Housing fraud and Covid 19

Introduction

The circumstances arising from the current pandemic have led to many pressing practical issues for social landlords and tenants alike. Much of the focus has been, quite rightly, on matters surrounding homelessness and rent, but in the housing fraud field the particular concerns can be identified in 3 broad topics:

1. Investigations.

2. Service of notices.

3. Court proceedings.

This short post considers the current state of play in these 3 areas, with the obvious caveat that matters are constantly changing, and what a social landlord can still do.

Investigations

One of the obvious impacts on ongoing and proposed fraud investigations is that staff numbers are inevitably reduced, and tenants and other potential witnesses are similarly unavailable.

Even if health is not an issue the government policy of self isolation means that, for example, caution interviews are unlikely to go ahead and home visits are going to be effected in the same way. They have have generally been suspended, and anecdotally some staff temporarily redeployed.

  • Pre-action (protocol) letters can still be drafted and sent.
  • information can still be obtained from third parties, such as banks and fuel suppliers, in the usual way – see for example The Prevention of Social Housing Fraud (Power to Require Information) (England) Regulations 2014/899.
  • E-mail and telephone/video conferencing can be used in place of direct face to face interview where appropriate.
Notices

The much lauded legislative attempt to restrict possession actions in the courts for a period because of Covid 19, the Coronavirus Act 2020 (section 81, Schedule 29), does not change or restrict the services of notice to quit on secure or assured periodic tenants, though there may be questions of proof of service (though personal or even hand-delivery service should not be required given that most tenancy agreements provide for service by post).

Schedule 29 does though change the process with regard to notices seeking possession – at least when served during the initial period of 26 March to 30 September 2020 – and requires 3 months notice to be given. This will therefore effect in particular:

  • Ground 5 Sch 2 Housing Act 1985/Ground 17 Sch 2 Housing Act 1988 (false statement) notices seeking possession.
  • Ground 1 Sch 2 Housing Act 1985/Ground 12 Sch 2 Housing Act 1988 (breach of tenancy) notices seeking possession.
  • Introductory tenancy section 128 notices.
  • Flexible tenancy section 107D notices.

The Schedule 29 reforms do not impact upon notices served prior to 26 March 2020 and they therefore remain valid (assuming they otherwise were), and are capable of being relied upon in possession proceedings.

Possession proceedings

There is no restriction at all on the issue of possession proceedings, save for the obvious practical hurdles in the current circumstances (e.g. signing the statement of truth, though see the electronic signature provisions in CPR r. 5.3 and PD5A), albeit all such proceedings are stayed during the 90 day period starting from 27 March 2020 by reason of the new Practice Direction 51Z:

1. This practice direction is made under rule 51.2 of the Civil Procedure Rules (“CPR”). It is intended to assess modifications to the rules and Practice Directions that may be necessary during the Coronavirus pandemic and the need to ensure that the administration of justice, including the enforcement of orders, is carried out so as not to endanger public health. As such it makes provision to stay proceedings for, and to enforce, possession. It ceases to have effect on 30 October 2020.

2. All proceedings for possession brought under CPR Part 55 and all proceedings seeking to enforce an order for possession by a warrant or writ of possession are stayed for a period of 90 days from the date this Direction comes into force.

3. For the avoidance of doubt, claims for injunctive relief are not subject to the stay in paragraph 2.

HMCTS’ daily operational summary of 3 April 2020 provided that injunctions, a remedy often used in shared ownership sub-letting scenarios, are a priority 1 case (work that must be done), though does go on to say in a separate bullet point immediately following “emphasis must be on those with a real time element (such as post-termination employment restrictions), noise or interference with property”. Other noteworthy matters to take from the summary are that enforcement work involving bailiffs/sheriffs is not a priority or even recorded as work that could be done (Priority 2), multi-track trials are priority if the parties agree the trial is urgent and fast-track trials are only priority 2 and, again, even then only if the parties agree the trial is urgent.

In summary therefore:

  • Possession claims can still be issued as before, but they will thereafter be stayed.
  • Notices to quit in sub-letting/parting with possession of the whole and only or principal home cases are not effected by the temporary changes brought in by the Coronavirus Act 2020.
  • Notices seeking possession are, conversely, effected though not if served prior to the aforementioned changes.
  • Injunction claims are still available though in a fraud context are unlikely to be seen as a priority.
Criminal cases

The operational summary says in respect of magistrates’ courts that they are only covering urgent work (not, therefore, including fraud trials such as under the Prevention of Social Housing Fraud Act 2013).

Similarly, Crown Courts are said to be covering only urgent work.

Conclusion

As noted in the Introduction, we are living through uncertain and ever-changing times. It is entirely understandable that social landlords presently have different priorities but insofar as fraud remains relevant work can still continue albeit there are obvious restrictions and will be inevitable delays.

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