HOUSING FRAUD AND THE LAW ROBERT DARBYSHIRE RICHARD PRICE 9 ST JOHN STREET

What is Fraud? Civil proceedings have for their object the recovery of money or other property, or the enforcement of a right or advantage on behalf of the claimant Criminal proceedings have for their object the punishment of a person who has committed a crime

What is Fraud? (Criminal) A person is guilty of fraud if: (1)     he dishonestly makes a false representation, and intends, by making the representation, to make a gain for himself or another, or to cause loss to another or to expose another to a risk of loss: Fraud Act 2006 section 2

What is Fraud? (Criminal) (2)     he dishonestly fails to disclose to another person information which he is under a legal duty to disclose and intends, by failing to disclose the information, to make a gain for himself or another or to cause loss to another or to expose another to a risk of loss: Fraud Act 2006 section 3

What is Fraud? (Criminal) (3) he occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person, dishonestly abuses that position, and intends, by means of the abuse of that position, to make a gain for himself or another, or to cause loss to another or to expose another to a risk of loss: Fraud Act 2006 section 4

What is Fraud? (Criminal) Specific acts of obtaining sums of money, benefits, grants, subsidies, licences etc or other property or benefit by knowingly or recklessly making false statements or representations are made offences under various statutes Eg: Social Security Administration Act 1992 Section 112

What is Fraud? (Civil) E.g. A misrepresentation is fraudulent if it was known or believed by the representor to be false when made, but mere non-belief in the truth is also indicative of fraud.

What is Fraud? (Civil) Whenever a person makes a false statement which he does not actually and honestly believe to be true, for purposes of civil liability that statement is as fraudulent as if he had stated that which he did not know to be true, or knew or believed to be false.

What is Fraud? (Civil) Proof of absence of actual and honest belief is all that is necessary to satisfy the requirements of the law, whether the representation has been made recklessly or deliberately

What is Fraud? (Civil) A representor will not be fraudulent if he believed the statement to be true in the sense in which he understood it, provided that was a meaning which might reasonably be attached to it

What is Fraud? (Civil) The standard of proof applicable is the civil standard of balance of probability and not the criminal standard of proof beyond reasonable doubt The degree of probability required to establish proof may vary according to the gravity of the allegation to be proved

What is Fraud? (Civil) The question whether there is any evidence to support an allegation that a representation made was fraudulent is a question of law. Subject to this, the question whether a false representation was actually fraudulent is, in every case, a question of fact.

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

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?

Involving the Police? Should you? What are the Police trying to achieve? What are the consequences for any civil action?

Building a civil case Evidence What do you need to prove Who is going to provide the evidence How ‘cogent’ does that evidence need to be

Building a civil case Pleading in civil matters generally PD 16 para. 8.2(1): the Claimant must specifically set out in the Particulars of Claim any allegation of fraud where he wishes to rely on it in support of his claim

Building a civil case Bar Standards Handbook rule C9.2 “You must not draft any statement of case, witness statement, affidavit or any other document containing... c) Any allegation of fraud unless you have clear instructions to allege fraud and you have reasonably credible material which establishes an arguable case of fraud”

Building a civil case Interlocutory applications Part 18 request Strike out Summary Judgment

Building a civil case Trial Legal and evidential burden of proof Approach of judge to cases involving fraud

QUESTIONS?