Cornerstone on Social Housing Fraud 9781526516985, 9781526517012, 9781526517005

Citation preview

Cornerstone on Social Housing Fraud

To my beautiful Yasmin and wonderful parents.

Cornerstone on Social Housing Fraud Second Edition

Andrew Lane LLB (Hons) Barrister, Cornerstone Barristers

BLOOMSBURY PROFESSIONAL Bloomsbury Publishing Plc 50 Bedford Square, London, WC1B 3DP, UK 1385 Broadway, New York, NY 10018, USA 29 Earlsfort Terrace, Dublin 2, Ireland BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc © Bloomsbury Professional Ltd 2021 All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/open-governmentlicence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998-2021. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN: PB: 978-1-52651-698-5 ePDF: 978-1-52651-700-5 ePub: 978-1-52651-699-2 Typeset by Evolution Design & Digital Ltd (Kent)

To find out more about our authors and books visit www.bloomsburyprofessional.com.  Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters

Foreword

When I  first met Andrew it was some years ago when I  was dealing with a possession claim for a social home that had been sublet. I was outraged (as I still am) that someone could make such a large profit from their unlawful act and deprive someone in need of a secure home. It was nothing short of a delight to find that Andrew was as outraged as me (and he still is). What makes Andrew such an expert in this area, is not just his unrivalled legal knowledge, but that he also has an in-depth understanding of how housing fraud investigators work, what they do, what they can do and what they should do. Were he not a barrister he would be a first class sleuth I have no doubt.  This second edition of his book has been keenly awaited and will be vital in your tenancy fraud investigations and legal practice whether you are a novice or a seasoned practitioner. What is fantastic about this book is that it is accessible to both housing and legal professionals and will guide you through civil and criminal legislation, and best practice, to a successful outcome whether your case is subletting, misrepresentation, succession or shared ownership fraud or only and principal home. Financial remedies are also expertly dealt with so you can ensure the fraudsters don’t get away with their ill-gotten gains. Anyone who works within social housing will be acutely aware of the desperate need for suitable properties for those who are in need of a settled home. For every property subject to tenancy fraud, many will continue to wait years for a home. Tenancy fraud is not a victimless crime. It has a real and detrimental effect on people and families across the country. Andrew’s book will equip you with the tools you need to free up those homes. Katrina Robinson MBE Solicitor and Chair of the Tenancy Fraud Forum

v

Current titles in the ‘Cornerstone on …’ series

•

Cornerstone on Anti-social Behaviour (2nd edn, 2019) ISBN 978 1 52650 864 5

•

Cornerstone on Councillors’ Conduct (2015) ISBN 978 1 78043 330 1

•

Cornerstone on Information Law (2019) ISBN 978 1 78451 411 2

•

Cornerstone on the Planning Court (2nd edn, 2021) ISBN 978 1 52651 672 5

For further information, visit www.bloomsburyprofessional.com.

Preface

It has been some 41 months since I  wrote the preface to the first edition of ‘Cornerstone on Social Housing Fraud’ but my desire to revisit the project began in February 2020 when I  emailed Bloomsbury with a tentative proposal for a second edition. It took a further four months before agreement was reached and I was able to embark on what I felt would be a very easy task of ‘updating’ my original drafts. Though a revision is far more straightforward than staring at a blank piece of paper it did involve not only the need to ‘improve’ on some of my existing stolid text but also the incorporation of significant changes in data protection and criminal procedure in particular, as well as addressing for the first time the burgeoning issue of short-term lets. It was tough, even if I didn’t have to miss any episodes of Midsomer Murders, Judge Judy and Married at First Sight Australia. Whilst I  had tremendous assistance from colleagues last time, for the 2nd edition I could almost say, in the words of Spike Milligan (or Johnny Vegas), that I don’t need to thank anyone this time because it was all my own work. But of course that would not be true because not only have my publishers been patient, wonderful and reassuring – especially Andy Hill, Sharon Heaton and Chris Harrison – and not only have my lovely family been as always accommodating and understanding beyond what I deserve, but also my knowledge, experience and interest is not borne alone. I have had the privilege of working with some fantastic lawyers, local authority and housing association officers who have educated me in the social housing fraud field every bit as much, and indeed more, than the converse is true. Katrina Robinson MBE is a great example of that and I thank her again for providing the foreword to this edition. Last time I was too timid to put in the Half Man Half Biscuit lyrics I wanted to in the Preface (I think the Bob Todd song) but this time I may be able to sneak in THAT quote from Eric ‘The King’ Cantona: ‘When the seagulls follow the trawler, it’s because they think the sardines will be thrown into the sea’ I  couldn’t have put it better. Enjoy the read and try not to drop kick the spectators. Andy Lane April 2021

vii

About the Author

Andy was called to the Bar in 1999 and has practised since that time in the social housing and public law fields. He is a member of Cornerstone Barristers and has his own blog, Cornerstone on Social Housing Fraud, as well as twitter accounts @AndyLane07 and @CSHousingFraud. Before coming to the Bar he worked in advice work in both the statutory and voluntary sector and was for four years, in the early 1990s, a local councillor on Oxford City Council, including a period as Chair of the Housing Committee. He is married to Yasmin and they have two children (now adults!), Aatif and Zain, and maintains an unhealthy obsession with Manchester United.

viii

Contents

Forewordv Prefacevii About the author viii Table of cases xiii Table of statutes xxi Table of statutory instruments xxv 1. FRAUD IN THE SOCIAL HOUSING SECTOR Introduction 1 The book 2 The figures 3 Detection of fraud 4 Legislation 5 Covid-19 6 Conclusion 7 2. TENANCY PROCURED BY FALSE STATEMENT Introduction 9 Rescission 10 The Ground 14 Matters to prove 14 False statement 15 Materiality 18 Instigation 18 Knowledge and recklessness 19 Inducement 20 Notice Procedure – Discretionary ground for possession: periodic tenancy 21 Notice Procedure – Discretionary ground for possession: fixed term/ flexible tenancy 23 Standard of proof 27 Reasonableness 29 Conclusion 34 3. MISUSE OF PROPERTY Introduction 38 What is sub-letting? 41 What is parting with possession? 42 Security of tenure 43 Introduction 43 Secure tenancies 43 Assured tenancies 44 Only or principal home 44 Sub-letting or parting with possession of whole 44 What if the sub-letting/parting with possession only relates to part of the premises? 46

ix

Contents

Short-term lets 50 Possession claims (Periodic tenancies) 53 Fixed-term/Flexible tenancies 60 Evidence 63 Conclusion 65 4. ONLY OR PRINCIPAL HOME/SUCCESSION Introduction 68 Only or principal home 68 Overview 68 Defining the term 70 Succession 75 Right of succession – secure tenancies (overview) 75 Right of succession – assured tenancies (overview) 77 Fraudulent ‘succession’ 78 Conclusion 86 5. CIVIL FINANCIAL REMEDIES Introduction 87 Unlawful Profit Orders (UPOs) 88 Conditions 89 The application 90 The amount sought 94 Fraudulent misrepresentation 97 Overview 97 Right to buy/acquire 99 Rescission 100 Damages 103 Deceit 103 Conclusion 107 6. INVESTIGATION AND EVIDENCE Introduction 110 Data Protection Act 2018 111 Introduction 111 Data protection – personal data 112 Retention of Information 114 Obtaining of Information – Introduction 114 Obtaining of Information – Processing 115 Exemptions 118 Data sharing 120 Covert Surveillance 121 PSHF Regulations 124 Court processes 127 Pre-action 127 Post-issue 128 Part 18 Request 128 Specific disclosure 133 Third Party disclosure 134 Witness summons 135 Missing Witnesses 155 Conclusion 137

x



7. CRIMINAL SANCTIONS Introduction 139 Allocation fraud 140 False statement 141 Withholding information 142 Sentence 142 Homelessness fraud 143 Sentence 144 Prevention of Social Housing Fraud Act 2013 144 Major offence 145 Less serious offence 146 Proceedings 148 Trial 151 Sentence 154 Fraud Act 2006 155 False representation (section 2) 156 Failure to disclose information (section 3) 158 Abuse of position (section 4) 159 Sentence 160 Proceeds of Crime Act 2002 162 Confiscation Orders 162 Powers of Criminal Courts (Sentencing) Act 2000 165 Compensation Orders 165 Civil recovery orders 167 Private Prosecutions 168 Conclusion 172 APPENDICES Appendix A – Statutes Appendix B – Secondary Legislation Appendix C – Civil Procedure Rule and Guidance Appendix D – Landlord checklist

173 439 447 631

Index 633

xi

Table of cases

[All references are to paragraph numbers] A AIC Ltd v ITS Testing Services (UK) Ltd (The Kriti Palm) [2006] EWCA Civ 1601, [2007] 1 All ER (Comm) 667, [2007] 1 Lloyd’s Rep 555, [2006] 11 WLUK 669, [2007] 2 CLC 223........................................................................ 5.41 Abbey Forwarding Ltd (In Liquidation) v Hone [2010] EWHC 2029, Ch D............... 5.37 Abrahams v Mac Fisheries Ltd [1925] 2 KB 18, KBD................................................. 3.63 Akinbolu v Hackney LBC (1997) 29 HLR 259, (1996) 160 JP Rep 995, [1996] EG 73 (CS), (1996) 93(19) LSG 28, (1996) 140 SJLB 118, [1996] NPC 60, CA................................................................................................ 2.37 Amoah v Barking and Dagenham LBC (2001) 82 P & CR DG6, Ch D....................... 7.27 Angus v Clifford [1891] 2 Ch 449, [1891] 4 WLUK 26................................................ 5.41 Artesian Developments Ltd v Beck [2000] QB 541, [2000] 2 WLR 357, [1999] 3 All ER 113, [1999] 3 WLUK 363, (2000) 32 HLR 107, [1999] L & TR 278, [1999] 2 EGLR 30, [1999] 22 EG 145, [1999] EG 46 (CS), [1999] NPC 41................... 2.65 Atwal v Massey [1971] 3 All ER 881, (1972) 56 Cr App R 6, DC............................... 7.31 B B (children) (sexual abuse: standard of proof), Re [2008] UKHL 35, [2009] 1 AC 11, [2008] 3 WLR 1, [2008] 4 All ER 1, [2008] 6 WLUK 228, [2008] 2 FLR 141, [2008] 2 FCR 339, [2008] Fam Law 619, [2008] Fam Law 837.......................  2.79; 5.41 Barings plc (in liquidation) v Coopers & Lybrand (No 5) [2002] EWHC 461 (Ch), [2002] 3 WLUK 541, [2002] 2 BCLC 410, [2002] Lloyd’s Rep PN 395, [2002] PNLR 39..................................................................................................... 5.41 Barley v Muir [2018] EWHC 619 (QB), [2018] 3 WLUK 620..................................... 5.41 Barlow Clowes International Ltd (In Liquidation) v Eurotrust International Ltd [2005] UKPC 37, [2006] 1 WLR 1476, [2006] 1 All ER 333, [2006] 1 All ER (Comm) 478, [2006] 1 Lloyd’s Rep 225, [2005] WTLR 1453, (2005-06) 8 ITELR 347, (2005) 102(44) LSG 32, [2006] 1 P & CR DG16, PC (IoM)......... 7.54 Bermondsy Exchange Freeholders Ltd v Ninos Koumetto (as Trustee in Bankruptcy of Kevin Geoghehan Conway (2018) EW Misc B10 (CC).................................... 3.44 Birmingham City Council v Qasim [2009] EWCA Civ 1080, [2010] PTSR 471, [2010] HLR 19, [2010] BLGR 253, [2009] 43 EG 104 (CS), [2009] NPC 115, [2010] 1 P & CR DG16, CA......................................................................2.14; 7.15, 7.67 Bradford City Metropolitan Council v McMahon [1994] 1 WLR 52, [1993] 4 All ER 237, (1993) 25 HLR 534, 91 LGR 655, [1993] EG 74 (CS), CA.................... 5.29 Brent LBC v Cronin (1998) 30 HLR 43, CA................................................................. 3.8 Brent LBC v Smart [2005] EWCA Civ 434, CA........................................................... 4.34 British & Commonwealth Holdings Plc v Quadrex Holdings Inc [1995] CLC 1169, CA.......................................................................................................................... 5.25 Brown v Brash [1948] 2 KB 247, [1948] 1 All ER 922, 64 TLR 266, [1948] LJR 1544, (1948) 92 SJ 376, CA............................................................ 4.10, 4.11 C Capital & Counties Property Co Ltd v Mills [1966] EGD 96....................................... 3.63 Caradon District Council v Paton [2000] 5 WLUK 235, (2001) 33 HLR 34, [2000] 3 EGLR 57, [2000] 35 EG 132, [2000] EG 59 (CS), (2000) 97 (22) LSG 44....... 3.47 Catalyst Housing Ltd v Martin [2018] EWCA Civ 1206, [2018] 2 WLUK 702........... 4.20 Cavaleiro v Puget, 176 ER 680, (1865) 4 F & F 537..................................................... 5.34

xiii

Table of cases Chantrey Vellacott (a firm) v Convergence Group plc [2006] EWHC 490 (Ch), [2006] 2 WLUK 75................................................................................................ 6.74 City West Housing Trust v Massey [2016] EWCA Civ 704, [2017] 1 WLR 129, [2016] HLR 31, [2016] 2 P & CR 14, CA............................................................. 2.92 Crawley BC v Sawyer (1988) 20 HLR 98, 86 LGR 629, CA..................... 4.4, 4.14, 4.16; 7.27 Criminal Proceedings against Lindqvist (C-101/01) [2004] QB 1014, [2004] 2 WLR 1385, [2003] ECR I-12971, [2004] 1 CMLR 20, [2004] All ER (EC) 561, [2004] CEC 117, [2004] Info TLR 1, ECJ..................................................... 6.13 Croydon LBC v Kalonga [2021] EWCA Civ 77, [2021] 1 WLUK 267..................... 2.69, 2.70 Cumming v Danson [1942] 2 All ER 653, CA.............................................................. 2.83 Cunningham-Reid v Public Trustee [1944] KB 602...................................................... 4.21 D Derry v Peek (1889) 14 App Cas 337, (1889) 5 TLR 625, HL...................................... 5.41 Derwent Housing Association Ltd v Taylor [2016] EWCA Civ 508, [2016] HLR 25, CA..........................................................................................................................  3.3; 4.5 Dove v Havering LBC [2017] EWCA Civ 156, [2017] HLR 19, [2017] 2 P & CR 18, [2017] 2 P & CR DG7, CA....................................................................... 4.9 Downs v Chappell [1997] 1 WLR 426, [1996] 3 All ER 344, [1996] CLC 1492, CA....................................................................................................................... 2.51; 5.42 Doyle v Olby (Ironmongers) Ltd [1969] 2 QB 158, [1969] 2 WLR 673, [1969] 2 All ER 119, (1969) 113 SJ 128, CA............................................................................ 5.47 Dreamgate Properties Ltd v Arnot (1998) 76 P & CR 25, [1997] EG 121 (CS), (1997) 74 P & CR D44, CA................................................................................... 3.12 Durant v Financial Services Authority (Disclosure) [2003] EWCA Civ 1746, [2004] FSR 28, CA............................................................................................. 6.13, 6.14 E Edem v Information Comr [2014] EWCA Civ 92, [2014] 2 WLUK 236..................... 6.14 Edwards v Barrington [1901] 85 LT 650 HL................................................................. 3.31 Evans v Serious Fraud Office [2015] EWHC 1525 (QB), [2015] 6 WLUK 80, [2015] 3 Costs LR 557, [2015] Lloyd’s Rep FC 496........................................................ 7.100 F Falgor Commercial SA v Alsabahia Inc [1985] 11 WLUK 104, (1986) 18 HLR 123, [1986] 1 EGLR 41, (1985) 277 EG 185................................................................ 3.47 Fisher v Brooker [2009] UKHL 41, [2009] 1 WLR 1764, [2009] 4 All ER 789, [2009] Bus LR 1334, [2009] ECDR 17, [2010] EMLR 2, [2009] FSR 25, (2009) 32(9) IPD 32061, (2009) 153(31) SJLB 29, HL........................................ 5.37 Frankson v Secretary of State for the Home Department [2003] EWCA Civ 655, [2003] 1 WLR 1952, [2003] 5 WLUK 183, [2003] CP Rep 52, [2003] Prison LR 395, [2003] Po LR 197.................................................................................... 6.78 G Gateway Housing Association v Ali (Dec’sd) [2020] EWCA Civ 1339, [2021] 1 WLR 289, [2020] 10 WLUK 242, [2021] HLR 11, [2021] L & TR 4, [2021] 1 P & CR DG9....................................................................................................... 4.32 Goose v Sandford (No 2) [2000] 3 WLUK 345, [2001] Lloyd’s Rep PN 189.............. 5.41 Governors of the Peabody Donation Fund v Grant (1983) 6 HLR 41, (1982) 264 EG 925, CA............................................................................................. 4.8, 4.18; 7.4 H H (Minors) (Sexual Abuse: Standard of Proof), Re [1996] AC 563, [1996] 2 WLR 8, [1996] 1 All ER 1, [1996] 1 FLR 80, [1996] 1 FCR 509, [1996] Fam Law 74, (1995) 145 NLJ 1887, (1996) 140 SJLB 24, HL................................................ 2.78; 5.37 Hackney LBC v Lambourne (1993) 25 HLR 172, [1993] COD 231, CA..................... 2.89 Hackney LBC v Snowden (2001) 33 HLR 49, [2001] L & TR 6, CA.......................... 4.7

xiv

Table of cases Halpern v Halpern [2007] EWCA Civ 291, [2008] QB 195, [2007] 3 WLR 849, [2007] 3 All ER 478, [2007] 2 All ER (Comm) 330, [2007] 2 Lloyd’s Rep 56, [2007] 1 CLC 527, CA........................................................................................... 5.37 Hammersmith and Fulham LBC v Clarke (2001) 33 HLR 77, (2001) 81 P & CR DG20, CA.............................................................................................................. 4.9 Haringey LBC v Ahmed [2017] EWCA Civ 1861, [2017] 11 WLUK 482, [2018] HLR 9, [2018] 1 P & CR DG12................................................................. 4.4 Haringey LBC v Hines [2010] EWCA Civ 1111, [2011] HLR 6, CA............. 5.31, 5.37, 5.42, 5.43, 5.44, 5.45, 5.46 Haringey LBC v (1) Simawi (2) Secretary of State for Housing, Communities & Local Government [2019] EWCA Civ 1770, [2020] 2 All ER 701, [2020] PTSR 702, [2019] 10 WLUK 445, [2020] HLR 13................................... 4.20 Harrods Ltd v Times Newspaper Ltd [2006] EWCA Civ 294, [2006] 2 WLUK 506, [2006] All ER (D) 302 (Feb).................................................................................. 6.74 Henderson v Henderson [1843-60] All ER Rep 378, 67 ER 313, (1843) 3 Hare 100, Ct of Ch.................................................................................................................. 4.41 Hounslow LBC v Pilling [1993] 1 WLR 1242, [1994] 1 All ER 432, [1993] 2 FLR 49, (1993) 25 HLR 305, 91 LGR 573, (1993) 66 P & CR 22, [1993] 26 EG 123, [1993] Fam Law 522, [1993] EG 36 (CS), (1993) 137 SJLB 187, [1993] NPC 35, CA................................................................................................ 4.7 Howglen Ltd (Application for Disclosure), Re [2001] 1 All ER 376, [2000] 2 WLUK 849, [2001] BCC 245, [2001] 2 BCLC 695........................................... 6.78 Hurley v Dyke [1979] RTR 265, HL............................................................................. 5.37 Hussain v Waltham Forest LBC [2020] EWCA Civ 1539, [2021] 1 WLR 922, [2020] 11 WLUK 237, [2021] HLR 14............................................................................. 7.5 Hussey v Camden LBC (1995) 27 HLR 5, CA...................................3.3, 3.69, 3.70, 3.71; 4.4 Hyde v Emery [1984] 5 WLUK 198, (1984) Cr App R (S) 206.................................... 7.85 I Idrees v DPP [2011] EWHC 624, QBD......................................................................... 7.59 Islington LBC v Boyle [2011] EWCA Civ 1450, [2012] PTSR 1093, [2012] HLR 18, [2012] 1 P & CR DG14, CA.................................... 4.10, 4.12, 7.4, 7.27 Islington LBC v Uckac [2006] EWCA Civ 340, [2006] 1 WLR 1303, [2006] 1 FCR 668, [2006] HLR 35, [2006] L & TR 10, [2006] NPC 39, CA.................. 1.3; 2.8, 2.12, 2.13, 2.14, 2.16, 2.23, 2.26, 2.69; 4.33; 5.35 Ivey v Genting Casinos UK Ltd (t/a Crockfords Club) [2017] UKSC 67, SC........... 7.26, 7.54 J JEB Fasteners Ltd v Marks Bloom & Co [1983] 1 All ER 583, CA............................. 2.49 Jones v University of Warwick [2003] EWCA Civ 151, [2003] 1 WLR 954, [2003] 3 All ER 760, [2003] 2 WLUK 90, [2003] CP Rep 36, [2003] PIQR P23, (2003) 72 BMLR 119, (2003) 100 (11) LSG 32, (2003) 153 NLJ 231, (2003) 147 SJLB 179......................................................................................................... 6.52 K Kemp v Liebherr-Great Britain [1987] 1 WLR 607, [1987] 1 All ER 885, [1987] ICR 349, DC............................................................................................... 7.35 L Ladd v Marshall [1954] 1 WLR 1489, [1954] 3 All ER 745, [1954] 11 WLUK 110, (1954) 98 SJ 870.................................................................................................... 4.34 Lam Kee Ying Sdn Bhd v Lam Shes Tong (t/a Lian Joo Co) [1975] AC 247, [1974] 3 WLR 784, [1974] 3 All ER 137, (1974) 118 SJ 881, PC (Mal).......................... 3.18 Lambeth LBC v Vandra [2005] EWCA Civ 1801, [2006] HLR 19, CA................... 3.73, 3.74, 3.75; 7.4 Lewisham LBC v Akinsola (2000) 32 HLR 414, CA................................................. 2.85, 2.96

xv

Table of cases Lewisham LBC v Malcolm. See Malcolm v Lewisham LBC Lloyds Investment (Scandinavia) Ltd v Ager-Hanssen [2003] EWHC 1740, Ch D...... 4.36 London Baggage Co (Charing Cross) Ltd v Railtrack Plc (No 1) [2000] L & TR 439, [2000] EG 57 (CS), (2000) 80 P & CR D38.......................................................... 3.12 Long v Lloyd [1958] 1 WLR 753, [1958] 2 All ER 402, [1958] 5 WLUK 64, (1958) 102 SJ 488.............................................................................................................. 2.11 Lopez Ribalda v Spain (Application 1874/13) [2019] 6 WLUK 852, [2020] IRLR 60, (2020) 71 EHRR 7, 49 BHRC 248............................................. 6.51 Lowe v W Machell Joinery Ltd [2011] EWCA Civ 794, [2012] 1 All ER (Comm) 153, [2011] BLR 591, 138 Con LR 48, [2011] NPC 72, CA................................ 5.37 Luton Community Housing Trust v Durdana [2020] EWCA Civ 445, [2020] 3 WLUK 366, [2020] HLR 27, [2020] 2 P & CR DG7......................................... 2.87 M McClelland v Elvin [2017] EWHC 2795 (QB), [2017] 11 WLUK 163........................ 3.81 Malcolm v Lewisham LBC [2008] UKHL 43, [2008] 1 AC 1399, [2008] 3 WLR 194, [2008] 4 All ER 525, [2008] IRLR 700, [2008] HLR 41, [2008] BLGR 549, (2008) 11 CCL Rep 573, (2008) 102 BMLR 170, [2008] 2 P & CR 18, [2008] L & TR 29, [2008] 26 EG 117 (CS), (2008) 105(26) LSG 23, (2008) 152(26) SJLB 29, [2008] NPC 76, HL.......................... 2.89 Manchester City Council v Lawler (1999) 31 HLR 119, CA........................................ 7.31 Manchester City Council v Romano [2004] EWCA Civ 834, [2005] 1 WLR 2775, [2004] 4 All ER 21, [2004] HLR 47, [2005] BLGR 282, (2005) 83 BMLR 175, [2005] L & TR 13, (2004) 101(27) LSG 32, (2004) 148 SJLB 824, [2004] NPC 106, CA.............................................................................................. 2.88 Manifest Shipping Co Ltd v Uni-Polaris Insurance Co Ltd [2003] 1 AC 469............... 7.54 Merton LBC v Richards [2005] EWCA Civ 639, [2005] HLR 44, CA..................... 2.42, 2.43 Mohamoud v Kensington and Chelsea RLBC [2015] EWCA Civ 780, [2016] 1 All ER 988, [2016] PTSR 289, [2015] HLR 38, [2015] BLGR 695, CA.................... 2.89 Muir Group Housing Association Ltd v Thornley (1993) 25 HLR 89, 91 LGR 1, [1993] 10 EG 144, (1993) 159 LG Rev 729, [1992] EG 112 (CS), CA............. 5.29, 5.30 N NGM Sustainable Developments Ltd v Wallis [2015] EWHC 2089, Ch D.................. 5.37 Nemcover v Fairfield Rents Ltd [2016] UKUT 303 (LC), [2016] 9 WLUK 62, [2017] 1 P & CR 4, [2017] L & TR 10..................................................................  3.47, 3.48 North Hertfordshire DC v Carthy [2003] EWCA Civ 20, CA........... 2.4, 2.28, 2.32, 2.35, 2.37 O Oshin v Greenwich RBC [2020] EWCA Civ 388, [2020] PTSR 1351, [2020] 3 WLUK 237, [2020] HLR 26............................................................................... 2.57 P Paragon Finance plc v DB Thakerar & Co [1999] 1 All ER 400, [1998] 7 WLUK 420, (1998) 95 (35) LSG 36, (1998) 142 SJLB 243.............................. 5.41 Poplar Housing and Regeneration Community Association Ltd v Begum [2017] EWHC 2040 (QB), [2017] HLR 42..................................... 2.99; 3.39; 5.21, 5.22 Porteous v West Dorset DC [2004] EWCA Civ 244, [2004] HLR 30, [2004] BLGR 577, (2004) 148 SJLB 300, CA...................................................... 2.28 Potter (Brian James) v Stephen Gerard Crispin Dyer [2011] EWCA Civ 1417, [2011] 11 WLUK 844............................................................................................ 2.10 Prompt Motor Ltd v HSBC Bank Plc [2017] EWHC 1487, Ch D................................ 4.41 R R v Adedeji (Katheryn) [2019] EWCA Crim 804, [2019] 4 WLR 136, [2019] 2 WLUK 751.......................................................................................................... 7.99

xvi

Table of cases R v D [2019] EWCA Crim 209, [2019] 2 WLUK 510, [2019] 2 Cr App R 15, [2019] Lloyd’s Rep FC 276, [2019] RVR 198.................................................................. 7.63 R v Andrewes (Jon) [2020] EWCA Crim 1055, [2020] 8 WLUK 56, [2020] Lloyd’s Rep FC 557, [2020] Crim LR 1085....................................................................... 7.76 R v Donovan (Kenneth) [1981] 6 WLUK 162, (1981) 3 Cr App R (S) 192, [1982] RTR 126, [1981] Crim LR 723.................................................................. 7.84 R v Exeter City Council, ex p Gliddon [1985] 1 All ER 493, (1984) 14 HLR 103, QBD....................................................................................................................... 2.96 R v Forrest (Nathan) [2014] EWCA Crim 308, CA...................................................... 7.61 R v Ghosh (Deb Baran) [1982] QB 1053, [1982] 3 WLR 110, [1982] 2 All E. 689, (1982) 75 Cr App R 154, [1982] Crim LR 608, (1982) 126 SJ 429, CA............... 7.54 R v Hamza [2014] EWCA Crim 2378, CA................................................................... 7.69 R v Horsham Justices, ex p Richards [1985] 1 WLR 986, [1985] 2 All ER 1114, [1985] 5 WLUK 120, (1986) 82 Cr App R 254, (1985) 7 Cr App R (S) 158........ 7.84 R v Hossain (Mohammed) [2016] EWCA Crim 1099, [2016] 6 WLUK 201............... 7.86 R v Kenyon (Gerald) [2021] EWCA Crim 68, [2021] 1 WLUK 272.........................1.31; 7.70 R v Offormezie (Krissene); R v Eze (Ngozika) [2015] EWCA Crim 324, CA............. 7.57 R v Olliver (Richard George) [1989] 1 WLUK 634, (1989) 11 Cr App R (S) 10, (1989) 153 JP 369, [1989] Crim LR 387, (1989) 153 JPN 390............................. 7.84 R v Oyebola (Folarin) [2013] EWCA Crim 1052, [2014] 1 Cr App R(S) 58................ 7.74 R v Northallerton Magistrates’ Court, ex p Dove [1999] 5 WLUK 393, [2000] 1 Cr App R (S) 136, (1999) 163 JP 657, [1999] Crim LR 760, [1999] COD 598, (1999) 163 JPN 894............................................................................................... 7.99 R v Port Talbot BC, ex p Jones [1988] 2 All ER 207, (1988) 20 HLR 265, QBD....................................................................................................................... 2.15 R v Schofield (Charles Haldane) [1978] 1 WLR 979, [1978] 2 All ER 705, [1978] 1 WLUK 869, (1978) 67 Cr App R 282, (1978) 122 SJ 128................................. 7.85 R v Stapylton (Ben) [2012] EWCA Crim 728, [2012] 4 WLUK 266, [2013] 1 Cr App R (S) 12, [2012] Crim LR 631....................................................................... 7.84 R v Watson (Christopher Paul) [1990] 11 WLUK 23, (1990-91) 12 Cr App R (S) 508, [1991] Crim LR 307....................................................................................... 7.84 R v Waya (Terry) [2012] UKSC 51, [2013] 3 WLR 1188............................................. 7.74 R v Webb (Janice Susan) [1979] 1 WLUK 566, (1979) 1 Cr App R (S) 16, [1979] Crim LR 466.......................................................................................................... 7.84 R (on the application of Gangera) v Hounslow LBC [2003] EWHC 794 (Admin), [2003] HLR 68, QBD............................................................................................ 4.29 R (on the application of Turley) v Wandsworth LBC [2017] EWCA Civ 189, [2017] HLR 21, [2017] 2 P & CR DG9, CA...................................................... 4.22, 4.23 R v Zinga (Munaf Ahmed) [2014] EWCA Crim 52, [2014] 1 WLR 2228, [2014] 3 All ER 90, [2014] 1 WLUK 574, [2014] 1 Cr App R 27, [2014] 2 Cr App R (S) 30, (2014) 178 JP 105................................................................................... 7.93 Raiffesen Zentralbank Osterreich v Royal Bank of Scotland plc [2010] EWHC 1392 (Comm), [2011] 1 Lloyd’s Rep 123, [2010] 6 WLUK 199, [2011] Bus LR D65................................................................................................................... 5.41 Ross River Ltd v Cambridge City Football Club Ltd [2007] EWHC 2115 (Ch), [2008] 1 All ER 1004, [2008] 1 All ER (Comm) 1028, 117 Con LR 129, [2007] 41 EG 201 (CS), (2007) 157 NLJ 1507, Ch D....................................................... 5.41 Royal Bank of Scotland plc v Highland Financial Partners LP [2013] EWCA Civ 328, [2013] 4 WLUK 227, [2013] 1 CLC 596.................................................... 4.37, 4.42 Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378................................................ 7.54 Royscot Trust Ltd v Rogerson [1991] 2 QB 297, [1991] 3 WLR 57, [1991] 3 All ER 294, [1992] RTR 99, (1992) 11 Tr LR 23, [1991] CCLR 45, (1991) 141 NLJ 493, (1991) 135 SJ 444, CA.................................................................... 5.48 Rushcliffe BC v Watson (1992) 24 HLR 124, CA.............................................2.47, 2.93, 2.94 Rushton v Worcester City Council [2001] EWCA Civ 367, [2002] HLR 9, [2003] RVR 129, [2001] 13 EG 149 (CS), [2001] NPC 65, CA........................... 5.45

xvii

Table of cases S Salekipour (1) Saleem v Jashan Kaur Parmar (in her own right and as executrix of Mohinder Singh Parmar, dec’sd); sub nom Re Parmar (dec’sd) [2017] EWCA Civ 2141, [2018] QB 833, [2018] 2 WLR 1090, [2017] 12 WLUK 421........................................................................................................ 4.38 Sanctuary Housing Association v Campbell [1999] 1 WLR 1279, [1999] 3 All ER 460, [1999] 2 FLR 383, [1999] 2 FCR 657, (2000) 32 HLR 100, [1999] L & TR 425, [1999] 2 EGLR 20, [1999] Fam Law 449, (1999) 149 NLJ 521, [1999] NPC 39, (1999) 78 P & CR D15, CA................................. 4.6 Scala House & District Property Co v Forbes [1974] QB 575, [1973] 3 WLR 14, [1973] 3 All ER 308, (1973) 26 P & CR 164, (1973) 117 SJ 467, CA............... 3.63, 3.66 Segal Securities Ltd v Thoseby [1963] 1 QB 887, [1963] 2 WLR 403, [1963] 1 All ER 500, (1962) 106 SJ 1053, QBD........................................................................ 3.31 Serious Organised Crime Agency v Olden [2010] EWCA Civ 143, [2010] CP Rep 29, [2010] Lloyd’s Rep FC 432, (2010) 107(11) LSG 17, CA.............................. 7.88 Sheffield City Council v Wall’s Personal Representatives [2010] EWCA Civ 922, [2011] 1 WLR 1342,[2011] PTSR 580, [2010] HRLR 35, [2010]  HLR 47, CA........................................................................................................... 7.31 Shrewsbury and Atcham BC v Evans (1998) 30 HLR 123............................... 2.85, 2.91, 2.95, 2.97, 2.99 Sims v Dacorum Borough Council [2015] UKSC 63, [2015] AC 463, [2015] 3 WLR 1105, [2016] 1 All ER 857, [2015] 10 WLUK 552, [2016] 1 CMLR 42, [2015] ICR 1347, [2016] IRLR 34........................................................................ 4.5 Smith v Chadwick (1884) 9 App Cas 187, HL........................................................... 2.51; 5.41 Smith v East Elloe Rural DC [1956] AC 736, [1956] 2 WLR 888, [1956] 1 All ER 855, (1956) 120 JP 263, 54 LGR 233, (1956) 6 P & CR 102, (1956) 100 SJ 282, HL...................................................................................................... 7.67 Solihull MBC v Hickin [2012] UKSC 39, [2012] 1 WLR 2295, [2012] 4 All ER 867, [2012] PTSR 1272, [2013] 1 FCR 279, [2012] HLR 40, [2013] BLGR 1, [2012] 2 P & CR 16, [2013] L & TR 9, [2012] 31 EG 46 (CS), (2012) 162 NLJ 1027, (2012) 156(31) SJLB 31, SC................................................................................. 4.21 Southwark LBC v Erekin [2003] EWHC 1765, Ch D................................................... 2.95 Stening v Abrahams [1931] 1 Ch 470, [1931] 1 WLUK 78.......................................... 3.17 Street v Mountford [1985] AC 809, [1985] 2 WLR 877, [1985] 2 All ER 289, (1985) 17 HLR 402, (1985) 50 P & CR 258, [1985] 1 EGLR 128, (1985) 274 EG 821, [2008] BTC 7094, (1985) 82 LSG 2087, (1985) 135 NLJ 460, (1985) 129 SJ 348, HL...................................................................................................... 3.7 Sutton LBC v Swann (1986) 18 HLR 140, CA............................................................. 5.29 Swan v Uecker [2016] VSC 313.................................................................................... 3.46 T Takhar v Gracefield Developments Ltd [2020] EWHC 2791 (Ch), [2020] 10 WLUK 282........................................................................................................ 4.42 Tendler v Sproule [1947] 1 All ER 193, [1947] 1 WLUK 704................................... 3.47, 3.49 Tennant v Hutton (unreported) 9 July 1996, CA, Transcript No 904 of 1996............... 4.21 Thurrock BC v West [2012] EWCA Civ 1435, [2013] HLR 5, [2013] 1 P & CR 12, [2013] L & TR 11, [2013] 1 P & CR DG9, CA.................................................. 2.86; 4.29 Tibbles v SIG Plc (t/a Asphaltic Roofing Supplies) [2012] EWCA Civ 518, [2012] 1 WLR 2591, [2012] 4 All ER 259, [2012] CP Rep 32, [2013] 1 Costs LO 41, CA..........................................................................................................................  4.40 Tickner v Hearn [1960] 1 WLR 1406, [1961] 1 All ER 65, (1960) 104 SJ 1076, CA............................................................................................................ 4.14 Triplerose Ltd v Beattie & Beattie [2020] UKUT 180 (LC), [2020] 6 WLUK 69, [2020] HLR 37, [2021] 1 P & CR 4, [2020] L & TR 32, [2020] 2 P & CR DG 18..................................................................................................................... 3.48 Turley v Wandsworth LBC (2) Secretary of State for Communities and Local Gov see R (on the application of Turley) v Wandsworth LBC

xviii

Table of cases U UK Insurance Ltd v Stuart John Gentry [2018] EWHC 37 (QB), [2018] 1 WLUK 210.......................................................................................................... 6.85 Ujima Housing Association v Ansah (1998) 30 HLR 831, [1997] NPC 144, CA....... 3.28; 4.8, 4.14; 7.27 W Wallingford v Mutual Society (1880) 5 App Cas 685, HL............................................ 5.37 Waltham Forest Community Based Housing Association v Fanning [2001] L & TR 41, QBD........................................................................................................... 3.28 Waltham Forest LBC v Roberts [2004] EWCA Civ 940, [2005] HLR 2, (2004) 148 SJLB 910, [2004] NPC 118, CA..................................................................2.51, 2.81 Wandsworth LBC v Winder (No 1) [1985] AC 461, [1984] 3 WLR 1254, [1984] 3 All ER 976, (1985) 17 HLR 196, 83 LGR 143, (1985) 82 LSG 201, (1985) 135 NLJ 381, (1984) 128 SJ 838, HL.................................................................... 2.89 Ward v Hobbs (1878) 4 App Cas 13, HL....................................................................... 5.37 Warner v Commissioner of Police of the Metropolis [1969] 2 AC 256, [1968] 2 WLR 1303, [1968] 2 All ER 356, (1968) 52 Cr App R 373, (1968) 132 JP 378, (1968) 112 SJ 378, HL....................................................................... 7.29 West Layton Ltd v Ford [1979] QB 593, [1979] 3 WLR 14, [1979] 2 All ER 657, (1979) 38 P & CR 304, (1979) 250 EG 345, (1979) 123 SJ 233, CA................... 3.65 Windsor and District Housing Association v Hewitt [2011] EWCA Civ 735, [2011] HLR 39, CA............................................................................................... 2.52 Wirral Borough Council v Smith (1982) 4 HLR 81...................................................... 4.32 Wisnewski v Central Manchester Health Authority [1998] 4 WLUK 14, [1998] PIQR P324, [1998] Lloyd’s Rep Med 223................................................. 6.86 Woolmington v DPP [1935] AC 462, [1935] All ER Rep 1, (1935) 51 TLR 446, (1936) 25 Cr App R 72, (1935) 30 Cox CC 234, (1935) 104 LJKB 433, (1935) 153 LT 232, (1935) 79 SJ 401, HL........................................................................ 7.4 Y Yemshaw v Hounslow LBC [2011] UKSC 3, [2011] 1 WLR 433, [2011] 1 All ER 912, [2011] PTSR 462, [2011] 1 FLR 1614, [2011] 1 FCR 576, [2011] HLR 16, [2011] Fam Law 349, (2011) 108(6) LSG 20, (2011) 155(5) SJLB 30, [2011] NPC 9, SC....................................................................... 7.32 Z Zurich Insurance Co Plc v Hayward [2016] UKSC 48, [2017] AC 142, [2016] 3 WLR 637, [2016] 4 All ER 628, [2016] 2 All ER (Comm) 755, [2016] 2 CLC 246, [2017] Lloyd’s Rep IR 84, [2016] CILL 3865, SC............................ 5.40

xix

Table of Statutes

[All references are to paragraph numbers] A Abolition of the Right to Buy and Associated Rights (Wales) Act 2018...................................... 5.27; 6.56 Access to Justice Act 1999................7.94 Administration of Justice Act 1970 s 41................................................7.50 Sch 9 para 12B....................................7.50 C Children Act 1989 Sch 1 para 1......................................... 7.33 Children Act 2004 s 11(2)...........................................2.89 Civil Evidence Act 1968 s 11................................................7.5 (3)...........................................7.5 Civil Partnership Act 2004 Sch 9..............................................4.4 Commonhold and Leasehold Reform Act 2002 s 76............................................ 2.71; 3.62 (2)...........................................3.62 77.............................................2.71; 3.62 168(4)............................ 2.71; 3.61, 3.62 169..............................................3.62 (5).........................................2.71 Contracts (Rights of Third Parties) Act 1999 s 1............................................... 4.27, 4.28 Conveyancing Act 1881 s 14(6)...........................................3.63 Coronavirus Act 2020 Sch 29......................................... 1.28; 2.62 County Courts Act 1984 s 23, 38....................................... 4.38, 4.39 52................................................6.65 69............................................. 3.55; 5.11 70................................................4.38 74................................................5.20 138(3).........................................5.30 (9C).......................................3.54 Criminal Justice Act 1972 s 1(1).............................................7.84 Criminal Justice Act 1982 s 37................................................7.18

