Tag: possession

Only or Principal Home…again

INTRODUCTION

In my last court appearance before Christmas I was instructed to act on behalf of a housing association in a 2-day possession trial, primarily reliant upon an allegation that the (sole) tenant no longer lived at the demised premises as their only or principal home at the expiry of a notice to quit. In particular they had spent much of the last 2 to 3 years out of the country.

Judgment was reserved and handed down a few days after the conclusion of the parties’ cases and submissions, the Judge ultimately finding for the claimant association.

PREVIOUS BLOGS

When dealing with ‘misuse’ of social housing, one of the most difficult areas to explain, and demonstrate, can be the concept of only or principal home. I have written on this topic previously:

“Only or principal home” and an outright order for possession – 1 May 2018

Briefing paper for the Tenancy Fraud Forum Midlands Conference – 22 November 2019

Only or Principal Home…as a tenant? – 30 December 2024

The last blog was inspired by the Court of Appeal decision in The London Borough of Hackney v Yisroel Weintraub [2024] EWCA Civ 1561; [2025] 1 W.L.R. 1766. In the first appeal before Zaccaroli J, as he then was, reported in [2024] EWHC 845 (Ch) at [38], it was said:

“The facts of this case are unusual: there was a highly specific reason for ceasing to occupy the Property as a principal home – the fear of sleeping in the Property alone – which can readily be overcome by the alterations which Rabbi Weintraub plans to carry out on his return. The reason for ceasing to use the Property overnight, and the proposed solution, reinforce that there is a real and genuine intention by Rabbi Weintraub to restart occupying the Property as his principal home.”

I would conclude this section by emphasising that mere use of demised premises is not necessarily sufficient to defeat an only or principal home argument (i.e. complete abandonment is not a requirement). In Havering LBC v Dove [2017] EWCA Civ 156; [2017] P.T.S.R. 1233 Lewison LJ said:

“22. In my judgement these principles are engaged not only where the tenant is absent from the property in the sense of not being physically present at all. They are also engaged where the tenant ceases to occupy the property as his or her only or main home even if he or she continues to occupy it as a home; as, for example, where what had once been the tenant’s only home becomes no more than a weekend or holiday home. Moreover the question of an intention to return (which often features in these cases) is in reality an intention to revert to a previous pattern of existence. This was the case for instance in Crawley BC v Sawyer (1987) 20 H.L.R. 98(the tenant had occupied the dwelling as his only home for three years and went to live with his girlfriend temporarily but intending to return); Camden LBC v Goldenberg (1996) 28 H.L.R. 727(D lived with his grandmother for four years and after an absence abroad returned to live with her. He stayed in a friends’ house while they were on holiday, intending to find accommodation of his own, but when that failed he moved back into his grandmother’s flat).”

EVIDENTIAL ISSUES

The above section and my previous blogs on this topic explain sufficiently, I hope, the law and jurisprudence behind this legal concept. What I want to address here in relatively short form is some key practice factors and deficiencies in the defendant’s case which enabled the landlord to succeed in the recent trial I mentioned in the introduction. These can be summarised as follows:

