Pre-action conduct and committal – a “practice note”

In Jet 2 Holidays Ltd v Hughes [2020] 1 WLR 844 the Court of Appeal held that:

  1. CPR r 32.14, the provision which provides for committal proceedings against a person if they make, or cause to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth, did not confer jurisdiction to bring committal proceedings in respect of a witness statement that had been made before the commencement of proceedings.
  2. However, if a statement made before the commencement of proceedings interfered with the due administration of justice the court would be able to exercise its inherent power to commit for contempt in respect of it.
  3. Since pre-action protocols were now an integral and highly important part of litigation architecture, a dishonest witness statement made before the commencement of proceedings in purported compliance with a pre-action protocol was capable of interfering with the due administration of justice, even though, following a challenge by the prospective defendant to the truth of the statement, proceedings for substantive relief were never issued.
  4. The witness statements in the present case were closely connected to the administration of justice and, if false, interfered with it, thus giving rise to jurisdiction to commit the defendants for contempt.
  5. However, on a true construction of CPR r 81.13(2) , the witness statements had been made “otherwise than in connection with any proceedings”, which phrase referred to proceedings commenced before the contempt was committed.
  6. Therefore, the application for permission to make a committal application should have been made to the Administrative Court, but that procedural defect would be waived, pursuant to paragraph 16.2 of CPR Practice Direction 81, and permission would be granted.
  7. That, further, since the new witness statements fell within CPR r 32.14 and there was a clear public interest in the bringing of contempt proceedings in respect of them, the claimant would be granted permission to amend its claim form to add the new grounds of contempt.

In the judgment of the court it was said:

“50. It is not satisfactory that false statements made in witness statements served before the commencement of proceedings in purported compliance with a PAP fall outside CPR r 32.14 . Nor is it satisfactory or convenient that any application for permission to bring contempt proceedings for such false statements must always be made to the Administrative Court pursuant to CPR r 81.13(2) . It is highly desirable, therefore, that the possibility of contempt in relation to such statements should be expressly addressed in the Civil Procedure Rules and a practice direction.”

A few months later, on the 16 July 2020, the 122nd amendment to the CPR was produced and included an amendment to the Practice Direction: Pre-Action Conduct and Protocols with effect from 1 October 2020:

“In paragraph 2, at the end insert “A person who knowingly makes a false statement in a pre-action protocol letter or other document prepared in anticipation of legal proceedings may be subject to proceedings for contempt of court.”.”

Pre-action letters are important in sub-letting, allocation fraud, etc cases where a possession claim or other proceedings are being contemplated and are usually expressly made pursuant to Part 3 of the Pre-action Protocol for Possession Claims by Social Landlords.

This may appear to take them outside of the amended Practice Direction, which says at paragraph 2:

“This Practice Direction applies to disputes where no pre-action protocol approved by the Master of the Rolls applies.”

but a proper reading of this practice direction must rather demonstrate that the amendment will apply even if a pre-action protocol operates.

It follows that it would be good practice from 1 October 2020 to include a warning in pre-action correspondence that false statements may lead to contempt proceedings.

Housing fraud in the Courts – 6 recent cases

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.

Tenancy by false statement & Second Tenancy

Introduction

On Tuesday, 17 March 2020 the Court of Appeal handed down judgment in the (Ground 5) possession claim case of Oshin v The Royal Borough of Greenwich [2020] EWCA CIV 388. Lord Justice Floyd delivered the main judgment of the court, and explained:

  1. The issue in this appeal is whether the respondent local authority, the Royal Borough of Greenwich, was induced to grant the appellant, Blessing Oshin, a tenancy of 15 Jessup Close, London SE18 (“Jessup Close”), by a false statement knowingly or recklessly made by her. The issue arises in the local authority’s claim for possession against the appellant of Jessup Close, pursuant to Ground 5 of Schedule 2 of the Housing Act 1985. By a decision dated 13 April 2018 Deputy District Judge John Calver (“the DDJ”) held that the respondent had been induced to grant the tenancy by the appellant’s false statement and granted an order for possession. The appellant’s appeal to the County Court at Central London was dismissed by HHJ Saunders by his decision dated 30 August 2018.
The Legislation

Ground 5 of Schedule 2 to the Housing Act 1985 provides (as mirrored in Ground 17 of Schedule 2 of the Housing Act 1988 with regard to assured tenancies):

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.

