Where are you? The “missing” witnesses and drawing an adverse inference

The issue – adverse inferences

In June I wrote an article on a sub-letting trial which I had recently concluded, and one of the points raised was the importance to a party of their putting forward the best, and at times most obvious, evidence. I said:

Lastly, often one of the most compelling features of a case is what is not there more than what is. Why was there nothing (email, letter, statement, etc) from those persons found at the premises? Why was there nothing from the defendant’s adult children who apparently sometimes stayed there? Why was there nothing from the husband (not least to refute the notion that his wife lived with him)? Why was there nothing from the neighbours who surely after 26 years of the defendant apparently living at the premises could have confirmed as much? Don’t forget to consider and use authorities such as Wisniewski v Central Manchester Health Authority [1998] PIQR P324 where Brooke LJ considered the court’s ability to draw adverse inferences from the absence or silence of a witness (that can of course go both ways).

Last month I was in trial dealing with an “only or principal home” possession claim and my skeleton argument highlighted this same issue, and indeed the same authority, in a case where the defendant called no other witnesses than themselves:

Conversely, the Defendant’s evidence in support of her case is limited in the extreme.  She has further not called her husband, Mr……. or any person from the neighbouring flats and houses to the Property to give evidence.  Such absence is telling.  In Wisniewski v Central Manchester Health Authority [1998] PIQR P324 at [340] Brooke LJ considered the issue of “missing” witnesses and summarised the relevant principles:

“(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action.

(2) If a court is willing to draw such inferences, they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.

(3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue.

(4) If the reason for the witness’s absence or silence satisfies the court, then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.”

Caution

Against that background it is important to note that Sir Ernest Ryder SPT cautioned in Manzi v King’s College Hospital NHS Foundation Trust [2018] EWCA Civ 1882 at [30]:

Wisniewski is not authority for the proposition that there is an obligation to draw an adverse inference where the four principles are engaged. As the first principle adequately makes plain, there is a discretion i.e. “the court is entitled [emphasis added] to draw adverse inferences”.”

Current jurisprudence

The brilliant blog – Civil Litigation Brief – recently reported on a High Court judgment by DHCJ Hodge QC in Ahuja Investments Ltd v Victorygame Ltd & Anor [2021] EWHC 2382 (Ch) in which the opening paragraph gave a flavour of what was to come:

In his farewell speech from the Delhi High Court, Justice J.R. Midha is reputed to have said that: “In the Court of Justice, both the parties know the truth; it is the judge who is on trial.” Never has that perceptive observation resonated more fully with me than in the present case, where both parties have signally failed to assist the court by calling evidence from three highly relevant potential witnesses, in breach of their duty under CPR 1.3 to help the court to further the overriding objective to deal with the case justly and at proportionate cost. As a result, this is not so much a case of “Hamlet without the Prince” as one of Hamlet without any of Polonius, Gertrude or Laertes (or Rosencrantz and Guildenstern without Hamlet, Claudius or the Player).

The facts of the case are unimportant for current purposes but rather the Judge’s consideration of Wisniewski and a Court of Appeal “warning” not to over-use the principles raised therein – in Magdeev v Tsvetkov [2020] EWHC 887 (Comm) at [150]-[154] – is of some interest and instruction:

65. In my judgment, before the discretion to draw an adverse inference or inferences can arise at all, the party inviting the court to exercise that discretion must first:

1.establish (a) that the counter-party might have called a particular person as a witness and (b) that that person had material evidence to give on that issue;

2.identify the particular inference which the court is invited to draw; and

3.explain why such inference is justified on the basis of other evidence that is before the court.

Where those pre-conditions are satisfied, a party who has failed to call a witness whom it might reasonably have called, and who clearly has material evidence to give, may have no good reason to complain if the court decides to exercise its discretion to draw appropriate adverse inferences from such failure. A good illustration of this, in the context of the present case, may be afforded by what passed between Mr Singh and Mr Jandu over the phone in the few minutes before exchange of contracts for the sale of the property at 15.11 (GMT) on 1 March 2016.

