Housing fraud in the criminal courts – an introduction

A. Introduction
For many housing practitioners – whether that be those working for a social landlord, investigators or lawyers – their primary experience of seeking to ‘apply’ the results of their work in the fraud field is in the civil courts. In particular, it is in the context of (residential) possession proceedings in the county court.

However, the “crossover” into the criminal courts is not unusual and a quick review of the Cornerstone on Social Housing Fraud twitter account (@CSHousingFraud) for 2021 will show, by way of example, references to 13 convictions:

B. Housing fraud (criminal) charges
The usual offences charged in this field (primarily allocation fraud/unlawful sub-letting) are:

(1) Fraud Act 2006

Section 2 (fraud by false representation)

Section 3 (fraud by failing to disclose information)

Section 4 (fraud by abuse of position)

Section 7 (making or supplying articles for use in frauds)

Conviction (section 1(6))
– Summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum (or to both);

– Conviction on indictment, to imprisonment for a term not exceeding 10 years or to a fine (or to both).

Sentencing guidelines (Magistrates’ Court) can be seen here.

Sentencing guidelines (Crown Court) can be seen here.

(2) Prevention of Social Housing Fraud Act 2013

Section 1 (unlawful sub-letting: secure tenancies)

Section 2 (unlawful sub-letting: assured tenancies)

Conviction (sections 1(5)(6), 2(6)(7))

– A person convicted of an offence under sections 1(1), 2(1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

– A person convicted of an offence under sections 1(2), 2(2) is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum (or both);

(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine (or both).

(3) Housing Act 1996

Section 171 (false statements and withholding information)

Section 214 (false statements, withholding information and failure to disclose change of circumstances)

Conviction (sections 171(2), 214(4))

A person guilty of an offence under these sections is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

*Note that section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 replaced the previous statutory maximum of £5,000 in the magistrates’ court with an unlimited fine. This applies only to offences committed on or after 12 March 2015.

C. Sentencing guidelines
The Sentencing Council website says:

“On 1 December 2020 the Sentencing Code came into effect in England and Wales, consolidating existing sentencing procedure law into a single Sentencing Act.

The Code covers sentencing for adults and under 18s and applies to all convictions made on or after 1 December 2020, irrespective of the date on which the offence was committed. From this date, judges and magistrates need to refer to the Code, rather than to previous legislation, although there will be some transitional cases where an offender is convicted before 1 December but is sentenced later.

The Code includes general provisions relating to sentencing procedure, the different types of sentences available to the courts, and certain behaviour orders that can be imposed in addition to a sentence. It is a consolidation only so has made no substantive changes to the law.”

And so, for example, section 59 of the Sentencing Act 2020 provides:

“(1) Every court—

(a) must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender’s case, and

(b) must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function,

unless the court is satisfied that it would be contrary to the interests of justice to do so.

(2) The duty imposed by subsection (1) is subject to—

(a) section 125(1) (fine must reflect seriousness of offence);

(b) section 179(2) (restriction on youth rehabilitation order);

(c) section 186(3) and (6) (restrictions on choice of requirements of youth rehabilitation order);

(d) section 204(2) (restriction on community order);

(e) section 208(3) and (6) (restrictions on choice of requirements of community order);

(f) section 230 (threshold for imposing discretionary custodial sentence);

(g) section 231 (custodial sentence must be for shortest term commensurate with seriousness of offence);

(h) sections 273 and 283 (life sentence for second listed offence for certain dangerous offenders);

(i)section 321 and Schedule 21 (determination of minimum term in relation to mandatory life sentence);

(j) the provisions mentioned in section 399(c) (mandatory minimum sentences).”

Section 60 then goes on to say:

“(1) This section applies where—

(a) a court is deciding what sentence to impose on an offender for an offence, and

(b) offence-specific guidelines have been issued in relation to the offence.

(2) The principal guidelines duty includes a duty to impose on the offender, in accordance with the offence-specific guidelines, a sentence which is within the offence range.”

Section 73 deals with guilty pleas and the reduction of sentence that thereupon applies (depending on when the plea is made, minimum sentences that apply to some sentences, etc). See the Sentencing Council reference here.

By way of example, if a person has been convicted of a section 1 Fraud Act offence in the Magistrates’ Court and the court is retaining the case for sentencing then the court will:

  1. Determine the offence category – high, medium or lesser culpability – and as part of that consideration determine the harm by reference, in the latter instance, to value and impact.
  2. Use that to reference the case in the tables provided – that covers custodial sentences, fines and community orders, and allows for aggravating factors.
  3. Consider any factors which indicate a reduction, such as assistance to the prosecution – see section 74.
  4. Reduction for guilty pleas – see section 73.
  5. Totality principle – If sentencing an offender for more than one offence, or where the offender is already serving a sentence, consider whether the total sentence is just and proportionate to the overall offending behaviour. See guidance here.
  6. Confiscation, compensation and ancillary orders – see re magistrates’ court here and re Crown Court here.
  7. Reasons for sentence – see section 52.
  8. Consideration for time spent on bail (tagged curfew) – see section 240A of the Criminal Justice Act 2003 and section 325.

The Crown Court “version” can be seen here.

D. Conclusion

This blog is by way of an introduction to the criminal prosecution of housing fraud, and future articles will aim to build on its operation and the practical considerations that may need to be borne in mind in considering whether to go down this route instead of or, more likely, in addition to the civil litigation process. In the meantime there are earlier articles available on this site covering confiscation orders and compensation orders.