This is a discretionary ground of possession and as such the claimant landlord must show not only that Ground 5 is satisfied but that it is reasonable to make a possession order (s. 84(2)(a)). It will then be for the defendant tenant to argue that any such order should be suspended or postponed on terms (s. 85(2)). In June 2019 I wrote about the public policy aspect of judicial consideration in this area.

The False Statement

Turning back to Oshin, the false statement alleged was described in Floyd L.J.’s judgment thus:

3. In about 1999 the appellant was living with a close friend at 112 Robert Street, London SE18 (“Robert Street”). She had no tenancy at Robert Street, and so applied to the respondent to have her name placed on the housing list. On 2 February 2001 she completed in her own name the respondent’s “Housing Application Form” (“the 2001 form”). The 2001 form has a number of questions requiring responses from an applicant. Question 10 on the form was headed “Immigration Status” and asked:

“Has anyone you have mentioned so far lived outside the United Kingdom in the last 5 years? Please [tick] the correct box.”

4. The appellant ticked the “No” box. This was untrue. The DDJ held that the appellant arrived in the United Kingdom in September 1998 from Nigeria, and that she had therefore lived outside the United Kingdom in the five years prior to the completion of the 2001 form. 

5. Underneath the boxes marked “Yes” and “No” the form stated:

“If Yes and an Asylum/Immigration Form has not been already been completed, please ask for one.”

6. The appellant also answered Question 15 on the 2001 form. That question was designed to elicit an applicant’s addresses in the previous five years. She answered by saying that from 1990 to 1999 she had been living in private rented accommodation at 49 Camberwell New Road, London SE5. In the light of the DDJ’s finding that she first came to the United Kingdom in 1998, that statement was also untrue. Her false answer gave the impression that she had been living in the UK for more than 10 years at the date of the 2001 form.

Ms Oshin was granted the tenancy of 112 Robert Street, London SE18 (“Robert Street”), the Jessup Close tenancy agreement then being entered into in 2008, and repeated these falsehoods in 2005 (post Robert Street grant) with regard to her two sons when she advised Greenwich that they were now living with her (having joined her from Nigeria in 2004).

The courts below

A Deputy DJ found that the 2001 falsehoods were material (though not those in 2005 as the 2 sons were minors and would not be tenants of any property offered) and held that it was reasonable to make a possession order. The issue of reasonableness was not contested in the Court of Appeal.

On appeal by Ms Oshin, HHJ Saunders found against her.

Grounds of Appeal

Lewison L.J. granted permission for a second appeal on 2 grounds:

Ground 1 – The false statement induced the grant of the Robert Street tenancy but not the Jessup Close tenancy.

Ground 2 – The false statements did not induce the grant of either tenancy, because the respondent was unaware of the appellant’s immigration status.

Appellant’s arguments

It was argued on behalf of Ms Oshin that the allocation process had closed once the Robert Street tenancy had been granted in 2005, and that the form was of no relevance thereafter and therefore to the 2008 Jessup Close grant of tenancy (when Ms Oshin could no longer be said to be an applicant for housing). Further, it was said that with regard to the 2005 update the information concerning her sons had no impact on the grant of the latter tenancy.

As for Ground 2, it was said that the false statement did not induce the grant of any tenancy as it could not sufficiently conclude whether an applicant was eligible for social housing whatever the answer. It was said that a more direct question as to the applicant’s immigration status was required.

