The fact that the agreement is in form a licence is immaterial, as the licence may give the licensee so exclusive a right to the legal possession as to amount to a parting with possession.”
The conclusion I would draw from the above is that, subject to the precise terms of the Airbnb or similar arrangement, it cannot readily be concluded that the “guest” is occupying by way of being a lodger even where the tenant remains in occupation. That view is compounded by my conclusion on the issue of sub-letting or parting with possession.
As therefore for whether an Airbnb-style arrangement can be seen as a parting with possession or subletting, and acknowledging the case-law ‘background’ of Stening outlined above, at paragraph 32(5) of the judgment of Ward LJ in Clarence House Ltd v National Westminster Bank plc  1 W.L.R. 1216, referring to a series of judgments, including Stening and Lam (see below), the basic principle was set out as follows:
“This stream of cases is consistent with the notion that a leasehold covenant against parting with or sharing possession is concerned with the question of whether the tenant has allowed another into physical occupation with the intention of relinquishing his own exclusive possession of the premises to that other.”
Sir Harry Gibbs had said as to such general principles behind parting with possession, in Lam Kee Ying v Lam Shes Tong  A.C. 247 at 256C:
“A covenant which forbids a parting with possession is not broken by a lessee who in law retains the possession even though he allows another to use and occupy the premises. It may be that the covenant, on this construction, will be of little value to a lessor in many cases and will admit of easy evasion by a lessee who is competently advised, but the words of the covenant must be strictly construed, since if the covenant is broken a forfeiture may result”.
Demonstrating the potential difficulties in demonstrating either sub-letting or parting with possession, Stening and Lam were again (as with Clarence House) both cited in the Court of Appeal authority of Hussey already referred to above, a case where the local authority sought possession on sub-letting grounds – the tenant living away from his flat at times, whilst third parties were conversely in occupation of the flat on occasions too. Leggatt L.J. said in delivering the main judgment of the Court in allowing the tenant’s appeal, at p. 11:
Airbnb use was expressly considered in Bermondsey Exchange Freeholders Ltd v Ninos Koumetto (as Trustee in Bankruptcy of Kevin Geoghehan Conway)  4 WLUK 619, an appeal against an injunction granted to prevent the use of a leasehold flat for short-term rental or commercial hire. HHJ Luba QC, who I understand heard the permission to appeal application in the Westminster case, said in obiter remarks (given that the relevant lease clause below prevented allowing others into possession, as well as the more formal sub-letting, etc):
“56. Despite Mr Hanham’s attractive submissions that a decision that there had been an ‘underletting’ was not open to her, I am not satisfied that there were the necessary features here to displace the presumption from Street v Mountford that the provision of exclusive possession of premises to another for a period and for payment for that period constitutes a letting.”
The Judge was, at that part of his judgment dismissing the appeal, dealing with the clause of the subject lease which provided that the tenant covenanted:
“Not to part with or share possession of the whole of the Demised Premises or permit any company or person to occupy the same save by way of an assignment or underlease of the whole of the Demised Premises”
Crucially and typically HHJ Luba QC addressed the particular nature of Airbnb head-on, as he followed on from paragraph 56 of his judgment cited above:
“57. Neither the short duration of the arrangement, nor any notional provision for ‘services’ (such as leaving the flat stocked with material from which to assemble a breakfast or other meal), nor reservation of a right of entry, nor any combination of those features, displace that presumption from applying to an Airbnb-style arrangment.”
The district judge at first instance had found that the arrangement represented a parting with possession and HHJ Luba QC therefore rejected the appellant’s argument, as set out at paragraph 48 of the judgment:
“As to the first limb of the sub-clause, he contended that the Judge had been wrong to find that the nature of the arrangements made with occupiers had been lettings akin to holiday lets. He submitted that the arrangements that had been in evidence were those entered into with Airbnb and they did not amount to tenancies but only licences. There had thus been neither parting with ‘possession’ nor sharing of ‘possession’. The Judge had been wrong in law to hold that the arrangements amounted to lettings or any parting with or sharing of ‘possession’.”