Criminal Justice Act 2003.................7.42 s 1(5).............................................7.47 (6).............................................7.48 2(6).............................................7.47 (7).............................................7.48 Pt 11 Ch 2 (ss 114–136)................7.40 s 114(1)(a), (c)..............................7.42 (d)......................................7.42, 7.43 115..............................................7.42 116...........................................7.42, 7.43 117(1)(b).....................................7.42 (c).....................................7.43 118..............................................7.42 121..............................................7.43 Criminal Procedure and Investigations Act 1996 s 5, 6, 6C, 8...................................7.39 D Data Protection Act 1998..................6.13 s 29, 35..........................................6.37 Data Protection Act 2018...........6.7, 6.8, 6.9, 6.10, 6.17, 6.19, 6.22, 6.38, 6.43, 6.54 s 2..................................................6.7 3(2).............................................6.12 (4).............................................6.22 (14)(c).......................................6.22 5(7).............................................6.22 8..................................................6.24 10................................................6.25 (5), (6).....................................6.27 11................................................6.25 15(1)...........................................6.31 Pt 3 (ss 29–81)..............................6.17 Pt 4 (ss 82–113)............................6.17 s 82(3)...........................................6.22 121..............................................6.42 Sch 1 Pt 1 (paras 1–4).........................6.27 Pt 2 (paras 5–28).......................6.27 Pt 3 (paras 29–37).....................6.27 Sch 2................................. 6.30, 6.31, 6.33 para 2..................................... 6.32, 6.33 5..................................... 6.32, 6.36 Sch 3.......................................... 6.30, 6.31 Sch 4.......................................... 6.30, 6.31

xxi

Table of Statutes E Equality Act 2010.............................2.89 s 4..................................................2.90 149..............................................2.89 European Union (Withdrawal) Act 2018 s 3..................................................6.7 205(4).........................................6.7 F Family Law Act 1996........................ 4.5, 4.6 s 30................................................3.3 (4)...........................................4.4 (b).......................................3.3 33–40..........................................7.33 Fraud Act 2006..............1.24; 5.5, 5.31; 6.34, 6.56; 7.3, 7.51, 7.53, 7.101 s 1...............................................7.68, 7.69 2..................................................  5.51; 7.53, 7.54, 7.55, 7.56, 7.57, 7.58 (1)(a).........................................7.55 (b)(ii)....................................7.55 (2)(a), (b)..................................7.55 (3).............................................7.58 (4).............................................7.58 3.............................7.53, 7.59, 7.60, 7.63 4..................................... 7.53, 7.63, 7.64 H Homelessness Reduction Act 2017 s 4(5).............................................2.32 Housing Act 1980 s 89................................................  3.5, 3.56 Housing Act 1985.......... 1.23; 2.9, 2.20; 3.3, 3.50; 4.4, 4.14, 4.19, 4.20, 4.29 s 79(1).......................................... 3.3, 3.20 81........................................3.3, 3.21; 4.4 82......................................2.66, 2.77; 3.3 (1)(b).......................................2.66 (1A)........................................2.66 (b)....................................2.70 (3)............. 2.66, 2.67, 2.68, 2.69, 2.70 (4)............................... 2.69, 2.70, 2.74 83................................................2.75 (1)(a).......................................2.70 (b).......................... 2.59, 2.62; 3.76 (4)...........................................2.62 (5)...........................................2.62 84(2)(a).......................................2.82 84A.............................................6.27 85(2)...........................................2.82 86................................................2.68 (1)...........................................2.75 (3)–(5).....................................2.75 86A.............................................4.20 (1), (2), (4), (5)....................4.20 87............................................ 4.20, 4.22

Housing Act 1985 – contd s 88................................................4.22 (1)(b).......................................4.20 90...............................................4.3, 4.32 93...........................3.26, 3.35, 3.50, 3.51 (1)(a).......................................3.31 (b)................................... 3.31; 7.25 (2)...........................................3.3 94............................................ 3.50, 3.51 (2)....................................... 3.31; 7.25 109..............................................3.26 110(3).........................................5.12 112..............................................3.26 113..............................................4.22 (1)(a), (b)..............................4.22 (5).........................................7.31 Pt 5 (ss 118–188)..........................5.27 s 171A...........................................5.27 119(A1)......................................5.27 122(1).........................................5.28 124(1).........................................5.28 125..............................................5.28 129–131......................................5.27 155..............................................5.31 163A...........................................5.31 Sch 2....................................2.4; 3.37; 4.19 Ground 1...................................4.19 5............... 2.4, 2.12, 2.16, 2.20, 2.41, 2.101; 3.59; 4.33; 5.35, 5.36, 5.42, 5.48 Sch 4..............................................5.27 Housing Act 1988.........1.23, 2.20, 2.65; 3.3, 3.50; 4.19, 4.32 Pt I (ss 1–45).................................4.4 s 1(1).............................................3.22 (b).................................3.3, 3.55; 4.4 5..................................................3.3 (1).............................................2.65 7(3).............................................2.65 (4)..........................................2.82, 2.87 (6).............................................2.64 (b).........................................2.76 8(1)(b).............................2.59, 2.62; 3.76 (3)(c).........................................2.62 9(2).............................................2.82 15.............................................3.36, 3.50 (1)...............................3.31, 3.51; 7.25 (2)...........................................7.25 (3)...........................................3.31 (5)...........................................3.29 15A.................................. 3.28, 3.29; 5.4 (1)........................................3.55 (2)........................................  3.3, 3.55 17.............................................4.25, 4.26 (1), (1A)–(1E).........................4.27 (2)...........................................4.27

xxii

Table of Statutes Housing Act 1988 – contd s 17(2)(a), (b)................................4.27 (4)...........................................4.27 21................................................2.5 Sch 2................................... 2.4; 3.37; 4.19 Pt I (Grounds 1–8)................ 2.64, 2.65 Ground 2...............................2.64 7..............................4.3, 4.32 7A......................... 2.64; 6.28 7B.............................2.64 8............................. 2.5, 2.64 Pt II (Grounds 9–17).................2.64 Ground 9...............................2.64 12.......................... 3.55; 4.19 14.............................2.92 16.............................2.64 17......... 2.5, 2.12, 2.20, 2.41, 2.64, 2.86, 2.101; 3.59; 4.33; 5.35, 5.36, 5.42 Housing Act 1996........1.23; 2.15, 2.41; 7.52 s 1..................................................5.8 16................................................6.56 82, 84..........................................2.13 102..............................................2.41 Pt V (ss 124–158)..........................2.12 Pt V Ch I (ss 124–143)..................4.4 s 125.......................................... 3.27; 5.46 (5)(a).....................................3.3 (6).........................................3.30 128..............................................2.5 146...........................................2.41; 5.37 Pt VI (ss 159–174)...........2.15, 2.34, 2.36; 6.34, 6.56; 7.6, 7.7, 7.8 s 159(1).........................................7.7 (2)(c).....................................7.7 (4).........................................7.7 169..............................................7.11 171............................ 1.26; 2.34; 7.3, 7.5, 7.7, 7.8, 7.13 (2).........................................7.18 Pt VII (ss 175–218)......... 2.26, 2.33; 6.34, 6.56; 7.16, 7.17 s 184..............................................7.17 193..............................................2.28 196..............................................2.32 214.........1.26; 2.33; 5.37; 7.3, 7.15, 7.17 (1)(a), (b)..............................7.16 (2).........................................2.34 (3).........................................7.17 (4).........................................7.18 Sch 7..............................................7.33 Housing and Planning Act 2016 s 64–68..........................................5.32 119..............................................2.77 120........................................... 4.20, 4.24 Sch 7 para 4.........................................2.77

Housing and Planning Act 2016 – contd Sch 8...........................................4.20, 4.24 Housing and Regeneration Act 2008 s 61, 80..........................................5.8 180...........................................5.32; 6.56 181–185......................................5.32 Housing (Wales) Act 2014 Pt 2 (ss 50–100)............................6.56 Human Rights Act 1988...................4.5; 6.48 I Investigatory Powers Act 2016......6.49, 6.60 J Judgments Act 1838 s 17................................................7.51 L Landlord and Tenant Act 1927 s 19................................................7.25 Law of Property Act 1925.................2.72 s 146..............................................  2.70, 2.72, 2.74, 2.76; 3.30, 3.34, 3.37, 3.61, 3.63; 5.38 (1).........................................3.63 (2).........................................2.74 (4).........................................3.54 Law of Property (Miscellaneous Provisions) Act 1994 s18.................................................4.32 Legal Aid, Sentencing and Punishment of Offenders Act 2012..........................................7.94 s 26................................................3.57 85................................................7.18 Local Government and Housing Act 1989 Sch 10.........................................3.31, 3.36 Localism Act 2011................2.63; 4.25, 4.27 s 160(6)......................................4.20, 4.22 161..............................................4.27 (7).........................................4.28 M Magistrates’ Courts Act 1980 s 1(1).............................................7.34 75–85..........................................7.50 127..............................................7.35 Matrimonial Homes Act 1983...........4.6 Misrepresentation Act 1967..............5.39 s 2..................................................5.26 (1).............................................5.55 P Powers of Criminal Courts (Sentencing) Act 2000...............7.81 s 130...........................................7.82, 7.83 131, 132......................................7.83

xxiii

Table of Statutes Powers of Criminal Courts (Sentencing) Act 2000 – contd s 133...........................................7.83, 7.83 Prevention of Social Housing Fraud Act 2013.................. 1.12; 3.58; 4.4; 5.3, 5.7, 5.23, 5.56; 7.19, 7.34, 7.52, 7.72, 7.73 s 1.............................3.38; 6.34; 7.19, 7.49 (1).......................................... 7.28, 7.35 (2).............................................7.22 (3)......................................... 7.31, 7.32 (4)......................................... 5.22; 7.33 2............................ 3.38, 3.55; 6.34; 7.19, 7.34, 7.35, 7.49 (1)................................ 7.28, 7.34, 7.35 (2)................................. 7.22, 7.34, 7.35 (3).............................................7.19 3..................................................7.91 (1).............................................7.35 (2).............................................7.35 (3).............................................7.35 (5)......................................... 7.20, 7.35 (6).............................................7.35 4............................... 5.7; 7.49, 7.50, 7.71 (3).............................................7.49 (4).............................................7.50 (7)–(11).....................................7.51 (13)...........................................7.49 5...............3.55; 5.4, 5.7, 5.15, 5.19; 7.71 (1).............................................5.10 (2).......................................... 5.13, 5.17 (3)............................................5.7, 5.13 (a).........................................5.15 (4).................3.55; 5.7, 5.11, 5.13, 5.22 (a), (b)..................................5.8 (c).........................................5.15 (6)......................................... 5.15, 5.18 (7)......................................... 5.15, 5.19 (8)......................................... 5.12, 5.19 (9).............................................5.12 6..................................................5.4 7..................................................6.53 (7).............................................6.56 8..................................................6.53 11(4)...........................................7.31 (6)...........................................7.49 (10).........................................7.49 Proceeds of Crime Act 2002.........1.24, 1.25; 5.5; 7.71, 7.77, 7.78, 7.80, 7.87, 7.89, 7.90 Pt 5 (ss 240–316)..........................7.87 s 6......................................7.71, 7.74, 7.93

Proceeds of Crime Act 2002 – contd (5).............................................7.76 (7).............................................7.74 7(1).............................................7.75 70................................................7.77 130(1).........................................7.77 131..............................................7.77 240..............................................7.87 (1)(a), (b)..............................7.87 245A...........................................7.87 316(1).........................................7.90 Prosecution of Offences Act 1985 s 6(1).............................................7.92 (2).............................................7.92 Pt II (ss 16–21)..............................7.94 s 16................................................7.95 17................................................7.95 (6)...........................................7.35 19...........................................7.95, 7.100 19A.............................................7.95 Protection from Eviction Act 1977 s 5..................................................4.7 Protection of Freedom Act 2012.......6.50 R Regulation of Investigatory Powers Act 2000...............6.47, 6.48, 6.50, 6.55 Pt II (ss 26–48)..............................6.48 Sch 1 para 17.......................................6.48 Rehabilitation of Offenders Act 1974 s 5..................................................7.5 7(3).............................................7.5 Rent Act 1977...................... 4.14, 4.18, 4.19 s 2..................................................4.14 S Senior Courts Act 1981 s 33................................................6.65 38................................................3.54 Sentencing Act 2020.........................7.68 Serious Crime Act 2007 Pt 2 (ss 44–67)..............................7.49 s 68(8)...........................................6.27 Social Security Administration Act 1992 s 111A, 112...................................1.25 Social Security Contributions and Benefits Act 1992......................3.54 T Theft Act 1968..................................5.5 s 17................................................7.2

xxiv

Table of Statutory Instruments [All references are to paragraph numbers] C Civil Procedure (Amendment) Rules 2020, SI 2020/82 Pt 7................................................7.34 Pt 45..............................................7.98 r 45.5(3)(b)................................7.98 Civil Procedure Rules 1998, SI 1998/3132..........................4.38, 4.39 r 1.1...........................................4.38 3.1...............................4.35, 4.39; 6.85 (7).......................................4.36 16.4.........................................3.54 Pt 18................................. 6.69, 6.71, 6.72 Pt 31..............................................6.72 r 31.12.......................................6.72 31.16.......................................6.65 31.17....................................6.72, 6.78 33.4......................................6.79, 6.83 34.2.........................................6.79 34.3.........................................6.80 34.6.........................................6.80 PD34A.......................................6.81 35.9.........................................6.75 Pt 55..............................................7.89 r 55.4.........................................3.53 55.8(3).....................................3.5 PD 55............................3.52, 3.54, 3.55 Costs in Criminal Cases (General) Regulations 1986, SI 1986/1335..........................6.81; 7.94 Council Tax Reduction Schemes (Detection of Fraud and Enforcement Regulations) (England) Regulations 2013, SI 2013/501...............................1.26 reg 7..............................................1.26 8..............................................1.26 County Courts (Interest on Judgment Debts) Order 1991, SI 1991/1184.............................5.20 Criminal Procedure Rules 2020, SI 2020/759...............................7.36 r 7.2...............................................7.34 (4)-(6).....................................7.35 (10).........................................7.35 8.2...............................................7.38 8.3...............................................7.38 15.4.............................................7.39 Pt 20 (rr 20.1-20.5)........................7.40 r 20.2(1), (3)..................................7.43 24.3(3)(d)....................................7.44

Criminal Procedure Rules 2020, SI 2020/759 – contd r 24.3(3)(e)....................................7.45 (i).....................................7.46 25.9(2)(e)....................................7.44 (f).....................................7.45 (k)....................................7.46 32.1.............................................6.52 D Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419...............................6.8 Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2020, SI 2020/1586.............................6.8 H Housing (Preservation of Right to Buy) Regulations 1993, SI 1993/2241.............................5.27 Housing (Right to Acquire) (Discount) Order 2002, SI 2002/1091.............................5.32 Housing (Right to Acquire) Regulations 1997, SI 1997/619.5.32 N Notices to Quit etc (Prescribed Information) Regulations 1988, SI 1988/2201 Sch 1..............................................3.30 P Public Trustee (Notices Affecting Land) (Title on Death) Regulations 1995, SI 1995/1330.............................4.32 Prevention of Social Housing Fraud (Power to Require Information) (England) Regulations 2014, SI 2014/899........................... 6.30, 6.38, 6.53, 6.55, 6.59, 6.77 reg 3..............................................6.58 4...........................................6.58, 6.61 (1)..........................................6.55

xxv

Table of Statutory Instruments Prevention of Social Housing Fraud (Power to Require Information) (England) Regulations 2014, SI 2014/899 – contd reg 5..............................................6.63 6..............................................6.63 7..............................................6.63

Prevention of Social Housing Fraud (Detection of Fraud) (Wales) Regulations 2014, SI 2014/826.6.53 S Secure Tenancies (Notices) Regulations 1987, SI 1987/755.2.75

xxvi

CHAPTER 1

Fraud in the Social Housing Sector ‘It is, of course, a fundamental and reasonable principle of law that a person cannot take advantage of his own fraud and profit from his own wrong.’1

INTRODUCTION 1.1 Social housing fraud has long been a concern of local authorities, housing associations, central government and those individuals in housing need. It takes many forms. While the focus is often on the actions of tenants and would-be tenants, regrettably there are occasions when someone working for or on behalf of the landlord is also involved. 1.2 This is, of course, a serious matter, not least at a time when social housing is an increasingly scarce resource and demand for it far exceeds supply.2 The ONS reported in March 2020 that:3 ‘There were 20 local authorities in England and Wales that had a significant change in the ratio of median house prices to median workplace-based annual earnings over five years, between 2014 and 2019. Of these local authorities, 16 were in London, the South West, the South East and East of England. There were no local authorities in which affordability significantly improved over the last five years.’ 1.3 An October 2020 report4 claimed that ‘there is no practical chance’ of central government meeting its target of 300,000 new dwellings each year by 2025 and that Council waiting lists could exceed 2 million households ‘in the aftermath of the global financial crisis’. 1.4 The continuing support and promotion for right to buy from central government, including the (apparently, still) proposed extension of it to housing associations, in addition to the existing right to acquire, along with continued below-market rents, an increasing role for shared ownership and the perennially 1 Lord Justice Mummery in Islington LBC v Uckac & another [2006] EWCA Civ 340, [2006] 1 WLR 1303 at [47]. 2 The House of Commons Library briefing ‘Tackling the under-supply of housing in England’ (January 2021) reported: ‘Estimates have put the number of new homes needed in England at up to 345,000 per year, accounting for new household formation and a backlog of existing need for suitable housing.’ 3 ‘Housing Affordability in England and Wales: 2019’. 4 ‘Building post-pandemic posterity’ by Pragmatix Advisory Ltd.

1

1.5  Fraud in the Social Housing Sector

high-cost private rented sector means that the attraction of and need for the social housing sector has never been greater. Consequently, it is more susceptible to and a target for fraud, whether that means: •

obtaining a social housing unit to which one is not entitled;

•

making a profit by sub-letting the whole or part of the demised premises;

•

using it to make money through short-term lets through sites such as Airbnb and Booking.com in breach of the tenancy agreement;

•

obtaining significant benefits by exercising a right to buy or acquire when, in fact, there is no such entitlement; or

•

allowing others to stay in premises no longer required or used by the tenant, whether for payment or not, without the knowledge or approval of the landlord.

1.5 The need for effective and focused action on social housing fraud is, therefore, of crucial Importance, now more than ever.

THE BOOK 1.6 The purpose of this book remains, in its second edition, to set out clearly the options available to local housing authorities and housing associations, primarily by reference to England, in seeking to detect and act upon housing fraud as referred to at 1.4. 1.7

It has been written with four particular questions in mind:

(1) What are the options available to a social landlord seeking to obtain the evidence to detect fraud? (2) How can they, in practical terms and employing best practice, recover the premises which have been ‘misused’ by the tenant? (3) Can they receive financial ‘compensation’ from the fraudsters? (4) What are the criminal repercussions of the fraud? 1.8 There are inevitably gaps, not least because there is so much overlap with matters of general housing law better covered elsewhere. For example, Chapter 2, in dealing with the discretionary ground for possession pertaining to a tenant who has obtained their tenancy by reason of a false statement, addresses, in an admittedly but necessarily cursory fashion, questions of public law and discrimination when looking at potential defences. 1.9 Some ancillary matters, such as universal credit housing costs, housing benefit, council tax reduction or council tax fraud are also left to other reference materials, though these will frequently be considered and dealt with alongside the question of possession of premises and recovery of monies from the errant 2

The figures 1.15

tenant. For example, if someone is found to have been sub-letting their flat whilst living elsewhere, and is still claiming housing benefit or the housing element of universal credit, then there will inevitably be an issue of overpayment and possible criminal prosecution for the same. Similarly, evidence of, say, council tax fraud may well lead to, or be connected with, the misuse of premises, enabling a landlord to ultimately seek its recovery. 1.10 The focus is on good and pragmatic practice. However, such corollary issues are, it is hoped, sufficiently ‘flagged up’ to demonstrate that, in certain situations, considerations outside the purview of this book must also be addressed.

THE FIGURES 1.11 Housing Associations and other private registered providers that own 1,000 or more social housing units must provide an annual report to the Regulator of Social Housing5 on fraud losses.6 1.12 Yet by definition it is next to impossible to gain a completely accurate picture of the extent of the fraud impacting upon the social housing sector, although there are good indicators. In November 2012 the (now defunct) Audit Commission published its annual report Protecting the Public Purse (PPP). This estimated that social landlords had lost control of the allocation of nearly 98,000 properties in England.7 The report provided the main evidential base for the Prevention of Social Housing Fraud Act 2013 (PSHF) referred to below. 1.13 The Audit Commission’s final PPP Report in 2014 showed that 3,030 local authority properties had been recovered from tenancy fraudsters (an increase of 15% on the previous year). The loss to local government of housing fraud was estimated at £845 million,8 with a further £919 million loss to housing associations. 1.14 However, it was not all doom and gloom. Between 2009/10 and 2013/14, the total number of cases of housing tenancy fraud detection increased by 92%. 1.15 In 2015 the PPP  Report, produced by the European Institute for Combating Corruption and Fraud (TEICCAF), warned about the implications of any extension of the ‘right to buy’ scheme to housing associations: ‘97. We draw to the government’s attention the significant levels of fraud that councils have detected within the current RTB scheme for council 5 Smaller associations have the option of so doing. 6 ‘NROSH + Fraud reporting – Guidance for Registered Providers’ (March 2020). See also the Regulator’s ‘Regulating the Standards’ (March 2020) at para  3.3 and the ‘Governance and Financial Viability Standard’ (2015) at para 2.7. 7 They had estimated 50,000 units in 2011. 8 National Fraud Office Annual Fraud Indicator 2013.

3

1.16  Fraud in the Social Housing Sector

housing stock. Housing associations, with a few notable exceptions, do not have either an equivalent capacity or capability to tackle RTB fraud. 98. We encourage the government to incorporate within the proposed legislative extension sufficient measures to protect housing associations against RTB fraud.’ 1.16 The 2015 report identified an estimated 6.89% fall in tenancy fraud investigations and, in keeping with the previous year’s report, a 448.26% rise in right to buy investigations with a total savings valuation of the two areas of £96.6 million. The report also identified the most common types of social housing fraud:9 Fraud type

Percentage

Abandonment

34%

Subletting

32%

Succession/Assignment

19%

Other

15%

1.17 Bringing matters to more recent times, the Chartered Institute of Public Finance and Accountancy’s (CIPFA) annual Fraud and Corruption Tracker, published on 19  November 2019, found that an estimated 3,632 instances of council housing fraud took place in 2018/19, down from 4,733 the year before. This included right to buy frauds reducing from 1,518 in 2017/18 to 652 in 2018/19 (during the same period sales fell 21%). 1.18 CIPFA explained the downward trend by identifying a number of factors, including: •

the successful efforts of local authorities in tackling housing fraud;

•

improvements in reviews of housing allocations; and

•

low rates of tenancy turnover.

DETECTION OF FRAUD 1.19 In many instances, social housing landlords are alerted to potential tenancy fraud by matters such as: •

neighbour ‘suspicion’;

•

activity at the premises and a high number of complaints;

•

persons other than tenant/household being seen at the premises whilst tenancy audit, repair, annual gas safety inspection, etc. visits are being carried out;

9

See p 21 of the Report.

4

Legislation 1.24

•

lack of response to letters and calling cards;

•

no contact from tenant/household (eg about repairs);

•

credit on rent account or, conversely, high arrears;

•

partner agencies reporting concerns; and

•

investigations carried out upon receipt of a right to buy application.

1.20 In an article for ‘inside Housing’ on 18 December 2019, Marc McAuley, head of counter fraud operations at CIPFA, attested to the clear benefits of a greater focus on social housing fraud: ‘In recent years, local authorities have stepped up their counter-fraud work in social housing. This has had a big impact, given the low rates of turnover in tenancies in the current social housing stock.’ 1.21 The Fraud Advisory Panel’s ‘Tackling Fraud in the Social Housing Sector’10 may be over five years old now but still bears consideration, encouraging as it does, amongst other measures: •

regular tenancy audits;

•

use of application forms however the property was allocated;

•

requirement for colour photographs of tenant at sign-up;

•

making the report of tenancy fraud suspicions as easy as possible; and

•

use of due diligence of tenants – credit reports, shared databases, etc.

1.22 The issue of fraud detection is relevant across the whole social landlord organisation and care needs to be taken to ensure that data and other systems and individuals encourage a free-flow of information, and that use is made of external agencies such as the National Fraud Initiative.

LEGISLATION 1.23 Recovery of social housing units obtained either by fraud and/or subject to misuse by means of abandonment, sub-letting or parting with possession is, evidence permitting, comparatively straightforward, for periodic tenancies at least. Housing legislation, in particular the Housing Acts of 1985, 1988 and 1996, provides for such eventualities and the basis upon which to take action. 1.24 In the criminal arena, the Proceeds of Crime Act 2002 has long provided a potential avenue to the recovery of monies lost by fraud, both in criminal and civil proceedings, whilst the Fraud Act 2006 sets out a comparatively simple and 10 ‘Tackling Fraud in the Social Housing Sector: A Short Guide for Directors and Senior Managers of Housing Associations’ (London: Fraud Advisory Panel, December 2015).

5

1.25  Fraud in the Social Housing Sector

comprehensive range of offences to allow for successful prosecutions against those involved in any fraud, housing-related or otherwise. 1.25 Subsequent to those pieces of legislation, the PSHF provides a comprehensive and focused route to criminal prosecution of those sub-letting or parting with possession of their premises, recovery of any profit gained by reason of such activities, clarity as to the impact of sub-letting and parting with possession on (non-shared ownership) assured tenancies and investigation powers supplemented by regulations made under the Act. 1.26 All this is in addition to allocation and homelessness offences under sections 171 and 214 of the Housing Act 1996, and benefit fraud offences such as can be found, for example, in the Council Tax Reduction Schemes (Detection of Fraud and Enforcement Regulations) (England) Regulations 201311 and sections 111A and 112 of the Social Security Administration Act 1992 (offences of dishonest representations for obtaining benefit and false representation for obtaining benefit respectively). 1.27 The PSHF is most obviously and deliberately focused on the social housing sector alone. The Explanatory Notes to the Act explain the purpose of the legislation: ‘4. The policy rationale for the new provisions is to ensure that social housing is being occupied by those to whom it was allocated, and that local authorities have access to more information in order to be able to detect fraud in the social housing stock. Whilst the current law provides that a secure tenant who has sub-let or parted with possession of the whole dwelling-house ceases to be a secure tenant and that a tenant who is not in occupation of the dwelling-house cannot be an assured tenant (which enables the landlord to gain possession of the dwelling-house more easily), this has not proved to be an adequate deterrent to sub-letting and parting with possession, as tenants only risk losing the tenancy of a property in which they do not live.’

COVID-19 1.28 Since 25 March 2020 there have been legislative revisions concerning the service of possession notices (though not on a notice to quit) – set out in Schedule 29 to the Coronavirus Act 2020 – and restrictions on the hearing claims and enforcement of possession orders. This book does not deal with these reforms at all because they are temporary in effect.

11 Council Tax Reduction Schemes (Detection of Fraud and Enforcement Regulations) (England) Regulations 2013 (SI  2013/501). Summary offences of false representations for the purpose of obtaining a council tax reduction (reg 7) and failure to notify of changes of circumstances (reg 8).

6

Conclusion 1.31

CONCLUSION 1.29 The main priority of many housing practitioners is to identify the means they have at their disposal to properly investigate a potential fraud, along with enjoying a clear understanding of the point at which proceedings for the recovery of money and/or premises, can and should be instituted. 1.30 That this represents a more focused look at housing fraud is clear; indeed, the Tenancy Fraud Forum was established in April 2012 to bring social landlords together to combat tenancy fraud. 1.31 This chapter began with a citation from a Court of Appeal judgment and will end with one too, although this time it is the Criminal Division of the Court of Appeal dealing with a renewed permission application against sentence. In R v Gerald Kenyon12 the court were faced with a case where the local authority tenant had moved out of his premises and started sub-letting his flat. He later submitted a right to buy application but was prevented from going through with that process when the true position came to light. In the Crown Court at Woolwich, he was convicted of five offences of fraud by failing to disclose information and was sentenced to a total of 18 months’ imprisonment. This case is further dealt with in Chapter  7 but in dismissing the ‘wholly umeritorious’ renewed application for permission to appeal, Mrs Justice Yip gave some idea of the ‘cost’ of the defendant’s behaviour at paragraph 7 of her judgment: ‘The evidence suggested that the applicant made around £10,000 in profit. The cost to the council was greater. They were not able to provide the property to someone who needed it and instead had to pay around £26,000 for that person to be in free accommodation. Further, the applicant had attempted to unjustly purchase the property at a discount of over £100,000. The judge found that the offending had taken place for at least six years and was driven by pure greed. The applicant was living elsewhere and was denying someone else in need of council accommodation in order to gain for himself. He stood to gain a huge amount had his plan to buy the property succeeded.’

12 [2021] EWCA Crim 68.

7

CHAPTER 2

Tenancy procured by False Statement •

Ground 5 (Housing Act 1985)

•

Ground 17 (Housing Act 1988)

• [Rescission]

Key points • The Housing Acts of 1985 (secure tenancies) and 1988 (assured tenancies) provide identical, discretionary grounds for possession in Schedule 2 – Grounds 5 and 17 respectively (‘the Ground’) – to deal with tenants who obtain their tenancies because of a false statement. •

The grounds permit the landlord to rely on omissions as well as a false statement (eg a failure to inform the prospective landlord of a change of circumstance).

•

The statement can come from a third party but will only be relevant in such a case if it was made at the tenant’s instigation.

•

If the landlord does not, in fact, rely on the false statement or omission, then the ground is not made out.

•

If Ground 5 or 17 is available, the landlord cannot then usually (see 2.16) seek the remedy of rescission.

•

For Introductory Tenancies, a landlord will simply seek (mandatory) possession in the usual way provided for at Part 5 of the Housing Act 1996 – service of a section 128 notice, section 129 review (if requested) and claim.

INTRODUCTION 2.1 In most instances in which fraudulent activity has led to someone obtaining social housing, the social landlord’s primary concern is to recover possession of the premises so that it can be re-allocated to another household in accordance with its allocation scheme or any nomination agreement. 2.2 This is most obviously the case when the original reason for the allocation proves to be flawed because of a misrepresentation either by or at the instigation of the tenant. 9

2.3  Tenancy procured by False Statement

2.3 For example, if a person has only been allocated housing because they falsely represented in their application form that their family were living in overcrowded accommodation, can the landlord seek possession in reliance on such a misrepresentation? 2.4 In broad terms, and in the circumstances explored below, the answer to this question is ‘yes’ and by ‘ordinary’ possession proceedings.1 Schedule 2 to the Housing Acts of both 1985 (secure tenancies)2 and 1988 (assured tenancies)3 provides the discretionary Ground for possession for this very purpose. 2.5 Of course, if a mandatory ground for possession is also available at the time the misrepresentation is discovered,4 which may be many years after the tenancy commenced, or the landlord is otherwise entitled to possession in domestic law,5 it may prefer to rely on that ground or entitlement, either in addition to or instead of the discretionary ground. 2.6 This chapter focuses, however, on how a social landlord is able to recover premises occupied by a tenant under a secure or assured tenancy on the basis that it was procured by way of a false statement. 2.7 Before addressing the statutory grounds referred to at 2.4, an analysis is first given of what may have been thought of as the more obvious and appropriate common law remedy of rescission. This would have the effect of voiding any tenancy agreement ab initio.

RESCISSION 2.8

Chapter 1 begins with the words of Lord Justice Mummery:6 ‘It is, of course, a fundamental and reasonable principle of law that a person cannot take advantage of his own fraud and profit from his own wrong.’

2.9 His judgment, though, went on to demonstrate that such an obvious and reasonable principle is neither absolute nor guaranteed: 1 See, eg, North Hertfordshire DC v Carthy [2003] EWCA Civ 20 at [2.28]–[2.30]. In that case the Carthys had legitimately applied to the local authority as homeless, but had failed to advise them prior to the allocation of social housing that in fact their home in the Philippines had since been completed and was habitable. 2 Ground 5. 3 Ground 17. 4 For example, Ground 8 in Schedule 2 to the 1988 Act, which provides a mandatory ground in respect of rent arrears or there is a sub-letting question which might encourage use of the notice to quit ‘route’ in a periodic tenancy scenario. 5 For example, following the service and expiry of a valid notice requiring possession under s 21 of the 1988 Act in respect of a periodic assured shorthold tenant, or a notice of proceedings for possession under s 128 of the Housing Act 1996 where the tenant has an introductory tenancy. 6 Islington LBC v Uckac & another [2006] EWCA Civ 340, [2006] 1 WLR 1303 at [47].

10

Rescission 2.12

‘The provisions of the Housing Act 1985 have produced a situation in which it is possible for a person in the assumed position of the first defendant to violate that principle. The fact that she was a party to the fraudulent representation and was not, when she stepped into her husband’s shoes, a bona fide purchaser for value without notice does not prevent her from resisting an application for an order for possession of the flat under the 1985 Act. The unpalatable result is that, as a result of the assignment, she is in a stronger legal position than her husband was and that she is occupying a flat which should be available for the occupation of a homeless person making an honest application to the council for accommodation’ (emphasis added). 2.10 As referred to at 2.7, it might be thought that if a tenant has procured their tenancy by means of a false representation, then the landlord would have a clear remedy at common law – namely rescission – which would avoid the need to rely on any discretionary ground for possession or to address the ancillary issues raised in such cases such as the reasonableness of making any such order and whether it should be outright or suspended/postponed on terms at [56]. Etherton LJ said in Brian James Potter v Stephen Gerard Crispin Dyer7: ‘It is trite law that a person to whom a fraudulent misrepresentation has been made, which has induced that person to enter into a contract or other transaction, is entitled on discovery of the fraud to elect either to affirm or to rescind what was so induced. An election will only take place if it is communicated to the other party in clear and unequivocal terms.’ 2.11 Indeed, rescission is an equitable, and therefore discretionary, remedy, which would seem ideal in cases of tenancies obtained by false statement (it is also available, for example, in right-to-buy frauds – see 5.33–5.38). In essence, it ‘undoes’ the fraud and takes the parties back to the position they were in before they entered into the tenancy agreement. That is not, of course, always possible; there may for example be instances where an agreement has been affirmed by the landlord.8 Yet for the reasons set out in the following paragraphs, there are more fundamental bars to the use of this remedy in a false statement case. 2.12 Put bluntly, rescission is not available in respect of secure or assured tenancies procured by fraudulent misrepresentation (as indicated in the Key points section, with introductory tenancies the better route to recovery of possession is by the mandatory process provided for in Part 5 of the Housing Act 1996).

7 8

[2011] EWCA Civ 1417.  Long v Lloyd [1958] 1 WLR 753 – an innocent misrepresentation case concerning the purchase of a lorry where serious faults were discovered two days after purchase. The Court of Appeal held that the place of delivery was the proper place for examination and acceptance, and any right the purchaser may have had to rescind the contract was barred by his acceptance of the lorry once delivery had taken place.

11

2.13  Tenancy procured by False Statement

Instead, Parliament has provided an alternative means of recovering possession – the Ground.9 This has effectively ousted the common law jurisdiction.10 2.13 In Islington LBC v Uckac & another,11 the facts of which are referred to at 2.23–2.25 below, Lord Justice Dyson explained why that should be the case as follows: ‘In my judgment, the express wording of  section 82, when read with section 84, is a negative enactment in Coke’s sense. It clearly shows that Parliament intended to take away from landlords the right to bring secure tenancies to an end by rescission, whether for misrepresentation or on any other ground.  Schedule  2  provides a detailed and exhaustive code of the grounds on which a landlord may bring a secure tenancy to an end and obtain an order for possession. It is to be assumed that Parliament decided on policy grounds that a landlord should be able to bring a secure tenancy to an end and obtain an order for possession where it has been induced to grant a tenancy by a fraudulent misrepresentation, but not where it has been so induced by an innocent or negligent misrepresentation’ (emphasis added). 2.14 In the later judgment of Birmingham City Council v Qasim12 the local authority claimed seven secure tenancies were void as they had been wrongly granted by an officer of the authority outside the statutory allocation scheme. There was no evidence that the tenants who had been granted these tenancies had made any payments for them or, unlike in Uckac, otherwise induced the officer to grant them a tenancy. 2.15 The Court of Appeal dismissed the local authority’s appeal against the dismissal of their possession claim and held that the allocation of housing accommodation did not extend to the actual grant of a tenancy. The failure of the authority was one of allocation, which was a public law obligation.13 There was nothing in the Housing Act 1996, which covered the allocation scheme requirements at Part 6, to suggest that the secure tenancies made as a result of an ‘improper’ allocation were defective. 2.16 Lord Neuberger, however, went on to consider Uckac and left open the remedy of rescission where dishonesty was shown on both parties’ part: 9 That is, Housing Act 1985, Sch 2, Ground 5 (secure tenancies) and Housing Act 1988, Sch 2, Ground 17 (assured tenancies). 10 Islington LBC v Uckac & another [2006] EWCA Civ 340, [2006] 1 WLR 1303 paras 27–30 per Dyson LJ. 11 Ibid, para 29 per Dyson LJ. 12 [2009] EWCA Civ 1080, [2010] PTSR 471. 13 In the earlier authority of R v Port Talbot BC ex parte Jones [1988] 2 All ER 207, the respondent authority had granted a secure tenancy of a property to a member of the council. The tenancy was not allocated in accordance with the authority’s waiting list and in a public law challenge the leader of the council successfully applied for judicial review, with the court quashing the decision to grant the tenancy and declaring the grant of the tenancy to be void.

12

Rescission 2.19

‘42 Neither the decision in Islington [2006] 1  W.L.R. 1303 nor our conclusion on this appeal by any means necessarily imply that, in a case where both the applicant and an officer of the authority are involved in dishonestly enabling the applicant to obtain a tenancy, the authority would be precluded from setting aside the tenancy or treating it as void. It may be arguable that ground 5 could be interpreted to cover such a case (in which case the reasoning in Islington [2006] 1  W.L.R. 1303 would appear to apply), or it may very well be that the reasoning in this judgment could be distinguished where the tenant is dishonestly involved in the inappropriate allocation. These are issues which would have to be considered as and when such a case arises’ (emphasis added). 2.17 That would therefore seem to leave open the argument that where a tenancy has been procured by the fraud of both the landlord officer and the tenant, then rescission is available, whereas: (a) if the fraud is just on the part of the tenant, then the Ground is the appropriate, if security of tenure persists, means of seeking possession and rescission is not available;14 (b) if the fraud is conversely just on the part of the officer of the landlord, then subject to any ultra vires argument (ie it was clear that the officer did not have the authority to allocate the premises) the tenancy agreement is good and valid. 2.18 Of course, in those cases raised at 2.16 where it is believed that the ‘rogue’ officer and tenant were jointly complicit in the fraud the landlord may decide to plead in the alternative: •

Rescission (see 2.16);

•

Trespass (cf the ultra vires reference at 2.17(b));

•

Reliance on the Ground (see 2.59–2.77).

2.19 Conversely, as indicated at 2.5, where security of tenure has been lost, permanently or otherwise, for example because of sub-letting or the tenant’s failure to occupy the property as their only or principal home, then rescission arguably remains an option because the statutory grounds of possession are not then available. In practical terms, however, proceeding in reliance on a notice to quit or section 146 notice, as further described at Chapters 3 and 4 and from 2.63 below, may be the better – and legally and evidentially easier – route to recover possession of the premises in issue. Suffice to say, in conclusion, that rescission remains an extremely uncommon final remedy in housing cases.

14 See, eg, paras 32 and 35 of Lord Neuberger’s judgment.

13

2.20  Tenancy procured by False Statement

THE GROUND 2.20 Turning then to the statutory route for possession of the premises, as noted in 2.4 above, the Housing Acts of 1985 and 1988 provide for the Ground, a discretionary and identically worded (ie between Grounds 5 and 17) ground for possession, which is demonstrated where: The tenant is either the person or one of the persons to whom the tenancy was granted and the landlord was induced to grant the tenancy by a false statement made knowingly or recklessly by: (a) the tenant, or (b) a person acting at the tenant’s instigation.

MATTERS TO PROVE 2.21

The Ground has six primary elements:

(1) There must be a material statement: 2.38–2.40. (2) The statement must be false and encompasses omissions 2.27–2.37. (3) It must be made before the tenancy is granted: 2.35. (4) It may be made by either the tenant (or one of joint tenants), or someone acting at their instigation: 2.41–2.45. (5) It must be made in the knowledge that it is false, or the maker must be reckless as to the statement’s accuracy: 2.46–2.48. (6) The statement must induce the landlord to grant the tenancy: 2.49–2.58. 2.22 The language of the Ground also signifies that the tenancy to which it refers is the tenancy granted immediately following the misrepresentation. It follows, therefore, that if, for example, a tenant obtains an assured tenancy in reliance on a false statement, but later assigns the tenancy to another, then the opportunity to seek possession on this Ground is lost. 2.23 In Uckac,15 a couple applied to the local authority as being homeless. The authority granted the husband a secure tenancy of a two-bedroom flat which, a year later, he otherwise validly assigned to his wife. 2.24 The authority later discovered that the information contained in the couple’s original homelessness application concerning their previous addresses was false and issued a claim either to repossess the property based on Ground 5 or, alternatively, to rescind the tenancy agreement for misrepresentation. 15 See para 12 per Dyson LJ.

14

False statement 2.29

2.25 The trial judge rejected the claims, finding, as a preliminary issue, that there was no right to rescind the tenancy and that Ground 5 was only available in respect of the person to whom the tenancy had been granted (ie the husband). The Court of Appeal agreed (see Mummery LJ’s explanation at paragraph 47 of the judgment, set out at 2.9 above). 2.26 As a ‘postscript’ to this Uckac ruling however,16 the Court of Appeal did allow the local authority’s application to re-amend their particulars of claim to plead, in the alternative, that the original grant of the tenancy to the second respondent (the husband) had been null and void, as it depended on the local authority’s decision to accept a full duty to make accommodation available to the defendants under the homelessness provisions of Part 7 of the Housing Act 1996. That decision was, it was argued, itself void as it had been induced by fraud and/ or was based on a fundamental mistake of fact.

FALSE STATEMENT 2.27 Turning back to the substance of the Ground (2.20), and the six elements that must be demonstrated (2.21), although it refers exclusively to a ‘statement’, a material omission may also give the landlord a ground for possession. An obvious example would be an applicant’s failure to notify either their would-be landlord or the person charged with nominating/allocating its accommodation of a relevant change of circumstances. 2.28 In North Hertfordshire DC v Carthy,17 for example, the defendant family was placed in temporary accommodation by the local housing authority, having returned to the country after running out of money while building a property in the Philippines. The following year they were allocated accommodation.18 By that time, however, they had obtained the funds to make the Philippines property habitable again and had done so. 2.29 At trial, the Recorder had dismissed the authority’s possession claim on the premise that the omission had not induced the authority to grant the tenancy. The Court of Appeal allowed the authority’s appeal and remitted the case to a different judge in order that they could consider the issue of whether it was reasonable to make a possession order.19

16 Ibid, per Lord Justice Dyson paras 36–41. 17 [2003] EWCA Civ 20 – see (n 1) to this chapter. 18 Had the change been noted prior to the grant of the tenancy, the authority would have been entitled to revisit and rescind the decision that it had an obligation to house the applicant under Housing Act 1996, s  193, if that decision had resulted from a fundamental mistake of fact: Porteous v West Dorset DC [2004] EWCA Civ 244, [2004] HLR 30. 19 The Recorder had not gone on to consider whether it was reasonable to make a possession order given his finding that the information should not have made any difference to the allocation of a secure tenancy.