  1. A failure to address the complete body of evidence.
    So much of the landlord’s evidence was not responded to in the defence or the witness statements filed on behalf of the defendant. Of course, a claimant faced with such omissions may choose to be pro-active pre-trial and make a Part 18 Request for Further Information and/or seek the strike out of the defence for not complying with the content requirements to be found in CPR r. 16.5.
    Here it was rather used to demonstrate the inherent implausibility in the defendant’s case and failure to overcome the reversed (LB Islington v (1) Boyle (2) Collier [2011] EWCA Civ 1450; [2012] P.T.S.R. 1093) ‘burden of proof’.
  2. Gaps in evidence. Following on from that last comment, if the demised premises remained the tenant’s principal home, they had not sub-let or parted with possession of it and despite a period of extended absence they intended to return to live there then why could they not produce positive evidence of this?
    It especially does not help if 3rd party evidence is produced in the form of a witness statement but that individual does not attend and no good reason is provided for their absence. Not only can it lead the court giving little or no weight to such evidence (see s. 4 of the Civil Evidence Act 1995) but the non-attendance may add to any scepticism and/or concern a court may already have about the bona fide nature of the defendant’s case.
  3. Evidence of 3rd party deception.
    For example, somebody had attended an earlier hearing and originally claimed to be the defendant. Similarly a 3rd party had attended the landlord’s offices and rang them, claiming to be the defendant. In oral evidence the defendant denied any knowledge of these deceptions but as already noted, failed to produce the individual who did act in this manner.
  4. Unexplained communications.
    For example, when contractors rang the tenant’s mobile number a 3rd party answered and said that tenants were about to move into the premises. On another occasion the tenant’s daughter spoke to the landlord’s solicitors and said she did not know where her father was and they did not get on. This was in direct opposition to their case that she had come to the UK to look after him.
  5. Multiple inconsistencies. Further to the above, 2 other individuals were connected to the premises when a credit reference search was undertaken on behalf of the landlord. In many cases on this and related topics there is no one compelling piece of evidence. However, the build-up of inconsistencies, omissions and lack of positive evidence on the defendant’s part and in their case can be sufficient to ‘tip the balance’.

    The issue of inconsistencies must be seen against the backdrop of the court’s well established approach, recognising that they may, to an extent at least, be explainable by the passage of time, different perspectives, or minor errors. That said, fundamental inconsistencies may affect the weight given to a witness’s evidence: Takhar v Gracefield Developments Ltd [2024] EWHC 1714 (Ch); Gestmin v Credit Suisse [2013] EWHC 3560 at [16]-[22].

As HHJ Tindal, sitting as a Deputy Judge of the High Court, summarised and approved in Takhar at [80]:

“A ‘holistic approach’ also benefits from being open to fact-finding insights from other jurisdictions, including Family and Crime. That was the approach Mr Dias KC adopted in the clinical negligence case of Powell at [25] with his ‘13 axioms of fact-finding’ (which I repeat with some citations and quotations excised):

“(1) The burden of proof rests exclusively on the person making the claim (she or he who asserts must prove), who must prove the claim to the conventional civil standard of a balance of probabilities;

(2) Findings of fact must be based on evidence, including inferences that can properly (fairly and safely) be drawn from the evidence, but not mere speculation (Re A (A child) (Fact Finding Hearing: Speculation) [2011] EWCA Civ 12, per Munby LJ);

(3) The court must survey the “wide canvas” of the evidence (Re U, Re B (Serious injuries: Standard of Proof) [2004] EWCA Civ 567 at [26] per Dame Elizabeth Butler-Sloss P (as then was)); the factual determination “must be based on all available materials” (A County Council v A Mother and others [2005] EWHC Fam. 31 at [44], per Ryder J (as then was));

(4) Evidence must not be evaluated “in separate compartments” (Re T [2004] EWCA Civ 558 at [33], per Dame Elizabeth Butler-Sloss P), but must “consider each piece of evidence in the context of all them other evidence” (Devon County Council v EB & Ors. [2013] EWHC Fam. 968 at [57], per Baker J (as then was)); such “context” includes an assessment of (a) inherent coherence, (b) internal consistency, (c) historical consistency, (d) external consistency/validity – testing it against “known and probable facts” (Natwest), since it is prudent “to test [witnesses’] veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case” (The Ocean Frost)…

(5) The process must be iterative, considering all the evidence recursively before reaching any final conclusion, but the court must start somewhere (Re A (A Child) [2022] EWCA Civ 1652 at [34], per Peter Jackson LJ…

(6) The court must decide whether the fact to be proved happened or not. Fence-sitting is not permitted (Re B… at [32], per Lady Hale);

(7) The law invokes a binary system of truth (Re B at [2], Lord Hoffmann):