Subject to the precise terms of arrangement it seems to me that there is a strong argument against characterising the occupation of any such ‘guest’ as a mere licensee such that there could be said to be no sub-letting or parting with possession.
Congratulations are rightly due to the City of Westminster and their legal team in obtaining possession in the case which opens this blog. What the above shows however is that the housing/legal status of an Airbnb or similar booking is not without some uncertainty and argument.
Whilst there may ultimately be a case on this issue in the higher courts, the reality for a local authority or private registered provider of social housing (or registered social landlord) is that their concerns will focus on those tenants moving away from their properties with a view to raising money by such arrangements as took place in the Westminster case (though that is not to say that “tenant-remaining arrangements” should not and do not justify vigorous investigation, and raise related issues such as benefit fraud, property condition and anti-social behaviour).
They may secure possession of the relevant property, as already explained, without needing to show a sub-letting or any parting with possession. But should they choose or need to adopt the Westminster route then with the usual caveats there are positive indications that such action could be taken, and taken successfully.
I have just concluded the second of 2 trials where my client, a London housing association, was seeking possession of properties “let” to individuals who colluded with a former housing officer in 2004 to provide for (assured) tenancies to which they were not entitled:
Though fraudulent misrepresentation was pleaded as the first of 2 alternative bases of claim, it was the second one (ground 17 of Schedule 2 to the Housing Act 1988) which was ultimately relied upon (see Islington LBC v Uckac  1 WLR 1303 at para. 29):
The tenant is the person, or one of the persons, to whom the tenancy was granted and the landlord was induced to grant the tenancy by a false statement made knowingly or recklessly by—
(a) the tenant, or
(b) a person acting at the tenant’s instigation.
In both claims the Judge found that ground 17 was satisfied. The ‘modus operandi’ was the housing file showing that the defendant was in occupation of the subject premises by purported reason of a mutual exchange even though no such arrangement in fact occurred (though the defendants signed the sham deeds of assignment).
This article focuses not on the constituent elements of ground 17, and there is a mirror provision for secure tenancies to be found at ground 5 of Schedule 2 to the Housing Act 1985, but the particular approach to ‘reasonableness’ and whether any possession order made should be outright or suspended on terms.
Ground 17, as with ground 5 for secure tenancies, is a discretionary ground in Part II of Schedule 2 and so the landlord must show that it is reasonable to make a possession order. As section 7 of Housing Act 1988 provides:
(4) If the court is satisfied that any of the grounds in Part II of Schedule 2 to this Act is established, then, subject to subsections (5A) and (6) below, the court may make an order for possession if it considers it reasonable to do so.
As for the nature of any such order made, section 9 goes on to explain:
(2) On the making of an order for possession of a dwelling-house let on an assured tenancy or at any time before the execution of such an order, the court, subject to subsection (6) below, may—
(a) stay or suspend execution of the order, or
(b) postpone the date of possession,
for such period or periods as the court thinks just.
The proper approach in false statement cases to the court’s exercise of discretion is described below but it is worth recording at this point Sedley LJ’s dicta in Lewisham LBC v Akinsola (2000) 32 HLR 414 at 417:
“Mr Riza rightly points out that whatever else may be in doubt, there is no doubt, under the Housing Act 1985, that even in cases of fraud, eviction is not the inexorable consequence. Section 84 quite plainly shows that there may be cases of fraudulently obtained tenancies which nevertheless it is not reasonable in the County Court’s view to determine by the making of a possession order. One can readily see that into the consideration of such a question may enter connivance, or laxity of procedure, or delay on the part of the local authority which now seeks to rely on the fraud, as well as, of course, the gravity of hardship on the tenant. All these things will be for the County Court to decide from case to case.”
In possession proceedings for, say, anti-social conduct (grounds 12, 14) the approach to the court’s discretion is well-worn and established. For example, once the court has determined that it is reasonable to make a possession order the burden of producing cogent evidence to show that the matters complained of will not recur (or is unlikely to do so), such as to “allow” a suspension of any order in terms, shifts to the defendant: Birmingham CC v Ashton  HLR 8, para. 42.