Judicial conclusion

Floyd L.J. did not accept the arguments made on behalf of Ms Oshin, and the appeal was dismissed. Rather he held and maintained (approved by Coulson & McCombe L.JJs):

  • Ground One – The 2005 form was an amendment to that made in 2001 and so it was inevitable that Greenwich would consult both in seeking larger accommodation and allocating, ultimately, Jessup Close: para. 18.
  • The argument that once a property has been allocated any false statement in an application is no longer operative is simply wrong: para. 20.
  • The Deputy DJ was entitled to conclude that the 2001 application played on Greenwich’s mind when allocating the Jessup Close tenancy in 2008: para. 24.
  • Ground Two – Greenwich were clearly asking about time out of the UK in the context of immigration status and though the correct answer would not have been determinative as to eligibility for a social housing tenancy it would have required the completion of an Asylum Immigration form to that end: para. 29.
  • “I accept that, in order to be material, the false statement must be relevant to whether the applicant is eligible for social housing. That, however, is not the same thing as requiring that the statement be directly determinative of that question. The appellant’s false statements did not mean that she was entitled to social housing, but they still had sufficient materiality to be capable of inducing the local authority to grant her a tenancy when she was not entitled to one. I would therefore reject ground 2 as well.”: para. 31.
Comment

This was an interesting appeal on its facts, albeit robustly dealt with by the Court of Appeal. It confirms that whilst one is looking at the grant of the current tenancy, there can on the right facts remain the position with respect to the grant of an earlier tenancy and the information provided by or on behalf of the tenant for that purpose.

That doesn’t work if a new tenant appears, such as by assignment, as was clear from the Court of Appeal’s judgment in LB Islington v Uckac [2006] 1 W.L.R. 1303.

But here, as Floyd L.J. said at para. 23 of the Oshin judgment:

“In the end, therefore, the question of what induced the grant of the Jessup Close tenancy was a question of fact for the DDJ to decide. The proper approach to such questions was explained in the judgment of Newman J, sitting as a judge of this court, with which Peter Gibson and Sedley LJJ agreed, in Waltham Forest LBC v Roberts [2005] EWCA Civ 940; [2005] H.L.R. 2 at [41] to [43]. The court does not have to decide “what really would have happened”, but whether the false statement had played “… a real and substantial part, though not by itself a decisive part, in inducing the Authority to act”. It had to be “one of the inducing causes”. In considering inducement “it is helpful to start by considering the materiality of the statement”. “A false statement of a material matter is likely to have induced the misrepresentee”.” 

Tenancy succession or Possession?

Recently I was in trial on a possession claim which, in essence, came down to the question of whether the second defendant had (statutorily) succeeded to his mother’s secure tenancy. Save for a public law argument concerning the sufficiency of the local authority’s pre-proceedings investigation into the succession claim there was little to distinguish this case from many others that frequently come before the courts.

However, I thought it might be of interest to put down in writing some brief reflections on the trial process, and the necessary issues of evidence inevitably facing the judge and parties in cases such as this. I have previously written on succession insofar as it concerned the enforceability of tenancy terms extending the statutory succession rights.

Returning to the claim in issue, the second defendant had the burden of showing he had lived at the relevant property at the time of his mother’s death as his only or principal home, and that he had resided with her throughout the period of 12 months immediately preceding that time: see section 87, Housing Act 1985 (and note restriction of section 160(6), Localism Act 2011 amendments to succession rights, as now found at section 86A of the 1985 Act, to 1 April 2012 and later tenancies) along with Governors of the Peabody Donation Fund v Grant (1983) 6 H.L.R. 41:

“The learned county court judge, rightly in my judgment, held that the burden was on the tenant to bring herself within the terms of that section. He further went on to hold that the tenant had to show two things: she had to show that this flat was her only or principal home at the time of Mr Charles Murphy’s death and that she was not only a member of Mr Charles Murphy’s family but had resided with him throughout the period of twelve months ending with the tenant’s death.” (Donaldson LJ at 44)

The question of succession is one of fact. The “Encyclopaedia of Housing Law” says at R-003:

“The question whether or not the would-be successor has been residing with the deceased is one of fact: Middleton v Bull (1951) 2 T.L.R. 1010, CA. Accordingly, where there is evidence which both supports and undermines the would-be successor, it will be difficult for the court to resolve the issue other than at trial, see e.g. Evans v Brent LBC, QBD, December 18, 2012, HousingView, January 7, 2013.”

The local authority evidence in the cases leading to this post largely centred upon the hearsay information obtained by the managing agents charged with the original investigation, and was presented ultimately, because of employee changes, by an officer not directly involved in the case. The second defendant on the other hand relied upon not only his own statement, but also that of one of his sisters and both attended trial to give oral evidence.