15

2.30  Tenancy procured by False Statement

2.30 The Court considered the relevance of the tenant’s failure to update the landlord and the nature of any continuing representation by omission. Mr and Mrs Carthy did not dispute the fact that the Recorder was wrong on the question of inducement even though he had found in their favour on that issue. Lord Justice Sedley indicated that he also was likely to have found the same had he been required to do so. 2.31 When the omission is the result of a failure to update a local housing authority or housing association about information that was accurate at the time it was first included in a housing application or similar form, the situation is usually straightforward. Most forms of this type will require the applicant to sign not only a declaration attesting to the accuracy of the content at the time of its production, but also an agreement contained therein that the applicant will inform the would-be landlord/nominator of any changes in the information provided. 2.32 Not all allocations of social housing, however, rely on application forms and even those that do may not have clarity in requiring the applicant to update. Is there a general requirement to advise the authority or association of material information, absent any such agreement? Sedley LJ suggested there might be when he said in Carthy: ‘8. The recorder accepted that Mr Carthy was in breach of these obligations. Indeed it is arguable that even if he had not signed the material forms, he would have been guilty of making a false statement by not correcting a continuing representation. It may well be that not every relationship or situation carries such an obligation, but it is clear in my view that the information which is needed by a housing authority to process claims for temporary accommodation for the homeless, and equally that is needed to decide whether to offer secure accommodation to people on the housing list, constitutes a continuing representation by an applicant. One has only to refer to section 196 of the Housing Act 199620 to see why this is so. If so, it brings with it a duty to tell the council of any change in circumstances which is capable of affecting the council’s actions in response to the application’ (emphasis added). 2.33 Indeed, section 214 of the Housing Act 1996, considered in more detail in Chapter  7, makes criminal offences of the following representations and omissions: (a) making a false statement; (b) withholding information; and (c) failing to notify changes,

20 This provision, now repealed by s 4(5) of the Homelessness Reduction Act 2017, dealt with those becoming threatened with homelessness intentionally. It expressly referred to the applicant doing or failing to do something the likely result of which was that they would be forced to leave their existing accommodation.

16

False statement 2.37

committed when false information is provided with a view to inducing the local housing authority to provide Part 7 homelessness accommodation. The section states in terms: ‘(2) If before an applicant receives notification of the local housing authority’s decision on his application there is any change of facts material to his case, he shall notify the authority as soon as possible.’ 2.34 Section 171 of the Housing Act 1996 provides for a similar criminal offence in the context of housing allocation under Part 6 of the 1996 Act: ‘(1)  A person commits an offence if, in connection with the exercise by a local housing authority of their functions under this Part— (a) he knowingly or recklessly makes a statement which is false in a material particular, or (b) he knowingly withholds information which the authority have reasonably required him to give in connection with the exercise of those functions.’ Unlike section 214(2), however, it does not provide for any extended criminal offence for failing to inform the authority of a change of circumstances. 2.35 As noted in Carthy (and referred to in 2.31 above) most allocation forms will include a requirement that the applicant inform the would-be landlord or nominator of any such changes. It would certainly be good practice, it is suggested, to include such a requirement in all application forms, in case the landlord later wishes to seek possession because of an alleged omission at the time of the application or at any stage before the allocation of social housing. 2.36 It follows that applicants must inform the local housing authority of any changes in circumstance in cases of Part 6 allocation and homelessness applications, as well as other cases in which the applicant is informed of such a requirement. Any failure to do so can satisfy the first two steps in this Ground for possession – a material false statement by omission. 2.37 Whether, more generally, a failure to disclose a material change of circumstances amounts, in the words of Sedley LJ in Carthy, to a ‘continuing representation’ is a moot point and is, as yet, undecided, though in Akinbolu v Hackney LBC,21 a case in which the tenant had not advised the authority of his immigration status and was not asked about it either, the court held at [270]: ‘The circumstances in which the tenant took possession prima facie created a tenancy and any argument to the contrary is fanciful. A process through the courts is required even in the case of a tenancy the grant of which was induced by a false statement under Ground 5. This appellant was not guilty 21 (1997) 29 HLR 259. The tenant was not asked by the local authority and did not provide any information about his immigration status. The Court of Appeal allowed his appeal against a refusal to grant him an injunction to re-enter the premises and found that he was a secure tenant.

17

2.38  Tenancy procured by False Statement

of any misrepresentation to or deception of the housing authority. Even if the tenant condition is not satisfied so that a tenancy is not a secure tenancy, an application to the court for possession is required.’ (emphasis added).

MATERIALITY 2.38 If a false statement has been made, it is necessary to consider whether the statement: (a) is material and made knowingly or recklessly; (b) is made by the tenant, or somebody acting at the tenant’s instigation; and (c) impacts upon the decision to grant a tenancy of the property concerned. 2.39 To establish that the statement was material, the landlord will need to adduce evidence about the impact that it had on the decision to grant a tenancy, and where the tenant would have been placed in its allocation scheme or that of the nominating authority had the correct information been provided. 2.40 If, for example, the tenant gives their year of birth as 1962 rather than the real year of 1963; this is unlikely to have been material or induced any grant of a tenancy. Conversely, if they have failed to record that they owned or had an interest in accommodation elsewhere, this is likely to have been extremely material to the grant of the particular tenancy.

INSTIGATION 2.41 Grounds 5 and 17 were both extended by the Housing Act 199622 to include statements made by a third party at the tenant’s instigation, in addition to those made by the tenant. 2.42 In Merton LBC v Richards, Pill LJ explained the meaning of ‘instigate’:23 ‘32 … On any view “instigate” means more than tolerate. It means to bring about or initiate. The Latin source of the word, as mentioned in the Concise Oxford Dictionary, is instigare: to urge or incite. The ground refers to instigation and not merely to someone “acting on behalf of the tenant”. On the judge’s findings of fact, there was no instigation by the respondent in this case.’ 2.43 In Richards, the tenant was greatly assisted by her mother, a housing officer, in arranging an exchange with an elderly tenant, Mrs Mahon. In fact, 22 Housing Act 1996, ss  102 and 146 – with effect from 12  February 1997 (Ground 5) and 28 February 1997 (Ground 17). 23 [2005] EWCA Civ 639, [2005] HLR 44.

18

Knowledge and recklessness 2.47

Mrs Mahon had made it clear to the tenant’s mother that she had no intention of moving to the daughter’s flat and was rather going to live with her family in Lowestoft. 2.44 At trial the Recorder found that the tenant had been unaware of Mrs Mahon’s true intentions. Chadwick LJ said: ‘39 The judge found that the respondent did not, herself, know that the statement as to Mrs Mahon’s intentions was false at the time when the tenancy was granted. Nor was she reckless in that regard. Other tribunals might have reached a different conclusion on that issue. If a different conclusion had been reached, it would have been difficult, if not impossible, to attack that conclusion in this court. But the question in this court is whether there was material on which the judge could reach the conclusion which he did reach. For the reasons which Pill L.J. has set out—and with which I  agree—there was sufficient material for the judge to reach the conclusion on that issue which he did.’ 2.45 Simply acting on the tenant’s behalf, therefore, is not necessarily the same as acting at the tenant’s instigation: the latter requires the tenant actively to incite a third party to make a false statement, which then leads to the grant of the tenancy.24

KNOWLEDGE AND RECKLESSNESS 2.46 It follows, from the plain language of the Ground, that the tenant must not only make or instigate the statement but must also know that it is false, or be reckless about its accuracy.25 For example, this may be the case where they claim not to own or have an interest in any other premises but: (a) they are still aware that they are registered as a joint owner of residential accommodation with their former partner following a right-to-buy purchase some years before; or (b) they thought they might be so registered but ‘couldn’t be bothered’ to find out; though not arguably where (c) they had been advised by their former partner that the previous premises were now in the former partner’s sole name as previously agreed by both parties. 2.47 This is potentially an important distinction, not because the Ground itself distinguishes between knowledge and recklessness, but because the degree

24 Ibid, para 33 per Pill LJ. 25 Ibid, para 51 per May LJ.

19

2.48  Tenancy procured by False Statement

of culpability on the tenant’s part could be relevant when the court considers whether it is reasonable to make a possession order, once the Ground is satisfied.26 2.48 The issue or reasonableness, in the context of claims brought on this Ground, is dealt with at 2.82–2.100 below.

INDUCEMENT 2.49 The last element of this Ground requires the landlord to demonstrate that the false statement played ‘… a real and substantial part, though not by itself a decisive part, in inducing [it] to act’.27 2.50 For example, if the tenant had completed an application form for housing and failed to refer to an existing tenancy but the landlord had paid no regard to the form (or that part of it) when granting the tenancy, then the Ground will not be satisfied. 2.51 It has been suggested that there is a presumption28 that if the false statement is sufficiently material,29 then it is a fair inference of fact that the landlord has been induced by it to grant the tenancy.30 2.52 In Windsor and District Housing Association v Hewitt,31 Ms Hewitt applied to transfer from her one-bedroom flat in part, she said, because she needed a second bedroom for her son, who was also her carer. Over two years later she was offered and accepted a tenancy of a two-bedroom, ground-floor flat. Around this time, she also spoke to somebody at the Association and said that she was likely to live at the property on her own. 2.53 The landlord brought a claim to repossess the property pursuant to the Ground but did not succeed at first instance because: (a) it could not show that the false statement had been made knowingly or recklessly; and (b) it could not prove that it had been induced to grant the tenancy by reason of the false statement, not least because of the tenant’s clear representation at the time of the letting that she would be living there alone. 2.54 The Court of Appeal allowed the Association’s appeal. It found that the first reason for the trial judge’s decision was unsustainable, given that it was Ms 26 Rushcliffe BC v Watson (1991) 24 HLR 124, CA at [127] per Nourse LJ. In that case it was not disputed that Ground 5 was satisfied, the trial turning solely on the question of whether it was reasonable to make a possession order. 27 JEB Fasteners Ltd v Marks Bloom & Co [1983] 1 All ER 583 per Stephenson LJ at [589 A–B]. 28 Waltham Forest LBC v Roberts [2004] EWCA Civ 940, [2005] HLR 2, paras 42–43. 29 Downs v Chappell [1997] 1 WLR 426 per Hobhouse LJ at [433]. 30 Smith v Chadwick (1884) 9 App Cas 187 per Lord Blackburn at [1961]. 31 [2011] EWCA Civ 735, [2011] HLR 39.

20

Notice Procedure – Discretionary ground for possession: periodic tenancy 2.59

Hewitt’s own case (though not accepted by the trial judge) that her son did live with her after all. 2.55 As for the seemingly honest information given by her at the time of the letting, this had been given for data purposes only and was not a document relied upon when letting the property. It was not, therefore, sufficient to rebut the presumption that the false statement had induced the Association to grant her a tenancy. 2.56 It follows that false statements pertaining to material matters are likely to lead to a finding of inducement, unless it can be shown that the statement either did not form part of the landlord’s reason for granting the tenancy or was not considered by the landlord in any event. 2.57 More recently, in Oshin v Greenwich RBC32 the Court of Appeal held that the trial judge had been entitled to find that an applicant’s false statement on her social housing application form as to her immigration status – she said she had not lived outside the UK in the last five years when she had – had induced Greenwich Council to grant her a secure tenancy. 2.58 One of the arguments she pursued on appeal was to the effect that right or wrong the answer to the question in issue was not in any event determinative of her eligibility for social housing. It would though have led to further more specific inquiries being made and Floyd LJ, in delivering the main judgment of the court and dismissing Ms Oshin’s appeal, concluded: ‘31. I accept that, in order to be material, the false statement must be relevant to whether the applicant is eligible for social housing. That, however, is not the same thing as requiring that the statement be directly determinative of that question. The appellant’s false statements did not mean that she was entitled to social housing, but they still had sufficient materiality to be capable of inducing the local authority to grant her a tenancy when she was not entitled to one… .’

NOTICE PROCEDURE – DISCRETIONARY GROUND FOR POSSESSION: PERIODIC TENANCY 2.59 If a social landlord is satisfied that it has a credible case pursuant to the Ground then, before taking such possession action, they will not only need to serve33 a notice seeking possession in reliance on the Ground but should also pay particular regard to any relevant pre-action protocol and internal policies that may be relevant to the proposed action. 32 [2020] EWCA Civ 388, [2020] PTSR 1351 33 Unless the Court considers it just and equitable to dispense with the requirement for such a notice: Housing Act 1985, s 83(1)(b) (secure tenancies)/Housing Act 1988, s 8(1)(b) (assured tenancies).

21

2.60  Tenancy procured by False Statement

2.60 What may be thought as the most obvious pre-action protocol – ‘The Pre-Action Protocol for Possession Claims by Social Landlords’ – in fact has no application to a claim relying on the Ground, rather focusing as it does on rent arrears and mandatory possession claims. However, regard does need to be had to the Practice Direction on Pre-action Conduct and Protocols, in particular paragraphs 3 and 6:34 ‘3. Before commencing proceedings, the court will expect the parties to have exchanged sufficient information to– (a) understand each other’s position; (b) make decisions about how to proceed; (c) try to settle the issues without proceedings; (d) consider a form of Alternative Dispute Resolution (ADR) to assist with settlement; (e) support the efficient management of those proceedings; and (f) reduce the costs of resolving the dispute. 6.  Where there is a relevant pre-action protocol, the parties should comply with that protocol before commencing proceedings. Where there is no relevant pre-action protocol, the parties should exchange correspondence and information to comply with the objectives in paragraph 3, bearing in mind that compliance should be proportionate. The steps will usually include— (a) the claimant writing to the defendant with concise details of the claim. The letter should include the basis on which the claim is made, a summary of the facts, what the claimant wants from the defendant, and if money, how the amount is calculated; (b) the defendant responding within a reasonable time – 14 days in a straightforward case and no more than 3 months in a very complex one. The reply should include confirmation as to whether the claim is accepted and, if it is not accepted, the reasons why, together with an explanation as to which facts and parts of the claim are disputed and whether the defendant is making a counterclaim as well as providing details of any counterclaim; and (c) the parties disclosing key documents relevant to the issues in dispute.’ 2.61 It follows that a pre-action letter is advisable setting out the social landlord’s case and evidential basis for it. Whilst it may not elicit any, or any significant response, experience has shown that in some cases it is sufficient to encourage the tenant to surrender the tenancy. 34 Failure to comply with the Practice Direction could impact upon any costs order made or may lead to a sanction or a stay being applied to allow for compliance: see paras 13 to 16 of the Practice Direction.

22

Notice Procedure – Discretionary ground for possession: fixed term/flexible tenancy 2.65

2.62 As for the notice seeking possession35, this will be valid for 12 months from the date provided for in the notice after which proceedings may be issued.36 That date must be at least 14 days of service for assured tenancies, or 28 days for secure tenancies37.

NOTICE PROCEDURE – DISCRETIONARY GROUND FOR POSSESSION: FIXED TERM/FLEXIBLE TENANCY 2.63 Matters are not so straightforward with regard to fixed term and flexible tenancies38 (and indeed shared ownership agreements fall within the former definition). The Ground remains available for such cases and the pre-action conduct is as set out at 2.60–2.61. However, there are a number of factors that require special consideration. 2.64 For assured tenancy39 fixed-term agreements, provision must be made for the tenancy to be brought to an end on the basis of the Ground, section 7(6) of the Housing Act 1988 stating: ‘The court shall not make an order for possession of a dwelling-house to take effect at a time when it is let on an assured fixed term tenancy unless– (a) the ground for possession is Ground 2, Ground 7A, Ground 7B or Ground 8 in Part I of Schedule 2 to this Act or any of the grounds in Part II of that Schedule,40 other than Ground 9 or Ground 16; and (b) the terms of the tenancy make provision for it to be brought to an end on the ground in question (whether that provision takes the form of a provision for re-entry, for forfeiture, for determination by notice or otherwise) (emphasis added).’ 2.65 Assuming the two conditions referred to at 2.64 are satisfied, in particular the second one in a claim relying on the Ground, the landlord can then simply serve a notice seeking possession and proceed in the same way as for a periodic tenancy (see 2.62). In Artesian Developments Ltd v Beck41 Hirst LJ said at p.549: 35 Remembering that the Court does have the power to dispense with the requirement for any notice (though this should not be seen as a ‘usual’ order) – s 83(1)(b) Housing Act 1985 (secure tenancies), s 8(1)(b) Housing Act 1988 (assured tenancies). 36 Housing Act 1985, s 83(4) (secure tenancies)/Housing Act 1988, s 8(3)(c) (assured tenancies) – as mentioned in Chapter 1, the references to notices in this book make no mention of the temporary provisions brought in by reason of the Covid-19 pandemic (especially, Sch 29 of the Coronavirus Act 2020). 37 Housing Act 1985, s 83(5) (secure tenancies)/Housing Act 1988, s 8(4B) (assured tenancies). 38 Introduced by the Localism Act 2011 (creating secure flexible tenancies, a form of secure fixedterm tenancies) and through changes to the regulatory regime applying to registered providers of social housing, such as local housing authorities and housing associations. 39 Whether assured or assured shorthold. 40 This will therefore include Ground 17. 41 [2000] QB 541.

23

2.66  Tenancy procured by False Statement

‘Next, I am quite satisfied that the terms of the Act of 1988 expressly rule out a claim for forfeiture, firstly by virtue of section 5(1) itself, which provides the only route for bringing an assured tenancy to an end (i.e. by obtaining an Act of 1988 order for possession), and, secondly, by virtue of section 45(4) which makes an express declaration to this effect for the avoidance of doubt. Furthermore, section 7(3) is explicit, obliging the court mandatorily to make an order for possession if the court is satisfied that any of the grounds in Schedule 2, Part I is established, subject, inter alia, to subsection (6): this same stringency is reflected in the heading to Part I (Grounds on which the court must order possession).’ 2.66 The difficulty arises for flexible tenancies by reason of the distinct security of tenure provision to be found in section 82 of the Housing Act 1985. This confirms that a secure tenancy whether periodic, or fixed term where ‘subject to termination by the landlord’,42 (eg  by means of a break clause, though see 2.76(3)) will only end where a possession order has been executed or where there has been a demotion order or section 82(3) order43 terminating the fixed-term tenancy in reliance on the forfeiture provision as referred to at 2.68 to 2.70.44 2.67 If it were not for the section 82(3) provision, set out in the next paragraph, then as with fixed-term assured tenancies, the landlord would simply need to serve a notice seeking possession relying on the Ground. 2.68 However, section 82(3) of the Housing Act 1985 effectively provides that a landlord, is rather required to rely on the usual provision for re-entry or forfeiture, and cannot get possession by this route but instead can get an order terminating the tenancy: ‘(3) Where a secure tenancy is a tenancy for a term certain but with a provision for re-entry or forfeiture, the court shall not order possession of the dwelling-house in pursuance of that provision, but in a case where the court would have made such an order it shall instead make an order terminating the tenancy on a date specified in the order and section 86 (periodic tenancy arising on termination of fixed term) shall apply.’ 2.69 The above analysis of the determination of flexible tenancies was, until recently, the subject of some discussion and dispute. However, in January 2021, the Court of Appeal, subject to any further appeal to the Supreme Court, settled any debate. First, in Croydon LBC  v Kalonga,45 it was held that a flexible tenancy could not be determined before the expiry of the fixed term unless the 42 Housing Act 1985, s 82(1)(b). 43 See para 2.68. 44 Ibid, s 82(1A). 45 [2021] EWCA Civ 77.

24

Notice Procedure – Discretionary ground for possession: fixed term/flexible tenancy 2.72

tenancy agreement contained a forfeiture clause. When in a different, though related, context complaint was made that in the absence of rescission, fixedterm secure tenancies could not be terminated by the landlord Lord Neuberger responded:46 ‘… there is no reason why a fixed-term tenancy should not contain a provision for re-entry or forfeiture for misrepresentation. Secondly, even if the 1985 Act does not permit a landlord, before the expiry of a fixed-term secure tenancy, to obtain possession on the grounds that the tenancy was induced by a tenant’s fraudulent misrepresentation, this is an insufficient reason for failing to give effect to the plain meaning of section 82(3)(4). For the reasons already given, the statutory scheme clearly excludes the common law right of rescission.’ 2.70

Secondly in Kalonga Arnold LJ also confirmed that:

‘63…Such a tenancy agreement can only be brought to an end by the route specified in section 82(1A)(b), that is to say, pursuant to section 82(3). Section 82(4) is clear that, where applicable, a notice under section 146 of the 1925 Act must be served. As counsel for the Tenant pointed out, there is nothing to stop a landlord from serving a notice under section 146 and a notice under section 83(1) (a) of the 1985 Act, and then bringing proceedings both for termination of the fixed term tenancy and possession against the periodic tenancy which will then arise.’ (emphasis added) 2.71 No determination as to the breach will be required from the First-tier tribunal (Property Chamber), as would normally be the case for long leases, because the flexible tenancy would, in all probability, not be for a period exceeding 21 years and therefore not defined as a ‘long lease’.47 2.72 For flexible tenancies therefore a section 146 notice48 is required as a Ground case is a non-rent arrears breach. Section 146 provides: ‘(1) A right of re-entry or forfeiture under any proviso or stipulation in a lease for a breach of any covenant or condition in the lease shall not be enforceable, by action or otherwise, unless and until the lessor serves on the lessee a notice— (a) specifying the particular breach complained of; and (b) if the breach is capable of remedy, requiring the lessee to remedy the breach; and (c) in any case, requiring the lessee to make compensation in money for the breach;

46 Uckac, para 35. 47 Commonhold and Leasehold Reform Act 2002, ss 76–77, 168(4) and 169(5). 48 Law of Property Act 1925.

25

2.73  Tenancy procured by False Statement

and the lessee fails, within a reasonable time thereafter, to remedy the breach, if it is capable of remedy, and to make reasonable compensation in money, to the satisfaction of the lessor, for the breach.’ 2.73 It will be immediately apparent that there therefore does need to be a term or condition of the tenancy which has been said to have be breached (or, at present, a break clause). 2.74 It follows, and section 82(4) of the 1985 Act makes this clear, that the usual forfeiture issues, such as waiver (such as by acceptance of rent) and the availability to the defendant tenant of relief applications,49 etc, very much apply: ‘(4) Section 146 of the Law of Property Act 1925 (restriction on and relief against forfeiture), except subsection (4) (vesting in under-lessee), and any other enactment or rule of law relating to forfeiture, shall apply in relation to proceedings for an order under subsection (3) of this section as if they were proceedings to enforce a right of re-entry or forfeiture.’ 2.75 As for process and as accepted by Arnold LJ (2.70), there is no apparent reason why a possession claim could not also then be pleaded alongside the termination claim (seeking thereby both remedies).50 This would be a sensible approach given a periodic tenancy arises automatically at the termination of the flexible tenancy.51 Section 83 of the 1985 Act, which deals with service of a notice seeking possession, seemingly allows for such a service and process, providing: ‘(6) Where a notice under this section is served with respect to a secure tenancy for a term certain, it has effect also with respect to any periodic tenancy arising on the termination of that tenancy by virtue of section 86; and subsections (3) to (5)52 of this section do not apply to the notice.’ 2.76 Paragraphs 3.60–3.66 deal with issues surrounding fixed-term tenancies and cases where security of tenure has been lost (eg the whole of the premises have been sub-let or the tenant no longer lives there as their only or principal home) but the summary of the discussion in this section is as follows (where wishing to rely on the Ground): (1) In periodic tenancy cases – secure or assured – this simply requires the service of a notice seeking possession followed by the issuing of proceedings. (2) That remains the case for fixed-term assured tenancies, including shared ownership cases where there has been no stair-casing to 100%, assuming

49 Law of Property Act 1925, s 146(2). 50 As prescribed by Part II of the Schedule to the Secure Tenancies (Notices) Regulations 1987 (SI 1987/755). 51 Housing Act 1985, s 86(1). 52 These provisions include the requirement to provide a date in the notice after which any possession proceedings may be begun.

26

Standard of proof 2.78

that there is a ‘provision for re-entry, for forfeiture, for determination by notice or otherwise’ (section 7(6)(b), Housing Act 1988). (3) For flexible tenancies break clauses are of no effect and rather the landlord must proceed by way of service of a section 146 notice and proceedings to terminate the tenancy. (4) However, this can be done at the same time as service of a notice seeking possession relying on the Ground, and only one set of possession proceedings is required including the relief of terminating the flexible tenancy and seeking possession ‘against the periodic tenancy that will then arise’.53 2.77 Finally under this part, section 119 of the Housing and Planning Act 2016, which is still not yet in force at the time of writing, seeks, somewhat unsuccessfully, to clarify and simplify matters for flexible tenancies by amending section 82 of the Housing Act 1985 for new fixed-term secure tenancies by inserting a new sub-section (amongst other amendments set out in the Act): ‘(A1) A fixed-term secure tenancy of a dwelling-house in England that is granted on or after the day on which paragraph  4 of Schedule  7 to the Housing and Planning Act 2016 comes fully into force cannot be brought to an end by the landlord except by— (a) obtaining— (i) an order of the court for the possession of the dwelling-house, and (ii) the execution of the order, or (b) obtaining a demotion order under section 82A. (A2) A secure tenancy can be brought to an end by the landlord as mentioned in subsection (A1)(a) whether or not the tenancy contains terms for it to be brought to an end’ (emphasis added).

STANDARD OF PROOF 2.78 The ensuing possession claim will be a civil matter and decided accordingly on the balance of probabilities standard. This is best explained by Lord Nicholls’ statement in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 at [586C–H]:  ‘The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in 53 See citation of Lord Justice Arnold’s judgment at para 2.70.

27

2.79  Tenancy procured by False Statement

the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability … [T]his does not mean that where a serious allegation is in issue the standard of proof required is higher. It only means that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred.’ 2.79 It is worth though bearing in mind the words of Lord Hoffman in Re B (Children):54 ‘the more serious an allegation is, the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability’. 2.80 It is often not possible to call the person who decided to grant the tenancy to give evidence that he or she was induced to do so by the tenant’s representation, but this is, though to be avoided if at all possible, not necessarily fatal to the possession claim. 2.81 In Waltham Forest LBC v Roberts,55 Newman J considered the concept of the ‘presumption of inducement’ and absence of the local authority’s actual decision-maker: ‘37 … The judge was strongly influenced by the absence of evidence from the actual decision maker and rejected the evidence which was before him about the Authority’s policy in responding to housing applications. In so far as he is to be taken to have concluded that without evidence from the actual decision maker, the burden of proof could not be discharged, he was plainly wrong. No basis for the existence of such a strict evidential requirement has been made out. Nor could it be, for there are none save that it is to be noted that in certain circumstances, to which I  shall refer later, a presumption of inducement can arise. The Authority called its rehousing manager, Mr Bourne. His evidence, which was uncontradicted, was that in accordance with its policy, the Authority would have wanted to investigate the true position. As a result, he stated it was unlikely that Mrs Roberts would have been granted a tenancy of this particular accommodation, at the date it was granted, had the Authority known of her joint ownership of 143 Westdown Road. Her ownership would have generated inquiries into who was living at the property, the type of security the owners had and the amount of equity in the property.’ (emphasis added)

54 [2009] 1 AC 11, [14]–[15]. 55 [2004] EWCA Civ 940, [2005] HLR 2, para 37.

28

Reasonableness 2.85

REASONABLENESS 2.82 The Ground is, as noted above, a discretionary one and so even if made out and there are no issues with the landlord’s notice, the court must go on to consider whether: (a) it is reasonable to make a possession order;56 and (b) if so, whether that order should be outright or its enforcement suspended on terms.57 2.83 The leading authority on the court’s role in assessing reasonableness remains Cumming v Danson,58 in which Lord Greene MR held that: ‘In considering reasonableness under section 3(1), it is, in my opinion, perfectly clear that the duty of the judge is to take into account all relevant circumstances as they exist at the date of the hearing, that he must do in what I venture to call a broad, common-sense way as a man of the world, and come to his conclusion giving such weight as he thinks right to the various factors in the situation. Some factors may have little or no weight, others may be decisive, but it is quite wrong for him to exclude from his consideration matters which he ought to take into account.’ 2.84 It necessarily follows that some circumstances will militate against the making of an outright order for possession, or indeed the making of any possession order. 2.85

Factors such as:

•

delay on the part of the landlord;

•

laxity of procedures; and

•

hardship for the defendant if evicted

are just three issues that, it has been suggested, are potentially relevant when considering the question of reasonableness.59 The court should conversely also take into account the nature and degree of the false statements which have been made and the surrounding circumstances (though see 2.91).60 In Shrewsbury & Atcham BC v Evans Beldam LJ said at [132]: ‘The effect of the decisions, in my view, is that in a case such as this, where there has been a deliberate lying to obtain public housing that only in exceptional cases would the court consider the effect of the homelessness legislation. It is not the function of the court to decide whether or not a 56 57 58 59 60

Housing Act 1985, s 84(2)(a), Housing Act 1988, s 7(4). Housing Act 1985, s 85(2), Housing Act 1988, s 9(2). [1942] 2 All ER 663. Lewisham LBC v Akinsola (2000) 32 HLR 414 at [417] per Sedley LJ. Shrewsbury & Atcham BC v Evans (1997) 30 HLR 123, CA.

29

2.86  Tenancy procured by False Statement

person is intentionally homeless. That is the function of the local authority and has been entrusted to the local authority by Parliament.’ 2.86 A Convention right defence (usually under Article 8, ECHR) is unlikely to provide a defendant with much comfort though61 any more than a defence based on a wider public law challenge. Having said that the Court of Appeal recently had cause to consider a Ground 17 possession claim where the public sector equality duty (PSED) was found to have been breached. 2.87 In Luton Community Housing Trust v Durdana62 the Court of Appeal found that whilst the trial judge was right to find that there had been a breach of the PSED it was highly likely that had the Trust carried out a proper assessment it would have come to the same conclusion in respect of the claim. As they were thereafter not in a position to consider whether it was reasonable to make a possession order, the Court of Appeal allowed the Trust’s appeal and remitted the claim to the county court to consider whether it was reasonable to make an order in the current circumstances: ‘Although for the reasons which I have given the judge was wrong to have dismissed the claim for a breach of the PSED, had she rejected that defence, she would still have needed to consider whether it was reasonable in all the circumstances to make the order. The judge in [58] of her judgment expressed the view that it would not have been reasonable to make the order because the claimant had not complied with the PSED but she declined to carry out any appraisal of her own as to whether it would be reasonable to make the order. The consideration of reasonableness which the court is required to carry out under s.7(4) HA 1988 will undoubtedly bring into account many of the factors I have already referred to but it will be a consideration of matters as they stand now rather than in 2018 and the scope of the enquiry may be wider. In any event, it is not something which this court is equipped to carry out on the material available for the purposes of this appeal.’63 2.88 It could be said that such defences are better dealt with in any event under the umbrella of ‘reasonableness’. In handing down the judgment of the court in Manchester City Council v Romano; Manchester City Council v Samari,64 Lord Justice Brooke remarked with reference to discrimination arguments to discretionary possession claims: ‘64 In our judgment, it would be preferable, in a case involving a secure tenancy or an assured tenancy, for the tenant to assert the matter on which he relies as part of his case that it would be unreasonable for the court 61 62 63 64

Thurrock BC v West [2012] EWCA Civ 1435, [2013] HLR 5 paras 22–31. [2020] EWCA Civ 445; [2020] HLR 27. Patten LJ at [37]. [2004] EWCA Civ 834, [2005] 1 WLR 2775 – the Disability Rights Commission intervening in both cases.

30

Reasonableness 2.90

to make a possession order, rather than to complicate the proceedings by adding a formalistic counterclaim for a declaration or an injunction.’ 2.89 It is, though, worth noting when considering some of the common examples of public law or discrimination defences: •

Section 11(2) of the Children Act 2004 applies to local authorities and other designated public bodies and concerns the safeguarding and promotion of the welfare of children, but as Sharp LJ said in Mohamoud v Kensington & Chelsea RLBC:65 ‘67 Further, as in Collins, it is difficult to see how the s11(2) duty adds anything material to the art.8 analysis. If it does so, it seems to me, more as a matter of form, rather than substance. … 70 If however, contrary to my view, there was a duty to conduct an assessment as the appellants assert, I  do not think these facts show any basis for interfering with the possession orders that were made, as there is no link between the making of those orders and a failure to conduct such an assessment. It would follow that a failure to comply with such a duty did not give rise to a defence to the claims in any event: see Wandsworth LBC  v Winder [1985]  A.C. 461  HL at 509E–F  and London Borough of Hackney v Lambourne (1993) 25 H.L.R. 172 at 181.’

•

Equally, the public sector equality duty66 is unlikely to add significant weight to the tenant’s defence: as reasonableness is in issue, the factors to which section 149 of the Equality Act 2010 refers would, in all probability, be considered by the court in any event.

•

As for discrimination,67 the tenant would need to demonstrate, at the very least, a connection between the protected characteristic (eg disability) and the making or instigation of a false statement – a connection which is likely to be very difficult to prove.68

2.90 Whilst the detail of discrimination and public law defences is beyond the scope of this book, if a landlord believes it has sufficient evidence to justify a possession claim under the Ground, then when making a decision to issue such a claim, and keeping its prosecution under review, it would be prudent to not only be satisfied of the evidence but also: (a) consider the tenant’s present circumstances in full and any culpability that could be laid at the door of the landlord;

65 66 67 68

[2015] EWCA Civ 780, [2015] HLR 38. Equality Act 2010, s 149 Under the Equality Act 2010. Though see Lewisham LBC v Malcolm [2007] EWCA Civ 763, [2008] Ch 129 (overturned on appeal [2008] UKHL 43, [2008] 1 AC 1399).

31

2.91  Tenancy procured by False Statement

(b) address, in particular, any issues surrounding any relevant, protected characteristic,69 such as disability, as well as any wider public law issue; (c) consider the impact on and integrity of the allocation scheme in operation, including the interests of those awaiting allocation of social housing; and (d) comply with any necessary pre-action protocol (see 2.60). 2.91 It has been said by the Court of Appeal that the nature and degree of the tenant’s untrue statements could only be considered relevant to the question of reasonableness in exceptional circumstances; the attitude and response of the defendant when the fraud was exposed being a more reasonable factor to consider.70 2.92 That approach stands in marked contrast to the treatment of reasonableness claims brought on other grounds for possession. In City West Housing Trust Ltd v Massey,71 conjoined anti-social behaviour possession cases,72 Arden LJ observed, when considering the required cogency of evidence necessary to allow suspension of the enforcement of a possession order: ‘53 However, because each case must be considered on its own facts, the judge has to decide whether there is a sound basis for saying that the tenant changed his or her ways. There is no absolute rule that a tenant who has lied in his evidence cannot ever succeed in having a SPO made in his favour. Even though lies have been told, it may be appropriate for a district judge none the less to make the assessment that cogent evidence exists which provides a real hope that the terms of the tenancy agreement will be respected in future. That will require careful consideration and appropriate explanation when the district judge gives his reasons for making an SPO.’ 2.93 The courts have, significantly, held in possession claims based on the Ground that when considering whether it is reasonable to make a possession order the judge is entitled to take into account the public interest in discouraging deceitful applications for housing, which result in the unjust relegation of honest applicants. Nourse LJ said in Rushcliffe BC v Watson in reference to the relevance of considering the ‘public interest’:73 ‘I  think it desirable to emphasise that what the judge was doing was considering whether it was reasonable to make an order for possession. Mr. Westgate accepts that, in doing that, the judge was entitled, and indeed bound, to take account of the public interest. But he says that he took too narrow a view of it, in particular by not recognising the public interest in 69 Equality Act 2010, s 4 – the protected characteristics are age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; sexual orientation. 70 Shrewsbury & Atcham BC v Evans (1998) 30 HLR 123 per Beldam LJ at [132]. 71 [2016] EWCA Civ 704, [2017] 1 WLR 129. 72 Housing Act 1988, Sch 2, Grounds 12 and 14. 73 (1991) 24 HLR 124, CA at [130]–[131].

32

Reasonableness 2.96

keeping a family together as a unit. The judge’s view of the public interest was wrongly confined to a policy of discouraging deceitful applications which result in the unjust relegation on the housing list of applicants who are honest. Again I  cannot accept this submission. I  am quite certain that the judge recognised the public interest in keeping a family together as a unit. But since he thought that there was no real likelihood that this family would be split up, that was not something which affected his consideration of the public interest in this case. On the broader aspect of the public interest the judge was fully entitled to attach the importance which he evidently did to the policy to which I have referred. The statistics which he recounted demonstrate the acute shortages in the plaintiff’s housing stock.’ 2.94 Rushcliffe also serves as a helpful reminder to landlords that, if they wish to rely on the Ground it makes sense to provide evidence of those affected by such deceitful applications, along with other information, such as: (a) the number of people on the landlord’s allocation list, or that of the nominating authorities; (b) the average wait time for accommodation; and (c) the likely outcome of the tenant’s application if they had not misrepresented their position. 2.95 Further, in claims brought on the Ground, the court will only consider the effect on the tenant of making a possession order in exceptional circumstances. In Shrewsbury & Atcham BC v Evans,74 the Court of Appeal dismissed the tenant’s argument that the trial judge had failed to give proper weight to the fact that she might be found intentionally homeless if evicted and that the family might not be able to stay together if the possession order was made. 2.96 Indeed, in Lewisham LBC v Akinsola,75 the Court of Appeal expressly rejected an argument that a possession order would be futile as it would – it was said – simply require the authority to secure accommodation for the errant defendant, who had lied about being homeless to obtain the accommodation in the first place. There were, in effect, still issues for the authority to decide upon any homelessness application, such as intentionality.76

74 (1997) 30  HLR  123, CA at [132] per Beldam LJ, though see Southwark LBC  v Erekin [2003] EWHC 1765, [2003] JHL D96, in which the High Court refused to overturn a county court decision that it would not be reasonable to make a possession order under this Ground, even though the defendant had been sent to prison for fraud for obtaining the tenancy, because the defendant’s children had been enjoying a stable home life in the property with the defendant’s mother. 75 (2000) 32 HLR 414. 76 Note R v Exeter City Council, ex p Glidden and Draper [1985] 1 All ER 493 in this respect, in which it was held that it would not be not reasonable to permit the tenant to continue to occupy accommodation which the landlord wishes to recover because of discovered fraud.

33

2.97  Tenancy procured by False Statement

2.97 The Court did, however, caution that, if a homelessness application would manifestly succeed or fail, this may be a relevant factor when considering the reasonableness of a possession order.77 2.98 Some 21 years on, however, with greater reliance by local housing authorities on the private rented sector to discharge their homelessness duties, it may properly be argued that, even if the household were likely to be owed the full housing duty, it did not necessarily follow that it would be offered social housing such that possession from such stock would still be warranted. 2.99 In Evans, Beldam LJ in any event cautioned against ‘overplaying’ the potential re-housing card when he said at [132]: ‘Those who are on the housing list who have an equal or even greater claim to public housing would, in my view, justly be indignant to find that the court did not think it reasonable in circumstances where someone has obtained accommodation by a deliberate and flagrant lie, to make an order for possession merely because the effect of the order would result in the occupant having to be considered by the local authority as homeless or intentionally homeless.’ and, in the context of fraudulent subletting, Turner J remarked in Poplar HARCA v Begum & Rohim78: ‘… it is not compassionate to allow profiteering fraudsters indefinitely to continue to occupy premises and thereby exclude from such accommodation more needy and deserving families.’ 2.100 Finally, though discretionary, the Ground is in some respects ‘all or nothing’. There is, it is suggested, little merit in the landlord securing a possession order, the enforcement of which is suspended on terms, in the absence of any credible conditions of suspension (unless there are other discretionary grounds being relied on, such as regards rent arrears or anti-social conduct). In these cases, the mischief has already happened; of necessity it cannot happen again for that particular tenancy.

CONCLUSION 2.101 If a secure tenancy or assured tenancy has been procured by a false representation then possession proceedings may be available on discretionary 77 In Shrewsbury and Atcham BC v Evans (1998) 30 HLR 123 at [132], Beldam LJ had previously said: ‘… only in exceptional cases would the court consider the effect of the homelessness legislation. It is not the function of the court to decide whether or not a person is intentionally homeless. That is the function of the local authority and has been entrusted to the local authority by Parliament’. 78 [2017] EWHC 2040 (QB); [2017] HLR 42, para 40.

34

Conclusion 2.105

grounds – Grounds 5 or 17. This is the usual route to repossessing the premises and, generally, the remedy of rescission will not be available. 2.102 Once there has been an assignment or ending of the wrongly allocated tenancy, then the Ground will not be available. 2.103 Where security of tenure is lost, for example where the tenant no longer lives at the premises as their only or principal home, rescission may be a possible remedy though there would be more practical sense in acknowledging the tenancy and seeking to terminate it by the usual ‘notice to quit’ or forfeiture route, depending upon the evidence of sub-letting, parting with possession or an only or principal home case. 2.104 If the fraud is committed by both an officer of the social landlord and the recipient tenant, then again rescission may be available, though as yet there is no definitive judgment on such a case. The Ground may still be applicable in such cases. 2.105 Finally, the particular hurdles that may impinge upon a flexible or fixedterm tenancy need to be appreciated and care taken both in how the agreement is drafted and how the tenancy is sought to be terminated (and possession taken).

35

CHAPTER 3

Misuse of Property • Sub-letting •

Parting with possession

•

Short-term lets

•

Possession claims

Key points •

Sub-letting or parting with possession of the whole of the demised premises will lead to an automatic and permanent loss of security of tenure for secure and assured tenancies (though not if a shared ownership lease).

•

Secure or assured status cannot be regained in such circumstances, even if the tenant resumes occupation of the premises, save by the grant of a fresh tenancy.

•

Lack of direct evidence of such activity may not be fatal to a landlord’s claim for possession, as long as proper inferences can be drawn from the proven facts.

•

For periodic tenancies, the service of a notice to quit will bring the remaining common law tenancy to an end, with effect from its expiry.

• Fixed term/flexible tenancies,1 which necessarily includes shared ownership leases, cannot be brought to an end by means of a notice to quit. In such cases possession in reliance on an appropriately worded ‘forfeiture provision’ will be required.2 • A  secure tenant has the right to take in lodgers and sub-letting or parting with possession of part of the premises is available to such tenants with the written permission of their landlord. Failure to get such authority can lead to a ground for possession – breach of tenancy – provided for in Schedule  2 to the Housing Acts 1985 (secure tenancies – Ground 1) and 1988 (assured tenancies – Ground 12). 1

Housing Act 1985, s 107A states in terms that ‘a flexible tenancy is a secure tenancy’ and refers to fixed terms of two years or more. 2 Nearly Legal identified an interesting question with regard to ‘anti-sub-letting’ provisions in right-to-buy leases whilst looking at Airbnb issues on 28 March 2017 given the provision of Housing Act 1985, Sch 6, para 17(1) (which concerns right to buy) – ‘A provision of the lease, or of an agreement collateral to it, is void in so far as it purports to prohibit or restrict the assignment of the lease or the subletting, wholly or in part, of the dwelling-house.’

37

3.1  Misuse of Property

•

It is an implied term of most assured tenancies3 that in order to sub-let or part with possession of the whole or part of the subject premises (or, indeed, assign the same) the landlord’s consent is required.4

•

Introductory tenancies can be ended in the same way as for secure tenancies upon sub-letting or parting with possession of the whole – see 3.27. Any such action in respect of part of the premises may simply lead to a notice being served under section 128 of the Housing Act 1996, and mandatory possession proceedings thereafter being issued (subject to review).