Unless there are other complaints against the tenant in a ground 17 case a suspended order is of little value – in most instances it is therefore an all or nothing claim, outright possession order or none at all.
In Rushcliffe BC v Watson (1992) 24 HLR 124 the tenant appealed against the making of a (ground 5) possession order. She complained that the judge failed to take account or give sufficient weight to the problems she would face in obtaining alternative housing for herself and her children.
At pages 130-131 of the main judgment, which dismissed the appeal, Nourse LJ said this about public policy considerations:
“Mr. Westgate accepts that, in doing that, the judge was entitled, and indeed bound, to take account of the public interest. But he says that he took too narrow a view of it, in particular by not recognising the public interest in keeping a family together as a unit. The judge’s view of the public interest was wrongly confined to a policy of discouraging deceitful applications which result in the unjust relegation on the housing list of applicants who are honest.
Again I cannot accept this submission. I am quite certain that the judge recognised the public interest in keeping a family together as a unit. But since he thought that there was no real likelihood that this family would be split up, that was not something which affected his consideration of the public interest in this case. On the broader aspect of the public interest the judge was fully entitled to attach the importance which he evidently did to the policy to which I have referred. The statistics which he recounted demonstrate the acute shortages in the plaintiff’s housing stock.”
Over 5 years later, the Court of Appeal was called upon to consider this issue again, in Shrewsbury & Atcham BC v Evans (1998) 30 HLR 123. Beldam LJ held at page 132, in dismissing the tenant’s appeal:
“The effect of the decisions, in my view, is that in a case such as this, where there has been a deliberate lying to obtain public housing that only in exceptional cases would the court consider the effect of the homelessness legislation. It is not the function of the court to decide whether or not a person is intentionally homeless. That is the function of the local authority and has been entrusted to the local authority by Parliament.
Those who are on the housing list who have an equal or even greater claim to public housing would, in my view, justly be indignant to find that the court did not think it reasonable in circumstances where someone has obtained accommodation by a deliberate and flagrant lie, to make an order for possession merely because the effect of the order would result in the occupant having to be considered by the local authority as homeless or intentionally homeless.
It seems to me, that in deciding questions of reasonableness in a case such as this, a court can, in exceptional cases take into account the nature and the degree of the untrue statements which have been made and the circumstances in which they are made and whether, for example, they are deliberate or reckless. If the court had considered the matters in detail in this case it would have concluded, as the evidence showed, that this appellant had flagrantly and deliberately lied about her circumstances and had done so with the express purpose of providing herself with a higher score under to the local authority’s qualifications for public housing, than she would otherwise have had; not merely a point or two more, but, according to the evidence, very substantially more.
Next, the court could reasonably, it seems to me, take into consideration the attitude of the appellant when the deception was discovered. Her attitude was to lie and lie again to deny completely that she had made the application to the District Council, suggest that this had been made by someone using her name, and when this was not wholly accepted by the officers of the respondents, to complain about the conduct of the housing officer quite unjustifiably. In my view, the court could take into account, as was said, the current position in which the appellant found herself, but at the same time it would have to have in mind, as I have previously indicated, the great importance to be attached to honesty in making application for public housing accommodation.”
And so in both the trials referred to in the Introduction, the Judges were influenced in the making of an outright possession order by:
Ultimately of course it is a question for the court and, regardless of public policy considerations, an order may be refused. After all, the judge will always have in mind Lord Green’s dicta in Cumming v Danson  2 All ER 653 at 655:
“…the duty of the judge is to take into account all relevant circumstances as they exist at the date of the hearing. That he must do in what I venture to call a broad, common-sense way as a man of the world, and come to his conclusion giving such weight as he thinks right to the various factors in the situation.”
In Southwark LBC v Erekin  EWHC 1765 (Ch), for example, the defendant obtained housing from the council on the basis of a fraudulent application form, and was sentenced for that and other frauds to 18 months imprisonment. Laddie J dismissed the local authority’s appeal against the trial judge’s dismissal of the ground 5 possession claim.