(8) There are important and recognised limits on the reliability of human memory….(Gestmin…); and the court should be wary of “story-creep”, as memory fades and accounts are repeated over steadily elapsing time (Lancashire County Council v C, M and F (Children – Fact-finding) [2014] EWFC 3 at [9], per Peter Jackson J);

(9) The court “takes account of any inherent probability or improbability of an event having occurred as part of the natural process of reasoning” (Re BR  [2015] EWFC 41 at [7], per Peter Jackson J); “Common sense, not law, requires… regard should be had, to whatever extent appropriate, to inherent probabilities” (In re B at [15], per Lord Hoffmann);

(10) Contemporary documents are “always of the utmost importance” (Onassis…per Lord Pearce), but in their absence, greater weight will be placed on inherent probability or improbability of witness’s accounts… (Natwest at [50])…

(11) The judge can use findings or provisional findings affecting the credibility of a witness on one issue in respect of another (Arkhangelsky);

(12) However, the court must be vigilant to avoid the fallacy that adverse credibility conclusions/findings on one issue are determinative of another and/or render the witness’s evidence worthless. They are simply relevant: “If a court concludes that a witness has lied about a matter, it does not follow that he has lied about everything.” (R v Lucas [1981] QB 720, per Lord Lane CJ); Similarly, Charles J: “a conclusion that a person is lying or telling the truth about point A does not mean that he is lying or telling the truth about point B…” (A Local Authority v K, D and L [2005] EWHC 144 at [28]). What is necessary is (a) a self-direction about possible “innocent” reasons/explanations for the lies (if that they be); and (b) a recognition that a witness may lie about some things and yet be truthful “on the essentials … the underlying realities” (Re A (No.2) [2011] EWCA Civ 12 at [104].

(13) Decisions should not be based ‘solely’ on demeanour (Re M [2013] EWCA Civ 1147 at [12], per Macur LJ); but demeanour, fairly assessed in context, retains a place in the overall evaluation of credibility: see Re B-M, at [23] and [25]: “a witness’s demeanour may offer important information to the court about what sort of a person the witness truly is, and consequently whether an account of past events or future intentions is likely to be reliable”; so long as “due allowance [is] made for the pressures that may arise from the process of giving evidence”. But ultimately, demeanour alone is rarely likely to be decisive. Atkin LJ said it almost 100 years ago (‘The Palitana’) (1924) 20 Ll. L. Rep. 140, 152): “… an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.”

CONCLUSION

My recent trial experience has confirmed yet again the importance of case preparation starting well before the issue of proceedings. Thorough, fair and relevant investigations – including the use of an external agency – and careful preparation of statements of case, disclosure and witness statement evidence (including the question of who to rely upon) was unsurprisingly an important factor, and particular credit must therefore go to the officers of the social landlord and Kelly Lloyd of Devonshires Solicitors LLP.

Public policy and the false statement possession ground

Introduction

I have just concluded the second of 2 trials where my client, a London housing association, was seeking possession of properties “let” to individuals who colluded with a former housing officer in 2004 to provide for (assured) tenancies to which they were not entitled:

Though fraudulent misrepresentation was pleaded as the first of 2 alternative bases of claim, it was the second one (ground 17 of Schedule 2 to the Housing Act 1988) which was ultimately relied upon (see Islington LBC v Uckac [2006] 1 WLR 1303 at para. 29):

The tenant is the person, or one of the persons, to whom the tenancy was granted and the landlord was induced to grant the tenancy by a false statement made knowingly or recklessly by—
(a) the tenant, or
(b) a person acting at the tenant’s instigation.

In both claims the Judge found that ground 17 was satisfied. The ‘modus operandi’ was the housing file showing that the defendant was in occupation of the subject premises by purported reason of a mutual exchange even though no such arrangement in fact occurred (though the defendants signed the sham deeds of assignment).