INTRODUCTION 3.1 Chapter 2 concerns instances where the tenant should never have been allocated the social housing unit in the first place. This chapter, conversely, considers the situation where they acquired the tenancy in a proper fashion but have not dealt with the premises appropriately thereafter. In short, they have allowed others to ‘take over’ the premises, either in whole or in part. 3.2 The question of sub-letting or parting with possession of premises by a tenant is, to varying degrees and in all practical senses, an issue of evidence, though it is important to understand some basic factors underpinning security of tenure and the impact on this caused by such activity, as well as the proper and appropriate court processes to undertake in order to secure possession of the subject premises. 3.3 As will be explained further below, it is the mere fact of statutory protection provided for by the Housing Acts of 1985 (secure tenancies) and 1988 (assured tenancies) that prevents a secure or assured periodic tenancy from being brought to an end on a mandatory ground by means of an otherwise properly served and valid notice to quit.5. In short:

Security of Tenure •

A secure, introductory or assured tenancy retains its status for as long as the tenant or, in a joint tenancy situation, at least one of the tenants occupies the demised premises as their only or principal home.6

3 Housing Act 1988, s  15(3) explains those tenancies where there is no such implied term: see 3.36. 4 Housing Act 1988, s 15(1). 5 Housing Act 1985, s 82 (secure tenancies)/Housing Act 1988, s 5 (assured tenancies). 6 Housing Act 1985, ss  79(1) and 81 (secure tenancies)/Housing Act 1988, s  1(1)(b) (assured tenancies)/Housing Act 1996, s 125(5)(a) (introductory tenancies).

38

Introduction 3.3

•

In fact, this basic premise is further extended7 by the fact that a spouse or civil partner can occupy the said property in the absence of the tenant and security is retained for as long as the marriage or civil partnership persists (assuming the departing tenant does not serve a notice to quit).8 This may, however, be a breach of tenancy (see bullet point below).

• If security of tenure is lost because the whole of the premises has been sub-let or the tenant has parted with possession of the same, then it cannot be ‘regained’,9 save by the parties entering into a fresh tenancy. •

Conversely, if it is lost because the tenant(s) simply no longer live there as their only or principal home then this has ‘merely’ an ambulatory effect, such that security of tenure can be regained if the tenant (or at least one of them) returns to live at the premises before, in the case of a periodic tenancy, the expiry of any valid notice to quit properly served.10 See Chapter 4 for further details.

• The tenant(s) in that situation will, however, have undoubtedly breached either the express or implied term of their tenancy – which requires them or at least one of the joint tenants to live at the premises as their only or principal home – by not living there, such that it provides the landlord with the option and in many instances alternative to the notice to quit approach where the facts are unclear, of serving a notice seeking possession in reliance on the said breach. • A  notice to quit, and possession claim in reliance on the same, is only available, therefore, where the (non-shared ownership) tenancy is periodic and security of tenure is lost, which will be where: – the tenant has sub-let or parted with possession of the entirety of the premises, or – the tenant has moved away and does not live there any longer as their only or principal home at the time the notice to quit expires. 3.4 This chapter is, therefore, primarily concerned with the question of subletting and parting with possession (with particular focus on periodic tenancies) and not the concept of ‘only or principal home’, which is dealt with more fully in Chapter 4. Of course, it is true to say that if the tenant has sub-let or otherwise parted with possession of their premises then they are by definition not living 7 Family Law Act 1996, s 30(4)(b) (as amended by the Civil Partnership Act 2004). 8 See Derwent Housing Association v Taylor [2016] EWCA Civ 508; [2016] HLR 25, para 4 where the Court of Appeal confirmed that Family Law Act 1996, s 30 only conferred rights of occupation on the tenant’s spouse/civil partner whilst the tenant remains entitled to occupy the dwelling house; once the tenancy had been terminated by notice to quit, s 30 did not apply. 9 Housing Act 1985, s 93(2) (secure tenancies)/Housing Act 1988, s 15A(2) (assured tenancies). 10 See Hussey v Camden LBC (1995) 27 HLR 5 at [7–8] per Leggatt LJ.

39

3.5  Misuse of Property

there themselves. The phrase ‘primarily concerned’ is also deliberately phrased in acknowledgment of the fact that it has to be addressed to a degree where such activity relates to only part of the premises and action. In such a situation, the tenant’s residence will make a difference to questions of criminal sanction and the exact nature of any possession claim. 3.5 It is a topic which may present both a mandatory and discretionary possession ground for the social landlord. As such, they ought to be alive to the Pre-action Protocol for Possession Claims by Social Landlords: ‘PART 3 MANDATORY GROUNDS FOR POSSESSION 3.1  This Part applies in cases where, if a social landlord proves its case, the court must, in principle, grant possession and where s.89(1) Housing Act 1980 applies 3.2  Before issuing any such possession claim a social landlord— (a) should write to the occupants explaining why it currently intends to seek possession and requiring the occupants, within a specified time, to notify the landlord in writing of any personal circumstances or other matters which they wish to have taken into account. In appropriate cases, such a letter could accompany any notice to quit or notice seeking possession and so would not necessarily delay the issue of proceedings; and (b) should consider any representations received and, if they decide to proceed with a claim for possession, give brief written reasons for doing so. 3.3  The social landlord should include with its claim form, or in any witness statement filed under CPR 55.8(3), a schedule stating— (a) whether it has (by a statutory review procedure or otherwise) invited the defendant to make representations of any personal circumstances or other matters which they wished to be taken into account before the social landlord issued the proceedings; (b) if representations were made, whether and how they were considered and with what outcome; and (c) brief reasons for bringing proceedings.

Copies of any relevant documents which the social landlord wishes the court to consider in relation to the proportionality of the landlord’s decision to bring the proceedings should be attached to the schedule.

3.6 If a discretionary Ground is pursued, 2.60 in the previous chapter explains the protocol to follow. First ,however, the definitions of ‘sub-letting’ and ‘parting with possession’ must be explained. 40

What is sub-letting? 3.11

WHAT IS SUB-LETTING? 3.7 ‘Sub-letting’ requires the whole premises or part of the premises, to be let out to a third party or parties:11 •

with exclusive possession (see 3.17, 3.71);

•

for a term at a rent, and

• with an intention to create legal relations between the parties.12 Normally it will be very clear whether or not a particular living situation is properly characterised as a sub-letting. 3.8 In Brent LBC  v Cronin,13 the defendant, a secure tenant of the local authority, suffered from epilepsy and wished to stay with his sister-in-law away from his home for a short time. A friend of his suggested that a couple live in his one-bedroom flat in his absence. The defendant thereupon entered into an oral agreement with this couple under which they were to pay a deposit to him of £20, in addition to a weekly payment of £40 per week for the flat. The couple were given the keys to the flat and duly moved in. As for the defendant, he went, as planned, to stay with his sister-in-law. 3.9 The local authority landlord learned of this arrangement and began possession proceedings on the basis of alleged sub-letting of the whole of the let premises, having first served a notice to quit. At trial, the defendant was able to successfully argue that he had not, in fact, sub-let or parted with possession of his flat at all and that this was never his intention. 3.10

The trial judge did accept that the couple had:

•

exclusive possession of the premises,

•

for a term at a rent

but also found that the tenant’s plans were confused and uncertain, and that he had only intended to be away for a short time, and further had not intended to part with possession of the flat. 3.11 There was certainly a superficial attractiveness to such arguments, because the defendant may well have fully and genuinely intended to return to the premises at some time in the future. The Court of Appeal, however, rejected such an approach and took a clear view that as all the elements for a tenancy had been created between the defendant and the couple, as set out at 3.7 above, a tenancy had, in fact, been formed.

11 Street v Mountford [1985] AC 809 at [818C–F] per Lord Templeman. 12 To be judged by the parties’ conduct and not by their professed intentions: ibid at [821C–D; 822B–C] per Lord Templeman. 13 (1998) 30 HLR 43.

41

3.12  Misuse of Property

3.12 They therefore accepted the authority’s appeal, Sir Ralph Gibson summarising the rejection of the trial judge’s approach as follows:14 ‘The judge was not, in law, in my judgment, entitled to decide the nature of the transaction by reference to the uncommunicated intention or uncertainty of Mr Cronin. This is a clear, longstanding principle of law (see Chitty on Contract 7th edn, para 12–040 and cases there cited). We were referred to those passages by Miss McAllister. The appellants were entitled to have their claim for possession determined according to law. The special needs and vulnerability of Mr Cronin are matters to be dealt with by a different agency.’15 3.13 The Court of Appeal rejected the relevance of any subjective intention to return. To adopt the phrase of Lord Justice Waite, a tenancy is a tenancy, whether for a long or short period.

WHAT IS PARTING WITH POSSESSION? 3.14

‘Parting with possession’ is not as easily defined as ‘sub-letting’.

3.15 Whilst sub-letting of the whole will encompass the ‘parting with possession’ definition, the latter also covers much wider forms of arrangement. For example, if a tenant purports to assign their tenancy to a third party and allows the latter into exclusive occupation in anticipation of the same, then this may constitute parting with possession, the elements for a tenancy being entirely absent to allow a finding of sub-letting. Similarly, an unauthorised tenants’ ‘swap’ of properties would not be sub-letting, but would, in all probability, constitute a parting with possession. 3.16 Conversely, a ‘caretaker’ arrangement, where the tenant asks someone to look after the premises during their (prolonged) absence (eg during a period of imprisonment, hospitalisation or employment away from the area) does not, if properly constituted, fall within the parting with possession definition, nor does (usually) other forms of occupation under a licence. Why? 3.17 The key to this distinction is the question of exclusive possession, the first of the elements referred to at 3.7 above. In Stenning v Abrahams,16 Farwell J explained the importance of this definition: 14 Ibid at [47]. 15 It is fair to say that the relevance of subjective intentions was left open by the Court of Appeal in Dreamgate Properties Ltd v Arnot (1998) 76 P&CR 25 because it was able to decide the question on objective considerations alone. In London Baggage Company v Railtrack plc [2000]  L&TR  439, Mr Justice Pumfrey said at [445] ‘It is not settled whether the intention of the parties, to which regard must be had, includes their subjective and uncommunicated intentions.’ 16 [1931] 1 Ch 470 at [473].

42

Security of tenure 3.21

‘A  lessee cannot be said to part with the possession of any part of the premises unless his agreement with his licensee wholly ousts him from the legal possession of that part. If there is anything in the nature of a right to concurrent user there is no parting with possession. Retention of a key may be a negative  indicium, and the authorities on the whole show that nothing short of a complete exclusion of the grantor or licensor from the legal possession for all purposes amounts to a parting with possession. The fact that the agreement is in form a licence is immaterial, as the licence may give the licensee so exclusive a right to the legal possession as to amount to a parting with possession.’ 3.18 The courts have therefore settled on the ‘test’ of whether those in physical occupation have the right to exclude all others from the premises, including the tenant.17

SECURITY OF TENURE Introduction 3.19 Now that the definitions of sub-letting and parting with possession are, hopefully, understood, the question of how these impact upon the tenant’s security of tenure comes to the fore. The underlying factors are summarised at 3.3, which also deals with the inevitable ‘nuances’, such as the role and effect of having a spouse or civil partner.

Secure tenancies 3.20 A secure tenancy only remains as such, and security of tenure is therefore only retained:18 ‘… at any time when the conditions described in sections 80 and 81 as the landlord condition and the tenant condition are satisfied’. 3.21 The landlord condition has no relevance to this issue, but rather it is section 81 of the Housing Act 1985 that requires attention. This sets out the tenant condition simply as: ‘… the tenant is an individual and occupies the dwelling-house as his only or principal home; or, where the tenancy is a joint tenancy, that each of the joint tenants is an individual and at least one of them occupies the dwelling-house as his only or principal home.’ (emphasis added)

17 Lam Kee Ying v Lam Shes Tong [1975] AC 247 at [256C] per Sir Harry Gibbs. 18 Housing Act 1985, s 79(1).

43

3.22  Misuse of Property

Assured tenancies 3.22 As with secure tenancies, section 1(1) of the Housing Act 1988 provides that an assured tenancy only remains as such if and for so long as: ‘(b) the tenant or, as the case may be, at least one of the joint tenants occupies the dwelling-house as his only or principal home.’

Only or principal home 3.23 It follows from these statutory provisions that security of tenure cannot be retained for secure, assured or introductory tenants if they do not remain in occupation as their only or principal home. 3.24 The only or principal home concept and the repercussions of its loss is dealt with, as previously noted, in appropriate detail in Chapter 4 and 3.3 above. 3.25 Paragraphs 3.31–3.42 look at with when sub-letting or parting with possession is only in respect of part of the premises. Where it concerns the whole premises, statutory provisions make the issue more straightforward.

Sub-letting or parting with possession of whole 3.26 Section 93 of the Housing Act 198519 confirms the permanent loss of security of tenure for secure tenants in such circumstances: ‘(2) If the tenant under a secure tenancy parts with the possession of the dwelling-house20 or sublets the whole of it (or sublets first part of it and then the remainder), the tenancy ceases to be a secure tenancy and cannot subsequently become a secure tenancy.’ 3.27 If an introductory tenant sub-lets the whole then they similarly lose that status if there has been sub-letting or parting with possession of the whole (or indeed if they no longer live at the premises as their only or principal home). Section 125 of the Housing Act 1996 provides: ‘(5) A tenancy ceases to be an introductory tenancy if, before the end of the trial period— (a) the circumstances are such that the tenancy would not otherwise be a secure tenancy, (b) a person or body other than a local housing authority or housing action trust becomes the landlord under the tenancy, (c) the election in force when the tenancy was entered into or adopted is revoked, or 19 This section is not applicable to a secure tenancy from a co-operative housing association by reason of s 109. 20 Defined at s112 as ‘a house or a part of a house’.

44

Security of tenure 3.30

(d) the tenancy ceases to be an introductory tenancy by virtue of section 133(3) (succession).’ (emphasis added). 3.28 As with 3.26 above, section 15A of the Housing Act 1988 has provided, with effect from 5 November 2013,21 for assured tenants to also permanently lose security of tenure in such circumstances: ‘(1) Subsection (2) applies if, in breach of an express or implied term of the tenancy, a tenant of a dwelling-house let under an assured tenancy to which this section applies— (a) parts with possession of the dwelling-house, or (b) sub-lets the whole of the dwelling-house (or sub-lets first part of it and then the remainder). (2) The tenancy ceases to be an assured tenancy and cannot subsequently become an assured tenancy.’ 3.29 Section 15A of the 1988 Act does not apply to shared ownership leases and as such loss of security of tenure, through not living at the premises as the tenant’s only or principal home, is ambulatory.22 3.30 It follows that for periodic secure and assured tenancies, and introductory tenancies, a notice to quit should be served to bring the remaining common law tenancy to an end:23 •

prior to taking possession action; and

•

prior to following the necessary protocol (see 3.5).

And for shared ownership arrangements (less than 100% share) a notice seeking possession is the appropriate notice if the tenant has moved back in, otherwise a section 146 notice (as with flexible tenancies – see 3.60–3.66) should be used.

Notice to Quit To: Edward Hazard, 2 Stamford Bridge, London, SW18 1DD From: Ferguson Housing Association, Andrew Herrera Way, Pocket, Manchester, M20 1LV We give you NOTICE TO QUIT and you are to deliver up possession of 2 Stamford Bridge, London, SW18 1DD on 27 November 20XX or the day on which a complete period of your tenancy expires next after the end of four weeks from the date of service of this notice 21 Prior to this time a tenant was able to argue that even if they had sub-let or parted with possession of the whole of their premises then as long as they had a genuine intention to return there was no loss of security of tenure: Ujima Housing Association v Ansah (1997) 30  HLR  831 and Waltham Forest Community Based Housing Association v Fanning [2001] L&TR 41. 22 See Housing Act 1988, s 15(3)(5). 23 Housing Act 1996, s 125(6).

45

3.31  Misuse of Property

Dated: 16 October 20XX Signed: …………………………. Position: Important Information for tenants24 1 If the tenant or licensee does not leave the dwelling, the landlord or licensor must get an order for possession from the court before the tenant or licensee can lawfully be evicted. The landlord or licensor cannot apply for such an order before the notice to quit or notice to determine has run out. 2 A tenant or licensee who does not know if he has any right to remain in possession after a notice to quit or a notice to determine runs out can obtain advice from a solicitor. Help with all or part of the cost of legal advice and assistance may be available under the Legal Aid Scheme. He should also be able to obtain information from a Citizens’ Advice Bureau, a Housing Aid Centre or a rent officer.

WHAT IF THE SUB-LETTING/PARTING WITH POSSESSION ONLY RELATES TO PART OF THE PREMISES? 3.31

We know from the Key Points section above that:

(a) A  secure or periodic assured tenant25 is entitled to sub-let or part with possession of part of the premises as long as:26 – they have the (written27) consent of the landlord; and – they themselves, or at least one of joint tenants or their spouse/civil partner, continues to live at the premises as their only or principal home. (b) Consent of the landlord in a secure tenancy case should not be unreasonably withheld and will be treated as given if it is so.28 (c) A secure tenant is also entitled to have lodgers (as opposed to sub-tenants) in the premises and does not need the consent of the landlord to do so29 (see 3.35).

24 Notices to Quit etc. (Prescribed Information) Regulations 1988/2201, Sch 1. 25 A periodic assured tenancy can have a condition prohibiting or allowing any such sub-letting or parting with possession unless it is a statutory periodic tenancy or one arising under Local Government and Housing Act 1989, Sch 10 (see Housing Act 1988, s 15(3)). 26 Housing Act 1985, s 93(1)(a) (secure tenancies)/Housing Act 1988, s 15(1) (assured tenancies). 27 Housing Act 1988, s 15(1) dealing with assured tenancies, does not specify that the consent must be in writing. 28 Housing Act 1985, s 94(2) – there is no such restriction in periodic assured tenancy cases. 29 Ibid, s 93(1)(b).

46

What if the sub-letting/parting with possession only relates to part of the premises? 3.36

(d) Despite the more restrictive nature of periodic assured tenancies, an assured tenant will be able to take in lodgers in so far as in those cases no possession in fact passes30 (see 3.36). 3.32 If, therefore, a sole tenant lets out a room, for example, in their threebedroom premises and moves out in order to live elsewhere then, as indicated above at 3.3 and 3.31: (a) they may well have lost security of tenure not because of the sub-letting/ parting with possession – because they have not done this in respect of the whole of the premises – but due to the fact that they no longer live at the premises as their only or principal home (see Chapter 4); (b) this activity is almost certainly also a breach of tenancy both in respect of the letting the room, if without consent of the landlord, and the failure of the tenant to live at the premises as their only or principal home (and probably also a failure to advise their landlord of absence from the home for longer than the specified period, usually 21 or 28 days, if that is such an express term). 3.33 It necessarily follows that if the sub-letting or parting with possession of part of the demised premises represents a breach of tenancy – whether of an express or implied term – and the tenant continues to live there, then the proper notice to serve prior to any possession proceedings is a notice seeking possession and not a notice to quit (which would not be available anyway for a fixed term or flexible tenancy, as is clear from 3.60–3.66 which also cautions about the use of the section 146 notice for the reasons raised at 2.70–2.74). 3.34 To put it another way, the tenancy would continue in its secure/assured/ introductory tenancy form despite the breach of tenancy unless the tenant(s) have also themselves moved out such that they can be properly said to no longer live there as their only or principal home (in which case the Housing Acts are of no application in determining the tenancy, and a notice to quit is required in periodic tenancy cases, a section 146 notice and forfeiture otherwise). 3.35 Sub-letting or parting with possession of part of the relevant premises is not without some statutory restriction. For secure tenants, section 93 of the Housing Act 1985 provides: ‘(1) It is a term of every secure tenancy that the tenant— (a) may allow any persons to reside as lodgers in the dwelling-house, but (b) will not, without the written consent of the landlord, sublet or part with possession of part of the dwelling-house.’ 3.36

As for assured periodic tenants, section 15 provides:

30 Edwards v Barrington [1901] 85 LT 650 HL; Segal Securities Ltd v Thoseby [1963] 1 QB 887.

47

3.37  Misuse of Property

‘(1) Subject to subsection (3) below, it shall be an implied term of every assured tenancy which is a periodic tenancy that, except with the consent of the landlord, the tenant shall not— (a) assign the tenancy (in whole or in part); or (b) sub-let or part with possession of the whole or any part of the dwelling-house let on the tenancy. … (3) In the case of a periodic tenancy which is not a statutory periodic tenancy or an assured periodic tenancy arising under Schedule 10 to the Local Government and Housing Act 1989 subsection (1) above does not apply if— (a) there is a provision (whether contained in the tenancy or not) under which the tenant is prohibited (whether absolutely or conditionally) from assigning or sub-letting or parting with possession or is permitted (whether absolutely or conditionally) to assign, sub-let or part with possession; or (b) a premium is required to be paid on the grant or renewal of the tenancy.’ 3.37 It follows that the primary issues where only part of the premises is subject to investigation and inquiry, are: (1) Does the tenant(s) still live at the premises as their only or principal home? (2) If not, security of tenure has been lost whilst that remains the case (as with any only or principal home case) and a notice to quit is required to end the remaining common law tenancy in a periodic tenancy case (see 3.30) and a section 146 notice otherwise. (3) If the tenant remains living at the premises, have they the permission of the landlord for any sub-letting or parting with possession of part? (4) If not this will be a breach of tenancy and a notice seeking possession (periodic secure tenancy/assured tenancy, including shared ownership) or section 146 notice (flexible tenancy) could be served as well as a notice seeking possession in reliance on: − Grounds 1 (secure tenancies) ‘Rent lawfully due from the tenant has not been paid or an obligation of the tenancy has been broken or not performed’ (emphasis added); or − 12 (assured tenancies) ‘Any obligation of the tenancy (other than one related to the payment of rent) has been broken or not performed’ to Schedule 2 to the Housing Acts of 1985 and 1988 respectively. (5) Is it sensible to serve in a periodic tenancy case both a notice to quit and, in the alternative, a notice seeking possession (breach of tenancy), and rely on and plead both in any subsequent possession claim? 48

What if the sub-letting/parting with possession only relates to part of the premises? 3.41

(6) This could be especially helpful and appropriate where the evidence for the landlord of misuse of the whole premises is not necessarily compelling, or where the tenant may resume occupation of the premises, in an only or principal home case, prior to the expiry of the notice to quit, thereby coming back under the auspices and protection of the relevant Housing Act, and requiring a notice seeking possession as the first step in any possession claim. 3.38 The concern of landlords with sub-letting or parting with possession of part of the demised premises without consent is primarily the potential to cause problems elsewhere (eg  anti-social behaviour of the new occupiers, housing benefit fraud, etc). In any event, as seen above: •

this may be a breach of tenancy warranting the service of a notice seeking possession and/or section 146 notice (and possession proceedings);

•

the tenant may not be living at the premises (another breach of tenancy and if security of tenure has been lost – see ‘only or principal home’ section at 3.23 – may justify the service of a notice to quit section 146 notice);

•

this may be a criminal offence pursuant to sections 1 or 2 of the Prevention of Social Housing Fraud Act 2013 (see Chapter 7); and

•

the arrangement may attract and warrant an unlawful profit order application, whether that be as part of a possession claim, criminal proceedings (see Chapter 7) or by means of separate Part 7 claim (see Chapter 5).

3.39 One of the most striking and stark examples of sub-letting of part was seen in August 2017 in the case of Poplar HARCA v Begum and anor.31 In Begum the tenants had moved away from the demised premises – a two-bedroom flat – and had let it out to a family, save for one of the bedrooms which they kept locked. The Recorder found at trial that the tenants had: ‘…deliberately kept the locked second bedroom at the flat containing toys and a cot as camouflage to deceive the appellant into believing, in the event of an inspection, that they and their children were still living at the flat’. 3.40 Because of the treatment of the second bedroom, the claim for possession based on the notice to quit was not accepted because there had been no parting with possession of the whole. 3.41 On appeal Mr Justice Turner overturned the suspended possession order made by the Recorder on discretionary grounds, and instead substituted it with a 21-day outright possession order. He remarked: ‘39. Putting it bluntly, I am entirely satisfied that the Recorder was taken in by the respondents. I make the following observations:

31 [2017] EWHC 240 (QB), [2017] HLR 42.

49

3.42  Misuse of Property

(i) The respondents’ case was so clouded by a miasma of lies that there was no evidence to support the Recorder’s conclusion that they, with their children, had decided to move in with the first respondent’s mother for wholly altruistic reasons. Indeed, on their case, they had never moved in at all. (ii) If the real reason for moving in were to look after the first respondent’s brother, they could have done this without, at the same time, renting out their flat for profit to Ms Rehana and Mr Ahmed. (iii) It was but a short walk from the flat to the first respondent’s home, a fact which further undermines the conclusion that it was necessary for the whole family to decamp completely to allow the first defendant access to attend to her brother when needed. 40. The fact that the Recorder exercised his discretion on a demonstrably flawed basis means that this Court must exercise that discretion afresh. In doing so, notwithstanding the passage of time since the hearing before the Recorder, I  am entirely satisfied that it would be wrong to exercise my discretion to suspend the possession order in this case. In particular, the sheer scale and persistence of the respondent’s initial fraudulent deceit aggravated by further and subsequent drug-related offending wholly justifies the condign consequences of an outright order. I  would stress that it is not compassionate to allow profiteering fraudsters indefinitely to continue to occupy premises and thereby exclude from such accommodation more needy and deserving families. In particular, in this case, there was a complete dearth of material which could amount to cogent evidence that the respondents would mend their ways in future. Accordingly, possession will be granted to take effect in 21 days from the date of this judgment.’ 3.42 Whilst not precisely on all fours with the public policy approach towards Grounds 5 and 17 as described in Chapter 2, and there were other (drug) issues present, this authority does stress the high hurdle an errant tenant may have to overcome to avoid an outright possession order, especially if caught breaching their tenancy by moving out and sub-letting or parting with possession of part of the demise.

SHORT-TERM LETS 3.43 How does the above analysis of the law relating to sub-letting and parting with possession apply to short-term letting arrangements, such as are made through companies such as Airbnb and Booking.com? Do they satisfy either definition? 3.44 In Bermondsey Exchange Freeholders Ltd v Ninos Koumetto (as Trustee in Bankruptcy of Kevin Geoghehan Conway32 HHJ Luba QC, sitting in the County 32 (2018) EW Misc B10 (CC).

50

Short-term lets 3.47

Court at Central London, was faced with an appeal from a long leaseholder in respect of an injunction granted by the court below and which prevented him from letting out his flat on short-term lets. One of the relevant tenant covenants of his agreement relied upon by the freehold owner, the claimant, read as follows: ‘Not to part with or share possession of the whole of the Demised Premises or permit any company or person to occupy the same save by way of an assignment or underlease of the whole of the Demised Premises.’ 3.45 The appeal was substantively dismissed, though there was a probable agreed variation of the injunction, and on the application of the clause referred to above the judge concluded in so far as the question of letting was concerned: ‘56. Despite Mr Hanham’s attractive submissions that a decision that there had been an ‘underletting’ was not open to her, I am not satisfied that there were the necessary features here to displace the presumption from Street v Mountford that the provision of exclusive possession of premises to another for a period and for payment for that period constitutes a letting. 57. Neither the short duration of the arrangement, nor any notional provision for ‘services’ (such as leaving the flat stocked with material from which to assemble a breakfast or other meal), nor reservation of a right of entry, nor any combination of those features, displace that presumption from applying to an Airbnb- style arrangement.’ (emphasis added) 3.46 That conclusion in part relied upon dicta in the Australian case of Swan v Uecker33 at [80] where Croft J was considering whether an Airbnb-type arrangement was properly seen as a licence or letting: ‘… the context provided by the terms of the particular apartment lease are important. Although this apartment lease is a residential lease, many commercial leases restrict the tenant from sub-leasing, assigning the lease, granting any licence to occupy all or part of the leased premises or otherwise parting with possession without the landlord’s prior consent. Broad terms such as this would prevent, for example, sub-letting or licensing without the landlord’s consent and would avoid the need—as in the present case—to characterise the nature of the same arrangement like the AirBnB arrangement for occupation of the whole of the leased premises as a sub-lease or a licence’ (emphasis added) 3.47 Use of demised premises for short-term lets may also represent a (further) breach of tenancy in any event. Two Upper Tribunal Lands Chamber cases demonstrate this. First, Newcova v Fairfield Rents Ltd34 concerned a tenant covenant to use the premises as a private residence. HHJ Bridge, whilst warning that each case was fact-specific and depended ‘upon the construction of the 33 [2016] VSC 313. 34 [2016] UKUT 303 (LC).

51

3.48  Misuse of Property

particular covenant in its own factual context’,35 determined that the First-tier Tribunal (FTT) had been right to find a breach and crucially that use as a private residence required occupation ‘as a home’:36 ‘53. I have reached the view, consistent with the decision of the Ft T, that the duration of the occupier’s occupation is material. It does seem to me that in order for a property to be used as the occupier’s private residence, there must be a degree of permanence going beyond being there for a weekend or a few nights in the week. In my judgment, I do not consider that where a person occupies for a matter of days and then leaves it can be said that during the period of occupation he or she is using the property as his or her private residence. The problem in such circumstances is that the occupation is transient, so transient that the occupier would not consider the property he or she is staying in as being his or her private residence even for the time being.’ 3.48 The second case was Triplerose Ltd v Beattie & Beattie37 which followed Nemcova (the FTT having distinguished it). The Deputy Chamber President, Martin Rodger QC, was faced with a similar covenant and the question: ‘whether the use of a residential flat for short-term lets breached the covenant not to use or permit the flat to be used “for any purpose other than as a private dwellinghouse for occupation by one family at any one time”’. 3.49 He rejected the argument that the FTT ‘had been wrong to disregard the decision of the Court of Appeal in Tendler v Sproule that the taking in of paying guests was a breach of a covenant not to use premises for a business’,38 there in fact being no challenge to the FTT’s finding that no trade was being carried on at the premises, but allowed the appeal against the FTT’s finding that the short-term lets were not in breach of the covenant whereby there was to be no use other than ‘as a private dwellinghouse’: ‘32. Whether looked at individually or in combination, the five factors identified by the FTT as distinguishing paragraph  18 from any other prohibition on use other than as a private dwellinghouse or residence, do not justify its conclusion. It is not a case of conferring a right to short term letting or licensing, then taking it away; properly understood, the lease permits only such short term letting as is consistent with use as a private dwellinghouse. 33. On the facts found by the FTT the individuals who occupied the flat for weekends or other short periods after responding to internet advertisements were not using the flat as a private dwellinghouse for occupation by one 35 Paragraph 55. 36 Relying in particular on Caradon District Council v Paton [2000] 3 EGLR 57, Tendler v Sproule [1947] 1 All ER 193 and Falgor Commercial SA v Alsabahia Inc [1986] 1 EGLR 41. 37 [2020] UKUT 180 (LC). 38 Paragraph 34 – [1947] 1 All ER 193..

52

Possession claims (Periodic tenancies) 3.52

family at any one time. By permitting that use Mr and Mrs Beattie were in breach of paragraph 18 of Schedule 4 of their lease. The first ground of appeal is therefore allowed.’ 3.50 The conclusion to be drawn from the above paragraphs can be summarised as follows: (a) Short-term lets can be seen as, in law, a sub-letting (as opposed to a lodger arrangement) for the purposes of the Housing Acts 1985 and 1988. (b) This will be a particular issue where the let is of the whole premises given that sub-letting and parting with possession of part of the premises will be allowed with the landlord’s consent (not to be unreasonably withheld in secure tenancy cases) either by express provision or sections 93 and 94 of the Housing Act 1985 and section 15 of the Housing Act 1988. (c) They may also represent other breaches of tenancy, such as any requirement to use the premises as a private residence. (d) The latter may have particular relevance to shared ownership agreements which frequently contain such covenants. 3.51 Social landlords would be well-advised to make it clear what their position is on short-term lets in their tenancy agreement. This needs to acknowledge, for secure tenancies, that sub-letting or parting with possession of the premises is allowed with the consent of the landlord but that sub-letting/ parting with possession of the whole is not and that this latter scenario would also encompass short-term let arrangements.39 For assured tenancies, section 15(1) of the Housing Act 1988 is to similar effect save that there is no express provision about consent not being unreasonably withheld.

POSSESSION CLAIMS (PERIODIC TENANCIES) 3.52 The possession claim will be issued in the county court40 and will follow the usual: •

N5 Claim form;

•

N119 Particulars of claim;

•

Annex to particulars of claim format.41

39 Housing Act 1985, s 93 – note that consent is not to be unreasonably withheld by reason of s 94. 40 PD55A.1.1 – although para 1.3 goes on to say – ‘1.3 Circumstances which may, in an appropriate case, justify starting a claim in the High Court are if – (1) there are complicated disputes of fact; (2) there are points of law of general importance; or (3) the claim is against trespassers and there is a substantial risk of public disturbance or of serious harm to persons or property which properly require immediate determination.’ 41 PD 55A.1.5 states: ‘1.5 The claimant must use the appropriate claim form and particulars of claim form set out in Table 1 to Practice Direction 4 … ’ – this includes the N5 and N119.

53

3.53  Misuse of Property

3.53 There is no reason why claims cannot be pleaded in the alternative as suggested in 3.37(5), and it is the practice of some landlords not to use the N119 particulars of claim, but to simply draft their own.42 Whichever approach they adopt – N119 plus annex or separate particulars of claim – this must be served with the N5 Claim Form.43 3.54

Paragraph 2.1 to Practice Direction 55A states:44 ‘2.1 In a possession claim the particulars of claim must: (1) identify the land to which the claim relates; (2) state whether the claim relates to residential property; (3) state the ground on which possession is claimed; (4) give full details about any mortgage or tenancy agreement; and (5) give details of every person who, to the best of the claimant’s knowledge, is in possession of the property. Residential property let on a tenancy 2.2 Paragraphs 2.3 to 2.4B apply if the claim relates to residential property let on a tenancy. 2.3 If the claim includes a claim for non-payment of rent the particulars of claim must set out: (1) the amount due at the start of the proceedings; (2) in schedule form, the dates and amounts of all payments due and payments made under the tenancy agreement for a period of two years immediately preceding the date of issue, or if the first date of default occurred less than two years before the date of issue from the first date of default and a running total of the arrears;

42 Though see n 41 above. 43 CPR 55.4. 44 Also note that CPR 16.4 provides: ‘16.4 (1) Particulars of claim must include – (a) a concise statement of the facts on which the claimant relies; (b) if the claimant is seeking interest, a statement to that effect and the details set out in paragraph (2); (c) if the claimant is seeking aggravated damages or exemplary damages, a statement to that effect and his grounds for claiming them; (d) if the claimant is seeking provisional damages, a statement to that effect and his grounds for claiming them; and (e) such other matters as may be set out in a practice direction. (2) If the claimant is seeking interest he must – (a) state whether he is doing so – (i) under the terms of a contract; (ii) under an enactment and if so which; or (iii) on some other basis and if so what that basis is; and (b) if the claim is for a specified amount of money, state – (i) the percentage rate at which interest is claimed; (ii) the date from which it is claimed; (iii) the date to which it is calculated, which must not be later than the date on which the claim form is issued; (iv) the total amount of interest claimed to the date of calculation; and (v) the daily rate at which interest accrues after that date. (Part 22 requires particulars of claim to be verified by a statement of truth.)’

54

Possession claims (Periodic tenancies) 3.55

(3) the daily rate of any rent and interest; (4) any previous steps taken to recover the arrears of rent with full details of any court proceedings; and (5) any relevant information about the defendant’s circumstances, in particular: (a) whether the defendant is in receipt of social security benefits; and (b) whether any payments are made on his behalf directly to the claimant under the Social Security Contributions and Benefits Act 1992. 2.3A If the claimant wishes to rely on a history of arrears which is longer than two years, he should state this in his particulars and exhibit a full (or longer) schedule to a witness statement. 2.4 If the claimant knows of any person (including a mortgagee) entitled to claim relief against forfeiture as underlessee under section 146(4) of the Law of Property Act 1925 (or in accordance with section 38 of the Senior Courts Act 1981, or section 138(9C) of the County Courts Act 1984): (1) the particulars of claim must state the name and address of that person; and (2) the claimant must file a copy of the particulars of claim for service on him. 2.4A If the claim for possession relates to the conduct of the tenant, the particulars of claim must state details of the conduct alleged. 2.4B  If the possession claim relies on a statutory ground or grounds for possession, the particulars of claim must specify the ground or grounds relied on.’ 3.55

As for the pleading of any claim, an example is set out below:

Example Particulars of Claim/Annex to Particulars of Claim (if N119 used as well) Introduction 1. The claimant is a private registered provider of social housing and the freehold owner of 7 Best Avenue, Charlton, BC9 7GG (‘the premises’), a three-bedroom house. On 4 May 2012 they entered into an assured non-shorthold periodic tenancy agreement (‘the Agreement’) with the defendant in respect of the (residential) premises, to commence on 7 May 2012. A copy of the said agreement and current conditions is attached at Exhibit A. 55

3.55  Misuse of Property

2. The defendant was born on 20 June 1962 and at the commencement of his tenancy stated, as contained in the Agreement, that he would reside there with his partner and two children, then aged four and two years. 3. The weekly rent at the premises was £83.15 at the tenancy’s commencement and would now be £92.10 per week if the tenancy had persisted. Use and occupation charges in respect of the same are currently £13.16 per day. 4. As at the date this statement of case is being prepared, 5  October 2020, the rent/use and occupation account is in arrears in the sum of £3,412.55. A  Schedule of Account detailing the said arrears is attached at Exhibit B. Grounds for possession 5. Possession of the premises is being sought on the primary basis that: (a) The defendant sub-let the whole of the premises to Ms Tyra Moss. (b) This arrangement commenced on or around 4 November 2019 to on or around 20 September 2020. 6. The defendant thereby permanently lost security of tenure pursuant to section 15A(1) and (2) of the Housing Act 1988 (and in any event security of tenure was lost pursuant to section 1(1)(b) of the Housing Act 1988). 7. A notice to quit served on the premises in accordance with clause 6.1 of the agreement on 20 July 2020 brought the remaining common law tenancy to an end at its expiry. A copy of the said notice is attached at Exhibit C with a certificate of service. 8. In the alternative, the claimant relies on Ground 12 of Schedule 2 to the Housing Act 1988: ‘Any obligation of the tenancy (other than one related to the payment of rent) has been broken or not performed.’ 9. A notice seeking possession was served on the premises – a copy of the said notice is attached at Exhibit D with a certificate of service – in accordance with clause 6.1 of the agreement on 20 July 2020 and the breaches of tenancy alleged are clause 3.1 and clause 3.3 of the Agreement: ‘3.1 The tenant shall live at the premises as their only or principal home. 3.3 The tenant shall not sub-let or part with possession of the premises at any time save that so long as they comply with clause 3.1: (a) They may have a lodger if the premises are a twobedroom property or above, or 56

Possession claims (Periodic tenancies) 3.55

(b) They may sub-let or part with possession of part of the premises only with the express and prior written agreement of the landlord.’ 10. In so far as paragraphs 5 to 7 above are not made out, the claimant maintains: (a) The tenant has at times during the tenancy not lived at the premises as his only or principal home. This is a breach of clause 3.1 of the agreement. (b) Further, or in the alternative, he has at times sub-let part of the premises, in particular to Ms Tyra Moss, without obtaining the prior consent of the claimant. This is in breach of clause 3.3(b) of the agreement. 11. For the avoidance of doubt, paragraphs 5 to 7 above represent the claimant’s primary position, with paragraphs 8 to 10 being their case in the alternative. Relevant matters 12. The defendant was interviewed under caution by Charlton District Council on 1  September 2020. He admitted that he and his family had been living in alternative accommodation since early November 2019. He denied that he had sub-let the Premises to Ms Tyra Moss, but admitted that she lived there. He said she was a family friend who did not pay rent and that he had moved out of the premises temporarily because of his partner’s employment. 13. The claimant believes the defendant returned to live at the premises with his family on or around 20  September 2020 and required Ms Moss to leave forthwith (which she did). 14. In so far as the claimant is required to rely on Ground 12, it is averred that it would be reasonable to make a possession order, and that such an order should be outright, because: (a) Social housing is a scarce resource, especially in the borough in which the premises are located. (b) Even if only part of the premises was sub-let, then this may be an offence pursuant to section 2 of the Prevention of Social Housing Fraud Act 2013. (c) There are currently 1,232 households on the waiting list of the local authority who nominate to the claimant’s properties for three-bedroom accommodation. (d) The defendant has not been open or forthcoming with the claimant or the local authority investigating this matter. 15. There is no underlessee or mortgagee entitled to claim relief from forfeiture. 57

3.55  Misuse of Property

Unlawful profit order 16. The claimant also seeks an unlawful profit order pursuant to section 5 of the Prevention of Social Housing Fraud Act 2013. In particular, the claimant satisfies the requirements for such an order provided for at section 5(4) of the said Act: (a) the claimant is a private registered provider of social housing; (b) the tenancy between the parties is not a shared ownership lease; (c) in breach of an express or implied term of the tenancy, the defendant has sub-let or parted with possession of the whole or part of the premises; (d) the defendant ceased to occupy the premises as their only or principal home; and (e) the defendant received money as a result of the conduct described in paragraph (c). 17. Attached to this annex, at Exhibit E, is a schedule detailing the unlawful profit order sought by the claimant. It confirms: (a) The relevant sub-letting period is from 4  November 2019 to 20 September 2020. (b) During that period the defendant received £7,000 from Ms Moss. (c) During the same period, the claimant received £2,300 from the defendant, purporting to be rent. 18. The appropriate sum therefore sought by the claimant is £4,700.00. 19. The claimant also seeks interest on such sum pursuant to section 69 of the County Courts Act 1984 for such period and at such a rate as the court shall deem fit. AND the claimant claims: 1. Possession of the premises. 2. A judgment for arrears of rent and/or use and occupation. 3. An unlawful profit order. 4. An order that the defendant pay use and occupation charges until possession of the premises is given up. 5. Interest pursuant to section 69 of the County Courts Act 1984. 6. Costs. Statement of truth [I believe][the (claimant or as may be) believes] that the facts stated in this [name document being verified] are true. I  understand] [The (claimant or as may be) understands that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth. 58

Possession claims (Periodic tenancies) 3.57

3.56 If the mandatory claim succeeds (eg sub-letting of the whole is found) then the court’s powers are limited in the order it can make. Section 89 of the Housing Act 1980 allows a 14-day maximum for any order unless exceptional hardship can be shown by the defendant, in which case that period can be extended for up to six weeks: ‘89.— Restriction on discretion of court in making orders for possession of land. (1) Where a court makes an order for the possession of any land in a case not falling within the exceptions mentioned in subsection (2) below, the giving up of possession shall not be postponed (whether by the order or any variation, suspension or stay of execution) to a date later than fourteen days after the making of the order, unless it appears to the court that exceptional hardship would be caused by requiring possession to be given up by that date; and shall not in any event be postponed to a date later than six weeks after the making of the order. (2) The restrictions in subsection (1) above do not apply if— (a) the order is made in an action by a mortgagee for possession; or (b) the order is made in an action for forfeiture of a lease; or (c) the court had power to make the order only if it considered it reasonable to make it; or (d) the order relates to a dwelling-house which is the subject of a restricted contract (within the meaning of section 19 of the 1977 Act); or (e) the order is made in proceedings brought as mentioned in section 88(1) above.’ 3.57 An order for possession in such a case would normally read along the following lines: Example Possession Order (based on a notice to quit) 1. The defendant do give the claimant possession of [the premises] on or before [date] or forthwith. This is a mandatory ground. 2. There be judgment for the claimant against the defendant in the sum of £x in respect of rent/use and occupation arrears, and the defendant do pay the claimant use and occupation charges at the daily rate of £x from [date of order] until possession is given up. 3. There be an unlawful profit order against the defendant in the sum of £x, including interest. 4. The defendant do pay the claimant’s costs summarily assessed at £x (assuming a fast-track/one-day trial – otherwise they are likely to go 59

3.58  Misuse of Property

off for detailed assessment, if not agreed). If the defendant is legally aided then the following will be added: ‘… to be subject to a determination of the defendant’s ability to pay such costs pursuant to section 26 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, such determination to be adjourned generally with permission to restore. 5. There be a detailed assessment of the defendant’s legal aid costs. 3.58 As can be seen from the example Particulars of Claim, one argument that is sometimes used in possession claims by a landlord in cases where the tenant retains security of tenure, and as such questions of reasonableness arise, is that misuse of social housing stock is an especially serious matter. It may even represent an offence, such as under the Prevention of Social Housing Fraud Act 2013.45 3.59 Here, the more ‘hard-line’ approach, such as can be seen from the Grounds 5 and 17 cases described at Chapter 2 and at 3.39–3.42, is prima facie appropriate.