I would highlight the main issues arising from the trial, its preparation and outcome as follows:

  1. Electoral roll information, occupant details held by the landlord, and the benefit position of the deceased (e.g. non declaration of would-be successor living at the same property) are all potentially useful pieces of evidence but are rarely determinative on their own.
  2. Similarly, neighbour feedback, often hearsay, can be helpful to the central questions at issue but (usually) are simply part of a wider body of information to be assessed. For example, the fact that the would-be successor was often at the property or undertook significant caring responsibilities towards the tenant does not necessarily or of itself show the required quality of residence.
  3. Identifying accommodation where the would-be successor might have been residing contrary to their stated position is clearly helpful (though is not essential), and allows a positive case to be asserted by the landlord (e.g. evidence of ATM usage and the geographical location of the same as shown on bank statements).
  4. Inconsistencies both within the would-be successor’s own evidence and between their position and information provided by others is crucial not only as to their credibility but also to undermine, where appropriate, the stated position. To give two examples from the recent trial, (a) the sister said her brother had really pretty much always lived at their mother’s upon returning to London in 2000, whereas he said he had moved in to help care for her in around 2016/early 2017; and (b) his letter claiming succession had “nearly” crossed out before “a year” when describing how long he had lived with his mother, and his answer to the Judge’s question about this was not impressive (including referencing the fact he had been told he must have been there for at least a year).
  5. Evidence not sought or made available by or on behalf of the would-be successor, including the absence of certain (expected) witnesses, can be strongly indicative of a weak case. I have previously written specifically on this issue.
  6. There maybe some credibility and truth in the would-be successor’s case even if ultimately they do not succeed in defending the possession claim. For example, they may well have been providing care and support to their mother (tenant), and staying with her at times. But note in particular the authority of LB Islington v Freeman [2011] P.T.S.R. 1695 re quality of residence:

28. The authorities also clearly establish that mere physical presence is not enough to amount to “residing with”. There must be to a significant degree an intention which can be characterised as making a home with the tenant – not just staying there.
29. Moreover – and this was not in dispute – the nature of the occupation must have the necessary qualities of “residing with” for the whole year before the death.”

It is frequently difficult to accurately predict the outcome of any trial in succession cases – the uncertainty as to how the judge will treat the evidence (or lack of) and as to how the would-be successor and their witnesses “come across” under cross examination being but two factors underlining such uncertainty.

As an example of the former, a few years ago I had one judge “brush aside” the fact that the would-be successor in fact claimed benefits from an address other than that of her supposed partner/co-habitant (i.e. the tenant) because he found that she simply didn’t bother changing her address when she moved in with her partner and that lots of people did the same.

In the case that has prompted this post, the judge conversely was exercised by the fact that the would-be successor used a different address for benefit purposes until a few months before his mother’s death when it was changed to hers, and did not accept his explanation for it not being changed earlier and at the very least noted the paucity of evidence with respect to the same.

These claims are not necessarily fraud cases – a possession order may not be made or the court may accept the factual version of events put forward by the would-be successor yet not find it sufficient to make positive findings on the only or principal home and/or residence questions. Given the frequent and genuine connection many defendants have with the deceased tenant’s home they are not the easiest of cases and tough decisions often have to be made.

What many claims show is that not only is the assessment of evidence, naturally, central to any final determination but the absence of evidence maybe of similar or greater import.

Housing Fraud on Social Media – December 2019 to February 2020

Assessment of witness evidence – recent authority

This blog has previously considered the issue of witness evidence. For example, on 8 August 2018 I looked at their credibility and probative value. In October 2019 the Court of Appeal, in Kogan v Martin & Ors [2019] EWCA Civ 1645, had reason to revisit certain jurisprudence concerning the assessment of witness evidence, and the trial judge’s treatment of the same.