This article focuses not on the constituent elements of ground 17, and there is a mirror provision for secure tenancies to be found at ground 5 of Schedule 2 to the Housing Act 1985, but the particular approach to ‘reasonableness’ and whether any possession order made should be outright or suspended on terms.

Discretionary ground

Ground 17, as with ground 5 for secure tenancies, is a discretionary ground in Part II of Schedule 2 and so the landlord must show that it is reasonable to make a possession order. As section 7 of Housing Act 1988 provides:

(4) If the court is satisfied that any of the grounds in Part II of Schedule 2 to this Act is established, then, subject to subsections (5A) and (6) below, the court may make an order for possession if it considers it reasonable to do so.

As for the nature of any such order made, section 9 goes on to explain:

(2) On the making of an order for possession of a dwelling-house let on an assured tenancy or at any time before the execution of such an order, the court, subject to subsection (6) below, may—
(a) stay or suspend execution of the order, or
(b) postpone the date of possession,
for such period or periods as the court thinks just.

The proper approach in false statement cases to the court’s exercise of discretion is described below but it is worth recording at this point Sedley LJ’s dicta in Lewisham LBC v Akinsola (2000) 32 HLR 414 at 417:

“Mr Riza rightly points out that whatever else may be in doubt, there is no doubt, under the Housing Act 1985, that even in cases of fraud, eviction is not the inexorable consequence. Section 84 quite plainly shows that there may be cases of fraudulently obtained tenancies which nevertheless it is not reasonable in the County Court’s view to determine by the making of a possession order. One can readily see that into the consideration of such a question may enter connivance, or laxity of procedure, or delay on the part of the local authority which now seeks to rely on the fraud, as well as, of course, the gravity of hardship on the tenant. All these things will be for the County Court to decide from case to case.”

Public policy approach

In possession proceedings for, say, anti-social conduct (grounds 12, 14) the approach to the court’s discretion is well-worn and established. For example, once the court has determined that it is reasonable to make a possession order the burden of producing cogent evidence to show that the matters complained of will not recur (or is unlikely to do so), such as to “allow” a suspension of any order in terms, shifts to the defendant: Birmingham CC v Ashton [2013] HLR 8, para. 42.

Unless there are other complaints against the tenant in a ground 17 case a suspended order is of little value – in most instances it is therefore an all or nothing claim, outright possession order or none at all.

In Rushcliffe BC v Watson (1992) 24 HLR 124 the tenant appealed against the making of a (ground 5) possession order. She complained that the judge failed to take account or give sufficient weight to the problems she would face in obtaining alternative housing for herself and her children.

At pages 130-131 of the main judgment, which dismissed the appeal, Nourse LJ said this about public policy considerations:

“Mr. Westgate accepts that, in doing that, the judge was entitled, and indeed bound, to take account of the public interest. But he says that he took too narrow a view of it, in particular by not recognising the public interest in keeping a family together as a unit. The judge’s view of the public interest was wrongly confined to a policy of discouraging deceitful applications which result in the unjust relegation on the housing list of applicants who are honest.

Again I cannot accept this submission. I am quite certain that the judge recognised the public interest in keeping a family together as a unit. But since he thought that there was no real likelihood that this family would be split up, that was not something which affected his consideration of the public interest in this case. On the broader aspect of the public interest the judge was fully entitled to attach the importance which he evidently did to the policy to which I have referred. The statistics which he recounted demonstrate the acute shortages in the plaintiff’s housing stock.”

Over 5 years later, the Court of Appeal was called upon to consider this issue again, in Shrewsbury & Atcham BC v Evans (1998) 30 HLR 123. Beldam LJ held at page 132, in dismissing the tenant’s appeal:

“The effect of the decisions, in my view, is that in a case such as this, where there has been a deliberate lying to obtain public housing that only in exceptional cases would the court consider the effect of the homelessness legislation. It is not the function of the court to decide whether or not a person is intentionally homeless. That is the function of the local authority and has been entrusted to the local authority by Parliament.