FIXED-TERM/FLEXIBLE TENANCIES 3.60 If one is considering a fixed-term or flexible tenancy, and noting that an injunction application is a possible option in particular in a shared ownership scenario to ensure compliance with a term of the agreement, then if security of tenure has been lost, the remedy for the landlord is usually by way of forfeiture proceedings. Some of the issues concerning these forms of tenancy are set out in Chapter  2 at 2.63–2.76, in particular the approach in discretionary ground cases (which will apply in breach of tenancy cases where security of tenure is maintained, such as where the sub-letting or parting with possession is of part only of the premises) where a notice seeking possession will be served along with a section 146 notice. 3.61 Where there is no security of tenure remaining (ie because the tenant(s) are no longer living at the premises as their only or principal home) then possession action is by way of forfeiture, and service of a section 146 notice, and not following service of a notice to quit (some assured tenancy fixed term agreements might have an operable break notice clause). The usual requirements for a landlord to obtain a determination from the First-tier Tribunal (Property Chamber) as to the breach of agreement, pursuant to section 168(4) of the Commonhold and Leasehold Reform Act 2002, before they can issue the required section 146 notice, is not required (save in shared ownership cases – see 3.62 – though as 3.30 makes clear a notice seeking possession may be available instead 45 Sections 1 or 2 – see Chapter 7.

60

Fixed-term/Flexible tenancies 3.63

if the tenant has returned to live at the premises as their only or principal home) as this provision only applies to long leases. 3.62 Sections 76 and 77 of the same Act define long leases as those exceeding 21 years, and expressly includes from the definition right-to-buy leases, and shared ownership leases where the tenant’s share has stair-cased to 100%.46 Section 169(5) goes on to make clear a shared ownership lease is a ‘long lease’ for section 168(4) purposes regardless of the share brought: ‘“In section 168 and this section – … “long lease” has the meaning given by sections 76 and 77 of this Act, except that a shared ownership lease is a long lease whatever the tenant’s total share.’ 3.63 What is clear, from Scala House & District Property Company Ltd v Forbes and others,47 is that a breach of covenant not to assign underlet or part with possession is not a breach capable of remedy within the meaning of section 146(1) of the Law of Property Act 1925. Lord Justice Russell said in this regard:48 ‘After this review of the cases I come to the conclusion that breach by an unlawful subletting is not capable of remedy at all. In my judgment the introduction of such breaches into the relevant section for the first time by section 146 of the Act of 1925 operates only to confer a statutory ability to relieve the lessee from forfeiture on that ground. The subterm has been effectively created subject only to risks of forfeiture: it is a complete breach once and for all: it is not in any sense a continuing breach. If the law were otherwise a lessee, when a subtenancy is current at the time of the section 146 notice, would have a chance of remedying the situation without having to apply for relief. But if the unlawful subletting had been determined before the notice, the lessee could only seek relief from forfeiture. The only escape from that wholly unsatisfactory difference would be to hold that in the second example by some analogy the lessor was disabled from issuing a writ for possession. But I can find nothing in the section to justify that limitation on the common law right of re-entry, bearing especially in mind that a lessor might discover a whole series of past expired unlawful sublettings which might well justify a refusal to grant relief in forfeiture proceedings. I  stress again that where there has been an unlawful subletting which has determined (and which has not been waived) there has been a breach which at common law entitles the lessor to re-enter: nothing can be done to remedy that breach: the expiry of the subterm has not annulled or remedied the breach: in such case the lessor plainly need not, in his section 146 notice, call upon the lessee to remedy the breach which is not capable of 46 Section 76(2). 47 [1973] 3 WLR 14. 48 Ibid at [588–589].

61

3.64  Misuse of Property

remedy, and is free to issue his writ for possession, the possibility of relief remaining. Can it possibly be that, while that is the situation in such case, it is otherwise if the lessee has failed to get rid of the subterm until after a notice served? Is the lessee then in a stronger position and the lessor in a weaker position? In my judgment not so. These problems and questions arise only if such a breach is capable of remedy, which in my judgment it is not. I  consider that Capital & Counties Property Co. Ltd. v. Mills [1966]  E.G.D. 96, if correctly reported, was wrongly decided. I  should add that I find some support for my opinion in the comments of Fraser J. in Abrahams v. Mac Fisheries Ltd. [1925] 2 K.B. 18, 35, who expressed the view that the exceptions in section 14 (6) of the Act of 1881 (as to, inter alia, subletting) were made to cover cases where the breach cannot be remedied specifically.’ (emphasis added) 3.64 The usual forfeiture issues such as waiver, as noted by Russell LJ, may therefore be relevant in preventing a landlord from relying on any sub-letting/ parting with possession breach (not least of course where the complained of activity has ceased), though the irredeemable nature of the breach means that this is less likely to happen ‘by accident’. 3.65 If relief from forfeiture is granted this may be conditional, and is in any event difficult to achieve (though in no consent cases for partial sub-letting/ parting with possession cases the question of whether the landlord would have granted permission if asked, or could not reasonably have withheld consent, may well be relevant).49 3.66 For the sake of accuracy, it should also be noted that in Scala House relief from forfeiture was given. Part of the rationale for this was:50 ‘Third: as I have indicated, the defendants did unscramble the situation in June by an agreement which involved surrender of the subtenancy and a discontinuance of any parting with possession. The agreement envisages the possibility of a future assignment of the lease by the first defendant to the second and third defendants, and erroneously provided that if that should happen the second and third defendants, in addition to continuing to pay the £25 to £35 weekly to the first defendant, should also bear the rent under the lease which hitherto has, of course, been borne by the first defendant. This was admittedly an error in drafting: it was intended that the first defendant in effect should continue to bear the lease rent by equivalent reduction of the weekly payments. This error, which remains in the documents, I record.’

49 West Layton Ltd v Ford (Executrix of the Estate of Louis Joseph, deceased) and another [1979] QB 593. 50 Scala House at [590] per Russell LJ.

62

Evidence 3.71

EVIDENCE 3.67 It is frequently the case that evidence in support of any sub-letting or parting with possession case is perceived as being limited and inconclusive. Where a sole tenant of a one-bedroom flat has been found to be sub-letting and evidence is available of the tenancy agreement they entered into with the subtenant, which contains an address for the tenant other than the demised premises, this makes for an easy case that is not the norm. 3.68 More usually there are suggestions and indications of such activity – neighbour reports of other persons living at the premises (or, conversely, a lack of any sighting of the tenant and/or other household members), contractors and repair operatives finding persons other than the tenant answering the door when they visit the premises, etc. Chapter 6 gives further details as to measures that may be taken by a landlord to improve their chances of evidential success in any legal action they take. 3.69 To give one well-known example, in Hussey v London Borough of Camden,51 the local authority argued that their tenant had sub-let his local authority flat to the second defendant whilst he lived elsewhere. Indeed, the trial judge found: (a) That the tenant had occupied other premises as his only or principal home in the latter part of 1986 and 1987. (b) The only person shown on the electoral register for the relevant premises in 1987 was the second defendant. (c) From 1989 to 1990 the tenant occupied yet another flat as his principal residence. (d) The tenant had thereby lost security of tenure, and therefore the judge made a possession order. 3.70 There was, however, no evidence of any tenancy agreement between the first and second defendants or that rent was paid, and also there was no evidence that the first defendant did not occupy the flat as his only or principal home on the expiry of the notice to quit, which had not been served by the plaintiffs until January 1991. 3.71 In allowing the tenant’s appeal, Lord Justice Leggatt was compelled to remark:52 ‘It is obvious that from time to time others were in sole occupation of it, but it does not follow that they enjoyed exclusive possession. Mr Hussey’s right to enter and use the premises if and when he chose was not negatived. There might have been proof that he gave up his key, or of the manner in 51 (1995) 27 HLR 5. 52 Ibid at [11].

63

3.72  Misuse of Property

which rent was paid either to him by another or by another in his stead. There was no such evidence. In my judgment the vital ingredient necessary to prove that Mr Hussey had ceased to be a secure tenant, that he had for some period or periods parted with possession of 10 Brockham House, was simply not proved either by direct evidence or by way of inference from the proven facts. Even though, for some periods, he did cease to occupy 10 Brockham House as his principal home, he was not shown to have parted with possession of it. Since there was no evidence that Mr Hussey was not occupying the flat as his only or principal home upon expiry of the notice to quit, despite his absence in Greece, the tenant condition was satisfied and the possession order ought not to have been made.’ 3.72 In short, the judge had asked himself the wrong questions and did not apply his mind to the right one – whether for any period before January 1991 (the time of the notice to quit) the first defendant had sublet or parted with possession of his flat; this defect could not on the findings as presented be corrected by way of direct or ‘inference evidence’. 3.73 Some ten years later Lord Justice Mummery addressed the issue of a lack of direct evidence again, in Lambeth LBC v Vandra:53 ‘8. In my judgment, the fact that there is another possible explanation for the state of affairs found by the housing officer does not mean that there was no evidence or insufficient evidence for the inferences made by the district judge as to subletting of the whole. The absence of direct evidence is not fatal. Judges are entitled, when finding facts, to make inferences as a matter of probability from the primary facts which are established.’ 3.74 In Vandra the so-called primary facts were: (a) The tenant was not in occupation of the premises on either of the authority’s two visits. (b) Conversely, five other people were seen at the premises at these two visits. (c) There was no evidence or signs of occupation by Miss Vandra and her four children. (d) There were Yale locks on all rooms (and an additional padlock on one). (e) There were no signs of any room being used as a living room. (f) Four of the occupants said they paid rent to Kim (the name of Miss Vandra’s caretaker). 3.75 The Court of Appeal found that the authority was entitled to claim that an explanation was called for from Miss Vandra as to why she was not at the 53 [2005] EWCA Civ 1801, [2006] HLR 19.

64

Conclusion 3.77

premises, and why others were paying to be there. The district judge, in turn, was entitled to reject her explanations. The authority’s appeal was allowed and the district judge’s possession order restored. 3.76 These two authorities illustrate that the court must direct itself to the right questions. For example: (a) Has the tenant sub-let or parted with possession of the whole? If so and a valid notice to quit has been properly served, then a possession order should be made. It is irrelevant in such circumstances if the ‘tenant’ has returned to live at the premises. (b) If not, have they sub-let or parted with possession of part of the demised premises? (c) If so, was this in breach of tenancy (ie without consent)? Would it be reasonable – in reliance on a notice seeking possession54 – to make a possession order (and should that order be suspended on terms or made outright)? (d) If there was any sub-letting or parting with possession of part and the tenant(s) were not themselves living at the premises as their only or principal home at the time of the expiry date in any valid notice to quit properly served then security of tenure is lost and a possession order should be made. (e) Lack of direct evidence (eg tenancy agreement between the tenant and subtenant) is not necessarily fatal to any possession claim. (d) The stronger the evidence, the more likely it is that the ‘tenant’ is going to be required by the court to explain away the seemingly compelling evidence. 3.77 Chapter 6 deals with the question of investigation and evidence in more focused detail, while Chapter 7 covers criminal sanctions including those flowing from sub-letting or parting with possession activities.

CONCLUSION 3.78 If sub-letting or parting with possession is properly evidenced then there are obvious remedies available to the landlord, both in terms of possession of the premises and, at times, recovery of compensation and other monies (as addressed further in Chapters 5 and 7). 3.79 When it is obvious that someone other than the tenant(s) has been living at the premises then there are often questions as to the nature of the third-party occupation – family friend ‘loose’ arrangement, ‘caretaker’ scenario in the enforced absence of the tenant abroad, in prison, etc, temporary ‘let’, unpaid scenario or, of course, a true sub-let. 54 Although the court has the power to dispense with the requirement for such a notice if they consider it just and equitable to do so – Housing Act 1985, s  83(1)(b) (secure tenancies)/ Housing Act 1988, s 8(1)(b) (assured tenancies).

65

3.81  Misuse of Property

3.80 Evidence is, of course, key as to the true nature of the occupation, but it may in any event be such as to, if not shift the burden of proof to the tenant, at least require an explanation as to the apparent improper use of the premises. 3.81 Possession claims pleaded in the alternative (eg by way of notice to quit and notice seeking possession in an assured tenancy case) are not uncommon as the true facts may remain unclear pre-trial. As if to highlight the inherent problems of accuracy and consistency in many cases (not least between tenant and sub-tenant), Mr Justice Turner remarked somewhat witheringly in a nonhousing case, McClelland v Elvin:55 ‘31 … The murky absence of documentary formality formed a background against which both the claimant and defendant appeared for much of the time to have assumed the roles of determined competitors in an implausibility contest.’ 3.82 Finally, as with many of the civil scenarios dealt with in this book, criminal sanctions may also apply alongside the civil remedies sought for subletting or parting with possession. See Chapter 7 for further details.

55 [2017] EWHC 2795 (QB).

66

CHAPTER 4

Only or Principal Home/Succession •

Not using premises as main home

•

Succession to tenancy

•

Late appeal/set aside

Key points •

To retain security of tenure a tenant – or at least one of joint tenants – must live at the demised premises as their only or principal home.

•

However, occupation by a spouse or civil partner is to be treated as occupation by the tenant for these purposes.

•

A tenant can go in and out of security of tenure, as long as they do not sub-let or part with possession of the whole of the premises; if the premises in a periodic tenancy are not their only or principal home upon the expiration date specified in a properly served and valid notice to quit, then security is lost permanently from that date.

•

Conversely, if the tenant returns to live at the premises prior to the expiry of any notice to quit then they will have acted in breach of their tenancy by living away and possession action can be taken on discretionary grounds for breach of tenancy in reliance on a notice seeking possession (periodic tenancy or assured fixed term) or forfeiture and notice seeking possession (flexible tenancy) – see 2.63–2.76 and 3.60–3.64.

•

In addition, assured fixed term tenancies may have a break clause that can be operated to end the tenancy.

•

A social landlord can extend the statutory rights of succession beyond the basic statutory provision for spouses and civil partners (and those living together as such) – see 4.20–4.28 below.

•

A set aside or late appeal may be available to a landlord where the fraud is discovered after initial court determination.

•

See Chapter 3, paragraph 3.3 for a ‘round-up’ of security of tenure issues.

67

4.1  Only or Principal Home/Succession

INTRODUCTION 4.1 The previous chapters have dealt with the most obvious social housing fraud topics: obtaining the property by misrepresentation and sub-letting or parting with possession of the whole or part of the premises. Here we address the issues of: (a) the tenant not living in the allocated property as their only or principal home; (b) ‘fraudulent’ succession to a social tenancy; and (c) late appeals/set aside of orders.. 4.2 Whilst the only or principal home topic does not necessarily indicate fraud in the strict sense, it is certainly ‘misuse’ of premises (not simply as an undoubted breach of tenancy but also by way of preventing its use by some other person or family in housing need) and relevant as a concept elsewhere in any event (eg when dealing with unlawful profit orders).1 4.3 As was made clear in Chapter 3, sub-letting the whole of premises – or parting with possession of the same – is an obvious example of the tenant not living there as their only or principal home. This chapter goes on to address situations which are, perhaps, not so straightforward and sets out the important principles in issue, including by way of decided court authorities. Any possession claim alleging no succession or a loss of security of tenure by an existing tenant will, in broad terms and as discussed in Chapters 2 and 3, be by way of primary reliance on a properly served notice to quit (periodic tenancies), or notice seeking possession in reliance on a statutory ground for possession, such as Ground 7 for assured tenancies, or use of the forfeiture or section 90 procedure in flexible tenancy cases (see examples at 3.60 and note 4.32).

ONLY OR PRINCIPAL HOME Overview 4.4 It is invariably an express, but in any event an implied,2 term of secure and assured tenancies that the tenant(s) must live in the demised premises as their only or principal home. Chapter  3 explains this, in particular at 3.3 and 3.23–3.25. To re-cap: (a) The requirement for the tenant to live at the demised premises as their only or principal home is ambulatory3 such that whilst security of tenure may be lost during periods of absence it is capable of being regained as long as:

1 2 3

See Chapter 5. Housing Act 1985, s 81 (secure tenancies)/Housing Act 1988, s1(1)(b) (assured tenancies). Crawley Borough Council v Sawyer (1987) 20 HLR 98, CA.

68

Only or principal home 4.5

•

the tenant has not sub-let or parted with possession of the whole of the premises (in which case security of tenure is, as shown in Chapter  3, permanently lost); and

•

the tenant, in a periodic tenancy case, returns to live at the said premises prior to the expiry of any valid notice to quit properly served.4

(b) If it is a joint tenancy, as long as one of the joint tenants lives at the premises then it is irrelevant and of no effect, for security of tenure purposes, if the others do not. The importance of this principle can be seen in Haringey LBC v Ahmed & Anr5 where the local authority sought possession following the service of a notice to quit. The husband had signed a first tenancy agreement, a second tenancy agreement was then signed by him and his mother (the mother later serving a notice of termination), and a third just by the mother. Ultimately both the husband and then the mother left the premises and the local authority served a notice to quit re the third tenancy. When the authority sought possession the trial judge held that the husband had been acting as his wife’s agent when he entered into the first agreement and that they were therefore still joint tenants, such that the possession claim failed. The Court of Appeal rejected this conclusion and allowed the local authority’s appeal, and held that there was no conduct from which it could reasonably be inferred that the husband had acted as his wife’s agent in relation to the first tenancy agreement; the first tenancy was a sole tenancy in the husband’s name. (c) If the tenant’s spouse or civil partner lives at the premises rather than the tenant themselves then that is treated as occupation by the tenant until the formal ending of those arrangements (eg  divorce). Section 30(4) of the Family Law Act 19966 provides (with A as the tenant and B as the spouse/ civil partner): ‘(4) B’s occupation by virtue of this section— … (b) if B  occupies the dwelling-house as B’s only or principal home, is to be treated, for the purposes of the Housing Act 1985, Part I of the Housing Act 1988, Chapter 1 of Part 5 of the Housing Act 1996 and the Prevention of Social Housing Fraud Act 2013, as occupation by A as A’s only or principal home.’ 4.5 In relation to the last point, it followed that in Derwent Housing Association v Taylor,7 where the tenant wife left the demised premises whilst her non-tenant husband remained, she was still required to serve a notice to quit to bring the tenancy to an end:

4 See Hussey v Camden LBC (1995) 27 HLR 5 at [7–8] per Leggatt LJ. 5 [2017] EWCA Civ 1861; [2018] HLR 9. 6 Amended by the Civil Partnership Act 2004, Sch 9. 7 [2016] EWCA Civ 508, [2016] HLR 25.

69

4.6  Only or Principal Home/Succession

‘11 It follows, in my judgement, that as a matter of interpretation of the Family Law Act, 1996, B has no home rights once A has validly terminated the tenancy. I  do not consider that this conclusion is called in question by the Human Rights Act 1988 . B has, of course, the right under art.8 of the European Convention on Human Rights and Fundamental Freedoms to respect for his home. In Sims v Dacorum Borough Council [2015] UK SC 63; [2015] A.C. 133 the Supreme Court decided that the common law rule which enabled one of two joint tenants to terminate a periodic tenancy by notice to quit without the consent of the other was not incompatible with art. 8 or with art. 1 of the First Protocol. The ability of the sole tenant to terminate the tenancy without the consent of her spouse is, in my judgment, an even stronger case. However, as the Supreme Court held in Simms, B would, at least in principle, be entitled to raise the proportionality of his eviction, thus giving effect to art. 8. That has not thus far been raised in this case, and whether such an argument would succeed is, of course, a different matter. For these reasons, I would dismiss the appeal.’ 4.6 In that case the husband had unsuccessfully argued that once his wife had left the marital home he had, in effect, become the tenant such that her notice to quit was of no effect. This submission was given short shrift by the Court of Appeal who reminded the parties that the Family Law Act 1996 was merely regulating the rights of spouses as between themselves.8 4.7 As an aside, it is open to a landlord and tenant to agree to waive the requirements of section 5 of the Protection from Eviction Act 1977 (four weeks’ notice to quit):9 ‘It is open to the landlord and the tenant, for whose sole benefit section 5 of the 1977 Act was enacted, to waive its requirements. Mr Alomo contended that, as a matter of public policy or public interest, the court should be slow to infer an intention or agreement to waive a requirement such as that imposed by section 5 of the 1977 Act, particularly in the absence of any evidence that the parties had specifically addressed their minds to that requirement.’ If there are joint tenants though, all must agree.10

Defining the term 4.8 Turning to the substantive issue of how ‘only or principal home’ is properly defined, it should first be noted that it is a question of fact for the

8 See Sanctuary Housing Association v Campbell [1999] 1 WLR 1279 concerning the 1996 Act’s predecessor, the Matrimonial Homes Act 1983.ousing Association v Campbell 9 Hackney LBC v Snowden (2001) 33 HLR 49, para 22 per Peter Gibson LJ. 10 Hounslow LBC v Pilling (1993) 25 HLR 305.

70

Only or principal home 4.12

court to decide,11 though a simple ‘day count’ comparison for times spent at the premises and time spent away is unlikely to be sufficient or determinative on its own.12 4.9 Indeed, the day count issue was most obviously disregarded in Hammersmith & Fulham LBC v Clarke13 where Lord Justice Keene remarked, in rejecting the authority’s appeal against a trial judge’s finding that the tenant had an objective and enduring intention to return to her home despite being a permanent resident in a nursing home: ‘28 Was there then no evidence on which he could have come to the conclusion which he did? Certainly there was evidence pointing towards an intention to remain in the nursing home. Mrs Clarke had a permanent placement there. She did sign the note of 14 January and she did spend the vast majority of her time between then and the trial at the nursing home. On the other hand, her grandson and his wife continued occupying the premises as they had previously done with her. They would undoubtedly have allowed her back, as indeed they did from time to time, so there was no impediment to her return. It does seem probable, as Mr Wragg conceded at one point, that her furniture remained there. Certainly there was no evidence that it had been moved elsewhere. She was, after all, back living there at the date of the trial, so it seems that her furniture was probably there. That is not only relevant to occupation generally but it may also assist on the issue of intention.’ 4.10 The length of the tenant’s absence from the premises of which possession is sought, or other circumstances relevant to that absence, may however raise the presumption that the premises have ceased to be the tenant’s principal home.14 4.11 Where the tenant’s absence is sufficiently prolonged to raise the inference that they have ceased to occupy the dwelling, the burden the falls on the tenant to demonstrate that their only or principal residence continues.15 4.12 In Islington LBC v Boyle,16 Lord Justice Etherton helpfully summarised the relevant principles at paragraphs 55 and 65 of his judgment: (a) The length or other circumstances of the tenant’s absence may raise the inference that the premises ceased to be their principal home, and the burden of proving the contrary then falls on the tenant.

11 Ujima Housing Association v Ansah (1998) 30 HLR 31 and Peabody Donation Fund Governors v Grant (1982) 6 HLR 41 (the latter being a succession case). 12 Dove v Havering LBC [2017] EWCA Civ 156, [2017] HLR 19, para 34 per Lewison LJ. 13 (2001) 33 HLR 77. 14 Brown v Brash [1948] 2  KB  247  CA and Islington LBC  v Boyle [2011]  EWCA  Civ 1450, [2012] HLR 18. 15 Brown v Brash [1948] 2 KB 247 CA at [254]. 16 [2011] EWCA Civ 1450, [2012] HLR 18.

71

4.13  Only or Principal Home/Succession

(b) To rebut that presumption, it is not sufficient for the tenant to simply prove that at the material time it was their subjective intention to return and belief that the dwelling remained their principal home. The objective facts must bear out the reality of that belief and intention both in the sense that: •

the intention and belief are or were genuinely held;

•

the intention and belief themselves reflect reality (though a date or time period of return is not necessarily required); and

• there must be some ‘formal, outward and visible sign of the intention to return’. The reason for the absence, the length and other circumstances of the absence and (where relevant) the anticipated future duration of the absence, as well as statements and conduct of the tenant, will all be relevant to that objective assessment. (c) The court’s focus is on the enduring intention of the tenant, which, depending on the circumstances, may not be displaced by fleeting changes of mind. (d) ‘Second home’ cases must be looked at with particular care. (e) The issue is one of fact to be determined in the light of the evidence as a whole, and in respect of which the trial judge’s findings of primary fact can only be overturned on appeal if they were perverse (the Appeal Court may, in an appropriate case, substitute its own inferences drawn from those primary facts). 4.13 It follows that, for example, a visit to see family abroad for six months may be perfectly in order, especially where the family live some way off and/or face-to-face contact is otherwise rare. Similarly, a temporary placement abroad for work purposes may be equally as explicable and will not fall foul of the only or principal home condition. 4.14 Looking at an ‘extreme’ example of the approach – and one which may not be decided the same way today, though the principles it established remain good law – in the Rent Act17 authority of Tickner v Hearn18 the Court of Appeal upheld the decision of the trial judge that the tenant was still protected despite the fact that she had been in a mental hospital for six years, was 73 years of age and was unlikely ever to return to her home. It was found that she always considered the premises as her home and hoped to return, a hope for which there was some chance. 17 In contrast to the position under the Rent Acts, a secure or assured tenant must not only show that the premises remain their home, but that they are their only or principal home: Ujima Housing Association v Ansah (1998) 30 HLR 31. The Court of Appeal in Crawley BC v Sawyer (1988) 20 HLR 98 held that there was no material difference between occupation as a ‘home’ under the Housing Act 1985 (and by extension the Housing Act 1988) and a ‘residence’ required to sustain a statutory tenancy under the Rent Acts (see Rent Act 1977, s 2). 18 [1960] 1 WLR 1406.

72

Only or principal home 4.19

4.15

A note of caution was though given by Lord Justice Ormerod:19 ‘For my part, however, I am of the opinion that to establish an intention to return by itself is not necessarily sufficient to obtain the protection of the Acts. The ultimate fact to be established is the fact of occupation, for it is only those in occupation whom the Act protects. If a tenant is out of occupation for some time he must at least prove an intention to return; but if the circumstances of the case are such that by reason of mental or physical illness or for some other reason the intention, even if clearly and bona fide held, seems most unlikely to be achieved within a reasonable time, it must surely be open to the judge in a proper case to find as a fact that the tenant is not in occupation. It seems to me that some of the reported cases have gone very far in the protection of the tenant.’

4.16 In the more modern authority of Crawley BC v Sawyer,20 the tenant went to live with his partner in 1985 and in the following year both his electricity and gas at his local authority flat were disconnected. His landlord became aware of the situation the following year; when they spoke to the tenant he admitted that he was living with his partner and that they intended to purchase her home. 4.17 A notice to quit was served soon after and, although the tenant broke up with his partner shortly afterwards, he did not return to the premises until after the expiry date in the notice to quit. 4.18 The Court of Appeal dismissed the local authority’s appeal from their failed possession claim and found that, following on from the Rent Act approach, the temporary absence of a tenant who intended to return to live in the premises did not deprive them of statutory protection. Lord Justice Parker explained at [102]: ‘The position as at the time the notice to quit was served was that the girlfriend had already told him that he had to get out. He did not, in fact, move back into Cobnor Close until after the expiry of the notice to quit, but in my view it was well open to the learned judge to have come to the conclusion that, both when the notice to quit was served and when it expired and indeed throughout the whole period, Cobnor Close remained his principal home. That the matter was a matter for the learned judge to conclude on the facts appears clearly from the decision of this court in Peabody Donation Fund Governors v. Grant (1982) 6  H.L.R. 41. The learned judge reached his conclusion here on evidence on which he was, in my view, entitled to reach that conclusion. I am unable to accept that in reaching it he misdirected himself in any way as to the law.’ 4.19 The lessons to be learned from a plethora of cases under the Rent Acts, and the Housing Acts of 1985 and 1988, are therefore: 19 Ibid at [1416]. 20 (1988) 20 HLR 98.

73

4.19  Only or Principal Home/Succession

• Evidence, as so often (and unsurprisingly), is key. If it is said that an individual is not living at the demised premises as their only or principal home, it is important, where possible, to gather evidence as to where the landlord says that individual is living. Credit reference reports and correspondence may, though, only take matters so far. Contemporaneous neighbour evidence may have a role to play, as will evidence from internal inspections of the premises. See Chapter 6 for further details as to evidence and information gathering. • Whilst there is no absolute necessity to have details of where the tenant is in fact living, it may, therefore, strengthen the case if evidence of such accommodation and its enduring value to the tenant is available. • Proper service of a valid notice to quit in a periodic tenancy case (including introductory tenancies) is key, but in many instances a landlord will also serve a notice seeking possession at the same time (expressed to be without prejudice to the notice to quit) and rely on both in the alternative in any subsequent possession proceedings. Mr Sawyer (see 4.16), for example, would have been in breach of his tenancy had the trial judge determined that there were periods when he had not lived at the demised premises as his only or principal home but that at the expiry of the notice to quit he did so reside. •

In such circumstances the primary case is reliance on the notice to quit, but if the finding is that the tenant has ‘returned home’ prior to the expiry of such a notice then their behaviour and conduct may still represent a breach of tenancy (see paragraph 4.4 above), allowing discretionary possession proceedings.21

•

The remedy is, therefore, by way of Part 55 possession proceedings relying on: – a notice to quit in a periodic tenancy case based on the argument that security of tenure has been lost by reason of the tenant not living at the premises as their only or principal home; – in the alternative and if the tenant ‘moves back in’ prior to the expiry of the notice to quit, a notice seeking possession citing the breach of tenancy grounds of Ground 1 (secure tenancy) ‘Rent lawfully due from the tenant has not been paid or an obligation of the tenancy has been broken or not performed’ or Ground 12 (assured tenancy) ‘Any obligation of the tenancy (other than one related to the payment of rent) has been broken or not performed’ of Schedule 2 to the Housing Acts of 1985 and 1988 respectively; and – in flexible and assured fixed-term tenancy cases action is generally by forfeiture if it is said the only or principal home

21 Housing Act 1985, Ground 1 (secure tenancies)/ Housing Act 1988, Ground 12 (assured tenancies), to be found in Sch 2 in both Acts.

74

Succession 4.20

breach of tenancy situation continues, otherwise by service of a section 146 notice and notice seeking possession (breach of tenancy ground) if the tenant has returned (flexible tenancy) or just a notice seeking possession (assured fixed-term tenancy) (see 2.63–2.76). •

As a question of fact, an appeal is only likely to succeed if there has been some misapplication of the law and principles pertaining to this issue or the trial judge’s findings of primary facts are perverse and without proper, rational or indeed any basis.

SUCCESSION Right of succession – secure tenancies (overview) 4.20 The right of succession to a secure tenancy is now governed by sections 86A (England) and 87 (Wales), of the Housing Act 1985, and section 86A provides in the case of tenancies entered into on or after 1 April 2012:22 (a) If the deceased tenant was a sole tenant then their spouse or civil partner (or person living with the tenant as a spouse or civil partner) would succeed so long as: •

they were living at the premises as their only or principal home;23

•

the tenant was not themselves a successor.24

(b) Second successions are though possible under the new statutory scheme if the express term of the deceased tenant’s agreement provides as much.25 Otherwise, the statutory restriction to one succession has been held by the Court of Appeal to be non-discriminatory in Convention right terms.26 (c) If there was no spouse, civil partner, etc. to succeed to the tenancy in the circumstances described above, then an extended succession right provided for in the tenancy agreement (eg carer, other family member) is enforceable as a statutory succession.27

22 Localism Act 2011, s 160(6). As noted at 4.24, and the Housing and Planning Act 2016, Sch 8, s 120 will, when brought into force, amend the Housing Act 1985 further so as to bring the succession provisions for pre-1 April 2012 secure tenancies into line with those for tenancies granted since that date. It will only do so where the tenant dies after the amendment has come into force. 23 Housing Act 1985, s 86A(1)(5); see Catalyst Housing Ltd v Martin [2018] EWCA Civ 1206. 24 Ibid, s 88(1)(b) – remembering that, as always, a change from joint to sole tenancy upon death of a tenant counts as a succession (see s 86A(3)). 25 Ibid, s 86A(4). 26 Haringey LBC v (1) Simawi (2) The Secretary of State for Housing, Communities and Local Government [2019] EWCA Civ 1770; [2020] 2 All ER 701. 27 Housing Act 1985, s 86A(2).

75

4.21  Only or Principal Home/Succession

4.21 Statutory succession does not apply to joint tenancies (though see n 24) – where one of joint tenants dies the remaining joint tenant(s) succeed to the tenancy under the doctrine of survivorship.28 4.22 For Wales – and at the time of writing pre-1 April 2012 tenancies in England29 – the ‘old’ section 87 remains: ‘A  person is qualified to succeed the tenant under a secure tenancy of a dwelling house in Wales if he occupies the dwelling-house as his only or principal home at the time of the tenant’s death and either— (a) he is the tenant’s spouse or civil partner; or (b) he is another member of the tenant’s family30 and has resided with the tenant throughout the period of twelve months31 ending with the tenant’s death, unless, in either case, the tenant was himself a successor, as defined in section 88.’ 4.23 In Turley v (1) Wandsworth LBC (2) Secretary of State for Communities and Local Government,32 the Court of Appeal held that a tenancy condition which required for succession purposes the long-term partner of a secure tenant to have resided with them throughout the 12-month period immediately prior to the secure tenant’s death (ie the position in 4.22) was not discriminatory or incompatible with her rights under Articles 8 and 14 of the European Convention of Human Rights but rather justified as the provision was not ‘manifestly without reasonable foundation’. Lord Justice Underhill concluded: ‘42 I would dismiss this appeal. I am sorry for the appellant because the comparatively brief interruption in her relationship with Mr Doyle after a long period of living together has had the consequence of depriving her of the right to succeed to the tenancy of the house which has been her home for many years. But bright-line rules will sometimes have hard 28 Cunningham-Reid v Public Trustee [1944] KB 602 – though it is not treated as a transmission of tenancy (Tennant v Hutton (unreported) 9  July 1996; Court of Appeal (Civil Division) Transcript No  904 of 1996 as reported in Solihull MBC  v Hickin [2012]  UKSC  39, [2012] 1 WLR 2295, para 8 per Lord Sumption JSC). 29 See n 22. Localism Act 2011, s  160(6) – this includes s  86 periodic tenancies arising after termination of pre-1 April 2012 secure fixed-term tenancies. 30 Housing Act 1985, s 113 – ‘(1) A person is a member of another’s family within the meaning of this Part if – (a) he is the spouse or civil partner of that person, or he and that person live together as if they were a married couple or civil partners, or (b) he is that person’s parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew or niece. (2) For the purpose of subsection (1)(b) – (a) a relationship by marriage or civil partnership shall be treated as a relationship by blood, (b) a relationship of the half-blood shall be treated as a relationship of the whole blood, (c) the stepchild of a person shall be treated as his child, and (d) an illegitimate child shall be treated as the legitimate child of his mother and reputed father.’ 31 See Turley v (1) Wandsworth LBC  (2) Secretary of State for Communities and Local Gov [2017] EWCA Civ 189; [2017] HLR 21 at para 4.23. 32 [2017] EWCA Civ 189, [2017] HLR 21.

76

Succession 4.27

effects, and they are not for that reason unlawful. The Council cannot be blamed for insisting on the rules, in circumstances where there is an acute shortage of social housing, particularly no doubt of flats of the size occupied by the appellant. In that connection I  should record that at an early stage, before the commencement of these proceedings, it offered her a three-bedroom flat in exchange for her current home; but she did not accept the offer.’ 4.24 When (or rather, if) section 120 and Schedule  8 of the Housing and Planning Act 2016 are brought into force, the more restrictive succession rights for secure tenancies brought in for post-1 April 2012 secure tenancies and set out at paragraph 4.20 will apply to all secure tenancies.

Right of succession – assured tenancies (overview) 4.25 The assured periodic tenancy regime, to be found at section 17 of the Housing Act 1988, was always more restrictive when it came to succession compared with that applicable for secure tenancies, until the recent changes brought in by the Localism Act 2011 as described above. 4.26 Private registered providers of social housing, such as housing associations, frequently had and still have tenancy provisions seeking to extend or add to the statutory rule but as a matter of statutory succession, that was previously only possible to spouses, civil partners or those living together as husband and wife or as civil partners and occupying the premises as their only or principal home33 (and such extensions were in fact an agreement to provide a new tenancy – see 4.28). 4.27 Amendments brought in by the Localism Act 2011 changed that position for some tenancies provided for by private registered providers from 1 April 201234 and further alterations were made with effect from 13 March 2014 so that we now have the following position: (a) Statutory succession still does not apply to joint tenancies – where one of joint tenants dies the remaining joint tenant(s) succeeds to the tenancy under the doctrine of survivorship (see 4.21). (b) If the deceased tenant – whether periodic35 or fixed-term (of not less than two years)36 – was a sole tenant, then their spouse or civil partner (or person living with the tenant as a spouse or civil partner) would succeed as long as:

33 Housing Act 1988, s 17. 34 Localism Act 2011, s  161 – periodic tenancies arising after the end of a fixed-term tenancy (granted prior to 1 April 2012) by virtue of Housing Act 1988, s 5 are also exempt from the Localism Act amendments. 35 Housing Act 1988, s 17(1) and (4). 36 Ibid, s 17(1B) and (4).

77

4.28  Only or Principal Home/Succession

•

they were living at the premises as their only or principal home;37 and

•

the tenant was not themselves a successor.38

(c) Where the assured tenancy is a periodic arrangement or fixed-term of not less than 2 years and there was no spouse, civil partner, etc to succeed to the tenancy in the circumstances described above, then as long as the deceased tenant was not themself a successor any extended succession right provided for in the tenancy agreement (eg to a carer or family member living at the premises) is enforceable as a statutory succession.39 (d) Fixed term tenancies of less than 2 years have no statutory succession provisions and succession is only by any provision in a will or the intestacy rules.40 4.28 Pre-1 April 2012, periodic assured tenancies simply follow the approach set out at 4.26 above.41 Tenancy terms (in agreements entered into from 11 May 2000 unless the agreement provides otherwise) seeking to extend rights of succession, though not statutory or enforceable as such, can be enforced by the would-be successor pursuant to section 1 of the Contracts (Rights of Third Parties) Act 1999: ‘(1) Subject to the provisions of this Act, a person who is not a party to a contract (a ‘third party’) may in his own right enforce a term of the contract if— (a) the contract expressly provides that he may, or (b) subject to subsection (2), the term purports to confer a benefit on him. (2) Subsection (1)(b) does not apply if on a proper construction of the contract it appears that the parties did not intend the term to be enforceable by the third party. (3) The third party must be expressly identified in the contract by name, as a member of a class or as answering a particular description but need not be in existence when the contract is entered into.’

Fraudulent ‘succession’ 4.29 The question of succession is raised here in the context of a purported or claimed succession to a tenancy later found to have been without factual or 37 Ibid, s 17(1)(2) and (4). 38 Ibid, s 17(1D) – remembering that, as always, a change from joint to sole tenancy upon death of a tenant counts as a succession (see s 17(2)(b)). 39 Ibid, s 17(1A)(1C)(1D)(1E) – prior to these changes such would-be ‘successors’ were not in fact successors at all and rather may have had to rely on the Contracts (Rights of Third Parties) Act 1999, s 1 – for post-11 May 2000 tenancies – to enforce the right to a new tenancy– see 4.28. 40 The successor in these circumstances will still be treated as a successor for section 17 purposes: see s 17(2)(a). 41 Localism Act 2011, s 161(7).

78

Succession 4.32

legal merit.42 This is an issue frequently resolved by means of the landlord taking possession action against the would-be successor (on the basis that they have not in fact succeeded to the deceased tenant’s tenancy). 4.30 For example, this may arise in a pre-1 April 2012 secure tenancy where it is later discovered that the ‘family’ member was not, in fact, related to the deceased tenant or even if they were, and more commonly, then the would-be successor only moved in with the tenant, say, three months before the latter’s death rather than the required and stated 12 months. 4.31 The temptation to claim succession when there is, in fact, no such entitlement is obvious for three primary reasons: (a) the would-be successor will usually have been living in the subject premises as their home and a failed succession could lead to homelessness; (b) social housing attracts lower rents than those seen in the private rented sector, along with frequently better records of management and repair; and (c) depending upon the nature of the tenancy, the would-successor may enjoy a right to buy or acquire if their request to succeed is accepted. 4.32 In terms of court action it should be remembered that the deceased tenant’s tenancy persists where there is no statutory successor, albeit security of tenure will be lost. To that end the tenancy will need to be terminated which is not as straightforward as may first be thought: (a) Periodic tenancy (secure or assured) – the landlord should serve a notice quit at the premises and on the personal representative/public trustee43. (b) Flexible tenancy – section 90 of the Housing Act 1985 provides that security of tenure will end if no-one is entitled to be a secure tenant (eg not living at the premises as their only or principal home and not entitled to succeed) even if they were to have the tenancy vested in them by the administration of the deceased tenant’s estate. This provision also provides for a notice and possession procedure: ‘(6) Subject as follows, the landlord may apply to the court for an order for possession of the dwelling-house let under the tenancy.

42 In Thurrock BC v West [2012] EWCA Civ 1435, [2013] HLR 5, the Court of Appeal rejected a grandchild’s Art 8 defence to a possession claim in a case where he had no right to succeed to the tenancy as it was a second succession. In R (on the application of Gangera) v Hounslow LBC  [2003]  EWHC  794 (Admin), [2003]  HLR  68 before Mr Justice Moses, the applicant, failed in his Art 14 challenge to the succession provisions of the Housing Act 1985. 43 Served on the executors or administrators of the deceased’s estate or, if there was no will or letters of administration were taken out, on the Public Trustee: Law of Property (Miscellaneous Provisions) Act 1994, s 18; Public Trustee (Notices Affecting Land)(Title on Death) Regulations 1995 (as amended); Wirral BC v Smith (1982) 4 HLR 81. See Gateway Housing Association v Ali (deceased) [2020] EWCA Civ 1339; [2021] 1 WLR 289 concerning service and the proper interpretation of s 18, especially in intestacy cases.