The facts of the case are not relevant for the purposes of this article. More relevantly Lord Justice Floyd delivered the judgment of the court and stressed two important factors:

(1) Witness recollection has to be assessed in its proper context:

88. We think that there is real substance in this ground of appeal. We start by recalling that the judge read Leggatt J’s statements in Gestmin v Credit Suisse and Blue v Ashley as an “admonition” against placing any reliance at all on the recollections of witnesses. We consider that to have been a serious error in the present case for a number of reasons. First, as has very recently been noted by HHJ Gore QC in CBX v North West Anglia NHS Trust [2019] 7 WLUK 57, Gestmin is not to be taken as laying down any general principle for the assessment of evidence. It is one of a line of distinguished judicial observations that emphasise the fallibility of human memory and the need to assess witness evidence in its proper place alongside contemporaneous documentary evidence and evidence upon which undoubted or probable reliance can be placed. Earlier statements of this kind are discussed by Lord Bingham in his well-known essay The Judge as Juror: The Judicial Determination of Factual Issues (from The Business of Judging, Oxford 2000). But a proper awareness of the fallibility of memory does not relieve judges of the task of making findings of fact based upon all of the evidence. Heuristics or mental short cuts are no substitute for this essential judicial function. In particular, where a party’s sworn evidence is disbelieved, the court must say why that is; it cannot simply ignore the evidence.

(b) The nature of transactions will dictate the importance, likelihood or anticipation of documentary corroboration:

89. Secondly, the judge in the present case did not remark that the observations in Gestmin were expressly addressed to commercial cases. For a paradigm example of such a case, in which a careful examination of the abundant documentation ought to have been at the heart of an inquiry into commercial fraud, see Simetra Global Assets Ltd & Anor v Ikon Finance Ltd & Ors [2019] EWCA Civ 1413 and the apposite remarks of Males LJ at paras. 48-49. Here, by contrast, the two parties were private individuals living together for much of the relevant time. That fact made it inherently improbable that details of all their interactions over the creation of the screenplay would be fully recorded in documents. Ms Kogan’s case was that they were bouncing ideas off each other at speed, whereas Mr Martin regarded their interactions as his use of Ms Kogan as a sounding board. Which of these was, objectively, a correct description of their interaction was not likely to be resolved by documents alone, but was a fundamental issue which required to be resolved.

postcriPt

HHJ Pearce referred to the cases above in his judgment of 8 January 2020 in Donovan & Anor v Grainmarket Asset Management Ltd [2020] EWHC 17 (Comm) and said:

“164. Each of the parties in this case attacks the evidence adduced by the opposing side on the grounds that the other’s witnesses, especially the leading players, are unreliable if not downright dishonest.

165. In considering the oral evidence in this case, including the significance and extent of any dishonesty and any attacks on the reliability of witnesses, I bear in mind the comments of Leggatt J (as he then was) in Gestmin v Credit Suisse [2013] EWHC 3560 at paragraphs 16 to 20 cited by him and expanded upon in paragraphs 66 to 70 of his judgment in Blue v Ashley [2017] EWHC 1928: “The best approach for a judge to adopt in the trial of a commercial case is to place little if any reliance on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts.”

166. This valuable expression of the need to be cautious about accepting witness evidence does not of course entirely discharge the judge from the duty of making an assessment of witnesses and their evidence (see HHJ Gore QC in CBX v North West Anglia NHS Trust [2019] WLUK 57, cited with approval in Kogan v Martin [2019] EWCA Civ 1645). Even in a commercial case with the parties taking firmly entrenched positions, it is necessary to look with some care at the evidence of the main actors where that might provide valuable context and explanation.

167. It is a striking feature of this case, that in period when the business relationship between Mr Donovan and Mr Crader was breaking down in , they nevertheless remained on polite terms within emails and indeed seemed to show sympathy for the position of the other even if they did not accept it. That goodwill was also apparent during the witnesses’ oral evidence though it is singularly absent from their written statements. This might suggest that this court should not be too quick to find that the evidence of the witnesses has been adversely affected by the typical bad feeling that permeates commercial litigation. However, both sides made telling points about the reliability of the others’ witnesses that I bear in mind.”

Briefing paper for the Tenancy Fraud Forum Midlands Conference

Only or principal home (and an intention to return)

Security of tenure requires a tenant to live at the demised premises as their only or principal home. That issue frequently centres on the question of whether an “absent” tenant has an ‘intention to return’. This paper considers this important concept in the context of the overall definition, and the judicial treatment of it.