He referred to HHJ Cotran’s reasoning in this way:
“11 The learned judge, having heard submissions from counsel, having read the evidence and having heard the cross-examination, came to the conclusion that the council had not discharged the onus upon it to show that a possession order in the particular circumstances of this case was justified. It is clear from the terms of his judgment, an agreed note of which has been provided to me today, that he considered this to be a very borderline matter. He refers to the authorities I have mentioned. He refers to the extensive fraud committed by the first respondent. He refers to the situation of the children, and the fact that they have been enjoying a stable home life in the property for the last five years. His judgment ends as follows:
“Having anxiously considered all the factors, I come to the conclusion that it would be unreasonable to make an order. The claimant’s claim is dismissed.””
The obtaining of a tenancy by means of a false statement is a criminal offence:
In a case concerning partial sub-letting and criminal activity, Poplar HARCA v Begum  HLR 42 at para. 40, Turner J helpfully articulated the court’s approach to housing fraud:
“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.”
and whilst a sub-letting case such as Begum has a more obvious and calculable profiteering element than a ground 5/17 case, and is perhaps more likely to involve the defendant having alternative accommodation, these words are a cautionary warning to all those committing housing fraud.
Finally, in a results-driven world the trial last week represented the final case in the former officer “fall out”, with 3 tenants surrendering their tenancy in addition to the 2 possession orders referred to above. For 5 households the results of the fraud investigation will mean affordable, good quality homes.
The National Fraud Initiative (NFI) started in 1996 and was originally managed by the Audit Commission. It is a data-matching exercise now conducted by the Cabinet Office under powers set out in the Local Accountability and Audit Act 2014 (which also abolished the Audit Commission). Under this legislation (section 33, Schedule 9) the Cabinet Office:
In broad terms, it is a bi-annual exercise that matches electronic data within and between public (e.g. local and police authorities) and private sector (e.g. housing associations) bodies with the purpose of identifying possible fraud.
Data-matching is merely the first stop however. The information obtained will be provided to the relevant participating body via the secure NFI software and it will be for them to decide what to do with it. 2018/19 matches were due to become available to participants from 31 January 2019.
Public sector bodies are required to submit data to National Fraud Initiative on a regular basis, and should follow the requirements of the Code of Data Matching Practice 2018. For example, local authorities will provide information relating to:
The NFI also provides additional services for the public sector and there are in all approximately 1200 participating organisations.
Our data screening in this area can help identify tenants who:
By identifying this type of fraud, we make sure that social houses can be recovered by social landlords and given to individuals who need them.
An example of the fees chargeable to a participating private sector body, such as a housing association, can be seen in the Private Sector Fees report (July 2018).
An example of the benefits to NFI participants can be seen from one example given in the 2018 report:
Portsmouth City Council
A housing tenants to housing benefit match identified a tenant
in a property owned by Portsmouth City Council. The tenant
had however been claiming housing benefit in excess of £150
per week for a different property in a nearby authority area since January 2016. The match revealed the tenant had let the property from Portsmouth City Council in February 2013, but investigations found the tenant’s partner had been subletting the Portsmouth property for up to two years. The council sought a prosecution in October 2017 and the property was successfully recovered.
Data protection legislation requires NFI participants to tell individuals at the very least that their data will be processed, usually by means of privacy notices.
For example, Northampton Borough Council’s corporate privacy statement says:
This authority is required by law to protect the public funds it administers. We may share information provided to us with other bodies responsible for auditing or administering public funds, in order to prevent and detect fraud, such as national data matching exercises like the National Fraud Initiative (NFI).
The Code of Data Matching Practice referred to above says this about data protection:
1.6. Relationship to data protection legislation and other information sharing codes
1.6.1. In addition to this Code, when participating in data matching exercises, bodies should have regard to any other relevant data or information sharing codes and guidance, including any statutory guidance from the Information Commissioner, which is available on the Information Commissioner’s website at https://ico.org.uk/
1.6.2. References to compliance with, or in accordance with, data protection legislation should be construed as compliance with current data protection legislation applicable in the UK, as defined in the Data Protection Act 2018, which includes the General Data Protection Regulation (EU) 2016/679 (GDPR).
