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The New Housing Fraud Legislation

The New Housing Fraud Legislation. ROBERT DARBYSHIRE RICHARD PRICE 9 ST JOHN STREET. 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

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The New Housing Fraud Legislation

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  1. The New Housing Fraud Legislation ROBERT DARBYSHIRE RICHARD PRICE 9 ST JOHN STREET

  2. 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

  3. Examples of Housing Fraud • Other examples? • Succession rights • Non-occupancy • Unauthorised exchanges • Prevention of Social Housing Fraud Act 2013

  4. 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

  5. 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

  6. 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

  7. 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

  8. Penalties • For 1(1) fine of up to £10,000 • For 1(2) 2 years in Crown Court, 6 months in magistrates

  9. Section 2 • An offence in identical terms for assured tenancies granted by social landlords

  10. 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

  11. 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

  12. 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

  13. 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

  14. Detecting Fraud • Credit checks • Land Registry searches • Residence checks • Use or introduce further checks scheme pre-tenancy?

  15. 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

  16. 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.

  17. 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.

  18. 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

  19. 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?

  20. 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

  21. 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

  22. DISCUSSION

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