1. Introduction

  • The “tenant condition
  • Joint tenants/spouses
  • Absent tenants

An assured or secure tenant only has security of tenure whilst they live at the demised premises as their only or principal home:

Secure Tenancies – Housing Act 1985

81. The tenant condition is that the tenant is an individual and occupies the dwelling-house as his only or principal home; or, where the tenancy is a joint tenancy, that each of the joint tenants is an individual and at least one of them occupies the dwelling-house as his only or principal home.

Assured Tenancies – Housing Act 1988

1(1)  A tenancy under which a dwelling-house is let as a separate dwelling is for the purposes of this Act an assured tenancy if and so long as—

(b)  the tenant or, as the case may be, at least one of the joint tenants occupies the dwelling-house as his only or principal home.

There are qualifications to such a “tenant condition”:

  • As noted in the statutory provisions just cited, where there is a joint tenancy only one of the tenants needs to satisfy the condition; and
  • Where the property is occupied by the spouse or civil partner of the tenant then that is treated as occupation by the tenant: Family Law Act 1996, section 30(4)(b).

The security of tenure is ambulatory:

“…it is not necessary for the tenant to show that the tenant condition has been satisfied at all times since the grant of the tenancy. Occupiers may therefore pass in and out of secure tenant status” (Etherton L.J. in  LB Islington v Boyle [2012] P.T.S.R. 1093 at para. 66)

In contrast to the position under the Rent Acts[i], for an absent tenant to maintain security they must also not only establish that the dwelling remains their home but that it is their “only or principal home”. 

The two scenarios where only or principal home comes to the fore are, as noted by Lewison L.J. in LB Havering v Dove [2017] P.T.S.R. 1233 at para. 17:

First, where the tenant is absent from the property by not being physically present at all; and

Second, where the tenant has ceased to occupy the property as their only or main home even if they continued to occupy it as a home at times (e.g. where it had become no more than a weekend or holiday home).

2. Physical residence 

  • Physical occupation 

Physical occupation of premises is not necessarily required to retain only or principal home status.  As Parker L.J.  said in Crawley BC v Sawyer (1988) 20 H.L.R. 98 at pp. 101-102:

“It is quite plain that it is possible to occupy as a home two places at the same time, and indeed that is inherent in the wording of section 81. It is therefore plain that, if you can occupy two houses at the same time as a home, actual physical occupation cannot be necessary, because one cannot be physically in two places at the same time.”

This follows on from The Governors of the Peabody Donation Fund v Grant (1983) 6 H.L.R. 41 where a would-be successor was treated as still living at her father’s flat:

“The learned judge concluded on the evidence that from the beginning of 1980 the defendant was staying four nights a week at the flat; he found that by that time all her clothes and her books were at the flat, and the learned judge said that he accepted her evidence that she had come to regard it as her home. He went on to find that the defendant occupied the flat as her home at the time of her father’s death, but he said that if by any chance he was wrong about that and if the defendant’s mother’s home at Salisbury could be regarded as being the defendant’s home by reason of the fact that the daughter was still living there, the London flat was to be regarded as the defendant’s principal home.”

3. Objective or Subjective (Intention to return)?

  • Intention 
  • Burden of proof
  • Practical prospect of return 
  • Motive 

Both of the scenarios raised by Lewison L.J. in the “Introduction” section entail varying degrees of absence from the subject premises and will require, for security of tenure status to be retained, for an intention by the tenant to return to live at the demised premises as their only or principal home.

In Uijima Housing Association v Ansah (1998) 30 H.L.R. 831[ii] Roch L.J. dealt with the subjective/objective question of such an intention at p. 843:

“The respondent was no longer in physical occupation of Flat B and the onus was upon him to establish that he was still occupying the flat as his principal home. Whether he was doing so is not, in my judgment, to be determined by the subjective intention or motives of the person claiming still to have an assured tenancy, but by an objective assessment of his actions and intention. Were it otherwise it would lead to inconsistent decisions being given in cases where the facts were parallel.”