79

4.33  Only or Principal Home/Succession

(7) The court may not entertain proceedings for an order for possession under this section unless— (a) the landlord has served notice in writing on the tenant— (i) stating that the landlord requires possession of the dwellinghouse, and (ii) specifying a date after which proceedings for an order for possession may be begun, and (b) that date has passed without the tenant giving up possession of the dwelling-house. (8) The date mentioned in subsection (7)(a)(ii) must fall after the end of the period of four weeks beginning with the date on which the notice is served on the tenant.’ (9) On an application to the court for an order for possession under this section, the court must make such an order if it is satisfied that subsection (5) applies to the tenancy. (10) The tenancy ends when the order is executed.’ (c) Fixed-term tenancy (assured)44 – the Housing Act 1988 provides for a man­ datory ground for possession at Schedule 2 – Ground 7 – where the tenancy has devolved under a will or intestacy, the first paragraph of which states: ‘The tenancy is a periodic tenancy (including a statutory periodic tenancy), or a fixed term tenancy of a dwelling-house in England, which has devolved under the will or intestacy of the former tenant and the proceedings for the recovery of possession are begun not later than twelve months after the death of the former tenant or, if the court so directs, after the date on which, in the opinion of the court, the landlord or, in the case of joint landlords, any one of them became aware of the former tenant’s death.’ 4.33

The proper analysis can best be summarised as follows:

Overview Statutory succession to a tenancy is by operation of law and as such, even if not confirmed or established for some months after the death of a tenant (or even until after contested possession proceedings), the successor becomes the tenant from the point of death of the deceased tenant. Grounds 5/17

If there was, in fact, no right to succession and it was ‘allowed’ by the landlord because of a false representation made by or on behalf of the 44 Though may apply to periodic tenancies as well where the tenancy has been devolved.

80

Succession 4.33

would-be successor then Grounds 5 or 17 may45 apply (but see Chapter 2 and ‘Trespasser action’ below). If they do have a tenancy such as by means of the landlord granting them a fresh tenancy (see, for example, ‘Trespasser action’ sub-paragraph (a) below) it is not by reason of statutory succession of course but rather by agreement with the landlord. In such a case, a Ground 5/17 case may be arguable if they came to the tenancy by reason of a false statement or omission to ‘update’ the landlord of the true state of affairs. Rescission

There is also the remote question of the landlord seeking the remedy of rescission on the basis of fraudulent misrepresentation if a tenancy has been granted despite the lack of lawful succession but there is no security of tenure (if there is then Grounds 5 and 17 must be applied instead46 – also see ‘Trespasser action’ below). If there is no security of tenure it will presumably be because the ‘successor’ has sub-let or parted with possession of the whole, or no longer lives at the premises as their only or principal home – in such a case the ‘easier’ option maybe to seek recovery by possession proceedings on that ground (see Chapter 3). It follows that rescission is not going to be a usual remedy in cases of disputed succession. Trespasser action

Much more likely, and even before that stage is reached however, unless: (a) the landlord and would-be successor signed a fresh tenancy agreement (sometimes done to ensure the current tenancy conditions, especially in a stock transfer scenario, apply to the new tenant); or (b) it was possible to argue that a new tenancy had been created by reason of the parties’ subsequent actions; or (c) there was no statutory succession but the landlord had granted a fresh tenancy in reliance on the tenancy terms of the deceased tenant (eg pre-1 April 2012 secure tenancy), there would have been no grant or assumption of tenancy whatsoever and the landlord would be entitled to seek possession on the basis of trespasser possession proceedings (once they had determined the deceased tenant’s tenancy (eg  by means of a notice to quit, section 90 notice, Ground 7 reliance – see 4.3. 4.32 and n 43). This will be the usual action taken by the landlord whether the estate of the deceased tenant is included as a defendant along with the disputed ‘successor’ or not. 45 For example, can it be said that the landlord had ‘granted’ the tenancy in such circumstances, for the purposes of Ground 5/17, as opposed to simply accepting the succession to the deceased tenant’s tenancy? 46 Islington LBC v Uckac [2006] EWCA Civ 340, [2006] 1 WLR 1303.

81

4.34  Only or Principal Home/Succession

Late Appeal/Set aside of order Late Appeal

4.34 If a possession trial has already been held and the court has found that the defendant has on the proven facts succeeded to the tenancy (or has defeated any other possession claim, such as concerning an only or principal home argument as described above) then, by way of a late appeal, it can only be re-opened by way of a re-trial where:47 (a) new evidence has come to light which was not reasonably available to the landlord at trial; (b) this suggests that the defendant may have given and/or presented false evidence; (c) the new evidence is credible and would have an important influence on the case; and (d) there were no other factors in the interests of justice which dictated that the matter should not be re-opened. Set aside

4.35 The even better route (than appeal) in cases where the evidence of fraud is strong would be by means of an application to set aside any order in reliance on CPR r 3.1: ‘(7) A  power of the court under these Rules to make an order includes a power to vary or revoke the order.’ 4.36 In Lloyds Investment (Scandinavia) Ltd v Ager-Hanssen,48 Mr Justice Patten said at para 7 of the judgment about the availability of the set aside application: ‘It seems to me that the only power available to me on this application is that contained in CPR r 3.1(7), which enables the court to vary or revoke an order. This is not confined to purely procedural orders and there is no real guidance in the White Book as to the possible limits of the jurisdiction. Although this is not intended to be an exhaustive definition of the circumstances in which the power under CPR r 3.1(7) is exercisable, it seems to me that, for the High Court to revisit one of its earlier orders, the applicant must either show some material change of circumstances or that the judge who made the earlier order was misled in some way, whether innocently or otherwise, as to the correct factual position before him. The latter type of case would include, for example, a case of material non47 London Borough of Brent v Smart [2005] EWCA Civ 434, paras 27–31 per LJ Rix, applying the traditional Ladd v Marshall test. 48 [2003] EWHC 1740 (Ch).

82

Succession 4.38

disclosure on an application for an injunction. If all that is sought is a reconsideration of the order on the basis of the same material, then that can only be done, in my judgment, in the context of an appeal. Similarly it is not, I  think, open to a party to the earlier application to seek in effect to reargue that application by relying on submissions and evidence which were available to him at the time of the earlier hearing, but which, for whatever reason, he or his legal representatives chose not to deploy’ (Emphasis added). 4.37 In Royal Bank of Scotland plc v Highland Financial Partners LP49 Aikens LJ confirmed the relevant set aside principles at para 106 of his judgment:  ‘The principles are, briefly: first, there has to be a ‘conscious and deliberate dishonesty’ in relation to the relevant evidence given, or action taken, statement made or matter concealed, which is relevant to the judgment now sought to be impugned. Secondly, the relevant evidence, action, statement or concealment (performed with conscious and deliberate dishonesty) must be ‘material’. ‘Material’ means that the fresh evidence that is adduced after the first judgment has been given is such that it demonstrates that the previous relevant evidence, action, statement or concealment was an operative cause of the court’s decision to give judgment in the way it did. Put another way, it must be shown that the fresh evidence would have entirely changed the way in which the first court approached and came to its decision. Thus the relevant conscious and deliberate dishonesty must be causative of the impugned judgment being obtained in the terms it was. Thirdly, the question of materiality of the fresh evidence is to be assessed by reference to its impact on the evidence supporting the original decision, not by reference to its impact on what decision might be made if the claim were to be retried on honest evidence.’ 4.38 Considering therefore the ability of the County Court to entertain such a set aside application, in the case of  (1) Shahan Salekipour (2) Amir Saleem v Jashan Kaur Parmar (In her own right & as executrix of Mohinder Singh Parmar, Deceased) sub nom Re Parmar (Deceased)50 Sir Terence Etherton M.R. adopted a pragmatic approach in rejecting the notion that the County Court, as a creature of statute, had no jurisdiction to rescind one of its own judgments.51 At paragraph 73 of his judgment he said: ‘If however, the respondent is correct about the County Court’s lack of jurisdiction, the only remedy for a litigant in the County Court who wishes to have a prior final County Court order set aside for 49 [2013] EWCA Civ 328, [2013] 1 CLC 596. 50 [2017] EWCA Civ 2141, [2018] QB 833. 51 The relevant provisions of the County Courts Act 1984 are ss 23, 38 and 70.

83

4.39  Only or Principal Home/Succession

perjury or fraud is to appeal, even though that will often not be the most appropriate course consistent with the overriding objective in CPR r.1.1. It was common ground before us that the High Court has no jurisdiction to hear independent proceedings to set aside an earlier final order of the County Court obtained by perjury or fraud. If that deprivation of a previous County Court jurisdiction was the effect of the repeal of CCR  Ord. 37 r.1(1), then it appears that it would have been the result of oversight rather than intention, and, contrary to objective of the CPR, would have produced a significant difference between the High Court and the County Court and would have seriously disadvantaged County Court litigants, for no sound policy reason.’ 4.39 This led to his conclusion at paragraph 74: ‘I  agree with the appellants that such an anomaly does not exist because, leaving to one side the CPR, including the management powers under CPR 3.1, sections 23 and 38 of the 1984 Act confer jurisdiction on a County Court judge to determine proceedings to set aside a final County Court order obtained by perjury or fraud. Such proceedings appear to me to fall precisely within the wording of section 23. The right of a party to have a judgment set aside on the ground of fraud is a principle of equity: Flower v Lloyd (1877) 6 Ch D 297; Noble at [42] (Elias LJ). The present proceedings are, consistently with the terms of section 23, “proceedings for relief against fraud … where the damage sustained … does not exceed in amount or value the county court limit”.’  4.40 Lord Justice Rix cautioned against this set aside option as being seen as open-ended when he said in Tibbles v SIG Plc (t/a Asphaltic Roofing Supplies)52 at para 39 (vii): ‘The cases considered above suggest that the successful invocation of the rule is rare. Exceptional is a dangerous and sometimes misleading word: however, such is the interest of justice in the finality of a court’s orders that it ought normally to take something out of the ordinary to lead to variation or revocation of an order, especially in the absence of a change of circumstances in an interlocutory situation.’ 4.41 This caution was repeated in Prompt Motor Limited v HSBC Bank Plc53 when HHJ  Paul Matthews, sitting as a Deputy High Court Judge, reviewed the authorities and set out the necessarily limited parameters of such an application:

52 [2012] EWCA Civ 518, [2012] 1 WLR 2591. 53 [2017] EWHC 1487 (Ch).

84

Succession 4.42

‘31. I accept that even a final judgment obtained by fraud can be set aside. But, as at present advised, I doubt whether anything less will do. Nor do I consider that a final judgment can be set aside merely because fresh evidence comes to light or, worse, evidence that was available at the time that the final judgment was given but which was not deployed is now put forward for the first time. A party has the obligation to fight a case, and the whole case, on one occasion, and cannot deal with it in stages as and when convenient; cf Henderson v Henderson (1843) 3 Hare 100.’ 4.42 Finally, by way of recent example, in Takhar v Gracefield Developments Ltd54 a judgment entered against a claimant in 2010 was set aside after she adduced expert evidence showing that her signature on a document that had been material to the judge’s findings was forged. On the evidence, the defendants, who were company directors, were responsible for the forgery. Mr Steven Gasztowicz QC, sitting as a Deputy High Court Judge, said at [38]: ‘In  Royal Bank of Scotland plc v Highland Financial Partners LP [2013] EWCA Civ 328 Aikens LJ said at para 106, “The principles are, briefly: first, there has to be a ‘conscious and deliberate dishonesty’ in relation to the relevant evidence given, or action taken, statement made or matter concealed, which is relevant to the judgment now sought to be impugned. Secondly, the relevant evidence, action, statement or concealment (performed with conscious and deliberate dishonesty) must be ‘material’. ‘Material’ means that the fresh evidence that is adduced after the first judgment has been given is such that it demonstrates that the previous relevant evidence, action, statement or concealment was an operative cause of the court’s decision to give judgment in the way it did. Put another way, it must be shown that the fresh evidence would have entirely changed the way in which the first court approached and came to its decision. Thus the relevant conscious and deliberate dishonesty must be causative of the impugned judgment being obtained in the terms it was. Thirdly, the question of materiality of the fresh evidence is to be assessed by reference to its impact on the evidence supporting the original decision, not by reference to its impact on what decision might be made if the claim were to be retried on honest evidence.”’

54 [2020] EWHC 2791 (Ch)

85

4.43  Only or Principal Home/Succession

CONCLUSION 4.43 ‘Only or principal home’ cases cover a multitude of scenarios but share one quality – they represent a use of the premises not anticipated by or allowed for in the tenancy agreement (by reason of express or implied terms). 4.44 Action in respect of the same may result in anything from a warning as to future use of the premises, through to the obtaining of a possession order (whether that be suspended on terms or outright, discretionary or mandatory) and even leading potentially to criminal prosecution (see Chapter 7). 4.45 ‘False’ succession claims also involve a misuse of property and are most commonly ‘tested’, where the landlord does not itself accept any succession claim, by means of possession proceedings, with the court ultimately determining whether the defendant is entitled to succeed to the tenancy in issue. 4.46 These issues of fact are rarely clear and straightforward, and whilst the litigation process is not inherently controversial, the evidential strength of any case is often difficult to accurately gauge in advance of any claim.

86

CHAPTER 5

Civil financial remedies •

Unlawful profit orders

•

Damages for misrepresentation

•

The tort of deceit and unjust enrichment

• [Rescission]

Key points •

Unlawful profit orders (UPOs) allow for the recovery by the social landlord1 of the profits achieved by a tenant sub-letting or parting with possession of some or all of their premises.

•

UPOs do not apply to shared ownership arrangements.

•

Civil financial remedies for social housing fraud above and beyond a UPO are limited and, particularly in respect of housing associations, rarely used.

• Rescission as a remedy is available for cases of fraudulent misrepresentation (unless the false representation possession grounds are available2) and is usually considered in cases of right to buy/ acquire or shared ownership fraud. Damages may not be awarded in lieu of rescission in such a case. •

Damages may be claimed in deceit in addition to or instead of possession claims on the false representation ground or those seeking rescission.

INTRODUCTION 5.1 Social housing fraud has an obvious cost to landlords, particularly local authorities, as is clear from Chapter 1, and whilst the emphasis upon its discovery is often the return of the premises in issue, there is also the question of financial compensation which can and should be addressed.

1 That is local authorities, private registered providers of social housing or registered social landlords – see sections 2, 5 and 11 of the Prevention of Social Housing Fraud Act 2013 2 Housing Act 1985, Sch 2, Ground 5 (secure tenancies); Housing Act 1988, Sch 2, Ground 17 (assured tenancies) – see Chapter 2.

87

5.2  Civil financial remedies

5.2 When criminal proceedings are brought in relation to social housing fraud the Magistrates’ and Crown Courts enjoy powers to make compensation orders in favour of the social landlord, and the Crown Court can also make a confiscation order: these are dealt with in more detail at Chapter 7.3 This chapter addresses instead the options available to landlords in seeking to recover monies in civil proceedings in the county court or (more rarely) the High Court, and the remedy of rescission in so far as it is related to the question of damages for misrepresentation. The financial options may be exercised in addition to or as an alternative to proceedings for possession of the premises, particularly in the following scenarios: •

Sub-letting/parting with possession of let premises.

•

Fraudulent misrepresentation and the tort of deceit.

UNLAWFUL PROFIT ORDERS (UPOS) 5.3 The clearest route for a social landlord to financial recompense for fraudulent misuse of their properties is to be found within the provisions set down in the Prevention of Social Housing Fraud Act 2013 (PSHF).4 This legislation applies to England and Wales and is focused on the twin issues of sub-letting and the parting with possession of demised premises. Chapter  3 provides detailed analysis on the meaning of these terms and the procedure for seeking possession of premises in these circumstances. In this section we are concerned with the procedure for recovery of monies received by tenants, either at the same time as, or separate to, any possession proceedings. 5.4 The PSHF gives two clear benefits to social landlords in terms of their civil rights and remedies in dealing with such a misuse of their stock: (a) It introduces a new procedure for recovering the profit element of the tenant’s sub-letting/parting with possession activities which is very clear, simple and straightforward (PSHF, s 5). (b) It extends to assured tenancies (other than shared ownership leases) the approach which has long applied to secure tenancies: where the whole of the demised premises are sub-let or the tenant(s) part with possession of the same, security of tenure is not only lost but it cannot be restored save by the grant of a fresh tenancy (Housing Act 1988, s 15A as inserted by the PSHF, s 6).5 3 For example, 24 Housing, ‘Illegal right to buy claim ends in conviction’ 6 August 2015: a former local authority tenant was convicted for attempting to defraud £66,500 in an illegal right-to-buy claim and also ordered to pay £7,376 for the costs incurred by the Royal Borough of Greenwich placing homeless persons in emergency accommodation when the property should have been available to them. 4 In force from 15 October 2013 (England) and 5 November 2013 (Wales). 5 Previously, so long as the tenant or at least one of the joint tenants (or their spouse/civil partner) returned to live at the premises as their only or principal home prior to the expiry of the notice to quit then security of tenure was restored even in sub-letting/parting with possession cases and the said notice was of no effect.

88

Unlawful Profit Orders (UPOs) 5.8

5.5 Earlier legislation, such as the Theft Act 1968, the Proceeds of Crime Act 2002 and the Fraud Act 2006, does still apply to social housing fraud scenarios. However, in the context of recovering ‘compensation’ for the types of housing fraud to which it applies, the UPO approach found in the PSHF is expressly designed to be: (a) simpler, (b) readily available in conjunction with existing criminal/civil proceedings, and (c) easier to obtain.

Conditions 5.6 Where a secure or assured tenant has sub-let their premises or allowed others to stay there in their absence, then they will often have done so, at least in part, with a view to making a profit on such an enterprise.6 Social housing rents, even at affordable rent levels, are lower than those seen in the private rented sector (including short term lets). The profit possibilities are all the greater if continuing (fraudulent) housing benefit and universal credit (housing costs) awards are factored in. 5.7 The PSHF provides that UPOs can be obtained in both criminal7 and civil8 proceedings under the Act, the former being dealt with at Chapter 7. For civil recovery, section 5 of the PSHF, requires four basic conditions to be satisfied in order to allow for recovery in civil proceedings:9 (1) the sub-letting/parting with possession has taken place in breach of an express or implied condition of the tenancy (knowledge that such actions constitute a breach on the part of the tenant or dishonesty is not required); (2) the sub-letting/parting with possession can be of the whole or part of the premises. For secure tenancies, if of part then this must be shown to have been without the landlord’s written consent – with assured tenancies the tenancy condition may similarly allow the sub-letting of part if permission is first obtained such that (1) above is not satisfied; (3) the tenant has ceased to occupy the premises as their only or principal home; and (4) the tenant has received money as a result of the sub-letting/parting with possession. 5.8

6 7 8 9

In addition, for assured tenancy cases:

An assured tenant here refers to both an assured and an assured shorthold tenant. PSHF, s 4. Ibid, s 5. Ibid, ss 5(3) and 5(4).

89

5.9  Civil financial remedies

(a) the landlord must be a private registered provider of social housing (England)10 or registered social landlord (Wales11),12 invariably a housing association; and (b) the tenancy must not be a shared ownership lease;13 5.9 The first two conditions at 5.7 are addressed in detail in Chapter 3 and, in reality, are unlikely to provide a difficult obstacle to obtaining a UPO – once the sub-letting or parting with possession is shown and the position of the tenant(s) sufficiently demonstrated to satisfy the condition at 5.7(3) then to some extent the question of a UPO is one of mathematics. 5.10 That is not, though, to ignore the fact that if these conditions are satisfied the court ‘may’ make a UPO but is not bound to do so.14 There are no reported cases as yet to demonstrate when a court may decide not to make a UPO, despite the conditions for one being satisfied, but factors such as: (a) length of time since the offending period occurred; (b) some fault on the part of the landlord in not detecting the fraud earlier; (c) a particular joint tenant not being the main instigator of the arrangement; or (d) the tenant’s circumstances having dramatically changed for the worse since their activities came to light may be four examples where, on the facts of a particular case, a court declines to make a UPO.

The application 5.11 Applications for UPOs in the civil courts must be made by a landlord,15 either by way of a Part 7 claim:

10 11 12 13 14 15

Housing and Regeneration Act 2008, s 80. Housing Act 1996, s 1; Housing and Regeneration Act 2008, s 61. PSHF, s 5(4)(a). Ibid, s 5(4)(b). Ibid, s 5(1).   Ibid.

90

Unlawful Profit Orders (UPOs) 5.11

Separate Part 7 claim for UPO GREENHOFF HOUSING ASSOCIATION Claimant -andMR BARRY KANE Defendant PARTICULARS OF CLAIM

Introduction

1. The Claimant is a private registered provider of social housing and the freehold owner of 19B Di Maria Way, Angelford, AD1 5DD (‘the Premises’). 2. The Defendant is an individual aged 53 years of age who on 5 May 2010 entered into an assured non-shorthold weekly periodic tenancy agreement (‘the Agreement’) with the Claimant in respect of the Premises. The Agreement

3. The Agreement provided at clauses 3.4 and 3.5: ‘3.4 You must at all times live at the Premises as your only or principal home. 3.5 You are not entitled to sub-let or part with possession of any part of the Premises without our prior written consent.’ Breach

4. On 19 March 2020 an officer of the Claimant visited the Premises for the purposes of a tenancy audit and spoke to a Mr John Evans there. Mr Evans showed the officer the tenancy agreement he had entered into on 10  June 2019 with the Defendant in respect of a bedroom therein and use of the bathroom, kitchen, lounge and hallway. 5. The said tenancy agreement is exhibited to these particulars at ‘Annex A’ and show that Mr Evans was to pay to the Defendant £120.00 per week under the terms of his tenancy. He showed the officer a rent book demonstrating that he had, in fact, paid the Defendant such sums every week from 10 June 2019. 6. Mr Evans also advised that the Defendant did not live at the Premises – and no one else did aside from himself – but stayed with his partner 91

5.11  Civil financial remedies

nearby and only visited to collect the rent each week. He further advised that the second bedroom was locked and not in use. 7. The Claimant has at no stage been asked for, or given, permission to the Defendant to sub-let part of the Premises and he is accordingly in breach of both clauses 3.4 and 3.5 of the Agreement. Basis of claim

8. It is known that the Defendant told Mr Evans to leave the Premises shortly after the visit on 19 March 2020 and that he is now back living at the Premises. 9. The Premises were sub-let to Mr Evans from 10 June 2019 until on or around 19 March 2020 (‘the sub-letting period’) and during this time the Defendant was not living there as his only or principal home. 10. The conditions for an unlawful profit order provided for at section 5(4) of the Prevention of Social Housing Fraud Act 2013 are satisfied: (a) The Claimant is a private registered provider of social housing. (b) The tenancy of the Premises is not a shared ownership lease. (c) The Defendant sub-let part of the Premises in breach of clause 3.5 of his tenancy agreement. (d) During the period of the sub-letting the Defendant ceased to occupy the Premises as his only or principal home. (e) The Defendant received money from the sub-letting. 11. The Premises are a two-bedroom flat on the third floor of a four-storey block and the current weekly rent applicable to the Premises is £85.00 per week. Sums claimed

12. The Defendant received 40 weeks’ payment of £120.00 from Mr Evans as rent for the latter’s sub-letting of the Premises. This totals £4,800.00. 13. The Defendant paid £3,000.00 to the Claimant in respect of his gross rent for the Premises during the sub-letting period. 14. The Claimant therefore claims £1,800.00 in addition to interest pursuant to section 69 of the County Courts Act 1984 at such rate as the court shall determine. AND the Claimant claims: 1. An Unlawful Profit Order against the Defendant in the sum of £1,800. 2. Interest pursuant to section 69. 3. Costs. 92

Unlawful Profit Orders (UPOs) 5.11

Statement of truth [I believe][the (claimant or as may be) believes] that the facts stated in this [name document being verified] are true. I  understand] [The (claimant or as may be) understands that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth. or (more normally) as part of ongoing possession proceedings, whether in the original pleading or in a statement of case varied to include the UPO claim by way of an N244 Application Notice.

Example Particulars of Claim (part) (Possession claim and UPO) … Unlawful profit order (UPO)

8. Paragraph 5 is repeated herein. 9. The conditions for a UPO provided for at section 5(4) of the Prevention of Social Housing Fraud Act 2013 are met: (a) The Premises were let to the Defendant under an assured tenancy and the Claimant is a private registered provider of social housing. (b) In breach of clause 3(2)(b) of the said tenancy agreement, the Defendant sub-let the whole of the Premises for the period 7 January 2019 to 25 February 2020 (‘the sub-letting period’) to Ms Louise Macari. (c) During this period he was not living at the Premises as his only or principal home and rather was residing at the Second Premises. (d) The Defendant received £12,545.00 from Ms Macari during the sub-letting period. 10. The Claimant seeks and is entitled to a UPO for the maximum amount in the sum of £5,500 having only received £7,045 from the Defendant during the sub-letting period in respect of what was purported to be rent. 11. The Claimant further seeks interest pursuant to section 69 of the County Courts Act 1984 at such a rate and for such a period as the court thinks fit. AND the Claimant claims: 1. Possession of the Premises forthwith (mandatory ground). 2. A money judgment in respect of any outstanding arrears of rent and use and occupation charges as at the date of the final hearing. 3. Use and Occupation charges at the daily rate of £13.71 from the date of the final hearing until possession is given up. 93

5.12  Civil financial remedies

4. An unlawful profit order in the sum of £5,500 with interest pursuant to section 69 of the County Courts Act 1984. 5. Costs. Statement of Truth [I believe][the (claimant or as may be) believes] that the facts stated in this [name document being verified] are true. I  understand] [The (claimant or as may be) understands that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth. 5.12 Although section 5(8) of PSHF provides that an application can be made to the High Court or county court, the usual application will be to the county court. Claims and/or applications to the High Court should be limited to cases involving unusually large sums of money or complex points of law of public importance.16 5.13 It is clear from section 5(2) of PSHF that the claim/application can only be made against the tenant. The conditions at sections 5(3) and 5(4) expressly refer to ‘a tenant under the tenancy’ having ‘received money as a result of the [sub-letting/parting with possession]’. 5.14 For example, if the tenant has left the premises and allowed a friend to have use of them, and that friend ‘sub-lets’ it and keeps all of the proceeds, then a UPO is not available because the tenant has not received money as a result of this conduct. However, if the friend in fact passed all or some of the money to the tenant, then even though it may be argued that it is not the tenant who has sub-let all or part of the premises, the tenant is likely to be caught by the UPO provisions as they will likely be found to have ‘parted with possession’.

The amount sought 5.15

Section 5 of PSHF provides: ‘(5) The amount payable under an unlawful profit order must be such amount as the court considers appropriate, having regard to any evidence and to any representations that are made by or on behalf of the landlord or the tenant, but subject to subsections (6) and (7). (6) The maximum amount payable under an unlawful profit order is calculated as follows–

16 Ibid, s 5(9). It also states that: ‘Section 110(3) of the Housing Act 1985 (by which the claimant in proceedings relating to a secure tenancy may not recover the claimant’s costs if the proceedings are taken in the High Court) does not apply to proceedings under this section.’

94

Unlawful Profit Orders (UPOs) 5.18

Step 1 Determine the total amount the tenant received as a result of the conduct described in subsection (3)(a) or (4)(c) (or the best estimate of that amount). Step 2 Deduct from the amount determined under step 1 the total amount, if any, paid by the tenant as rent to the landlord (including service charges) over the period during which the conduct described in subsection (3) (a) or (4)(c) took place.’ 5.16

It follows that:

(a) the court has a wide discretion about whether to make an award at all and, if it does, its quantum; and (b) the award is subject to a maximum figure, namely the ‘true profit’ element (ie  the amount received as a result of the sub-letting or parting with possession, less that paid by the tenant to her/his landlord during the relevant period). 5.17 A tenant who sub-lets for less than the rent they pay during the offending period cannot therefore have a UPO made against them. Similarly, no UPO is available where the tenant has parted with possession without asking for any monies from those allowed to reside in the premises in their stead.17 5.18 Conversely, if a tenant does not pay rent to their landlord during the subletting period or does not pay the full rent required, a later payment by the tenant to make-up for or exceed such a shortfall after any sub-letting period does not count towards step 2 of the section 5(6) calculation because it is not paid ‘over a period during which the conduct … took place’. A judge would, though, have the discretion to factor it in when determining the ‘appropriate’ UPO, in addition to making an order for payment of arrears in the usual way. Example calculation A is a (sole) secure tenant of a three-bedroom property. Her landlord is a local housing authority (LHA). The LHA find out in January 2020 that A has been sub-letting the property since June 2015 at a weekly rent of £230.00 (plus utility charges which remained in A’s name) and since then has been living in another house which she co-owns with her partner. A  notice to quit is served and A  arranges for the sub-tenants to leave, then clears all arrears that had arisen on her rent account and hands in the keys to the property, which is now vacant.

17 Ibid, s 5(2) – there is, by definition, no profit element in such a case.

95

5.19  Civil financial remedies

A  refuses to deal further with the LHA who thereupon decide against criminal prosecution under PSHF, but rather seek a UPO in a Part 7 claim brought in the county court. They assert that during the period of the subletting, A paid £25,000 to them towards the property’s rent. The amount sought is: 246 weeks of sub-letting × £230.00 rent received from sub-tenants = £56,580.00 Plus utility payments received by A from sub-tenants = £2,460. Less £25,000 received by LHA from A during the sub-letting period. Total Claim = £34,040 (plus interest) 5.19 If a criminal UPO has been made under s 4 of PSHF, then a civil court may only make an additional UPO if: (a) the second UPO does not exceed in amount the aggregate of: • the sum by which the tenant’s profit found under section 5 of PSHF exceeds that ordered by the Magistrates’ Court or Crown Court, and •

the amount that has not been recovered under the criminal UPO.18

(b) Permission is granted by the county court or High Court when enforcement is sought to recover the sum not recovered under the criminal UPO.19 5.20 A UPO made by the civil courts is treated as a judgment debt. Therefore if the amount of the Order is £5,000 or more, an applicant may also seek statutory interest.20 5.21 The High Court authority of Poplar HARCA  v Begum and anor,21 referred to in Chapter 3,22 dealt effectively with the question of how (fraudulent) housing benefit payments during the sub-letting period should be treated. 5.22 Mr Justice Turner confirmed in Begum that a UPO was appropriate and that housing benefit received during the sub-letting period should be treated as monies received: ‘42. In this case, it is evident that each and every condition under section 5(4)23 has been fulfilled. The issue arises, however, as to the calculation of the maximum amount payable. The appellant points to the fact that a net sum of £1,550 was received by the respondents from Ms Rehana 18 Ibid, s 5(7). 19 Ibid, s 5(8). 20 County Courts Act 1984, s 74; County Courts (Interest on Judgment Debts) Order SI 1991/1184 (as amended). 21 [2017] EWHC 2040 (QB); [2017] HLR 42. 22 See 3.39–3.41. 23 The judgment, in fact, wrongly refers to s 1(4)

96

Fraudulent misrepresentation 5.24

and Mr Ahmed and this is the sum which should be ordered to be paid. The Recorder, however, concluded that the rent which the respondents were collecting was less than the rent they were paying the applicants and thus assumed that the maximum payment was zero. In so doing, he left out of account the fact that the rent for the flat was covered entirely by Housing Benefit and so the monies received by the respondents from Ms Rehana and Mr Ahmed was pure profit. 43. I am satisfied that the total amount referred to under step 1 does not exclude the element of Housing Benefit. It is argued on behalf of the respondents that, on a strict interpretation of the statute, the Housing Benefit was not, in itself, received as a result of their breach of the tenancy agreement and so should be disregarded. I do not agree. The inclusion of the word “total” indicates that the gross receipts secured and consequent upon the dishonest relinquishment of possession should be considered under step 1. To hold otherwise would be to render all but nugatory the clear purpose of the section. A  very considerable proportion of tenants in socially rented homes are in receipt of Housing Benefit and those who have their rents paid for them are those in the best position to be able to benefit from unlawful profiteering of this type. To disregard Housing Benefit under Step 1 but include it to the ill-gotten advantage of the fraudster under Step 2 would be to thwart the obvious intention of Parliament to provide a mechanism with which to strip him of his spoils.’

FRAUDULENT MISREPRESENTATION Overview 5.23 Obtaining a UPO under the PSHF is, as can be seen from the Section above, a comparatively straightforward and regulated process. The situation becomes more complicated, however, where the fraud alleged does not fall within the UPO requirements and rather involves, for example, the right to buy, right to acquire or a shared ownership transaction, or even the misrepresentation (to obtain a tenancy) factors dealt with in Chapter 2. 5.24 Chapter  2 necessarily deals with a number of issues concerning misrepresentation, including questions as to the duty to disclose changes of circumstance and reliance, and these are further alluded to at 5.41 below. What is common ground, however, is that the proper focus here is on the fact that one of the parties to a contract, whether it be: •

a tenancy agreement;

•

shared ownership lease; or

•

right to buy/right to acquire sale,

has entered into the arrangement on the basis of a misrepresentation. 97

5.25  Civil financial remedies

5.25 We are concerned in this book with matters of fraud, but whether the misrepresentation was fraudulent, negligent or innocent the other party may, in principle, seek the remedy of rescission – the ‘normal’ remedy for misrepresentation24 (though the court can award damages in lieu of rescission in a non-fraudulent misrepresentation case) – which will have the effect of setting aside the transaction and putting the parties back into the position they were in prior to the agreement or contract. This is addressed below from 5.33, as well as being explained in Chapter 2. 5.26 The other remedy for such a misrepresentation is, as indicated at 5.25, damages, whether under section 2 of the Misrepresentation Act 196725 for fraudulent, innocent (rescission or damages) or negligent misrepresentation: ‘(1) Where a person has entered into a contract after a misrepresentation has been made to him by another party thereto and as a result thereof he has suffered loss, then, if the person making the misrepresentation would be liable to damages in respect thereof had the misrepresentation been made fraudulently, that person shall be so liable notwithstanding that the misrepresentation was not made fraudulently, unless he proves that he had reasonable ground to believe and did believe up to the time the contract was made the facts represented were true. (2) Where a person has entered into a contract after a misrepresentation has been made to him otherwise than fraudulently, and he would be entitled, by reason of the misrepresentation, to rescind the contract, then, if it is claimed, in any proceedings arising out of the contract, that the contract ought to be or has been rescinded, the court or arbitrator may declare the contract subsisting and award damages in lieu of rescission, if of opinion that it would be equitable to do so, having regard to the nature of the misrepresentation and the loss that would be caused by it if the contract were upheld, as well as to the loss that rescission would cause to the other party’ (emphasis added) or by way of the common law tort of deceit if fraudulent (5.40–5.55). In the latter instance, that may be in addition to or instead of any claim seeking the remedy of rescission or possession (as described in Chapter 2). For fraudulent misrepresentation (sometimes pleaded in the alternative to deceit) it must be shown that:26 (a) A representation was made which was false. (b) The representor must have known the statement to be false or have been reckless as to its accuracy. (c) There must have been intention on the part of the representor to induce the representee to act as they did. 24 British and Commonwealth Holdings v Quadrex [1995] CLC 1169 at [1199–1200]. 25 A claim under this Act requires the representor and representee to have entered into a contract. 26 See, eg, SK Shipping Europe Plc v Capital VLCC 3 Corp & Ors [2020] EWHC 3448 (Comm), Foxton J at [113–117].

98

Fraudulent misrepresentation 5.30

(d) The representee must show that they understood the statement and relied upon it when entering the contract. (e) The court must find that the representee would not have entered into the contract on the terms it did were it not for the misrepresentation.

Right to buy/acquire 5.27 Part 5 of the Housing Act 1985 gives secure tenants of more than three years’ tenure (including those with the preserved right to buy27) in England28 the right to buy a freehold or long leasehold interest in their homes, depending on the nature of the property and the landlord’s interest in it. The great attraction of this right is the significant29 statutory discounts available to such tenants.30 5.28 An application to exercise the right to buy commences when the tenant serves a notice claiming the right,31 followed by a landlord admitting or denying that right32 and identifying the proposed price.33 5.29 The most obvious fraud is where a tenant seeks to exercise their apparent right to buy and yet no longer satisfies the required conditions at the time of sale (if they ever did). To give an obvious example, if the tenancy ceases to be secure at any time before completion of the right to buy (eg sub-letting of the whole of the premises or ‘simply’ ceasing to use it as their only or principal home) the tenant loses their entitlement to exercise the right to buy.34 5.30 Lord Justice Mann said in Muir Group Housing Association Ltd v Thornley,35 where the tenants moved out and sub-let the subject premises after their right-to-buy application had been admitted by the landlord:

27 Housing Act 1985, s 171A. In particular, tenants of local housing authorities whose home is part of their landlord’s stock transferred to a private registered provider such as a housing association become assured tenants: see Housing (Preservation of Right to Buy) Regulations (SI 1993/2241). 28 Housing Act 1985, s  119(A1) – in Wales the Abolition of the Right to Buy and Associated Rights (Wales) Act 2018 ended the right to buy, the preserved right to buy and the right to acquire in Wales. 29 The maximum discount is now 35% rising at 1% pa for every year after the first 5 years as a public sector tenant up to a maximum discount of 70% (not exceeding £112,800 in respect of dwelling-houses situated within the areas of London authorities and £84,600 elsewhere), and 50% rising at 2% pa after 5 years as a public sector tenant up to a maximum discount of 70% (not exceeding £112,800 in London and £84,600 elsewhere) in respect of flats. 30 Housing Act 1985 (HA85), ss 129–131, and Sch 4. 31 Ibid, s 122(1). 32 Ibid, s 124(1). 33 Ibid, s 125. 34 Bradford City Metropolitan Council v McMahon [1994] 1 WLR 52, (1993) 25 HLR 534 CA (death); Sutton LBC v Swann (1986) 18 HLR 140 CA (no longer only or principal home); Muir Group Housing Association Ltd v Thornley (1993) 25 HLR 89 CA (sub-letting). 35 (1993) 25 HLR 89 CA at [97].

99

5.31  Civil financial remedies

‘I accordingly conclude that a tenant who has ceased to be a secure tenant has no right which he can enforce under section 138(3).36 The conclusion accords with my belief that most people would find it surprising if Parliament had enacted right to buy provisions which enabled a person to acquire a house at a discount when he no longer occupied it as his only, or principal, home.’ 5.31 The difficulty arising from right-to-buy cases where the fraud is not identified prior to the sale – where the remedies are much more obvious by way of stopping the right to buy process and taking any necessary action in the normal way as a result of the newly discovered sub-letting, etc – is that identified in Haringey LBC  v Hines at 5.43 below. If there is no contract in a right to buy process then save for the ingenious argument, not dealt with by the Court of Appeal, that it would have to be viewed as a disposal outside of the Part 5 scheme, and thus the ‘no contract’ approach would not ‘bite’, this could rather encourage the greater reliance on criminal sanctions and activity, especially under sections 2 (false representation) and 3 (failing to disclose information) of the Fraud Act 2006. (Some companies and individuals, even family members, get local authority tenants to go through the right to buy process, in effect on their behalf, ie a deferred resale agreement. This could lead to the discount having to be repaid by the tenant pursuant to sections 155/163A of the Housing Act 1985). 5.32 Some tenants of housing associations37 enjoy the right to acquire their properties after three years as a public sector tenant,38 though the discounts are significantly below that for the right to buy.39 Despite that, the same principles described above apply as for the right to buy.

Rescission 5.33 Rescission is not, of course, a financial remedy strictly speaking, but it is closely connected with the issues surrounding fraudulent misrepresentation and the tort of deceit. In broad terms and, as noted at 5.25 above, any misrepresentation which induces a party to enter a contract gives that party the right to seek the remedy of rescission of that contract. That is, a right to treat the arrangement as

36 This provision allows a secure tenant, who has established the right to buy and all matters relating to the grant have been agreed or determined, to enforce the said grant of the freehold (house) or leasehold (flat) interest. 37 Registered with the Regulator of Social Housing. Since the summer of 2017, the government has been running pilot schemes allowing for an extension of the right-to-buy process to housing associations on a voluntary basis, with a view to this becoming more widespread across the sector: funding arrangements to be provided for by means of Housing and Planning Act 2016, ss 64–68. 38 See Housing and Regeneration Act 2008 (England) ss  180–185 and the Housing (Right to Acquire) Regulations 1997 (SI 1997/619). 39 Between £9,000 and £16,000: Housing (Right to Acquire) (Discount) Order 2002 (SI 2002/1091).

100

Fraudulent misrepresentation 5.37

void, whereby the defendant in such circumstances no longer has the tenancy or right to buy arrangement, etc. 5.34 Rescission for fraudulent misrepresentation is in principle an absolute right,40 though see 5.37(f), and first requires the party affected to show that they were induced to enter into a contract as a result of a false statement made dishonestly so that they have the right to avoid and rescind that contract. In the context of tenancy fraud, therefore, it is necessary to show that there has been an incorrect statement of fact which was intended to, and did, induce the landlord to enter into a contract such as a tenancy agreement or lease.41 5.35 Housing practitioners will be well used to this concept when dealing with the Grounds 5 and 17 possession claims discussed in Chapter 2. This includes the rule that, where Grounds 5 or 17 are available, rescission is not present as an alternative option for ending the tenancy.42 5.36 It follows from the above that this remedy is likely to be used in social housing fraud cases to recover premises obtained by fraudulent misrepresentation where the particular focus is on: (a) right to buy and right to acquire fraudulent arrangements; and (b) grants of tenancy where security of tenure is not retained, such that Grounds 5 and 17 are not available (see Chapter 2 at 2.8–2.19). 5.37 Any possession claim seeking the remedy of rescission43 would need in particular to address the following matters: (a) If the false representation is made in an application form or similar document which warns the writer of the need to be accurate and advise of changing circumstances,44 or if the false statement was inaccurate from the start, then such a claim starts off in a straightforward manner. (b) Otherwise, there may be issues where the false statement is outside such processes and it is argued that there is no common law duty to disclose material facts.45 This is discussed further in Chapter 2; Haringey LBC v Hines referred to in Section D below is illustrative of the difficulties that can arise if the right analysis is not followed and the right questions are not asked. At the very least it confirms the common sense in local housing authorities and

40 Cavaliero v Puget (1865) 4 F & F 537. 41 Chitty on Contracts, 30th edn, paras 6-001 et seq. 42 Islington London Borough Council v Uckac and another [2006]  EWCA  Civ 340, [2006] 1 WLR 1303. See 2.12–2.13. 43 Rescission is, in fact, simply communicated by the innocent party to the other, though a declaration would ordinarily be sought and (of course) if property is not voluntarily returned, possession action will be required (where one might expect the fact of rescission to be disputed). 44 Or there is a statutory requirement to disclose such as is found in the Housing Act 1996, ss 171 and 214 (re allocation and homelessness duties and powers). 45 Ward v Hobbs (1878) 4 App Cas 13, but see Hurley v Dyke [1979] RTR 265.

101

5.38  Civil financial remedies

others making it absolutely clear on the face of any application form of the ongoing requirement of disclosure. (c) The pleaded claim needs to set out the alleged fraudulent misrepresentations clearly46 and fully.47 (d) In cases based on fraud:48 ‘The more serious the allegation the less likely it is the event occurred and hence the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is less likely than negligence …’ (e) The tort of deceit, which is covered below at 5.40–5.55, and damages for misrepresentation (see 5.26) may be available in lieu of any rescission claim (or in addition to in cases of fraudulent misrepresentation). (f) As an equitable remedy rescission may not always be available. For example: •

Has too long elapsed such that rescission would be inequitable?49

• Is it simply not possible to restore the parties to their pre-contract position? •

Has the innocent party affirmed the contract?