Those who are on the housing list who have an equal or even greater claim to public housing would, in my view, justly be indignant to find that the court did not think it reasonable in circumstances where someone has obtained accommodation by a deliberate and flagrant lie, to make an order for possession merely because the effect of the order would result in the occupant having to be considered by the local authority as homeless or intentionally homeless.

It seems to me, that in deciding questions of reasonableness in a case such as this, a court can, in exceptional cases take into account the nature and the degree of the untrue statements which have been made and the circumstances in which they are made and whether, for example, they are deliberate or reckless. If the court had considered the matters in detail in this case it would have concluded, as the evidence showed, that this appellant had flagrantly and deliberately lied about her circumstances and had done so with the express purpose of providing herself with a higher score under to the local authority’s qualifications for public housing, than she would otherwise have had; not merely a point or two more, but, according to the evidence, very substantially more.

Next, the court could reasonably, it seems to me, take into consideration the attitude of the appellant when the deception was discovered. Her attitude was to lie and lie again to deny completely that she had made the application to the District Council, suggest that this had been made by someone using her name, and when this was not wholly accepted by the officers of the respondents, to complain about the conduct of the housing officer quite unjustifiably. In my view, the court could take into account, as was said, the current position in which the appellant found herself, but at the same time it would have to have in mind, as I have previously indicated, the great importance to be attached to honesty in making application for public housing accommodation.”

And so in both the trials referred to in the Introduction, the Judges were influenced in the making of an outright possession order by:

  1. The evidence of the shortage of social housing at the time of the deception and now.
  2. The continued lies perpetrated by the defendants, in one case including at a caution interview, up to and including trial.
  3. The availability of alternative accommodation in the first case (she had exercised the right to buy the year before her tenancy).
  4. The finding that the defendants were fully complicit in the fraud.
  5. The fundamental and serious nature of the fraud.
  6. The total lack of remorse.

The Court decides

Ultimately of course it is a question for the court and, regardless of public policy considerations, an order may be refused. After all, the judge will always have in mind Lord Green’s dicta in Cumming v Danson [1942] 2 All ER 653 at 655:

“…the duty of the judge is to take into account all relevant circumstances as they exist at the date of the hearing. That he must do in what I venture to call a broad, common-sense way as a man of the world, and come to his conclusion giving such weight as he thinks right to the various factors in the situation.”

In Southwark LBC v Erekin [2003] EWHC 1765 (Ch), for example, the defendant obtained housing from the council on the basis of a fraudulent application form, and was sentenced for that and other frauds to 18 months imprisonment. Laddie J dismissed the local authority’s appeal against the trial judge’s dismissal of the ground 5 possession claim.

He referred to HHJ Cotran’s reasoning in this way:

“11 The learned judge, having heard submissions from counsel, having read the evidence and having heard the cross-examination, came to the conclusion that the council had not discharged the onus upon it to show that a possession order in the particular circumstances of this case was justified. It is clear from the terms of his judgment, an agreed note of which has been provided to me today, that he considered this to be a very borderline matter. He refers to the authorities I have mentioned. He refers to the extensive fraud committed by the first respondent. He refers to the situation of the children, and the fact that they have been enjoying a stable home life in the property for the last five years. His judgment ends as follows:

“Having anxiously considered all the factors, I come to the conclusion that it would be unreasonable to make an order. The claimant’s claim is dismissed.””

Conclusion

The obtaining of a tenancy by means of a false statement is a criminal offence:

In a case concerning partial sub-letting and criminal activity, Poplar HARCA v Begum [2017] HLR 42 at para. 40, Turner J helpfully articulated the court’s approach to housing fraud:

“I would stress that it is not compassionate to allow profiteering fraudsters indefinitely to continue to occupy premises and thereby exclude from such accommodation more needy and deserving families.”

and whilst a sub-letting case such as Begum has a more obvious and calculable profiteering element than a ground 5/17 case, and is perhaps more likely to involve the defendant having alternative accommodation, these words are a cautionary warning to all those committing housing fraud.

