Social housing fraud and ‘dishonesty’

An e-flash was produced by Cornerstone Barristers on 26 October 2017 on the question of how ‘dishonesty’ is defined by the courts. It is set down below but can be seen in its original form at:


Richard Hanstock produced an excellent e-flash on Wednesday of this week concerning the high profile judgment of the Supreme Court, Ivey v Genting Casinos t/a Crockfords [2017] UKSC 67. The legal significance of that case was not the somewhat prurient insight into the world of high-stakes gambling, but rather the Court’s approach to the question of ‘dishonesty’. For over 30 years even the most errant law student would have been able to answer that the ‘correct’ approach to this concept was the two-stage ‘Ghosh test’, following on from the Court of Appeal’s Judgment in R v Ghosh [1982] QB 1053:

(1) Would the defendant’s behaviour be regarded as dishonest by the ordinary standards of reasonable and honest people? If yes,

(2) Was the defendant aware that his conduct was dishonest and would be regarded as dishonest by reasonable and honest people?

Whilst the Supreme Court was concerned in Ivey with the Gambling Act 2005, it will be immediately apparent that this is an issue that resonates in the social housing fraud arena. For example, the Fraud Act 2006, under which one may see prosecutions for right to buy or shared ownership fraud, has the concept of dishonesty at the heart of the offences created therein:

“(1) A person is in breach of this section if he– (a) dishonestly makes a false representation…”

[Section 2 – fraud by false representation]

“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…”

[Section 3 – fraud by failing to disclose information]

“(1) A person is in breach of this section if he– (a) occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person, (b) dishonestly abuses that position…”

[Section 4 – Fraud by abuse of position]

Of more common usage amongst the social housing sector perhaps, the more serious offence created by sections 1 and 2 of the Prevention of Social Housing Fraud Act 2013 provides that this offence may be committed if:

(a) dishonestly and in breach of an express or implied term of the tenancy, the tenant sub-lets or parts with possession of—

(i) the whole of the dwelling-house, or

(ii) part of the dwelling-house without the landlord’s written consent, and

(b) the tenant ceases to occupy the dwelling-house as the tenant’s only or principal home.

(this is the section 1(2) wording concerning secure tenancies – for assured tenancies section 2(2) makes no mention of a sub-letting or parting with possession of part of the dwelling-house being “without the landlord’s consent”).

In most instances the ‘Ghosh test’ has not presented an insurmountable hurdle providing that evidence of, say, the sub-letting complained of is sufficiently compelling. But there could be times when prosecution is discouraged where, say, the tenant genuinely feels that they have done nothing wrong, nothing dishonest.

For example, they move out of their one-bedroom housing association flat but allow someone to live in the premises, though do not demand any money for the same (and perhaps have no further dealings with the premises). Or, as happened in one civil possession claim, the tenant ‘temporarily’ left her home in order to look after, she said, her sick mother and sub-let her flat at a market rent (with a deposit) to someone answering an advert.

It is therefore significant that Lord Hughes, in giving the judgment of the Court, rejected the need for or sense of the second part of the ‘Ghosh test’ but rather re-affirmed the proper approach at [62; 74] by reference to Lord Hoffman’s analysis in Barlow Clowes International Ltd v Eurotrust International Ltd [2005] UKPC 37; [2006] 1 WLR 1476:

“Although a dishonest state of mind is a subjective mental state, the standard by which the law determines whether it is dishonest is objective. If by ordinary standards a defendant’s mental state would be characterised as dishonest, it is irrelevant that the defendant judges by different standards. The Court of Appeal held this to be a correct state of the law and their Lordships agree.”

It would be wrong to portray this judgment as a ‘game-changer’ in the social housing fraud field, significant though it undoubtedly is, but it does enable both those charged with prosecution responsibilities and those wishing to make representations on the degree of culpability for, say, a submission on reasonableness in a civil false statement ground 5/17 case to proceed with greater confidence as to either the essential elements of the offence in issue or content of submissions.


Andy Lane is the editor of the Cornerstone Housing Newsletter and specialises in the fields of social housing and public law.


Route of challenge to judgment procured by fraud


The Court of Appeal handed down judgment on 15 December 2017 in the case of (1) Shahan Salekipour (2) Amir Saleem v Jashan Kaur Parmar (In her own right & as executrix of Mohinder Singh Parmar, Deceased) sub nom Re Parmar (Deceased) [2017] EWCA Civ 2141.