•

Have third-party rights, such as a mortgagee, intervened?

•

Would the remedy of rescission lead to an unjust enrichment?50

5.38

If the fact of rescission is though clear and sustainable then:

(a) In a right to buy/right to acquire scenario, it leaves the parties in their previous position of landlord and tenant. If, then, the reason for the rescission is, say, that the tenant had sub-let the whole of the premises at any time prior to the grant of the freehold/leasehold interest then a notice to quit or section 146 notice (in a flexible tenancy case) can be served and separate possession proceedings taken.51 (b) If the problem was that the tenant ‘simply’ was not living at the premises as their only or principal home, but had not sub-let or parted with possession of the whole, then again a notice to quit or section 146 notice could be served but it may be advisable to also serve a notice seeking possession (breach of tenancy) because the loss of security of tenure here – as previously explained 46 Wallingford v Mutual Society (1879–1880)  LR  5 App Cas 685;  Abbey Forwarding Ltd (In Liquidation) v Hone [2010] EWHC 2029 (Ch) – see CPR PD16, para 8.2(1). 47 Lowe v Machell [2012] 1 All ER (Comm) 153 at [74] per Lewison LJ; NGM  Sustainable Developments Ltd v Phillip Wallis, Lizzano Ltd, Cascina Ltd, Kevin Reardon, Hydro Properties Ltd, Hydro Property Holdings Ltd [2015] EWHC 2089 (Ch) at [55] per Peter Smith J. 48 Re: H (Sexual abuse, standard of proof) [1996] AC 563 at [586] per Lord Nicholls. 49 Fisher v Brooker [2009] UKHL 41, [2009] 1 WLR 1764 at [64] per Lord Neuberger. 50 Halpern v Halpern [2007] 1 CLC 527, [2008] QB 195 at [61–75] per Carnwath LJ. 51 Given that rescission is ‘declared’ by the innocent party prior to any possession claim, then such a claim will likely seek a declaration of the rescission as well as a possession order in reliance on the notice to quit, s 146, notice seeking possession.

102

Deceit 5.41

– is ambulatory and the tenant may move back in prior to the expiry of any notice to quit such that it is of no effect. (c) In a shared ownership case, once rescission is achieved the occupants would have no tenancy at all, having moved into the premises at the outset under a (now voided) shared ownership arrangement. Possession, thereafter, should then be straightforward.

Damages 5.39 As referred to at 5.26, damages may be available to a successful claimant landlord, in particular in relation to the false representation cases dealt with in Chapter 2, though this is not only achievable under the Misrepresentation Act 1967 in a case of fraudulent misrepresentation where the inducement was into a contract (ie tenancy agreement) but also by way of the common law tort of deceit.

DECEIT 5.40 The tort of deceit is a separate (common law) cause of action52 which may provide grounds for damages in and of itself, though it is fair to report that it is not a common basis of action at all in the social housing context (particularly where the claimant is a private registered provider of social housing). In 2017 the Supreme Court summarised the tort as follows:53 ‘18 Subject to one point, the ingredients of a claim for deceit based upon an alleged fraudulent misrepresentation are not in dispute. It must be shown that the defendant made a materially false representation which was intended to, and did, induce the representee to act to its detriment. To my mind it is not necessary, as a matter of law, to prove that the representee believed that the representation was true. In my opinion there is no clear authority to the contrary. However, that is not to say that the representee’s state of mind may not be relevant to the issue of inducement. Indeed, it may be very relevant. For example, if the representee does not believe that the representation is true, he may have serious difficulty in establishing that he was induced to enter into the contract or that he has suffered loss as a result … .’ 5.41 Mr Justice Soole provided an equally as helpful but longer ‘run through’ of the necessary constituent parts of the tort of deceit when he gave judgment in Barley v Muir:54 52 A claim for fraudulent misrepresentation is generally founded in the tort of deceit as well as any remedy of rescission. 53 Zurich Insurance Co plc v Hayward [2016] UKSC 48, [2017] AC 142 per Lord Clarke JSC. 54 [2018] EWHC 619 (QB) at [173]–[183].

103

5.41  Civil financial remedies

‘1. A claimant must establish that there was (a) a representation, (b) that representation was false, (c) it was dishonestly made, and (d) it was intended to be relied on:  AIC  Ltd v ITS  Testing Services (UK) Ltd [2006] EWCA Civ 1601, [2007] 1 All ER (Comm) 667 at para. 251 per Rix LJ. 2. The dishonest representation must be clearly identified, distinctly alleged and as distinctly proved: AIC at para. 254, and Paragon Finance plc v DB Thakerar & Co [1999] 1 All ER 400. 3. The standard of proof is the civil standard:  Re B [2009] 1 AC  11  at para. 13 per Lord Hoffmann. 4. The representation must be one of fact. A statement of opinion will not suffice unless the deceit is in the fact that the opinion was not, or not honestly, held or in some further implicit dishonest misrepresentation of fact to be derived from the statement of opinion: AIC at para. 255. 5. A  representation by a professional person in a position where he would be expected to have significantly greater knowledge of the facts represented then did the representee will or may carry an implied representation that the representor or has reasonable grounds for making the statement:  Barings plc (in liquidation) v Coopers & Lybrand  [2002]  EWHC  461 (Ch), [2002] 2  BCLC  410 at paras. 50 to 52. 6. Whether any and if so what representation has been made has to be “judged objectively according to the impact that whatever is said may be expected to have on a reasonable representee in the position and with the known characteristics of the actual representee” … The reference to the characteristics of the representee is important. The court may regard a sophisticated commercial party who was told that no representations are being made to him quite differently than it would a consumer. In the case of an express statement, “the court has to consider what a reasonable person would have understood from the words used in the context in which they were used” … The answer to that question may depend on the nature and content of the statement, the context in which it was made, the characteristics of the maker and of the person to whom it was made, and the relationship between them’:  Raiffesen Zentralbank Osterreich v Royal Bank of Scotland plc [2010]  EWHC  1392 (Comm)  at paras. 80 to 82 per Christopher Clarke J. 7. As to implied representations, the court has to perform a similar task except that it has to consider what a reasonable person would have inferred was being implicitly represented by the representor’s words and conduct in their context: Raiffeisen at para. 83. 104

Deceit 5.42

8. As to falsity, it is not necessary for what was said to be entirely correct, provided it is substantially correct, and the difference between what is represented and what is actually correct would not have been likely to induce a reasonable person in the position of the claimant to enter into the contract. The claimant must show that the difference between what was represented and the truth would have been likely to induce a reasonable person in its position to enter into the contract: Raiffensen at para. 149. 9. As to dishonesty, “fraud is proved when it is shown that a false representation has been made (1) knowingly, (2) without belief in its truth, or (3) recklessly, careless whether it be true or false”: Derry v. Peek (1889) 14 App Cas 337 at 374; see AIC at para. 256. 10. As to recklessness, “Not caring, in that context, did not mean not taking care, it meant indifference to the truth, the moral obliquity of which consists in a wilful disregard of the importance of truth…”: Angus v. Clifford [1891] 2 Ch 449 at 471; see also AIC at para. 257. 11. As to intent, it is possible to be fraudulent even by means of an ambiguous statement, but in such a case it is essential that the representor should have intended the statement to be understood in the sense in which it is understood by the claimant … or should have deliberately used the ambiguity for the purpose of deceiving him and succeeded in doing so: AIC at para.253; see also Goose v. Sandford [2001] Lloyd’s Rep PN 189 at para. 41. 12. As to inducement/reliance, the misrepresentation need not be the sole or predominant cause of entering the contract. It is sufficient if it is one of the inducing causes:  Ross River v. Cambridge City Football Club [2007] EWHC 2115 (Ch) at [200].’ The claimant must also demonstrate that they suffered loss as a consequence.55 5.42 As with the analysis of Grounds 5 and 17 in Chapter 2, the more material the statement, the stronger the presumption that it induced the claimant to enter into it.56 That is clear from Hines referred to at 5.37(b) and below; further, Lord Justice Hobhouse said in Downs v Chappell:57 ‘The judge was wrong to ask how they [the representees] would have acted if they had been told the truth. They were never told the truth. They were told lies in order to induce them to enter into the contract. The lies were material and successful … The judge should have concluded that the plaintiffs had proved their case on causation …’

55 Smith v Chadwick (1883–84) LR 9 App Cas 187 HL – this is another question of fact. 56 Ross River Ltd v Cambridge City Football Club Ltd [2008] 1 All ER 1004 at [241] per Briggs J. 57 [1997] 1 WLR 426 at [433].

105

5.43  Civil financial remedies

5.43 Putting all the above in a social housing context, and appreciating the potential pitfalls of such a claim, in Haringey LBC v Hines58 the defendant sought to exercise her right to buy and in the statutory notice she stated (wrongly) that the relevant premises were her only or principal home. She was granted a long lease, but six years later the local authority discovered that she had, in fact, lived elsewhere at the time of purchase. 5.44 In July 2008, the authority brought a claim in the county court against the defendant contending that, by accepting the offer to buy the flat, she had falsely represented: (a) that she was still occupying it as her only or principal home; and (b) that she was entitled to exercise the right to buy. It was alleged that these representations were fraudulent because she knew that they were untrue. The authority claimed, amongst other remedies, damages for misrepresentation. 5.45 The trial judge held that the authority did not have a claim in misrepresentation because an acquisition under the right to buy was not a contract,59 but that they had succeeded in establishing a claim in deceit. He awarded the authority damages of £38,000 plus interest. 5.46 The Court of Appeal allowed the tenant’s appeal and held that the judge’s finding that the defendant knew that her flat had ceased to be her only or principal home before the 16 May 2002 acceptance of the section 125 offer notice did not, of itself, establish the claim in deceit. Rather the authority had to also demonstrate that, as at that date, the defendant:  (a) knew, as a matter of law, that the flat had to remain her only or principal home throughout the right to buy process; (b) knew that the flat was no longer her only or principal home; and (c) dishonestly intended her acceptance of the authority’s proposed terms of acquisition to mislead the authority so that she could acquire the flat even though she was no longer entitled to do so.  5.47 If those hurdles can be overcome, however, the correct measure of damages in deceit is an award which serves to put the claimant into the position they would have been in if the representation had not been made to them.60 5.48 As the misrepresentation will have been made fraudulently, all losses flowing from it can be recovered, even if they are not reasonably foreseeable.61 For example, if a claim in deceit is brought alongside a Ground 5 possession claim brought by a local housing authority, as described at Chapter 2, this may potentially 58 59 60 61

[2010] EWCA Civ 1111, [2011] HLR 6. Thereby following Rushton v Worcester City Council [2001] EWCA Civ 367, [2002] HLR 9. Doyle v Olby (Ironmongers) Ltd [1969] 2 QB 158. Royscott Trust v Rogerson [1991] 2 QB 297, CA.

106

Conclusion 5.56

include the cost of temporary accommodation for a third-party household who would have been granted the tenancy were it not for the defendant’s fraud which led to the premises being allocated elsewhere. 5.49 To give a practical example, the Cornerstone on Social Housing Fraud blog reported on 24 April 2018 a case at the County Court at Central London concerning a damages claim for fraudulent misrepresentation. 5.50 The defendant had applied to the claimant local authority for housing assistance in 2003. In 2009 he was offered a tenancy of a flat and signed a declaration confirming that his housing circumstances had not changed since he had first applied, and that he had no other accommodation to live in. 5.51 That information was clearly wrong as he had in fact purchased a house in 2005 and when this was discovered many years later he was prosecuted under the Fraud Act 2006.  In 2015, he pleaded guilty to five offences, including an offence of fraud by false representation contrary to Fraud Act 2006, section 2, and was sentenced to 16 months’ imprisonment. 5.52 The local authority thereafter started a civil action to recover damages of £69,842.64 for the defendant’s fraudulent misrepresentation. Importantly and appropriately, this sum was based on the estimated cost of securing one unit of temporary accommodation for other applicants for housing during the period in which the defendant was the tenant of the flat. 5.53 At trial HHJ  Saggerson found for the local authority and ordered the defendant to pay damages of £69,842.64 (whilst also holding rent payments made could not be taken into account as a credit by the defendant as these were payable by whoever occupied the property). He was also ordered to pay the local authority’s costs, which were summarily assessed. 5.54 The judge rejected challenges to the claim based, for example, on causation and remoteness of damage, though doubted whether the original pleading of breach of contract as the cause of action was sustainable. He had though no doubt that the amended statement of case introducing a fraudulent misrepresentation claim was clearly made out. 5.55 Finally, it is worth noting that whereas in a claim under section 2(1) of the Misrepresentation Act 1967 it is for the defendant to show that they had reasonable grounds for believing the offending statement to be true, in the tort of deceit that burden (ie knowledge/recklessness as to the falsity) falls on the claimant.

CONCLUSION 5.56 In a case covered by the PSHF, a UPO will be commonplace and, usually, advisable. As Chapter 7 makes clear and explains, there may also be criminal 107

5.57  Civil financial remedies

confiscation and compensation orders on the agenda, but rarely consideration of much else. 5.57 Having said that, the spectre of a tort of deceit/fraudulent misrepresentation claim does present a useful ‘bargaining chip’ where fraud is discovered, as well as, in appropriate cases, a potentially fruitful cause of action, in particular for local housing authorities seeking to recover the costs of accommodating those households in temporary accommodation because accommodation which should be or should have been available to them is not because of the fraud.

108

CHAPTER 6

Investigation and Evidence •

Data Protection Act 2018

•

Data sharing

•

Covert Surveillance

• PSHF Regulations •

Court powers

•

‘Missing’ witnesses

Key points •

Data Protection legislation – the Data Protection Act 2018 (DPA) and UK GDPR – should not be seen as a bar to a social landlord obtaining third party information about possible fraudulent activity in respect of their premises. There are sufficient provisions to allow ‘processing’ (ie  disclosure) and the bigger issue is ‘persuading’ the third party of this.

•

Because of these practical difficulties of in fact receiving requested information, local authorities have particular powers to request and obtain information from banks, utility providers, etc, as provided for in the Prevention of Social Housing Fraud Act 2013 (PSHF) and attendant regulations.

•

Local Authorities further frequently interview, under caution, those tenants suspected of benefit fraud and for offences under the PSHF/ Fraud Act 2006.

•

Covert surveillance is not common in housing fraud investigations but may be used (with, for local authorities, the proper authorisation).

•

The Civil Procedure Rules 1998 provide a social landlord with the tools to obtain further details of a defendant’s case and its evidential basis before trial, such as by way of an application for specific disclosure/third party disclosure or a Part 18 request for further information.

109

6.1  Investigation and Evidence

INTRODUCTION 6.1 The successful detection and prosecution of social housing fraud invariably depends on good and reliable information. You often hear the phrase ‘something smells’, particularly when it comes to potential sub-letting and only or principal home cases, and the social landlord concerned frequently has a sound basis for investigation. But will they ultimately have enough evidence to proceed to court? 6.2 Some information is easily come by, such as reports from neighbours or the social landlord’s own records. For example, the landlord may have received complaints of anti-social behaviour in one of their properties, yet the alleged perpetrators do not match the expected occupants. 6.3 Similarly, the social landlord’s gas contractor may have visited premises to carry out an annual inspection and been met by an individual other than the tenant who states that they are living there with their family and not the tenant. Annual tenancy audits by social landlords are, of course, a deliberate means of detecting any such inconsistencies with their records. 6.4 Obtaining sufficient evidence to justify further action, such as a claim for possession of residential premises or an unlawful profit order, can though be more difficult and requires ingenuity, persistence and a sound understanding of the tools at the social landlord’s (and their partners’) disposal. 6.5 This chapter considers those ‘tools’ and their legislative underpinning, both in the context of pre- and post-court issue activity. If used effectively, they may ensure the relevant disclosure and obtaining of data such as: •

housing benefit/universal credit/council tax support records;

•

electoral roll information;

•

credit applications and use;

•

ownership of other property;

•

utility bills and usage;

•

police information; and

•

bank statements.

6.6 They may also ensure that the defendant in any claim is required to provide more information and explanation than a bare denial, however eloquently put.

110

Data Protection Act 2018 6.9

DATA PROTECTION ACT 2018 Introduction 6.7

Section 2 of the DPA explains: ‘(1) The  UK GDPR1  and this Act protect individuals with regard to the processing of personal data, in particular by—  (a) requiring personal data to be processed lawfully and fairly, on the basis of the data subject’s consent or another specified basis, (b) conferring rights on the data subject to obtain information about the processing of personal data and to require inaccurate personal data to be rectified, and (c) conferring functions on the Commissioner, giving the holder of that office responsibility for monitoring and enforcing their provisions.’

6.8 The DPA,2 along with the UK GDPR, has heightened and updated the data protection previously enshrined in its 1998 predecessor. To cite from the Information Commissioner’s Office’s (ICO’s) website:3 •

Data protection is about ensuring people can trust you to use their data fairly and responsibly.

•

If you collect information about individuals for any reason other than your own personal, family or household purposes, you need to comply.

•

The UK data protection regime is set out in the DPA 2018, along with the GDPR (which also forms part of UK law). It takes a flexible, risk-based approach which puts the onus on you to think about and justify how and why you use data.

•

The ICO regulates data protection in the UK. We offer advice and guidance, promote good practice, carry out audits, consider complaints, monitor compliance and take enforcement action where appropriate.

6.9 The ICO is the regulator responsible for making sure that organisations comply with the DPA. It also has a remit for promoting good practice in information handling. For example, the ICO have provided invaluable guidance on data protection and data sharing4 which is discussed below. 1

Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data [(United Kingdom General Data Protection Regulation), as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of s 3 of the European Union (Withdrawal) Act 2018 (and see s 205(4)). 2 As amended by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 and the Data Protection, Privacy and Electronic Communications (Amendments etc)(EU Exit) Regulations 2020. 3 https://ico.org.uk/for-organisations/guide-to-data-protection/introduction-to-data-protection/ some-basic-concepts/. 4 See www.ico.org.uk/for-organisations/guide-to-data-protection/ and https://ico.org.uk/fororganisations/data-sharing-a-code-of-practice/.

111

6.10  Investigation and Evidence

6.10 In terms of social housing fraud, data protection issues impact most obviously upon what information the social landlord can obtain from third parties – directly or through another body – about an allegedly errant tenant or others (such as their partner or supposed sub-tenants) and, to a lesser degree relevancewise to the topic of housing fraud, what data a social landlord can hold on their tenants and others. Experience has shown that the difficulties encountered have less to do with the operation of the DPA and UK GDPR, but more to do with the willingness of companies being prepared to co-operate in providing requested information regardless. 6.11 Having said that it is helpful to have an overview of data protection legislation, if only to be able to better respond to its improper invoking as an excuse not to assist. The four main areas covered by the said legislation are: (a) General data processing; (b) Law enforcement data processing; (c) Data processing by the Intelligence Services; and (d) Regulatory oversight and enforcement.

Data protection – personal data 6.12 Before addressing the first of those issues it is helpful to clarify what is encompassed by ‘personal data’, the processing of which is being protected by the data protection legislation: (a) It means any information relating to an identified or identifiable living individual5 (such as a tenant). This includes, for example, an identifier such as a name, an identification number, IP address, cookie identifier or location data, or one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of the individual. (b) It applies to the processing of such data wholly or partly by automated means, or otherwise forms part of, or is intended to form part of, a filing system (eg case files). (c) Information about companies, public authorities or a deceased person is not ‘personal data’. 6.13 Lord Justice Auld considered the breadth of the definition of ‘personal data’, at the time of the Data Protection Act 1998, in Durant v Financial Services Authority6 and concluded, in an analysis which holds good today: (a) not all information retrieved from a computer search against an individual’s name or unique identifier is personal data within the DPA; 5 6

Section 3(2), DPA, following the UK GDPR definition at Art 4(1) ‘any information relating to an identified or identifiable natural person (data subject)’. [2003] EWCA Civ 1746, [2004] FSR 28 at para 28.

112

Data Protection Act 2018 6.15

(b) mere mention of the data subject in a document held by a data controller does not necessarily amount to her or his ‘personal data’; (c) whether it does so in any particular instance depends on ‘where it falls in a continuum of relevance or proximity to the data subject as distinct, say, from transactions or matters in which he may have been involved to a greater or lesser degree’; (d) it may be relevant to consider whether the information is biographical in a significant sense (ie it goes beyond the recording of the putative data subject’s involvement in a matter or an event that has no personal connotations, a life event in respect of which his privacy could not be said to be compromised); (e) the information should have the putative data subject as its focus rather than some other person with whom they may have been involved or some transaction or event in which they may have figured or have had an interest; and (f) in essence, it should be information that affects her or his privacy, whether in their personal or family life, business or professional capacity.7 6.14 The meaning of ‘personal data’ was reconsidered by the Court of Appeal in Edem v Information Commissioner.8 Mr Edem wished to know the name of the FSA staff members who had dealt with his complaint. The First-tier Tribunal held that the information did not constitute personal data because the way in which it was used did not satisfy the test of biological significance or focus set out in Durant. The Court of Appeal disagreed and considered that the FSA staff members’ names were personal because in the relevant context, their names were sufficient to identify them. The Court of Appeal, in the judgment of Moses LJ at [21], further endorsed the ICO’s technical guidance to assist in determining what is personal data, where it stated: ‘It is important to remember that it is not always necessary to consider “biographical significance” to determine whether data is personal data. In many cases data may be personal data simply because its content is such that it is “obviously about” an individual. Alternatively, data may be personal data because it is clearly “linked to” an individual because it is about his activities and is processed for the purpose of determining or influencing the way in which that person is treated. You need to consider “biographical significance” only where information is not “obviously about” an individual or clearly “linked to” him.’ 6.15 In reality, the definition of ‘personal data’ causes little pause for thought in the majority of social housing fraud investigations – trying to find out where the tenant in fact lives or lived, whether they owned property at the time of their 7 In Case C-101/01 Criminal Proceedings against Lindquist (6  November 2003), the court held, at para 27, that ‘personal data’ covered the name of a person or identification of him by some other means (eg by giving his telephone number or information regarding his working conditions or hobbies). 8 [2014] EWCA Civ 92.

113

6.16  Investigation and Evidence

housing application, etc is invariably going to involve the identification of an individual from the information sought/provided (and indeed that is its purpose) and thus constitute the seeking of ‘personal data’.

Retention of Information 6.16 Whatever the precise definition of ‘personal data’, or indeed ‘data’, it is good practice for a social landlord to make clear to tenants and others that certain data is collected by them and may be shared in certain circumstances. This is usually done in the form of what is commonly known as a ‘fair processing notice’ and examples can be seen on a number of social landlords’ websites.9 6.17 What information can be retained, however, in what form and for how long will be informed by data protection principles referred to at 6.23. There are some supplementary provisions to be found in the DPA for particular purposes: (a) Part 3 of the DPA, sections 34–42, for law enforcement processing; and (b) Part 4 of the DPA, sections 85–91, for intelligence services processing.

Obtaining of Information – Introduction 6.18 As for the important issue of the obtaining of information from a third party, save for freely given responses to enquiries from people such as: (a) neighbours of the premises under investigation or of where the tenant is thought to be living in cases of only or principal home or sub-letting/parting with possession concerns; (b) family of the tenant; (c) sub-tenants in a sub-letting case; and occasionally (d) the person(s) under investigation themselves given voluntarily to the social landlord or those investigating on their behalf (whether under caution or not), the difficulty can often be, as already noted, ‘persuading’ the third party that the legitimate data protection rights of the subject individual concerned do not in fact or law prevent the information’s disclosure. 6.19 In the context of a social housing fraud investigation and the gathering of evidence, the DPA and UK GDPR may be said to provide a potential ‘hurdle’ to obtaining access to information held by other bodies about that person, but one which is not necessarily or indeed (often) insurmountable.

9 See, eg, Birmingham City Council’s Privacy Statement available at www.birmingham.gov.uk/ info/20154/foi_and_data_protection/384/privacy_statement/4. See also that used by the Hyde Group available at: www.hyde-housing.co.uk/privacy/.

114

Data Protection Act 2018 6.23

6.20 As indicated at 6.5, in addressing this issue we are concerned with data held by organisations such as the police, utility companies, employers and the banks, as well as more general and widespread information such as may be secured by credit reference agencies and other companies. In short, information commonly seen in housing fraud trial bundles. 6.21 This is in addition to the personal information already held by the social landlords themselves in respect of their tenants (see 6.2–6.3), such as: (a) household names, date of birth, contact details, religion, ethnicity, etc; (b) complaints and correspondence; (c) support contact details and physical/mental health information; (d) tenancy agreements, repair requests, details of family members living at premises; and the question of what can be ‘processed’ therefore has to be next considered having satisfied the definition of ‘data’ and ‘personal data’.

Obtaining of Information – Processing 6.22 As noted at 6.12, it is the ‘processing’ of ‘personal data’ that is protected under the DPA and UK GDPR. 6.12–6.15 explains the meaning of ‘personal data’ so what is meant by ‘processing’? Section 3(4) of the DPA defines ‘processing’, with regard to information, as the: (a) collection, recording, organisation, structuring or storage; (b) adaptation or alteration; (c) retrieval, consultation or use; (d) disclosure by transmission, dissemination or otherwise making available; (e) alignment or combination; or (f) restriction, erasure or destruction.10 6.23 In addressing the question of ‘processing’ and its operation for the purposes for which a social landlord would be concerned, regard must be had, in particular, to the six data protection principles set out in the UK GDPR in respect of personal data.11 These will need to be complied with and they are set out in full in Appendix A. In summary they are as follows: (1) The first data protection principle – requirement that processing be lawful, fair and transparent;

10 Subject to ss  3(14)(c), 5(7), 29(2) and 82(3), which make provision about references to processing in the different Parts of the DPA. 11 UK GDPR, Art 5(1).

115

6.24  Investigation and Evidence

(2) The second data protection principle – requirement that purposes of processing be specified, explicit and legitimate; (3) The third data protection principle – requirement that personal data be adequate, relevant and not excessive; (4) The fourth data protection principle – requirement that personal data be accurate and, where necessary, kept up to date; (5) The fifth data protection principle – requirement that personal data be kept for no longer than is necessary for the purpose for which it was processed; (6) The sixth data protection principle – requirement that personal data be processed in a secure manner. 6.24 Most crucially, Article  6(1) of the UK GDPR sets out the conditions referred to in the First Principle, at least one of which must be met so that information can be lawfully processed: • The data subject has given their consent to the processing of his or her personal data for one or more specific purposes:12 paragraph a. •

The processing is necessary for the performance of a contract to which the data subject is a party or in order to take steps at the request of the data subject prior to entering into a contract: paragraph b.

• The processing is necessary for compliance with any legal obligation to which the data controller is subject: paragraph c. •

The processing is necessary to protect the vital interests of the data subject or of another natural person: paragraph d.

•

The processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller: paragraph e.13

•

The processing is necessary for the purposes of legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child: paragraph f.

6.25 There is an additional requirement when it comes to what is referred to as ‘special categories of personal data’.14 This latter term is defined at Article 9 of the UK GDPR as consisting of information as to:

12 See UK GDPR, Arts 7-8. 13 DPA, s 8 makes it clear that this includes processing of personal data that is necessary for the administration of justice, the exercise of a function of either House of Parliament, the exercise of a function conferred on a person by an enactment or rule of law, the exercise of a function of the Crown, a Minister of the Crown or a government department, or an activity that supports or promotes democratic engagement. 14 See DPA, ss 10-11.

116

Data Protection Act 2018 6.28

(a) the racial or ethnic origin of the data subject; (b) their political opinions; (c) their religious or philosophical beliefs; (d) trade union membership; (e) the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation. 6.26 In those cases processing of personal data is prohibited unless at least one of the ten conditions set down at Article 9(2) of the UK GDPR is satisfied for the First Principle to be capable of being satisfied. These conditions include explicit consent, it being necessary ‘for the establishment, exercise or defence of legal claims’ and personal data ‘manifestly made public by the data subject’. 6.27 As for criminal convictions, section 10(5)(6) of the DPA provides with regard to the processing of personal data relating to criminal convictions and offences or related security measures that is not carried out under the control of official authority that they must meet a condition in Part 1, 2 or 3 of Schedule 1.15 This includes: ‘(a) Processing is necessary for the administration of justice: para. 7a. (b) Processing is necessary to prevent fraud and consists of the disclosure of personal data by a member of an anti-fraud organisation16, or in accordance with arrangements made by an anti-fraud organisation: para. 14. (c) Processing is necessary for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings), for the purpose of obtaining legal advice or is otherwise necessary for the purposes of establishing, exercising or defending legal rights: para. 33.’ 6.28 For example, this could allow the police to disclose information to a social landlord where confirmation is sought for the purposes of an absolute ground for possession17 (condition 1 – serious offence). Disclosure of convictions, records and summaries of police activity are after all common in anti-social behaviour and absolute ground cases.

15 See UK GDPR, Art 10. 16 Serious Crime Act 2007, s  68(8) – ‘an anti-fraud organisation’ means any unincorporated association, body corporate or other person which enables or facilitates any sharing of information to prevent fraud or a particular kind of fraud or which has any of these functions as its purpose or one of its purposes. 17 Housing Act 1985, s 84A (secure tenancies)/Housing Act 1988, Sch 2, Ground 7A (assured tenancies).

117

6.29  Investigation and Evidence

6.29 Indeed, this may be of use in confirming an individual’s address or their claimed address at various times (eg the tenant may have given the police a different address to that of the demised premises). 6.30 Under these principles and conditions therefore, information cannot be obtained from a third party in a social fraud investigation: •

without the consent of the individual;

•

unless the PSHF Regulations are being used (as described from 6.53 below);

•

unless and otherwise save as is described above (such as is referred to at 6.24 above);

• unless and otherwise save as is described in the ‘Exemptions’ section below. This requires consideration of the exemptions to some or all of the data protection principles to be found at Schedules 2 to 4 of the DPA.

Exemptions 6.31

Section 15(1) of the DPA provides: ‘Schedules 2, 3 and 4 make provision for exemptions from, and restrictions and adaptations of the application of, rules of the GDPR.’

6.32 The two provisions which are frequently cited as allowing the obtaining of such information about an individual without their consent or even knowledge in cases of social housing fraud are: Schedule 2, para 2

Crime and taxation

Schedule 2, para 5

Disclosures required to be disclosed by law or made in connection with legal proceedings etc.

Crime and Taxation (Schedule 2, para 2) 6.33 Schedule 2 of the DPA provides, at paragraph 2, an exemption from the relevant UK GDPR provisions: ‘(1) The listed GDPR provisions and Article 34(1) and (4) of the GDPR (communication of personal data breach to the data subject) do not apply to personal data processed for any of the following purposes— (a) the prevention or detection of crime, (b) the apprehension or prosecution of offenders, or (c) the assessment or collection of a tax or duty or an imposition of a similar nature, 118

Data Protection Act 2018 6.38



to the extent that the application of those provisions would be likely to prejudice any of the matters mentioned in paragraphs (a) to (c).’

6.34 Given that sub-letting and parting with the possession of the whole or part of let premises may well constitute a crime18 and activities surrounding acquiring a tenancy, right to buy, shared ownership and right to acquire involving false representations may similarly be a criminal offence,19 it is not surprising that information is more readily disclosable in such cases. 6.35 This exemption is therefore frequently used by local authority and accredited fraud investigators. Disclosure required by law (Schedule 2, para 5) 6.36 A  further exemption is where disclosure of data ‘is required by an enactment, a rule of law or an order of a court or tribunal’, or where it: ‘5(1) The listed GDPR provisions do not apply to personal data consisting of information that the controller is obliged by an enactment to make available to the public, to the extent that the application of those provisions would prevent the controller from complying with that obligation. (2) The listed GDPR provisions do not apply to personal data where disclosure of the data is required by an enactment, a rule of law or an order of a court or tribunal, to the extent that the application of those provisions would prevent the controller from making the disclosure. (3) The listed GDPR provisions do not apply to personal data where disclosure of the data— (a) is necessary for the purpose of, or in connection with, legal proceedings (including prospective legal proceedings), (b) is necessary for the purpose of obtaining legal advice, or (c) is otherwise necessary for the purposes of establishing, exercising or defending legal rights, to the extent that the application of those provisions would prevent the controller from making the disclosure.’ (Emphasis added) 6.37 These provisions in essence replicate the exemptions previously found under sections 29 and 35 of the 1998 Act. 6.38 To give an obvious example of the paragraph  5 exemption, a local authority seeking information from a bank as to a tenant’s statements pursuant 18 Prevention of Social Housing Fraud Act 2013, ss 1 and 2. 19 See Chapter 7 and in particular the reference to the Fraud Act 2006 and offences under Parts 6 and 7 of the Housing Act 1996.

119

6.39  Investigation and Evidence

to the Prevention of Social Housing Fraud (Power to Require Information) (England) Regulations 2014, described further below, can do so without the restriction of the DPA by reason of this provision. 6.39 It follows that there is a proper and effective data protection response to many refusals by third parties to disclose information about the data subject tenant, etc. Whether that is acknowledged by the third party raises a different question, though the court procedures highlighted later in this chapter may further assist in obtaining the requested information.

DATA SHARING ‘There is a general obligation to evidence your compliance and justify your approach, so you should maintain relevant documentation and adopt additional measures as necessary. A data sharing agreement is one example of good practice to demonstrate you are meeting your accountability obligations. If you are unable to justify your approach, it is likely you will fail to meet those obligations.’20 6.40 Data sharing is not in itself inherently controversial or commercially unusual. For example, a social landlord will, as a matter of course, provide necessary disclosures of information about a tenant and their premises to maintenance and gas contractors. 6.41 It is also not uncommon for local authorities and housing associations (and others) to enter into data-sharing protocols and agreements,21 and even for different departments in, say, a local authority to do the same (though the Code referred to in the paragraph below is not intended to cover data sharing with processors or within an organisation. It is not therefore treated as data sharing though other data protection obligations may apply).22 The purpose will be to explain what, why and when specified personal data can be shared, though it should be stressed that the DPA still applies and such protocols are not a ‘way around’ the statutory disclosure restrictions. Most public sector organisations, assuming they have identified an express or implied power to share data, will rely on the public interest task lawful basis in Article 6 of the UK GDPR (though a privacy notice, and even some tenancy agreements, advise of data sharing practices such as to bring in the possibility of the consent lawful basis). 20 See Data Sharing Code of Practice (Information Commissioner’s Office), (December 2020) p 29. 21 See Chartered Institute of Housing Tenancy Fraud and Data Sharing: A  Guide for Housing Associations (Feb 2012) for some examples. Many social landlords are members of the National Anti-Fraud Network (NAFN) which gives them access to a database along with other services. This can assist in a range of circumstances, such as right to buy fraudulent applications and general data sharing. 22 See p 19 of the Code.

120

Covert Surveillance 6.45

6.42 These protocols will invariably be informed by the (statutory) Data Sharing Code of Practice prepared by the Information Commissioner’s Office.23 The Code states: ‘This is a statutory code of practice prepared under section 121 of the Data Protection Act 2018. It is a practical guide for organisations about how to share personal data in a way that complies with data protection law. It aims to give you confidence to share data fairly and proportionately.’24 6.43 Annex A of the Code provides a step by step checklist on whether to share personal data. This includes the following: Key points to consider: •

What is the sharing meant to achieve?

•

Have you assessed the potential benefits and risks to individuals and/ or society of sharing or not sharing?

•

Is it fair to share data in this way?

• Is the sharing necessary and proportionate to the issue you are addressing? •

What is the minimum data you can share to achieve the aim?

•

Could the objective be achieved without sharing personal data, or by sharing less personal data?

•

What safeguards can you put in place to minimise the risks or potential adverse effects of the sharing?

•

Is there an applicable exemption in the DPA 2018?

COVERT SURVEILLANCE 6.44 Though this book is not intended to explain in any detail the methods of evidence gathering it is worth acknowledging the possible obtaining of evidence by covert surveillance. 6.45 Data protection laws do not apply, for example, to CCTV cameras that only cover the user’s own private property, and to the extent that they go further 23 Prepared and published under DPA, s  121 and available at: https://ico.org.uk/media/fororganisations/data-sharing-a-code-of-practice-1-0.pdf. 24 Ibid, p 9.

121

6.46  Investigation and Evidence

than this there would ordinarily be signs displayed saying that recording is taking place, and why. The ICO has produced a helpful CCTV Code of Practice which you can find on their website. 6.46 Sometimes social landlords will want to use covert surveillance techniques to garner the necessary (further) information to enable them to determine the reality of a case and their legal options, particularly with regard to the questions of who is living at the subject premises. Examples of such activity include use of (hidden) CCTV, a listening device in a neighbouring property or surveillance from a vehicle. 6.47 One of the Home Office’s Codes of Practice (August 2018) referred to below – ‘Covert Surveillance and Property Interference’ – explains at paragraph 2.4: ‘Specifically, covert surveillance may be authorised under the 2000 Act if it is either directed or intrusive: •

Directed surveillance is covert surveillance that is not intrusive and is carried out in relation to a specific investigation or operation in such a manner as is likely to result in the obtaining of private information about any person (other than by way of an immediate response to events or circumstances such that it is not reasonably practicable to seek authorisation under the 2000 Act);

• Intrusive surveillance is covert surveillance that is carried out in relation to anything taking place on residential premises or in any private vehicle (and that involves the presence of an individual on the premises or in the vehicle or is carried out by a means of a surveillance device).’ 6.48 A  private registered provider of social housing, such as a housing association, would need to be aware of the constraints impose by the DPA, UK GDPR and Human Rights Act 1998 (Article 8 – right to respect for private and family life), and the documents referred to in the paragraph below by way of guidance (though not strictly bound it is ‘industry practice’ to comply). A local authority also has the ability to engage in such covert surveillance but only if they comply not only with those aforementioned legislative ‘restrictions’ but also with, amongst other legislation, the provisions of the Regulation of Investigatory Powers Act 2000 (RIPA). Part II of RIPA provides for such required authorisation of covert surveillance by public authorities, which include local authorities,25 where that surveillance is likely to result in the obtaining of private information about a person. 6.49 Before doing so close regard should be had to three guidance documents:26 25 RIPA, Sch 1, para 17. 26 There is also the Office of Surveillance Commissioners Procedures and Guidance booklet.

122

Covert Surveillance 6.51

(1) Investigatory Powers Act 2016 – codes of practice (Home Office – March 2018). (2) Covert surveillance and covert human intelligence sources codes of practice (Home Office – August 2018). (3) Code of Practice for investigation of protected electronic information (Home Office – August 2018). 6.50 By way of example and further explanation, the London Borough of Haringey has put this statement on their website: ‘Regulation of Investigatory Powers Act 2000 (RIPA) RIPA sets out the ways in which Haringey Council can lawfully carry out investigations when we want to use surveillance techniques. There are three types of surveillance techniques available to local authorities: • the acquisition and disclosure of communications data (such as telephone billing information or subscriber details); • directed surveillance (covert surveillance of individuals in public places); and •

covert human intelligence sources (CHIS) (such as the deployment of undercover officers)

Local authorities may use covert techniques where they are responsible for enforcing the law in respect of: environmental crime; consumer scams; loan sharks; taxi cab regulation; underage sale of knives, alcohol and tobacco; and the employment of minors. CHIS and directed surveillance techniques are used in test purchase operations to investigate the sale of tobacco, alcohol and other age-restricted products. Local authorities may only use covert surveillance for the prevention and detection of crime; and only in those cases where the offence under investigation is subject to a term of imprisonment of 6 months or more. In addition, since the Protection of Freedom Act 2012 came into force, all local authorities must get approval from a magistrate before they undertake any form of covert surveillance. Haringey’s use of surveillance powers is kept under review by the Chief Surveillance Commissioner. Regular inspection visits are made and the outcomes of these are reported to the council’s Corporate Committee to ensure that the council complies with statutory requirements.’ 6.51 In Lopez Ribalda v Spain27 the court rejected the applicants’ claims against their dismissals for theft, which followed the use of covert video 27 (2020) 71 EHRR 7.

123

6.52  Investigation and Evidence

surveillance at their workplace, and held that the Spanish courts had not breached their right to respect for their private life under ECHR Article 8 or their right to a fair trial under Article 6. 6.52 What though happens if evidence is improperly obtained? In Jones v University of Warwick28 the Court of Appeal held, in respect of secretly filmed evidence, that the trial judge had a discretion to exclude evidence that would otherwise be admissible, pursuant to the Criminal Procedure Rules, rule 32.1 and a decision made in the exercise of this discretion was only to be interfered with if the discretion had been exercised wrongly. The fact that W’s insurers had committed a trespass in entering J’s home and had infringed her right to privacy under Article 8(1) was a relevant circumstance for the court to consider when deciding whether to exercise its discretion. However, W’s insurers had not acted so outrageously that the evidence should be struck out. The exclusion of the video evidence, which was relevant and otherwise admissible, would create an artificial and undesirable situation. Accordingly it was not appropriate to interfere with the judge’s decision but the court was entitled to show its disapproval of the improper conduct of W’s insurers when making orders for costs.

PSHF REGULATIONS 6.53 The Prevention of Social Housing Fraud (Power to Require Information) (England) Regulations 201429 (‘the Regulations’) came into force on 6  April 2014. They make express provision for powers to be given to an ‘authorised officer’ (see 6.58) to require information from third parties for housing fraud investigation purposes. 6.54 There remain for social landlords, as outlined above, the more general information gathering activities under the auspices of the DPA and UK GDPR, and at times the surveillance powers to be found under legislation such as RIPA. 6.55 The Regulations, however, essentially create a distinct power, under regulation 4, to require information from certain identified third parties, but only for housing fraud investigation purposes,30 a definition which extends beyond simply the PSHF sub-letting/parting with possession offences. 6.56 Section 7(7) of the PSHF defines ‘housing fraud investigation purposes’ as purposes relating to the prevention, detection or securing of evidence for a conviction of: (a) a PSHF offence; 28 [2003] EWCA Civ 151; [2003] 1 WLR 954. 29 SI 2014/899 – made under PSHF, ss 7, 8 and 9(2)(b) and (c). There are also the Prevention of Social Housing Fraud (Detection of Fraud)(Wales) Regulations 2014/826 – made under PSHF, ss 7 and 8 to similar effect and in force from 28 March 2014. 30 See reg 4(1).

124

PSHF Regulations 6.56

(b) an offence under the Fraud Act 2006 relating to the unlawful sub-letting or parting with possession of the whole or part of a dwelling-house let by a local authority, a private registered provider of social housing or a registered social landlord; (c) an offence under the Fraud Act 2006 relating to an application for an allocation of housing accommodation under Part 6 of the Housing Act 1996; (d) an offence under the Fraud Act 2006 relating to an application for accommodation or for assistance in obtaining accommodation, under Part 7 of the Housing Act 1996 or under Part 2 of the Housing (Wales) Act 2014; (e) an offence under the Fraud Act 2006 relating to– (i) a claim to exercise the right to buy under Part 5 of the Housing Act 1985, (ii) a claim to exercise the right to acquire under section 16 of the Housing Act 1996 before the repeal of that section by the Abolition of the Right to Buy and Associated Rights (Wales) Act 2017 came into force, (iii) a claim to exercise the right to acquire under section 180 of the Housing and Regeneration Act 2008, or (f) an associated offence in relation to an offence mentioned in any of paragraphs (a) to (e). 6.57

Chapter 7 deals with some of these offences in more detail.