1.6.3. The Cabinet Office will review this Code in light of changes in the law and consider, at that point, whether the Code requires further amendment and if so, the appropriate time to do so.
In a housing context, and as seen from the Portsmouth City Council example above, the NFI can help identify possible housing fraud for local authorities and housing associations.
In previous exercises, this has led to tenancies being terminated and properties re-allocated to genuine applicants on the housing waiting list who might otherwise have stayed in expensive temporary accommodation. The NFI Report 2016-18 showed during 2016/17:
The Housing tenant screening can:
FraudHub has been devised to enable public and private sector organisations to share information. The annual subscription for a housing association of 10,000 or more properties which wishes to use this service is presently £4240.
There are “local” versions of such schemes. For example, the East Sussex Counter Fraud Hub:
“…was created to use new and innovative methods to tackle fraud against local authorities throughout the rural, urban and metropolitan areas of the county. The hub is made up of representatives from Brighton and Hove City Council, Eastbourne Borough Council, East Sussex County Council, Hastings Borough Council, Lewes District Council, Rother District Council and Wealden District Council.”
The London Counter Fraud Hub, which is managed by CIPFA, is a counter fraud service, which has been developed to supply data analytics, investigations and recoveries service for London local authorities and the City of London Corporation.
AppCheck is a service that helps a participant identify any fraud, clerical errors or inconsistencies at the point of an application (rather than wait for the NFI bi-annual exercise), with over 300 million records available to this end (including access to the Home Office’s immigration database).
The 2018 NFI report gave this example of AppCheck’s use:
City of London
The City Corporation Anti-Fraud Investigation Team, along with the Housing Allocations Team, are tasked with working across London to detect, prevent, and deter people from attempting to obtain social housing under false pretences.
As part of its commitment to supporting the NFI, and to help evolve its approach to fraud prevention, the City Corporation decided to deploy AppCheck on a trial basis to see if it could help to improve its ability to identify those applying, or who have obtained, social housing under false pretences.
The AppCheck system was easily assimilated into the teams’ existing procedures and was able to provide an additional layer of intelligence to the verification process.
Following its successful trial in combating social housing tenancy application fraud, AppCheck has been rolled out across the City Corporation in areas such as HR, housing benefits and blue badge applications.
Chris Keesing, Anti-Fraud Manager within the City of London Corporation commented on the AppCheck trial:
“The AppCheck solution was a great success and proved itself early on by allowing us to identify social housing application fraud that would have otherwise potentially not been detected. We are pleased that, owing to the success in this area, we have now been able to roll out AppCheck to other departments across the City Corporation to help us identify fraud in more front-line service areas.”
This is designed to enable the matching of social care payments to deceased person data in order to identify payments that are continuing in error.
This blog has previously reported on the NFI’s 2018 report mentioned above, and the service provides just one means for local authorities and housing associations in their detection and understanding of housing fraud and it’s extent (in global terms the Annual Fraud Indicator 2017 found that housing tenancy fraud costs local government £1.83 billion).
I recently wrote a blog on compensation orders and indicated that there would be follow-on articles on two further topics – confiscation orders and social housing fraud in the context of shared ownership properties. It is the former topic I now seek to address in this article.
The modern manifestation of confiscation powers are to be found in the Proceeds of Crime Act 2002 (“POCA”), which came into force on 24 March 2003. Typically, Lord Bingham was able to explain POCA’s purpose succinctly when he said in R v May  1 AC 1028:
” The legislation is intended to deprive defendants of the benefit they have gained from relevant criminal conduct, whether or not they have retained such benefit, within the limits of their available means. It does not provide for confiscation in the sense understood by schoolchildren and others, nor does it operate by way of fine. “
Confiscation orders can only be made by the Crown Court at first instance.