The original claim was for sums owing from the defendant landlord, and at trial the judge preferred the landlord’s evidence.  A fresh claim was brought by the claimants seeking a rescinding of the earlier judgment on the basis that one of the landlord’s witnesses had, they said, been pressured to give perjured evidence.

This second claim was struck out as an abuse of process and the application to set aside this order was dismissed on the basis that the county court had no jurisdiction to rescind one of its previous judgments. The High Court, on appeal, upheld this decision and Garnham J held that the more common and appropriate route to challenge a decision procured by fraud was by appeal.

The claimants appealed, and the defendant sought to uphold the High Court decision on the additional ground that, even if she had been aware of the fresh evidence, the trial judge would still have dismissed the claim.

In delivering the main judgment of the Court of Appeal, which allowed the claimants’ appeal, Sir Terence Etherton M.R. rejected the notion that the County Court, as a creature of statute, had no jurisdiction to rescind one of its own judgments.  The relevant provisions of the County Courts Act 1984 were sections 23, 38 and 70:

“23. Equity jurisdiction.

The county court shall have all the jurisdiction of the High Court to hear and determine-

(g) proceedings for relief against fraud or mistake, where the damage sustained or the estate or fund in respect of which relief is sought does not exceed in amount or value the county court limit.


“38. Remedies available in county courts.

(1) Subject to what follows, in any proceedings in the county court the court may make any order which could be made by the High Court if the proceedings were in the High Court.


“70. Finality of judgments and orders

Every judgment and order of the county court shall, except as provided by this or any other Act or as may be prescribed, be final and conclusive between the parties.”

Previously, the County Court Rules had a provision, Order 37 r. 1(1), which would have allowed the County Court to have jurisdiction:

“In any proceedings tried without a jury the judge shall have power on application to order a rehearing where no error of the court at the hearing is alleged.”

The Master of the Rolls said at paragraph 73 of his judgment:

“If however, the respondent is correct about the County Court’s lack of jurisdiction, the only remedy for a litigant in the County Court who wishes to have a prior final County Court order set aside for perjury or fraud is to appeal, even though that will often not be the most appropriate course consistent with the overriding objective in CPR r.1.1. It was common ground before us that the High Court has no jurisdiction to hear independent proceedings to set aside an earlier final order of the County Court obtained by perjury or fraud. If that deprivation of a previous County Court jurisdiction was the effect of the repeal of CCR Ord. 37 r.1(1), then it appears that it would have been the result of oversight rather than intention, and, contrary to objective of the CPR, would have produced a significant difference between the High Court and the County Court and would have seriously disadvantaged County Court litigants, for no sound policy reason.”

This led to his conclusion at paragraph 74:

“I agree with the appellants that such an anomaly does not exist because, leaving to one side the CPR, including the management powers under CPR 3.1, sections 23 and 38 of the 1984 Act confer jurisdiction on a County Court judge to determine proceedings to set aside a final County Court order obtained by perjury or fraud. Such proceedings appear to me to fall precisely within the wording of section 23. The right of a party to have a judgment set aside on the ground of fraud is a principle of equity: Flower v Lloyd (1877) 6 Ch D 297; Noble at [42] (Elias LJ). The present proceedings are, consistently with the terms of section 23, “proceedings for relief against fraud … where the damage sustained … does not exceed in amount or value the county court limit”. “

This is a useful confirmation therefore of the route of challenge to a judgment procured by fraud.  The example given in “Cornerstone on Social Housing Fraud” – in Chapter 4 at pages 65-69 – is a claim for possession against a would-be successor to a tenancy being dismissed upon a finding that the defendant has in fact succeeded to the subject tenancy.

Cornerstone on Social Housing Fraud

This is the post excerpt.

Hello…I am Andy Lane and this is my first clumsy attempt at a blog to accompany ‘Cornerstone on Social Housing Fraud’, a book that I have written as part of the Cornerstone Barristers’ series.

I am keen to hear of successful initiatives in the field of social housing fraud, identify good practice and update readers on the relevant law – civil or criminal. As I get more confident (and time) I will seek to develop this site and its resources so that it becomes a (hopefully) interesting and useful source of information for those involved in its subject area – whether that be lawyers, local authority or housing association officers, or anyone with an interest in this field.

I am incredibly fortunate that my friend and colleague, Richard Hanstock, has agreed to join me in this enterprise and will ensure the references to Manchester United are kept to a minimum and the quality of the posts is high.