The Prevention of Social Housing Fraud Act 2013 in practice. Lucie Cocker Solicitor Higher Court Advocate Forbes Solicitors

Transcription

1 The Prevention of Social Housing Fraud Act 2013 in practice Lucie Cocker Solicitor Higher Court Advocate Forbes Solicitors

2 Introduction The Prevention of Social Housing Fraud Act 2013 ( the Act ) Addresses tenancy fraud arising out of unlawful subletting Does not deal with any other form of tenancy fraud What we will cover

3 What is the Act trying to achieve? Ensure social housing is occupied by those in greatest need Ensure tenants do not profit from their social housing tenancy Introduces changes to both civil and criminal law

4 Unlawful Profit Orders May require a Defendant to pay the landlord the profit that they have made from unlawful subletting Different provisions for UPOs within civil and criminal proceedings

5 Civil Unlawful Profit Order (1) Can apply for a Civil UPO where you have a secure or assured tenant who: in breach of their tenancy agreement, ceases to occupy their home, sub-lets or parts with possession of it (or part of it), and receives money in return.

6 Civil Unlawful Profit Order (2) Will not apply to assured shared ownership leases Maximum payable = net profit made Court has discretion to decide the amount payable A useful tactical device

7 Criminal Unlawful Profit Order Courts are obliged to consider following conviction Can be made in addition or instead of other sanctions Preference given to UPO Maximum payable = net profit made

8 Factors equally applicable to Civil and Criminal UPO s Court must consider Defendant s means when setting payments Can make a civil and criminal UPO subject to maximum Landlord needs permission from the court to enforce If Defendant fails to pay, the amount payable will attract interest at the Judgment Act rate

9 The Act and Security of Tenure Significant change to assured tenant s security of tenure Assured tenants can no longer defeat a NTQ Security of tenure once lost will be lost forever Ensures assured tenants are in exactly the same position as secure tenants

10 Criminal offences created by the Act LA s given power to prosecute tenants who unlawfully sub-let Creates two new criminal offences Offences for secure tenants Section 1 of the Act Offences for assured tenants Section 2 of the Act

11 The Less Serious Offence (1) Committed if the tenant: ceases to occupy the property as his only or principal home, either sub-lets or parts with possession of it (or part of it without the landlord s consent) and knows this is in breach of his tenancy agreement.

12 The Less Serious Offence (2) 2 Exceptions: Violence or threats of violence Right to occupy Time-limits: 6 month limit 3 year limit Maximum Sentence: 5000 fine

13 The More Serious Offence (1) The tenant not only knows he is breaching his tenancy agreement but he does so dishonestly Dishonesty amounts to: knowledge that a reasonable and honest person would consider the action in question to be dishonest R v Ghosh [1982] Ultimately a question of fact will eventually be clarified by case law

14 The More Serious Offence (2) No exceptions On Summary conviction - 6 months in prison, a fine not exceeding 5000 or both On Indictment - up to 2 years in prison, a fine or both

15 Using new powers to prosecute LA s can prosecute for main and associated offences e.g. aiding, abetting etc Can prosecute whether or not landlord and on behalf of other LA s Government to provide an additional 9.5 million to spend specifically on combating housing fraud Anticipated that prosecutions will only be used in the more serious cases of sub-letting Formal agreements between LA s and HA s advisable

16 Regulations and information sharing Important to link tenant to another address Information sharing with banks, building societies and utility companies Regulations to be introduced, to include: Who can use the power Which organisations Additional safeguards Creation of an offence for non-compliance

17 How are organisations tackling tenancy fraud using the Act?

18 Southwark Council Poster advising illegal subletting is now a criminal offence Fraud hotline Use of website Dedicated Anti Fraud Team

19 Nottingham City Homes & Newham Council Implemented a key amnesty tenants were given the opportunity to return keys by designated date in order to avoid prosecution Tenants warned they would be prosecuted if keys were not returned in accordance with the amnesty

20 Gloucester City Homes Implemented full tenancy fraud policy Want to encourage residents to report suspicions Will take appropriate action against perpetrators Will recover unlawful profit where appropriate Will work with other agencies

21 How do I tackle tenancy fraud? Use your data Match your data Visit your properties Employ dedicated fraud officers Publicise your efforts and results Link with agencies (LA) Have a policy Arrange a Key amnesty Take enforcement action

22 Conclusion We await case law to show how the new law will be implemented in the criminal and civil courts In the meantime need to prepare and adapt accordingly Develop links with LA

23 If In Doubt... Call Forbes Solicitors for free initial advice: Lucie Cocker / lucie.cocker@forbessolicitors.co.uk Your Attention Is Directed To This Note These materials are supplied as general illustrations of legal issues and not as legal advice applicable to any particular person or situation. These materials may not be relied upon as legal advice. Forbes shall not be liable for any loss caused to any person through any action or omission made in reliance on these materials or any connected presentation. Forbes Solicitors 2014