the new housing fraud legislation
Post on 01-Jan-2016
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Examples of Housing Fraud
• Not telling the truth when applying for a property e.g. Claiming to have children when you don’t
• Sub-letting your property without permission• Living in a property after someone has died
without the right to do so
Source: “Council House Fraud” from GOV.UK
Examples of Housing Fraud
• Other examples?• Succession rights• Non-occupancy• Unauthorised exchanges• Prevention of Social Housing Fraud Act 2013
Prevention of Social Housing Fraud Act 2013
• Ss 1-3 : Unlawful sub-letting is a crime, prosecutable by the local authority, in secure and assured tenancies
• Ss 4-5 “Unlawful profits” can be ordered to be repaid to the landlord in civil or criminal proceedings
• S6 Assured tenancies lose their assured status
Ss 1-3 is more detail
• S1(1) – creates a crime re secure tenancies• Where T sublets or parts with possession of
part or whole without consent in writing• And T ceases to occupy as only or principal• And T is aware this is a breach of tenancy
Ss 1-3 is more detail
• S1(2) – creates a crime• Where T dishonestly sublets or parts with
possession of part or whole without consent in writing
• And T ceases to occupy as only or principal• And T is aware this is a breach of tenancy
Defences 1(3) &1(4)
• No crime if T so acts because of violence or a threat of violence against him or a member of his family
• No crime if occupant is entitled to apply for a right to occupy or to have tenancy transferred
Penalties
• For 1(1) fine of up to £10,000• For 1(2) 2 years in Crown Court, 6 months in
magistrates
Section 3: Limitation
• Prosecution must be brought within 6 months of knowledge of the offence coming to the prosecutor
• And in any event, within 3 years of commission of the offence
Section 4: Unlawful profit orders - Crime
• Must be considered upon conviction• Requires profits to be paid to L• If not made, reasons must be given• Can be ordered in addition to a fine
Section 5: Unlawful profit orders - Civil
• Requires sub-letting or parting with possession in breach of tenancy agreement
• And that T no longer occupies as only or principal
• Can be recovered “on application”• Applies to assured and secure tenancies
Section 6: Loss of assured status
• Applies where T parts with possession or sublets entirety of premises…
• in breach of tenancy agreement• Automatically, assured status is removed
Detecting Fraud
• Credit checks• Land Registry searches• Residence checks• Use or introduce further checks scheme pre-
tenancy?
Recommended Steps
• All landlords should ascertain the level of unlawful occupation in their stock.
• More local authorities should provide a fraud investigatory service to housing associations in return for nomination rights to homes recovered
• Registered providers of social housing should have robust internal audit processes in place to detect possible fraudulent or corrupt actions by staff.
• Local authorities should consider photographing tenants at allocation and existing tenants at tenancy audits.
• Local authorities should consider the balance of the resources they allocate to housing benefit and housing tenancy fraud.
• A consistent best practice tenancy audit checklist and training needs to be devised to show how these can be carried out effectively.
• The Government should consider further incentivising local authorities and registered providers to investigate and recover unlawfully sublet properties.
• Registered providers and councils should commit to joint working and there should be political and managerial commitment to the recovery of unlawfully sub-let properties.
• Housing tenancy fraud is not restricted to London and work needs to be done to promote investigations outside London
• Source: House of Commons Library Ref: SN/SP/6378
Is it necessary to rely on fraud?
• What are you trying to achieve?• What are the consequences of alleging fraud?– For the Claimant– For the Defendant–Burden of proof generally
• What is the Court’s approach to fraud claims?–Do judges like them?
The Prevention of Social Housing Fraud (Power to Require Information) (England) Regulations 2014
• Now in force• Allow approved officers of a local authority
power to require information from…• banks; credit businesses; water and sewage
undertakers; gas electricity and telecommunications suppliers
• Information must be “relevant” to a fraud investigation
Bring a claim
• Under the Housing Act– Do you need to rely on fraud at all?
• Under the Prevention of Social Housing Fraud Act– No dishonesty offences– Dishonesty offences– Civil unlawful profit orders
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