Finally, in a results-driven world the trial last week represented the final case in the former officer “fall out”, with 3 tenants surrendering their tenancy in addition to the 2 possession orders referred to above. For 5 households the results of the fraud investigation will mean affordable, good quality homes.

Only or Principal Home – Trial Lessons Learnt

Judgment has been handed down this week in the County Court at Clerkenwell & Shoreditch in a possession claim brought by a private registered provider of social housing and based on the allegation that the defendant was no longer living in her demised premises at the expiry of a notice to quit served by her (erstwhile) landlord.

There is nothing unusual in such a scenario of course and it is of depressingly common concern to social landlords that a minority of their tenants are not using their properties in the manner they should – abandonment, sub-letting, parting with possession or not using the property as their only or principal home.

The details of the case are not important for the purposes of this article, but the question of why the landlord succeeded in its case is. Seven points are of special note:

  1. Most of the Landlord’s evidence was hearsay and the Judge was very careful to assess its weight set against the factors provided for at section 4 of the Civil Evidence Act 1995. She particularly looked for corroborative documentary evidence, and treated neighbour “views” with particular caution in their absence from the trial.
  2. One of the key issues was the performance of the defendant (and indeed her witnesses) under cross examination. This is generally difficult to anticipate and pre-judge when considering in advance the strengths of any case.
  3. How a witness gives evidence can be as important as what they say. Here the defendant was found to be evasive at times and lacking in credibility in some of her explanations.
  4. There were further a number of inconsistencies in the defendant’s evidence (and, again, that of her mother and friend) brought out under cross examination, and a lack of documentary proof of residence (a lack of ‘footprint’ at odds with 11 years’ residence).
  5. The defendant’s witnesses were kept out of the court room until the time for them to give evidence arrived. This highlighted some stark differences between the defendant and her friend which though not in themselves especially significant or determinative did demonstrate a serious credibility issue.
  6. Evidence of low/no usage of utilities at the subject premises was especially helpful to the landlord’s case.
  7. A ‘trigger’ had been placed in the front door at one stage to check on access, and was still in place some 4 months later.

Though this article is not intended to explain the legal arguments for only or principal home cases, reference to and use of Dove v London Borough of Havering [2017] PTSR 1233 will also often be helpful, not least at paragraphs 31 and 33 of Lewison LJ’s judgment, where the defendant still “uses” the demised premises to a degree:

31. At [39] the judge said that he understood why they wished “to be in a position to have their own place – their own space – somewhere to which they can return in order either to be alone or if the worst happens and their relationship breaks down a place to live.” But there was no evidence that either Ms Evelyn or Ms Elaine Dove had any actual intention to change the settled pattern of life which they were living. He held therefore that he “would have had to have” reached the same conclusion as the FTT.

33. The issue before the judge was not of course whether either Ms Dove was occupying the flat at Highfield Tower as a home. On the basis of the judge’s findings of fact one or other of them may or may not have been. It was whether either of them was occupying that flat as her principal home. The judge’s findings of fact are, in my judgment, clear to the effect that neither of them was. As I have said each of them had a settled way of life and there was no suggestion that it would change in the future. This is not, therefore, a case which turns on any intention to return or revert to a previous pattern of life. The question in cases which turn on an intention to return, as explained by Thorpe LJ in Goldenberg at 733, is whether a period of absence breaks the continuity of residence. In a case such as the present where the pattern of residence has been the same throughout the period under consideration there has been no break in continuity. So the question is a different one: is the pattern of residence such that either Ms Dove is occupying the flat at Highfield Tower as her principal home?

These claims are especially difficult because the defendant may well still have access to and be using at times their social rented property, but “simply” not as their only or principal home. Sometimes their use of a 2nd property is particularly clear to show the reality of the situation. Where that is not the case, as in the case here, the focus will centre more on the demised premises.

Inconsistencies need to be identified in full, the explanation for them assessed and positive evidence of residence considered.