Lord Justice Etherton, now the Master of the Rolls, confirmed the hybrid nature of this “test” in LB Islington v Boyle at para. 62:

“Where the defendant is physically absent from the dwelling, in which the defendant formerly lived as his or her only or principal home, the defendant’s intentions about living there again as the sole or principal home will be critical to the question whether the tenant condition is satisfied. Plainly, without that intention, the tenant condition cannot be satisfied. It is not sufficient, however, for the defendant merely to give oral evidence of his or her subjective belief and intention. The credibility of the defendant’s evidence as to belief and intention must be assessed by reference to objectively ascertained facts. (Emphasis added)

A common example of this approach, as demonstrated in the LB Camden v Goldenberg case referred to below,  is where the sole tenant has had to move into a residential facility because of their care needs. They may have a very genuine wish and intention to return home, even where the professional assessment is that this will not and cannot happen. Objectively therefore there will be no realistic opportunity of return and security of tenure will be lost.

The motive behind an intention to return is irrelevant. In LB Southwark v Ibidun [2018] H.L.R. 5 the defendant was the secure tenant of a studio flat. The authority brought possession proceedings on the basis that the flat had ceased to be the defendant’s only or principal home. 

They said she had sublet the flat to a Ms Oludje and  had another home in Kent. Also, they provided evidence that the defendant had advertised the flat for letting in 2012 on a website. They further provided evidence of credit checks which showed that three other people had connections with the flat between 2012 and 2015. 

The defendant gave evidence and provided documents showing that the flat remained her correspondence address for most purposes, including her bank account. She stated that the advertisement had been taken down from the website within minutes of it going up. 

Her mother gave evidence that the defendant always returned to the flat at weekends (see the second of Lewison L.J.’s scenarios in “Introduction”) and that, when she visited her there, Ms Oludje was not always present.

Moulder J. said at para. 22:

“…The paragraph in the judgment referring to her intention of retaining the property as a springboard to other accommodation in the future was, in my view, not central to the decision and her motive in my view was not relevant to the decision before him.”

4. Relevant Factors

  • Question of fact
  • Potential factors

Putting that question of intention into its proper context therefore, in LB Islington v Boyle Etherton L.J. set down 4 crucial factors at para. 65 of the judgment to determine help determine the issue:

  1. It is a question of fact to be determined upon consideration of the evidence as a whole.
  2. As noted above, it is not enough that the tenant show a genuine intention to return, this intention and the proposed return must be based on objective reality.
  3. Enduring intention is the key, as opposed to “fleeting changes of mind”.
  4. Certain evidence, such as a long period of absence, may move the burden of showing that the premises remained the tenant’s principal home to the tenant.  In Tickner v Hearn [1960] 1 W.L.R. 1406, CA the protected tenant was away from her home for 6 years in a hospital, latterly as a voluntary patient, yet was held to still retain her tenancy status (her daughter remained in the house and maintained it as a home).

To give some examples of facts found relevant in the reported cases:

Suggesting not occupying

  1. Visits to property unanswered (Dove).
  2. Advertising for sub-letting (Ibidun).
  3. Relationship/stays elsewhere/keys to 2nd property (Dove).
  4. Neighbour reports (Dove).
  5. Use of 2nd property address for official purposes (Dove).
  6. No signs of occupation in property (Dove).
  7. Low utility consumption (Dove).
  8. Not on electoral roll/census (Grant).
  9. Prolonged absence (Brickfield Properties Ltd v Hughes (1988) 20 H.L.R. 108).
  10. Children’s/family’s needs elsewhere (Boyle).

Suggesting occupation 

  1. Registration with local GP, bank (Dove, Ibidun).
  2. Clothes/books/furniture present (Boyle, Brickfield, Brown v Brash [1948] 2 K.B. 247, Goldenberg, Grant).
  3. Problems at other property (Ansah, Grant).
  4. Postal address (Goldenberg).
  5. Family remain at property (Tickner).
  6. “Caretaker” present (Brown).
  7. Returns to property (Ibidun).

5. Future change in behaviour

  • Future plans

To what extent may potential future changes of circumstance prove relevant?