To add to the Manzi, Magdeev and Ahuja line of authorities we also have Lord Leggatt’s lead judgment in the recent Supreme Court case of Royal Mail Group Ltd v Efobi [2021] UKSC 33 – referred to in Ahuja at [31] – at [41]:

The question whether an adverse inference may be drawn from the absence of a witness is sometimes treated as a matter governed by legal criteria, for which the decision of the Court of Appeal in Wisniewski v Central Manchester Health Authority [1998] PIQR P324 is often cited as authority. Without intending to disparage the sensible statements made in that case, I think there is a risk of making overly legal and technical what really is or ought to be just a matter of ordinary rationality. So far as possible, tribunals should be free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense without the need to consult law books when doing so. Whether any positive significance should be attached to the fact that a person has not given evidence depends entirely on the context and particular circumstances. Relevant considerations will naturally include such matters as whether the witness was available to give evidence, what relevant evidence it is reasonable to expect that the witness would have been able to give, what other relevant evidence there was bearing on the point(s) on which the witness could potentially have given relevant evidence, and the significance of those points in the context of the case as a whole. All these matters are inter-related and how these and any other relevant considerations should be assessed cannot be encapsulated in a set of legal rules.

Impact beyond adverse inferences

Finally, it is worth noting what DHCJ Hodge QC said in Ahuja at [32]-[33] (the “third aspect” concerned rectification):

“32.The omission to call a material witness or witnesses without reasonable explanation may have a significance that goes beyond the drawing of appropriate adverse inferences. Three particular aspects are of particular relevance to the present case. First, in a case where there are contemporary documents which appear on their face to provide cogent evidence on an issue which is contrary to the evidence of one of the parties to the litigation, the court may decide to take the documents at their face value, and decline to accept that party’s evidence to the contrary, where this is unsupported by the evidence of a non-party witness who clearly could have given evidence material to that issue and who might have, but has not, been called by that party as a witness. The same may apply where the evidence of one of the parties to the litigation is contrary to the known or probable facts.

33.Second, the failure to call a witness who might have been able to give evidence on a material issue may mean that the court is left with no direct evidence at all on that issue. In that situation, the party who might be expected to have called that witness cannot complain if the court rejects that party’s case on that issue and either makes a finding based on the inherent probabilities presented by the limited evidence that is before the court, or simply concludes that it is unable to make any finding of fact at all on that issue. This is an alternative way of analysing my conclusion as to what was said during the telephone conversation between Mr Jandu and Mr Singh between 15.02 and 15.06 GMT on 1 March 2016 (if Ahuja can be taken to have been advancing a positive case on that issue notwithstanding the paucity of Mr Singh’s evidence on the point).

Conclusion

It is clear that simply not calling a witness without apparent reason is not, in itself, necessarily sufficient to enable a court to draw adverse inferences (or indeed reach other negative determinations). However the “Wisniewski principle” remains sound and requires consideration as to its possible application in housing fraud/misuse cases.

Cornerstone on Social Housing Fraud – 2nd Edition now published

“A serious abuse of public housing resources for personal gain”

These were the words of a district judge concluding his judgment yesterday (3 June 2021) in a sub-letting possession case brought by a housing association. Regrettably such cases are not unusual and this blog has considered sub-letting matters previously.

However, I thought it might be helpful to highlight a few issues that stood out in this case which may assist and inform those dealing with similar cases.

Firstly, significant evidence requires, in most instances, a rebuttal / explanation. For example here, why were there padlocks on the internal room doors? Why did one of the occupants found at the property by the association describe the defendant’s claimed bedroom as a storage room? Why did the electoral roll evidence obtained by way of the credit reference report show multiple people registered there in the last 10 years or so, and often for long periods? Who were they? Why did the defendant’s bank accounts show so many cash payments into her account over the years?

The absence of clear (or any) answers to these matters in the pleaded case or witness evidence is significant. The attempt to “fill the gap” during cross examination may make matters even worse (and did here).

Secondly, sometimes you need to step back and see the bigger picture. A 2nd witness statement by the defendant served less than a week before trial is undoubtedly frustrating and should not have been necessary so late but what is to be served by opposing its submission? That is not to say there will never be a good reason – e.g. it raises new matters you would have wished to investigate – but where it largely says more of the same (e.g. my bills always went to the demised premises’ address) opposition to its admission can appear churlish, insecure and unattractive. In this instance it actually helped the association’s case because they could say that the defendant had failed even at that late stage to provide sufficient responses to the evidence seemingly against her.