(a) when a defendant has been convicted of an offence in the Crown Court, or is committed there from the magistrates’ court for sentence in respect of certain specified offences (or for POCA purposes – see section 70); and
(b) the Prosecutor asks the court to proceed under section 6, or the Court “believes it appropriate for it to do so“
then the court on the balance of probabilities:-
First, must decide whether the defendant has a criminal lifestyle;
Second, if it decides that the defendant has a criminal lifestyle, it must decide whether they have benefited from their general criminal conduct. If it decides that the defendant does not have a criminal lifestyle it must then decide whether they have benefited from their particular criminal conduct.
‘Criminal lifestyle’ is defined at section 75:
Criminal Lifestyle – section 75(1)A defendant has a criminal lifestyle if (and only if) the following condition is satisfied.
(2)The condition is that the offence (or any of the offences) concerned satisfies any of these tests –
(a)it is specified in Schedule 2; or
(b)it constitutes conduct forming part of a course of criminal activity; or
(c)it is an offence committed over a period of at least six months and the defendant has benefited from the conduct which constitutes the offence.
(3)Conduct forms part of a course of criminal activity if the defendant has benefited from the conduct and—
(a)in the proceedings in which he was convicted he was convicted of three or more other offences, each of three or more of them constituting conduct from which he has benefited, or
(b)in the period of six years ending with the day when those proceedings were started (or, if there is more than one such day, the earliest day) he was convicted on at least two separate occasions of an offence constituting conduct from which he has benefited.
(4)But an offence does not satisfy the test in subsection (2)(b) or (c) unless the defendant obtains relevant benefit of not less than £5000.
(5)Relevant benefit for the purposes of subsection (2)(b) is—
(a)benefit from conduct which constitutes the offence;
(b)benefit from any other conduct which forms part of the course of criminal activity and which constitutes an offence of which the defendant has been convicted;
(c)benefit from conduct which constitutes an offence which has been or will be taken into consideration by the court in sentencing the defendant for an offence mentioned in paragraph (a) or (b).
(6)Relevant benefit for the purposes of subsection (2)(c) is—
(a)benefit from conduct which constitutes the offence;
(b)benefit from conduct which constitutes an offence which has been or will be taken into consideration by the court in sentencing the defendant for the offence mentioned in paragraph (a).
If a Defendant is found to have a criminal lifestyle the court will make certain statutory assumptions, unless the assumption is shown to be incorrect, or there would be a serious risk of injustice if it were to be made (see section 10).
The assumptions are broadly to the effect that any property received or held by the defendant from certain times prior to the criminal proceedings commencing (6 years) was obtained from or met by their general criminal conduct.
If the court decides there has been such a (criminal) benefit then they generally must (again, on the balance of probabilities and if it is proportionate to do so) make a confiscation order and decide the recoverable amount: see section 6(5).
The word ‘generally’ is used because of the court believes that the victim has or will seek to recover their losses through the civil route, or an unlawful profit order has been or may be made, then a confiscation order is discretionary: section 6(6)(6A).
The amount a defendant will be ordered to pay will be the same as the amount of the benefit figure unless they show, and the burden is on them, that the assets available to them are less than this: section 7.
Last year saw a good example of a confiscation order in respect of a sub-letting offence. Jeremy Matuba pleaded guilty to three criminal offences under the Fraud Act 2006 related to the subletting of his local authority home, and providing false information on two right to buy applications. A confiscation order under POCA was made against Mr Matuba last September for £147,998.97.
Finally, the Home Office has asked the Law Commission to review the confiscation regime in the POCA, and the Commission aim to publish a consultation by September 2019.
Judgment has been handed down this week in the County Court at Clerkenwell & Shoreditch in a possession claim brought by a private registered provider of social housing and based on the allegation that the defendant was no longer living in her demised premises at the expiry of a notice to quit served by her (erstwhile) landlord.
There is nothing unusual in such a scenario of course and it is of depressingly common concern to social landlords that a minority of their tenants are not using their properties in the manner they should – abandonment, sub-letting, parting with possession or not using the property as their only or principal home.