LB Havering v Dove was a case where neither joint tenant was asserting that their circumstances would change in the future, but rather maintained that their present living arrangements with their respective partners away from their home did not mean that the Havering property was not still their principal home (it was clearly not their only home).

In LB Camden v Goldenberg (1996) 28 H.L.R. 727 the tenant went into  a care home and her grandson was told that there was no valid assignment of her tenancy because he had not lived with her for the full 12 months required prior to her departure.  He had in fact spent 10 weeks looking after a house belonging to friends during this period. The evidence was that if he could have found alternative accommodation for his wife and himself during this period of absence (which he in fact didn’t) then he would have permanently moved from the grandmother’s flat.

In a majority judgment, the grandson succeeded in his appeal against the possession order made below. Nourse L.J. concluded at p. 736:

“On those facts, I would hold that there was no break in the continuity of the appellant’s residence at 9 Nalton House. I agree with Thorpe L.J. that if this had been the simple case of the appellant’s going to house sit for a friend for a period of 10 weeks or so during the 12 months in question, there could have been no doubt in the matter. The case would have fallen well within the examples given by Denning L.J. in Middleton v. Bull . Was then the continuity broken by the quality of the appellant’s intention? I do not think that it was. His intention not to return was contingent on finding something suitable for himself and his wife. That event did not occur. The intention was never realised. The appellant returned to 9 Nalton House, which was still his postal address and where the bulk of his belongings still were. His intention caused no change in his circumstances. It was as if it had never been formed.” (Emphasis added)

Similarly, in Crawley BC v Sawyer the tenant went to live with his girlfriend in 1985 and in July 1986 he told the authority that he was living with his girlfriend and that they intended to purchase her home. The following month, perhaps unsurprisingly, a notice to quit was served on the tenant though he separated from his girlfriend before its expiry (and returned to his premises 10 days later).

The authority lost its appeal against the dismissal of its possession claim. Parker L.J. said at p. 102:

“Going through the whole thread of these matters is the common principle that in order to occupy premises as a home, first, there must be signs of occupation—that is to say, there must be furniture and so forth so that the house can be occupied as a home—and, secondly, there must be an intention, if not physically present, to return to it. That is the situation envisaged in the examples given by the Master of the Rolls of, for example, the sea captain who is away for a while. His house is left fully furnished, ready for occupation, no doubt the rent paid in his absence, but he is not physically there and may not be for a very long period indeed…The position as at the time the notice to quit was served was that the girlfriend had already told him that he had to get out. He did not in fact move back into Cobnor Close until after the expiry of the notice to quit, but in my view it was well open to the learned judge to have come to the conclusion that, both when the notice to quit was served and when it expired and indeed throughout the whole period, Cobnor Close remained his principal home.”

Conclusion 

The ambulatory nature of the tenant condition, as noted at the start of this paper, provides challenges not faced by the once and for all loss of security of tenure as a result of  the sub-letting or parting with possession of the whole.

The outcome of cases is often hard to predict, as is clear from the cases referred to above.

11 November 2019

____________________________

Andy Lane is a Social Housing & Public Law barrister at Cornerstone Barristers, and author of “Cornerstone on Social Housing Fraud” (Bloomsbury Professional)


[i] Under the Rent Act 1977 a protected tenant will become a statutory tenant on termination of the protected tenancy “if and so long as he occupies the dwelling-house as his residence”: Rent Act 1977, s.2(1)(a)

[ii] The Court of Appeal in Waltham Forest Community Based Housing Association v Fanning [2001] L. & T.R. 41 at para. 9 found that Sawyer and Ansah were irreconcilable on the issue of the impact of sub-letting which is no longer of any great relevance since since the introduction of section 15A of the Housing Act 1988

Housing Fraud – September to November 2019

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.

Some cases

Some fraud work, figures & research

…and some training

Tenancy Fraud Conference

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:

  • How to investigate Right to Buy, Voluntary Right to Buy and Right to Acquire Fraud
  • Intention to Return Defences and How to Prepare for Them
  • Tackling Fraud and Subletting in Shared Ownership
  • Interviewing Suspects for Possession Claims and Unlawful Profit Orders
  • Succession Fraud – Spot It and Stop It