Thirdly, your evidence may not have a knock-out point but that is not fatal to the case. Indeed my skeleton argument said as much: “It may be argued on behalf of the first defendant that individually none of the pieces of information provide conclusive proof of any sub-letting”. To paraphrase the district judge’s more artistic position on this, “Individually all of the above may not be enough but put all the pieces together and it beats with a single rhythm”. See also Lord Justice Mummery’s remarks in Lambeth LBC v Vandra [2006] H.L.R. 19 at para. 13:

“There was no direct evidence, it is true, but there was sufficient evidence from which a reasonable inference could be made about a state of affairs in which a number of people were paying to live in Miss Vandra’s flat and were in fact living there.”

Fourthly, remember that not every question in cross examination is designed to “catch the witness out”, though you may well be laying the trail. For example, it had been said that one of the occupants found at the premises was the defendant’s sister. A little time was spent at the start of the cross examination of the defendant asking her to explain her family set up. It became clear by that point that the said occupant was not after all her sister, and the other person found with her was not a family member as claimed.

Lastly, often one of the most compelling features of a case is what is not there more than what is. Why was there nothing (email, letter, statement, etc) from those persons found at the premises? Why was there nothing from the defendant’s adult children who apparently sometimes stayed there? Why was there nothing from the husband (not least to refute the notion that his wife lived with him)? Why was there nothing from the neighbours who surely after 26 years of the defendant apparently living at the premises could have confirmed as much? Don’t forget to consider and use authorities such as Wisniewski v Central Manchester Health Authority [1998] PIQR P324 where Brooke LJ considered the court’s ability to draw adverse inferences from the absence or silence of a witness (that can of course go both ways).

Conclusion
The district judge had little hesitation in finding that there had been a sub-letting of the whole of the premises, and that the notice to quit had brought the remaining common law tenancy to an end at its expiry. Even had it have been only of part the district judge indicated that he would have made an outright order – this was not the case for a second chance.

As well as the “usual orders” an unlawful profit order in the sum of £145,177.89 was made against the defendant based on estimated figures of the rents received by her over many years.

Finally, I must pay particular tribute to association’s counter fraud specialist, Raj Vine, and the intelligence officer Magnus Lærke-Hall for their fantastic and crucial work without which there could have been no successful outcome. As always, I was also served by excellent solicitors, this time in the form of Katrina Robinson and, before her, Victoria Smith of Capsticks.

“Cornerstone on Social Housing Fraud” 2nd Edition

Judgment obtained by fraud?

On 24 February 2021 the Court of Appeal handed down judgment in Dale v Banga and others [2021] EWCA Civ 240. The opening paragraph of the (main) judgment of Lady Justice Asplin makes it clear what the issue in the appeal was:

“This appeal raises the question of what the appeal court should do when fresh evidence is adduced after a trial which allegedly shows that the judgment below was obtained by fraud, the conduct relied upon being that of a witness and of a party to the action which took place after the events in issue, and is unrelated to the issues which were before the court. In particular, it raises the following questions: whether the fresh evidence (permission to rely upon it having already been granted) is capable of establishing that the Respondents misled the judge at trial by asserting that a letter of revocation in relation to a will had been duly attested; if so, whether the question of whether the judge was misled (the fraud issue) should be referred to the lower court to be determined or should be the subject of a separate action; and, if it is determined that the lower court was misled by fraud, whether a previous will should be admitted to probate on the basis of the original judge’s obiter dicta.”

This is an issue which this blog has previously dealt with.

The “fresh evidence” concerned the discovery that one of the two attesting witnesses to the letter had been sent to prison for fraud offences, and Mr Banga himself had been indicted with attempting to pervert the course of justice (though no evidence was offered at trial and he was acquitted):

“7…It is alleged, nevertheless, that it is incontrovertible that Mr Banga had sought to pervert the course of justice by the production of false invoices. 

8. Mr Brennan, on behalf of Mrs Dale, submits that if the fresh evidence had been available to be adduced at trial it would have entirely changed the way in which the judge approached the question of the proper attestation of the Letter and his conclusion in that regard. It is said that the fresh evidence: undermines Mr Arif’s credibility as a witness of fact (as to the attestation of the Letter); supports the conclusion that Mr Arif and Mr Banga are sufficiently dishonest to have attempted to deceive the court about the circumstances in which the Letter was signed by the attesting witnesses and even that it was a forgery and was produced on another occasion; made Mr Arif the obvious person to have been chosen to assist in attempting to deceive the court; and gave Mr Arif an obvious motive to assist Mr Banga and his family.”