The details of the case are not important for the purposes of this article, but the question of why the landlord succeeded in its case is. Seven points are of special note:
Though this article is not intended to explain the legal arguments for only or principal home cases, reference to and use of Dove v London Borough of Havering  PTSR 1233 will also often be helpful, not least at paragraphs 31 and 33 of Lewison LJ’s judgment, where the defendant still “uses” the demised premises to a degree:
31. At  the judge said that he understood why they wished “to be in a position to have their own place – their own space – somewhere to which they can return in order either to be alone or if the worst happens and their relationship breaks down a place to live.” But there was no evidence that either Ms Evelyn or Ms Elaine Dove had any actual intention to change the settled pattern of life which they were living. He held therefore that he “would have had to have” reached the same conclusion as the FTT.
33. The issue before the judge was not of course whether either Ms Dove was occupying the flat at Highfield Tower as a home. On the basis of the judge’s findings of fact one or other of them may or may not have been. It was whether either of them was occupying that flat as her principal home. The judge’s findings of fact are, in my judgment, clear to the effect that neither of them was. As I have said each of them had a settled way of life and there was no suggestion that it would change in the future. This is not, therefore, a case which turns on any intention to return or revert to a previous pattern of life. The question in cases which turn on an intention to return, as explained by Thorpe LJ in Goldenberg at 733, is whether a period of absence breaks the continuity of residence. In a case such as the present where the pattern of residence has been the same throughout the period under consideration there has been no break in continuity. So the question is a different one: is the pattern of residence such that either Ms Dove is occupying the flat at Highfield Tower as her principal home?
These claims are especially difficult because the defendant may well still have access to and be using at times their social rented property, but “simply” not as their only or principal home. Sometimes their use of a 2nd property is particularly clear to show the reality of the situation. Where that is not the case, as in the case here, the focus will centre more on the demised premises.
Inconsistencies need to be identified in full, the explanation for them assessed and positive evidence of residence considered.
We have reported on a number of social housing fraud convictions in this blog, and along with unlawful profit and costs orders the court may consider making a compensation order . For example, a £45,000 compensation order was made in a sub-letting case reported in the Islington Gazette (and here) in April 2018.
In the same month, a former housing officer was ordered to pay £20,000 to his erstwhile employers, after receiving a 3-year sentence in 2016 “after admitting fraud offences relating to social housing applications and job references”.
When it comes to profits from a housing fraud, if a person is convicted of an offence under either sections 1 or 2 of the Prevention of Social Fraud Act 2013 the court must decide whether to make an unlawful profit order. An unlawful profit order can be made instead of or in addition to an order under the court’s sentencing powers (see section 4(1) and (2) of the 2013 Act).
If a court decides not to make an unlawful profit order, section 4(4) of the 2013 Act states that it must give reasons for that decision when passing sentence.
As for questions of loss and compensation orders, the criminal court must consider this in any case where personal injury, loss or damage has resulted from the offence, and the court must also (as with the unlawful profit order) give reasons if it decides not to order compensation.
And so section 130 of the Powers of Criminal Courts (Sentencing) Act 2000 provides:
“(1) A court by or before which a person is convicted of an offence, instead of or in addition to dealing with him in any other way, may, on application or otherwise, make an order (in this Act referred to as a “compensation order”) requiring him—
(a) to pay compensation for any personal injury, loss or damage resulting from that offence or any other offence which is taken into consideration by the court in determining sentence; or
(b) to make payments for funeral expenses or bereavement in respect of a death resulting from any such offence, other than a death due to an accident arising out of the presence of a motor vehicle on a road;
but this is subject to the following provisions of this section and to section 131 below.”
There are some salient points to remember about such orders:
1. They are ordered by the criminal courts following a conviction, and in a housing fraud case may be made, for example, where the local authority ‘victim’ has been put to the expense of putting a household in temporary accommodation because the defendant has wrongly been allocated housing due to their misrepresentation.
2. No upper limit applies to those aged 18 or over (see s. 131 of the 2000 Act, which limits the amount to no more than £5000) though the amount of loss to the victim, such as the social landlord, is the matter being compensated. Continue reading “Compensation Orders – an introduction”