Coming back to Asplin LJ’s judgment, she explained what would be necessary to allow for a set aside of the final judgment:

  • It is not sufficient that the evidence given below can now be proved to have been mistaken.
  • It is not sufficient that a witness committed perjury.
  • “It is necessary that the judgment was obtained by fraud and that the fraud was that of a party to the action or was at least suborned by or knowingly relied upon by that party” (27).
  • There are two options then available – a new action to set aside the judgment (as preferred by the Court of Appeal – Salekipour v Parmer [2018] QB 833) or an appeal against the original order as in the present case, alleging that the judgment upon which it is based was obtained by fraud (39-41).

As for the test on appeal:

“42…It seems to me that it is necessary to decide whether the new evidence is capable of showing that the judge was deliberately misled by the Respondents and that the judgment may have been obtained by fraud. It must be sufficient to justify pleading a case of fraud. It must be capable of showing that there was conscious and deliberate dishonesty which was causative of the judgment being obtained in the terms it was. The conscious and deliberate dishonesty must be that of a party to the action, or was at least suborned by or knowingly relied upon by a party.

43. Secondly, if that threshold test is satisfied, the court must determine whether on the facts and in the circumstances of the particular case, it is appropriate that the fraud issue should be remitted or otherwise dealt with within the same proceedings. There is no question but that the appeal court has power to “refer any claim or issue for determination by the lower court”: CPR 52.20(2)(b). The question is whether the discretion to do so should be exercised. It is not possible to list the matters which will be relevant to the exercise of that discretion because they inevitably depend on the circumstances.”

Ultimately, the court declined to remit the issue of fraud to the lower court and dismissed the appeal:

“45. Unlike in Noble v Owens, the new evidence is of allegedly similar fact and bad character. It does not go directly to the central matters of fact before the judge. It requires inferences to be drawn based upon the alleged lack of credibility of the witnesses who gave evidence before him and their alleged propensities. It is tangential. Furthermore, all of the conduct from which it is said that the inferences should be drawn post-dates the alleged attestation of the Letter.”

Cases cited in judgment:

Odyssey Re (London) Ltd & Ors v OIC Run Off Limited & Ors [2000] EWCA Civ 71

Cinpres Gas Injection Ltd v Melea Ltd [2008] EWCA Civ 9

Takhar v Gracefield Developments Ltd & Ors [2020] AC 450

Royal Bank of Scotland plc v Highland Financial Partners lp [2013] 1 CLC 596

Noble v Owens [2010] EWCA Civ 224, [2010] 1 WLR 2491

Salekipour v Parmar [2017] EWCA Civ 2141, [2018] QB 833

The (current) notice periods for “fraud” possession actions under Covid-19

Introduction
This is a short article on the notice provisions for possession actions relying on:

  1. A notice to quit – where sub-letting / parting with possession of the whole is alleged, and/or it is said that the tenant(s) was not living at the demised premises as their only or principal home at the time the notice expired.
  2. A notice seeking possession – where it is alleged that tenant(s) were granted the tenancy because of a false statement (i.e. grounds 5 or 17 of Schedule 2 to the Housing Acts 1985 or 1988 respectively).

Notices to quit
The “easy” part of the explanation is that notices to quit have never been reformed by reason of the pandemic under the Coronavirus Act 2020 or otherwise save so far as concerns Rent Act tenancies. That remains the case.

Notices seeking possession
The notice seeking possession route is more complicated and I have chaired a recent webinar on the subject with four colleagues from Cornerstone Barristers. I have also produced a table of the changes but you can also of course check the amended notice sections of the Housing Acts and/or the Regulations themselves.

To remind ourselves of the wording of ground 5 / ground 17:

“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.”

The Coronavirus Act 2020, Schedule 29 had changed the usual 14-days (assured tenancies) and 28-days (secure tenancies) notice period to 3 months and now this temporary amendment has itself been amended by the Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 from 29 August 2020 to 31 March 2021.

The effect is that:

  1. Ground 5 requires 28-days notice so long as it is not joined by any other grounds other than 1, 2ZA and/or 2A (so long as with 1 at least 6 months rent is unpaid at the date of service). Also Ground 2 (no period) and section 84A (28 days (periodic) / 1 month (fixed term)) Schedule 29 changes have been suspended and these can include any other ground.
  2. Ground 17 requires 14-days notice so long as it is not joined by any other grounds other than 14A and/or 14ZA. Also Ground 7A (28 days (periodic) / 1 month (fixed term)) and Ground 14 (no period) Schedule 29 changes have been suspended and these can include any other ground.

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”.”