6.58 The local authority can grant authorisation to an individual to exercise the regulation 4 investigation powers – which can relate to matters beyond the authority’s geographical boundary – if:31 (a) the authorisation is in writing; and (b) the individual is employed by that or another local authority or by a joint committee that carries out functions relating to housing fraud investigation purposes on behalf of that authority. 6.59 To then exercise these powers under the Regulations, regulation 4 merely requires the authorised officer to have reasonable grounds for suspecting that: (a) the person they require information from is a bank, building society, other provider of credit or utilities company (or employee of any of these bodies); and (b) they either have or may have, possession of or access to, any information about any matter that is relevant to housing fraud investigation purposes. 6.56

Common examples of information obtained by this means are:

(a) Bank statements demonstrating: •

regular payments going into the account (eg  the allegation being that they are rent payments from a sub-letting);

31 See reg 3.

125

6.60  Investigation and Evidence

• regular payments of mortgage and (other) rent suggesting a second property; •

address(es) used for bank purposes; and

•

activity on the account and geographical location of the same.

(b) Utility accounts demonstrating: •

whose name the account is in;

•

method of payment; and

•

utility usage (especially useful in only or principal home cases).

6.60 For telecommunications information, which had previously been included in the Regulations, one now has to look to the Investigatory Powers Act 2016. 6.61 The operation of the regulation 4 power is unsurprisingly not without caveats and ‘hurdles’. For example and most obviously, regulation 4 states (with emphasis added in italics): ‘(5) An authorised officer shall not, in exercise of those powers, require any information from any person by virtue of that person falling within paragraph (3) unless it appears to that officer that there are reasonable grounds for believing that the person to whom it relates is— (a) a person who has committed, is committing or intends to commit an offence listed in section 7(7)32 of the Prevention of Social Housing Fraud Act 2013; or (b) a person who is a member of the family of a person falling within sub-paragraph (a).’ (emphasis added) 6.62 It does not, therefore, assist in obtaining information from third parties, such as a ‘reluctant’ sub-tenant, who is unrelated to the tenant. Nor does it allow for a ‘fishing expedition’ as the relevant officer must have ‘reasonable grounds’ for believing that the individual in question has committed, is committing or intends to commit one of the offences set down at 6.56. 6.63 Unlike general requests for information, those made under the Regulations have real ‘bite’. It is an offence under regulation 5 to not provide, intentionally delay, etc the information requested and conviction makes any defendant liable to a fine (ongoing breach thereafter is punishable by a fine not exceeding £40 per day).33 The Regulations also provide in this respect a limitation on such action:

32 See 6.56. 33 The Regulations also deal with the liability of directors (reg 6) and legal proceedings under reg 5 (reg 7).

126

Court processes 6.66

‘7.— Legal proceedings (1) Proceedings for an offence under regulation 5 may be brought within the period of 6 months beginning with the date on which evidence sufficient in the opinion of the prosecutor to warrant the proceedings came to the prosecutor’s knowledge. (2 But no such proceedings may be brought more than three years — (a) after the commission of the offence, or (b) in the case of a continuous contravention, after the last date on which the offence was committed. (3) A  certificate signed by the prosecutor and stating the date on which such evidence came to the prosecutor’s knowledge is conclusive evidence of that fact; and a certificate to that effect and purporting to be signed is to be treated as being so signed unless the contrary is proved.’

COURT PROCESSES 6.64 Obtaining information via the routes described earlier in this chapter is largely, though by no means exclusively, confined to pre-court activities. Effective use of court procedures after the issue of proceedings may further help to ‘fill in the gaps’ and strengthen the evidence available to the social landlord to its optimum effect.

Pre-action 6.65 Most of the actions available through the civil courts relate to the postissue period, though pre-action disclosure is available pursuant to Rule 31.16 of the Civil Procedure Rules 1998 (CPR).34 6.66

Any application for pre-action disclosure:

(a) can only be made against a likely would-be party; (b) must identify the documents or class of documents to be disclosed (which would have been disclosable under standard disclosure if proceedings had been issued); and (c) will only be considered if it is desirable to: •

dispose fairly of the anticipated proceedings;

•

assist the dispute to be resolved without proceedings; or

•

save costs.

34 An application for disclosure before proceedings have started is permitted under s 33 of the Senior Courts Act 1981 (c.54) or s 52 of the County Courts Act 1984.

127

6.67  Investigation and Evidence

6.67 This option is unlikely to be taken up in social housing fraud cases very often, not only because of the powers already available to a social landlord to obtain information (see above) but also because it is unlikely that such evidence will ‘tip the balance’ between issuing or not issuing proceedings in most instances.

Post-issue 6.68 A  social landlord has four primary options available to them after proceedings have been issued in the County Court or High Court, all of which are generally under-used: •

Part 18 Request for Further Information;

•

Specific disclosure;

•

Disclosure against third party;

•

Witness summons.

Part 18 Request. 6.69 Firstly, therefore, there is the Part 18 Request for Further Information procedure, whose purpose is to clarify a party’s case. For example, it may be helpful where the defence is, in essence, a bare denial of subletting, but does not respond in substance or at all to the pleaded matters used to support the landlord’s case, such as statements provided by the alleged sub-tenant, evidence of the defendant living elsewhere, credit reference information, etc. 6.70 The provision of a defence may therefore still leave unknown in such cases, to give three actual examples known to the author: (1) What the defendant says about monthly (rent level) payments going into their account. (2) How long they spend (and what they do) in another country, where their partner and business are. (3) What the tenant lived on between 2012 and 2015 when they were not working and were not in receipt of social security benefits (the suspicion being it was from the income obtained from sub-letting her local authority flat). 6.71

It is important to note when considering use of the Part 18 process:35

(a) A preliminary written request should always be made first, providing a date when a response is expected and confirming that the request is made under Part 18. This should usually be served by e-mail if reasonably practicable. 35 See the Practice Direction to CPR 18, paras 1 to 5.

128

Court processes 6.71

(b) The request should be proportionate and with a genuine purpose of knowing the case the first party has to meet. (c) Such a request should comply in full with the Practice Direction to Part 18. (d) Any response should be verified by a statement of truth. (e) If the second party objects to complying with the request (including on the basis that it would be disproportionately expensive) or any part of it, then they should inform the first party promptly. (f) If no response at all is made, then the first party can seek an order requiring a response without a hearing and without serving the application on the second party (assuming at least 14 days was given to respond). (g) A court granting an order under Part 18 can make it subject to conditions, and with the application of a sanction, such as a striking out of the defence, for failure to comply. (h) The court can make a Part 18 order of its own initiative or upon application by the requesting party (ie where the other party has failed to respond to the preliminary request identified at (a), or failed to respond adequately). (i) A request is necessarily made post-statement of case, but may be made prior to witness statements being served and more than once. A  response may necessitate a further follow-up request for further information.

Preliminary Request for Further Information or Clarification 1.1 Before making an application to the court for an order under Part 18, the party seeking clarification or information (the first party) should first serve on the party from whom it is sought (the second party) a written request for that clarification or information (a Request) stating a date by which the response to the Request should be served. The date must allow the second party a reasonable time to respond. 1.2 A Request should be concise and strictly confined to matters which are reasonably necessary and proportionate to enable the first party to prepare his own case or to understand the case he has to meet. 1.3 Requests must be made as far as possible in a single comprehensive document and not piecemeal. 1.4 A Request may be made by letter if the text of the Request is brief and the reply is likely to be brief; otherwise the Request should be made in a separate document. 1.5 If a Request is made in a letter, the letter should, in order to distinguish it from any other that might routinely be written in the course of a case, 129

6.71  Investigation and Evidence

(1) state that it contains a Request made under Part 18, and (2) deal with no matters other than the Request. 1.6 (1) A Request (whether made by letter or in a separate document) must – (a) be headed with the name of the court and the title and number of the claim, (b) in its heading state that it is a Request made under Part 18, identify the first party and the second party and state the date on which it is made, (c) set out in a separate numbered paragraph each request for information or clarification, (d) where a Request relates to a document, identify that document and (if relevant) the paragraph or words to which it relates, (e) state the date by which the first party expects a response to the Request.

(2) (a)  A  Request which is not in the form of a letter may, if convenient, be prepared in such a way that the response may be given on the same document. (b) To do this the numbered paragraphs of the Request should appear on the left hand half of each sheet so that the paragraphs of the response may then appear on the right. (c) Where a Request is prepared in this form an extra copy should be served for the use of the second party.

1.7 Subject to the provisions of rule 6.23(5) and (6) and paragraphs 4.1 to 4.3 of Practice Direction 6A, a request should be served by e-mail if reasonably practicable. Responding to a Request 2.1 A response to a Request must be in writing, dated and signed by the second party or his legal representative. 2.2 (1) Where the Request is made in a letter the second party may give his response in a letter or in a formal reply. (2) Such a letter should identify itself as a response to the Request and deal with no other matters than the response. 2.3 (1) Unless the Request is in the format described in paragraph 1.6(2) and the second party uses the document supplied for the purpose, a response must: (a) be headed with the name of the court and the title and number of the claim, (b) in its heading identify itself as a response to that Request, 130

Court processes 6.71

(c) repeat the text of each separate paragraph of the Request and set out under each paragraph the response to it, (d) refer to and have attached to it a copy of any document not already in the possession of the first party which forms part of the response. (2) A second or supplementary response to a Request must identify itself as such in its heading. 2.4 The second party must when he serves his response on the first party serve on every other party and file with the court a copy of the Request and of his response. Statements of Truth 3 Attention is drawn to Part 22 and to the definition of a statement of case in Part 2 of the rules; a response should be verified by a statement of truth. General matters 4.1 (1) If the second party objects to complying with the Request or part of it or is unable to do so at all or within the time stated in the Request he must inform the first party promptly and in any event within that time. (2) He may do so in a letter or in a separate document (a formal response), but in either case he must give reasons and, where relevant, give a date by which he expects to be able to comply. 4.2 (1) There is no need for a second party to apply to the court if he objects to a Request or is unable to comply with it at all or within the stated time. He need only comply with paragraph  4.1(1) above. (2) Where a second party considers that a Request can only be complied with at disproportionate expense and objects to comply for that reason he should say so in his reply and explain briefly why he has taken that view. Applications for Orders under Part 18 5.1 Attention is drawn to Part 23 (Applications) and to Practice Direction 23A. 5.2 An application notice for an order under Part 18 should set out or have attached to it the text of the order sought and in particular should specify the matter or matters in respect of which the clarification or information is sought. 5.3 (1) If a Request under paragraph 1 for the information or clarification has not been made, the application notice should, in addition, explain why not. 131

6.71  Investigation and Evidence

(2) If a Request for clarification or information has been made, the application notice or the evidence in support should describe the response, if any. 5.4 Both the first party and the second party should consider whether evidence in support of or in opposition to the application is required. 5.5 (1) Where the second party has made no response to a Request served on him, the first party need not serve the application notice on the second party, and the court may deal with the application without a hearing. (2) Sub-paragraph  (1) above only applies if at least 14 days have passed since the Request was served and the time stated in it for a response has expired. 5.6 Unless paragraph 5.5 applies the application notice must be served on the second party and on all other parties to the claim. 5.7 An order made under Part 18 must be served on all parties to the claim. 5.8 Costs: (1) Attention is drawn to the Practice Directions 44 to 48 on costs and, in particular, Subsections 8 and 9 of Practice Direction 44, which relate to the court’s power to make a summary assessment of costs. (2) Attention is also drawn to rule 44.10(1) which provides that the general rule is that if an order does not mention costs no party is entitled to costs relating to that order.

Request for Further Information IN THE COUNTY COURT AT TRAFFORD CLAIM NO: OT7456 BETWEEN: PEARSON HEIGHTS HOUSING ASSOCIATION Claimant -andMR BRIAN GREENHOFF Defendant 18 REQUEST The Claimant requires the Defendant to respond to the questions below by 4.00pm on Thursday 29 October 20XX. 132

Court processes 6.72

1. In paragraph 4 of the Defence dated 21 September 20XX it is said ‘No admissions are made as to paragraph 5 of the Annex to the Particulars of Claim’. (a) Does the Defendant know Timothy Hill referred to at paragraph 5(b) of the Annex to the Particulars of Claim’? (b) Has the said Timothy Hill ever stayed overnight at Flat 3, Rosebush Avenue, Trafford, TF3 3DD (‘the Premises’) since the Defendant’s tenancy commenced on 10 April 2017? If so when and was payment received? (c) Did the Defendant ever provide the said Timothy Hill with a tenancy agreement in respect of the Premises? If so: •  When? •

Can the Defendant please provide a copy to the Claimant’s solicitors?

•

What were the terms of the tenancy?

(d) Has the Defendant ever visited 12 Broom Heights, Manchester M13 1TT (‘the Second Premises’)? (e) Has the Defendant ever stayed overnight at the Second Premises? If so, when and how often? (f) Does the Defendant admit: •

He was on the electoral register at the Second Premises from 2015? If so, why?

• He used the Second Premises as his address for bank and correspondence purposes? If so, why? • He has use of the Second Premises? If so, under what arrangement? The response to this Part 18 Request for Further Information should be sent to: Gotcha Solicitors, Parting Way, Manchester M13 2KH. The Defendant is referred to paragraphs 2 and 3 of the Practice Direction to CPR 18, which is exhibited to this document. 28 September 20XX

Specific disclosure 6.72 In many instances, allied to the Part 18 process, there is the availability of powers under CPR Part 31 for a court to order specific disclosure of identified documents or classes of documents (31.12), or disclosure against a person who is not a party (31.17). 133

6.73  Investigation and Evidence

6.73 With respect to the former, the order will require the defendant to disclose the identified documents and carry out a search to the extent provided in the order. To give one example of the latter, it may be that the tenant does not, in fact, retain their bank statements or housing benefit decision letters but an order under 31.12 (and see 6.75) can require them to seek copies from the bank and local authority respectively and then disclose the results of their request. 6.74 The court, on considering such an application, is concerned with two primary issues – are the requested documents relevant to the proceedings36 and are they (or have they been) in the other party’s control. Where a claim is likely to turn on particular documents there is obviously a stronger case for an order to be made.37 6.75

It is worth noting here that CPR 35.9 provides: ‘Where a party has access to information which is not reasonably available to another party, the court may direct the party who has access to the information to–  (a) prepare and file a document recording the information; and (b) serve a copy of that document on the other party.’

Third Party disclosure 6.76

As for third-party disclosure, the court must be satisfied that:

(a) the documents for which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and (b) disclosure is necessary to dispose fairly of the claim or to save costs. 6.77 For example, the claimant social landlord may seek the bank accounts of the alleged sub-tenant, not available under the PSHF Regulations, or details in relation to where the tenant claims to have lived at the relevant time (such as household bills). 6.78 It is fair to note that in ‘fraud’ possession claims applications under CPR 31.17 are not usual, not least because the courts have warned that disclosure against non-parties is the exception rather than the rule38 and the jurisdiction should be exercised with caution.39

36 Harrods Ltd v Times Newspaper Ltd [2006] EWCA Civ 294; [2006] All E.R. (D) 302 (Feb) at [12]. 37 Chantrey Vellacott v Convergence Group Plc [2006] EWHC 490 (Ch). 38 Frankson v Home Office [2003] EWCA Civ 655; [2003] 1 WLR 1952 at [10]. 39 Re Howglen Ltd [2001] 1 All ER 376, Ch at [382h].

134

Missing Witnesses 6.84

Witness summons 6.79 Finally, there is the question of witnesses and in particular the ability to witness summons an individual to attend court to give evidence or produce documents in court (CPR  34.2) by use of Form N20 or obtain the court’s permission to call the other party’s (identified) witness where they were not otherwise going to be called so that they may be cross examined (CPR 33.4). 6.80 A witness summons, which will be served by the Court unless the party advises otherwise,40 does not require the permission of the Court unless it is issued less than seven days before trial or requires attendance of the witness on a day other than that fixed for the trial: CPR 34.3. 6.81 The party issuing the witness summons must pay in advance the witnesses reasonable travel expenses and (extremely modest41) compensation for loss of time. 6.82 One has to be careful in the use of witness summonses because it can backfire and end up strengthening the case of the defendant. For example, if in a sub-letting case you want to hear evidence from neighbours of the relevant premises and decide to witness summons such people who have previously indicated they do not want to get involved, then they could end up not supporting the case that other persons than the tenant(s) were living at the premises. 6.83 An application under CPR 33.4 – to call the maker of a statement, who a party does not intend to call, to be cross-examined on it – must be made not more than 14 days after the day on which a notice of intention to rely on the hearsay evidence was served on the applicant though a party can seek permission to do so outside of this time.42

MISSING WITNESSES 6.84 This chapter has considered, in part, some issues of evidence. In a housing fraud case it is not infrequently the case that the greater surprise is what 40 See CPR 34.6. 41 In addition to ‘conduct money’ at the time of service the witness must be offered or paid ‘such sum by way of compensation for loss of time as may be specified in Practice Direction 34A.’ Paragraph  3.3 of the Practice Direction states that the sum in respect of the period during which earnings or benefit are lost, or such lesser sum as it may be proved that the witness will lose as a result of their attendance at court, is to be based on the sums payable to witnesses attending the Crown Court. (Fixed pursuant to the Prosecution of Offences Act 1985 and the Costs in Criminal Cases (General) Regulations 1986 (SI  1986/1335).) A  helpful guide and summary of sums payable can be found at: www.cps.gov.uk/legal-guidance/witness-expensesand-allowances. 42 See CPR 3.1 – (2) Except where these Rules provide otherwise, the court may – (a) extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired).

135

6.85  Investigation and Evidence

evidence is not provided by a defendant more than what is. For example, in trying to show that they are living at the demised premises why has the defendant not called any of the neighbours, friends, etc who have visited there or even relatives? 6.85 In December 2017 the High Court had cause to consider a claim by an insurance company for damages based on the assertion that the defendant had fraudulently represented to them that his car had been in collision with another vehicle driven by someone who they insured. Mr Justice Teare handed down judgment in UK Insurance Ltd v Stuart John Gentry43 on 18 January 2018 and awarded the Claimant damages of £19,179 in addition to interest and costs. 6.86 One of the most interesting aspects of the judgment was a reminder of the court’s approach to ‘missing’ witnesses, and at paragraph 68 of the judgment it was said: ‘Mr. Grant on behalf of the Claimant invited the Court to draw adverse inferences from the failure of Mr. Gentry to give evidence (or to call evidence from Mr. Miller, Mr. Ebbs, and Mr. Toms). The circumstances in which inferences may be drawn have been summarised by the Court of Appeal in Wisnewski v Central Manchester Health Authority [1998] PIQR P324 at p.14 in these terms: “(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action. (2) If a court is willing to draw such inferences, they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness. (3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue. (4) If the reason for the witness’s absence or silence satisfies the court, then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.”’ 6.87 To give one example of how this might operate in a housing context, consider a possession claim where the landlord seeks to show that the tenant did not live at the demised premises as their only or principal home at the expiry of a notice to quit. They have credit reference evidence linking the tenant to an alternative address which proves to be their partner’s. The tenant does not call 43 [2018] EWHC 37 (QB).

136

Conclusion 6.92

their partner to give evidence, or the partner has provided a witness statement but does not attend trial. 6.88

The two-stage assessment approach will then be:

(a) why has the partner not been called or not attended trial? (b) if there is no good reason, should the court draw an adverse inference such as to diminish the defendant’s evidence or bolster that of the claimant? 6.89 Submissions on the absence of ‘expected’ people at trial can be a powerful and decisive tool for a social landlord.

CONCLUSION 6.90 This chapter promotes the truism that ‘a claim is only as good as the evidence in support of it’. Sometimes though, documentary evidence will be scarce and the case will turn upon the credibility of the witnesses and their performance, in particular, under cross examination. 6.91 At other times, the evidence is so overwhelming one wonders why the defendant bothers to defend the proceedings. A  successful conclusion for the social landlord should be then easily achievable. 6.92 More likely, however, is something in between the two extremes; and it is foolhardy not to ensure that the best evidence possible is put before the court. This is likely to require all or some of the following: (a) proactive efforts to obtain information from relevant third parties; (b) the application and invoking of data-sharing arrangements; (c) if the social landlord is not a local housing authority, the engagement with and use of the local authority to obtain information as part of any ‘housing fraud investigation’ (including by the undertaking of ‘under caution’ interviews); and (d) a proactive use of court procedures, in particular the Part 18 Request for Further Information, and close regard to questions of disclosure and its adequacy.

137

CHAPTER 7

Criminal Sanctions •

Sub-letting offences

•

Right to buy/right to acquire/shared ownership fraud

•

Allocation and homelessness offences

Key points •

There are specific criminal offences relating to sub-letting and parting with possession, and the failure to provide accurate information for social housing allocation and homelessness purposes, to be found in the Prevention of Social Housing Fraud Act 2013 (PSHF) and Housing Act 1996 respectively.

• The Fraud Act 2006 creates a series of fraud offences and will be particularly used, especially in a housing context, in false statement, right to buy, right to acquire and shared ownership cases. •

The making of an unlawful profit order (UPO) should be considered by the court upon conviction for an offence under the PSHF.

• A  local authority is able to prosecute an offence under the PSHF even if the premises concerned are not let by them or are not even in their area. • The Powers of Criminal Courts (Sentencing) Act 2000 (PCCSA), s  130(1) allows a criminal court to make a compensation order to cover loss or damage resulting from the criminal offence of which the defendant has been convicted. • The Proceeds of Crime Act 2002 (POCA) also provides for the availability of confiscation orders in the Crown Court in respect of the defendant’s financial benefits from their criminal lifestyle.

INTRODUCTION 7.1 Any book on social housing fraud is inevitably going to deal with the criminal aspect of such activity in addition to the more immediate and welltrodden civil remedy route of possession, damages and, perhaps, declaration.1 1

ie for rescission.

139

7.2  Criminal Sanctions

7.2 This chapter does not purport to be a definitive guide to all the criminal sanctions that may be available – for example, it does not deal with any related benefit fraud offences, the common law conspiracy to defraud or issues of false accounting under section 17 of the Theft Act 1968. However, it does seek to demonstrate the range of the most likely options available to prosecutors when faced with a social housing fraud case. 7.3 In particular, the PSHF has brought into sharp focus the inter-relationship between criminal sanctions and civil remedies, although alongside the more general Fraud Act 2006 offences there had been (and remain) earlier targeted criminal offences created, such as can be found at sections 171 and 214 of the Housing Act 1996 and which are dealt with below. 7.4 As a preliminary point, it is always worth remembering that in criminal proceedings the general rule is that the prosecution bears the legal burden of proving all elements of the offence2 and that guilt must be established to the criminal standard of proof, beyond reasonable doubt.3 7.5 Those offences most obviously relevant to social housing fraud are identified and discussed below and, if a conviction is achieved, this will provide conclusive proof of any of the matters that need to be proved for any civil action, particularly bearing in mind section 11 of the Civil Evidence Act 1968: ‘(1) In any civil proceedings the fact that a person has been convicted of an offence by or before any court in the United Kingdom or of a service offence (anywhere) shall (subject to subsection (3) below) be admissible in evidence for the purpose of proving, where to do so is relevant to any issue in those proceedings, that he committed that offence, whether he was so convicted upon a plea of guilty or otherwise and whether or not he is a party to the civil proceedings; but no conviction other than a subsisting one shall be admissible in evidence by virtue of this section.’

ALLOCATION FRAUD ‘(1) A person commits an offence if, in connection with the exercise by a local housing authority of their functions under this Part— (a) he knowingly or recklessly makes a statement which is false in a material particular, or

2 This is in contrast to civil proceedings where, for example, the burden of proving the right to succession is on the would-be successor (Governors of the Peabody Donation Fund v Grant (1983) 6 HLR 41 at [44] per Donaldson LJ) and sufficient absence from a premises may lead to an explanation being required from the tenant in an only or principal home case: Lambeth LBC v Vandra [2005] EWCA Civ 1801; [2006] HLR 19 at [8–10] per Mummery LJ; Islington LBC v Boyle [2011] EWCA Civ 1450; [2012] PTSR 1093 at [65] per Etherton LJ. 3 Woolmington v DPP [1935] AC 462.

140

Allocation fraud 7.9

(b) he knowingly withholds information which the authority have reasonably required him to give in connection with the exercise of those functions.’ Housing Act 1996, s 171 7.6 Chapter  2 discusses the route to recovery of a social housing unit procured by a fraudulent misrepresentation. However, not only is such activity a ground for possession of the premises but it may also represent a specific criminal offence even if it does not result in an actual allocation of housing. 7.7 The criminal offence, set out in section 171 above, requires the false statement(s) or withholding of information to be in relation to a LHA’s operation of its allocation scheme. It should, therefore, be appreciated that: (a) A LHA is required to comply with the provisions of Part 6 when allocating accommodation.4 (b) This includes nominations by a LHA to a private registered provider or registered social landlord (primarily housing associations).5 7.8 The section 171 offence can be committed in two different ways, broadly by giving or withholding information, and can best be explained by way of some questions: • First, is the LHA exercising its functions under Part 6 of the Housing Act 1996? If not, then section 171 is of no application. • Second, has the defendant made a false statement? This is obviously a central requirement for the section 171 offence but needs to be refined by way of two further questions that require an affirmative answer, − Did the defendant knowingly or recklessly make the statement? − Was the statement false in a material sense? • Third, as an alternative to the second requirement, has the applicant knowingly withheld information which the LHA have reasonably required in the exercise of their allocation functions?

False statement 7.9 The most obvious starting point in considering the issue of false statement is to make the point that the applicant does not need to be both the maker of the statement and the potential defendant (though usually they are in fact one and the same). Someone assisting the applicant to complete the form may therefore be caught by this provision.

4 Housing Act 1996, s 159(1). 5 Ibid, s  159(2)(c) – this would cover the nomination arrangements many LHAs have with housing associations in their area (see s 159(4)).

141

7.10  Criminal Sanctions

7.10 The mere copying down of false information would not, however, be sufficient and: (a) absent any further evidence that the maker of the statement knew that it was false, or was reckless as to its accuracy, and (b) absent evidence that they intended the LHA to believe in its accuracy, no offence will have been committed. 7.11 The Allocation of Accommodation: Guidance for Local Housing Authorities in England (June 2012)6 helpfully confirms:7 ‘5.11 The circumstances in which an offence is committed could include providing false information: •

on an application form for social housing

•

in response to a request for further information in support of the application

•

during review proceedings.’

Withholding information 7.12 As with the making of a false statement, the offence of withholding relevant information can be committed by a person other than the applicant. The most obvious examples of who such other person may be are a partner, employer or landlord. It should though be stressed however that a mere failure to answer a request for information from such third parties is unlikely to be sufficient.

Sentence 7.13

The sentencing for a section 171 offence is dealt with at 7.18 below.

7.14 To give a practical example of a prosecution for this offence, in 2018 a tenant of South Oxfordshire District Council had failed to disclose, when applying to go on the Council’s housing register, that she in fact owned a property (which she was letting out). She had been living in the allocated property for a number of years by the time of the conviction, and the authority had been alerted to the

6 7

Produced by the Ministry of Housing, Communities and Local Government under the Housing Act 1996, s 169. The above guidance states in relation to staff fraud or negligence: ‘5.13 Authorities may also wish to take action to minimise the risk of staff allocating incorrectly or even fraudulently, for example to applicants who do not have sufficient priority under the allocation scheme or do not meet the authority’s qualification criteria. Appropriate steps might include vetting staff who take allocation decisions or providing for decisions to be validated by employing senior staff to undertake random checks.’

142

Homelessness fraud 7.16

situation by means of an anonymous tip-off. Following her guilty plea she was fined £250 and ordered to pay £1,250 and a £30 victim surcharge.8  7.15 As a footnote to this discussion on allocation ‘fraud’ it is worth noting that the grant of a secure tenancy to someone to whom accommodation has been allocated inconsistently with the authority’s allocation scheme does not of itself render the tenancy void or ineffective.9

HOMELESSNESS FRAUD ‘(1) It is an offence for a person, with intent to induce a local housing authority to believe in connection with the exercise of their functions under this Part that he or another person is entitled to accommodation or assistance in accordance with the provisions of this Part or is entitled to accommodation or assistance of a particular description– (a) knowingly or recklessly to make a statement which is false in a material particular, or (b) knowingly to withhold information which the authority have reasonably required him to give in connection with the exercise of those functions. (2) If before an applicant receives notification of the local housing authority’s decision on his application there is any change of facts material to his case, he shall notify the authority as soon as possible. The authority shall explain to every applicant, in ordinary language, the duty imposed on him by this subsection and the effect of subsection (3). (3) A person who fails to comply with subsection (2) commits an offence unless he shows that he was not given the explanation required by that subsection or that he had some other reasonable excuse for noncompliance.’ Housing Act 1996, s 214 7.16 The first two offences under section 214(1)(a) and (1)(b) mirror those seen above for allocation fraud. This is with the ‘addition’ of the need to demonstrate an intention to induce the LHA, in connection with the exercise of their homelessness (Part 7) functions, to believe that the homeless applicant is entitled to accommodation or assistance under the homelessness provisions of Part 7.

8 9

Oxford Mail, 12 February 2018. Birmingham City Council v Qasim [2009] EWCA Civ 1080; [2010] PTSR 471 at [37] per Lord Neuberger and [46–48] per Lord Justice Sedley – see 2.14–2.16.

143

7.17  Criminal Sanctions

7.17 There is, though, an additional offence, under sub-paragraph  (2), of failing to notify the LHA of material changes, which is restricted to the applicant. The reason is apparent when one considers the various elements of the offence: (a) An applicant is under a positive duty to inform the LHA as soon as possible of any change of facts material to their application prior to the LHA’s decision.10 (b) What is a ‘change of material fact’ is a moot point and may provide a line of defence where the change is not of obvious relevance or import. (c) Before such an offence can be committed, a LHA must explain to an applicant, in ordinary language, the nature of his duty to notify them of material changes and that any failure to do so is a criminal offence. If the applicant can show that this advice was not given then it provides an absolute defence. The Homelessness Code of Guidance for Local Authorities (February 2018) records at paragraph 18.10: ‘Under section 214, it is an offence for a person, knowingly or recklessly to make a false statement, or knowingly to withhold information, with intent to induce the housing authority to believe that they, or another person, are entitled to accommodation or assistance under Part 7. If, before the applicant receives notification of a decision, there is any change of facts material to their case, they must inform the housing authority of this as soon as possible. Housing authorities must ensure that all applicants are made aware of these obligations and that they are explained in ordinary language. Housing authorities are advised to ensure that the obligations are conveyed sensitively to avoid intimidating applicants.’ (d) Similarly, if the applicant can show that they had some other reasonable excuse for non-compliance then, again, this could constitute a complete defence to the charge: section 214(3).

Sentence11 7.18 Offences under the allocation and homelessness provisions explained above are prosecuted in the magistrates’ court and carry an unlimited fine maximum fine.12

PREVENTION OF SOCIAL HOUSING FRAUD ACT 2013 7.19 The PSHF creates two criminal offences relating to the sub-letting or parting with possession of the whole of, or part of, demised premises let by a local 10 In the first edition it was suggested that ‘decision’ meant the original (section 184) determination but there is a credible argument that the duty also extends to the statutory review process as the review decision entails ‘the local housing authority’s decision on his application’ as well. 11 See Housing Act 1996, ss 171(2) and 214(4). 12 See the Sentencing Act 2020, s 118– the Legal Aid, Sentencing and Punishment of Offenders Act 2012, s 85 removed the £5,000 fine limit previously found in this (and other) offences.

144

Prevention of Social Housing Fraud Act 2013 7.24

authority or private registered provider of social housing13 without the landlord’s consent. There are broad similarities between the provisions concerning secure tenancies (s 1) and assured tenancies (s 2). 7.20 There is nothing to prevent a social landlord seeking both a criminal remedy by way of conviction14 and a civil remedy through possession action and/ or UPO application in the county court (see Chapters 3 and 5, and 7.5 above). 7.21 It follows that not only is a conviction admissible evidence in the civil courts of the sub-letting and parting with possession claimed by the landlord, see 7.5, but also and conversely, because of the higher standard of proof required in the criminal courts, a failure to secure a conviction is not necessarily fatal to a claim for possession of premises or an application for a UPO reliant on the same facts.

Major offence 7.22

A tenant will commit an offence if:15

(a) they sub-let or part with possession of the whole of the premises, or part thereof, without the landlord’s written consent (for assured tenancies there is no reference to consent although this is likely to be a breach of tenancy: see 7.24–7.25); (b) this is done dishonestly and in breach of an express or implied term of the tenancy; and (c) the tenant ceases to occupy the premises as their only or principal home. Of course, if the arrangement is a joint tenancy then no offence is committed if the joint tenant remains in occupation. Lodgers 7.23 As has been made clear in Chapter  3, lodger and most licensee arrangements do not constitute either sub-letting or parting with possession. Consent 7.24 Most tenancy agreements have express terms which prohibit sub-letting or parting with possession of the whole of the demised premises, only allowing the same in respect of part with the landlord’s written consent. 13 PSHF, s 2(3) (or registered social landlord in Wales) – a shared ownership lease is excluded from these provisions. 14 The prosecution, though, can be by a local authority even if the premises were owned or otherwise let by a housing association – PSHF 2013, s 3(5). 15 PSHF, ss 1(2), 2(2).

145

7.25  Criminal Sanctions

7.25 In any event, it is an implied term of every secure and assured tenancy agreement that the tenant will not sub-let or part with possession of part of the dwelling without the landlord’s (written for secure tenancies) consent,16 which must not be unreasonably withheld (and will be treated as given if it is unreasonably withheld).17 Dishonesty 7.26 The test for ‘dishonesty’ is as confirmed by the Supreme Court in Ivey v Genting Casinos (UK) Ltd t/a Crockfords.18 This is referred to in more detail at 7.54 below. Only or principal home 7.27

This is considered in more detail at Chapter 4 but suffice to say here:

(a) it is a question of fact and degree; (b) if the sub-letting or parting with possession is of the whole of the demised premises then this will be treated as being inconsistent with the premises still being the tenant’s only or principal home;19 (c) physical occupation of the premises is not necessarily required to retain security of tenure, but the tenant will have to have an objective20 intention to return to the premises (which must remain their only or principal home notwithstanding the tenant’s physical non-occupation);21 (d) a sufficiently lengthy or continuous absence from the premises could compel the inference that the tenant had ceased to occupy the property as his only or principal home, the onus then being on the tenant to rebut it.22

Less serious offence 7.28 For the less serious offence of ‘knowingly’ sub-letting or parting with possession, which does not require dishonesty, the prosecution must show that the tenant:23 (a) has, in breach of an express or implied term of the tenancy, sub-let or parted with possession of the whole or part of the premises without the landlord’s written consent (for assured tenancies there is again no reference to consent); 16 Housing Act 1985, s 93(1)(b) (secure tenancies); HA 1988, s 15(1) (assured tenancies) 17 Housing Act 1985, s 94(2). For assured tenancies, the Housing Act 1988 expressly provides at s  15(2) that the usual statutory provision implying a condition that consent may not be unreasonably withheld, Landlord and Tenant Act 1927, s 19 does not apply. 18 [2017] UKSC 67; [2018] AC 391. 19 Ujima Housing Association v Ansah (1998) 30 HLR 831, CA. 20 Amoah v Barking and Dagenham LBC (2001) 82 P & CR DG6, ChD. 21 Crawley BC v Sawyer (1988) 20 HLR 98, CA. 22 London Borough of Islington v (1) Boyle (2) Collier [2011] EWCA Civ 1450; [2012] HLR 19. 23 PSHF, s 1(1) for secure tenancies; s 2(1) for assured tenancies.

146

Prevention of Social Housing Fraud Act 2013 7.33

(b) no longer lives at the premises as their only or principal home; and (c) knows that this is contrary to the express or implied terms of his tenancy. 7.29 Knowledge that any sub-letting is a breach of tenancy can include where a defendant has ‘deliberately shut their eyes’ to the truth.24 Defences 7.30

There are two specified defences to the less serious crime.

7.31 First, where the tenant’s actions are due to violence, or threats of violence, by a person either residing in, or in the locality25 of, the premises.26 The violence or threats of violence must either be towards: •

the tenant; or

• a member of the tenant’s family27 who was residing with the tenant immediately before they ceased to occupy the premises. 7.32 Though ‘violence’ is not formally defined in the PSHF it is apparent from section 1(3) that it can concern domestic violence28 as well as, for example, gang activity.29 7.33 The second defence is where a person who occupies the dwelling is a person entitled30 to apply to the court for an order giving that person a right 24 Warner v Metropolitan Police Commr [1969] 2 AC 256 at 279 per Lord Reid; Atwal v Massey (1972) 56 Cr App R 6, DC. 25 Not defined in the Act but see the anti-social behaviour injunction case of Manchester City Council v Lawler (1998) 31  HLR  119 – Butler Sloss LJ said at [124]: ‘One purpose of the phrase “in the locality” was to avoid the often difficult, unrewarding and sometimes lengthy discussion of whether to identify one road rather than another which would meet the general need to keep the tiresome and obstreperous tenant under some control in the area where he/ she was likely to be the most troublesome. That area may be the part or the whole of a housing estate. It may straddle parts of two housing estates or include local shops serving the housing estate but within its boundaries. In my view, if one asked a resident in Broadoak Drive if Haveley Circle and Haveley Road were in the locality, the answer would be “yes of course”.’ 26 Section 1(3). 27 Section 11(4) defines this by reference to HA 1985, s 113(5) – spouse or civil partner or person living together with another as if they were his spouse or civil partner; parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew or niece. In this context: a relationship by marriage or civil partnership shall be treated as a relationship by blood; a relationship of half-blood shall be treated as a relationship of the whole blood; the stepchild of a person shall be treated as his child (including the stepchild of a civil partner) and an illegitimate child shall be treated as the legitimate child of his mother and reputed father. A foster child is not a ‘child’ for the purposes of s 113: Sheffield City Council v Wall [2010] EWCA Civ 922; [2011] 1 WLR 1342; [2010] HLR 47. 28 See Yemshaw v Hounslow London Borough Council (Secretary of State for Communities and Local Government and another Intervening) [2011] UKSC 3; [2011] 1 WLR 433; [2011] HLR 16. 29 This type of behaviour was referred to by Jack Dromey MP during passage of the Bill, Hansard, HC, Deb, 23 October 2012, Vol 551, col 891. 30 Eg under the Family Law Act 1996, ss 33–40, s 53, Sch 7 and Children Act 1989, Sch 1, para 1.

147

7.34  Criminal Sanctions

to occupy the dwelling to have the tenancy transferred to them, or a person in respect of whom an application may be made to have the tenancy transferred to them or to another person for their benefit.31 This usually applies to the tenant’s current or former spouse, civil partner, co-habitant or child.

Proceedings 7.34 The major (dishonesty) offence can be tried summarily in the magistrates’ court or on indictment in the Crown Court, whereas the lesser offence is summary only and heard in the magistrates’ court. Precedents 7.1, 7.2 and 7.3 shown below, set out the documents and their required contents that will be needed to begin proceedings in the magistrates’ court (though careful reference should also be made to Part 7 of the Criminal Procedure Rules 2020 to ensure compliance).

Precedent 7.1 PSHF Information32 IN THE STILLOPEN MAGISTRATES’ COURT (1910) INFORMATION Prosecutor: Stillopen Borough Council, 7 Trafford Place, Stillopen, ST1 2BM Defendant: Mr Stuart Pearson, of 33 Devereux Close, Stillopen, ST17 1RR 1. Between 29 July 20XX to 18 July 20XX (Date of Information), Mr Stuart Pearson, being a tenant of 33 Devereux Close, Stillopen, ST17 1RR (‘the Premises’), a dwelling-house owned by the Ferguson Heights Housing Association and let to him under an assured shorthold tenancy, did, knowing that it was in breach of the tenancy and in breach of an express or implied term of the tenancy (clause 7.2), sub-let or part with possession of the whole of the Premises and ceased to occupy the Premises as his only or principal home contrary to section 2(1) of the Prevention of Social Housing Fraud Act 2013 2. Between 29 July 20XX to 18 July 20XX (Date of Information), Mr Stuart Pearson being a tenant of 33 Devereux Close, Stillopen, ST17 1RR (‘the Premises’), a dwelling-house owned by the Ferguson Heights Housing Association and let to him under an assured shorthold tenancy, did dishonestly and in breach of an express or implied term of the tenancy (clause 7.2), sub-let or part with possession of the whole of the Premises and ceased to occupy the Premises as his only or principal home contrary to section 2(2) of the Prevention of Social Housing Fraud Act 2013 DATED THE EIGHTEENTH DAY OF OCTOBER 20XX 31 PSHF, s 1(4). 32 This leads to the Magistrates’ Court issuing a summons or warrant: s 1(1), Magistrates’ Courts Act 1980; Criminal Procedure Rules 2020, r 7.2.

148

Prevention of Social Housing Fraud Act 2013 7.34

…………………………………… Ms Fiona Best Borough Solicitor Stillopen Borough Council, 7 Trafford Place, Stillopen, ST1 2BM

Precedent 7.2 PSHF Summons IN THE STILLOPEN MAGISTRATES’ COURT (1910) To: Mr Stuart Pearson Of: 33 Devereux Close, Stillopen, ST17 1RR INFORMATION was on 18  February 20XX laid before me, the undersigned Justice of the Peace, by Fiona Giggs, Borough Solicitor for Stillopen Borough Council for and on behalf of the Council of such Borough of 7 TRAFFORD PLACE, STILLOPEN, ST1 2BM 1. Between 29 July 20XX to 18 July 20XX (Date of Information), Mr Stuart Pearson being a tenant of 33 Devereux Close, Stillopen, ST17 1RR (‘the Premises’), a dwelling-house owned by the Ferguson Heights Housing Association and let to him under an assured shorthold tenancy, did, knowing that it was in breach of the tenancy, and in breach of an express or implied term of the tenancy (clause 7.2), sub-let or part with possession of the whole of the Premises and ceased to occupy the Premises as his only or principal home contrary to section 2(1) of the Prevention of Social Housing Fraud Act 2013 2. Between 29  July 2016 to 18  July 2017 (Date of Information), Mr Stuart Pearson being a tenant of 33 Devereux Close, Stillopen, ST17 1RR (‘the Premises’), a dwelling-house owned by the Ferguson Heights Housing Association and let to him under an assured shorthold tenancy, did dishonestly and in breach of an express or implied term of the tenancy (clause 7.2), sub-let or part with possession of the whole of the Premises and ceased to occupy the Premises as his only or principal home contrary to section 2(2) of the Prevention of Social Housing Fraud Act 2013 YOU ARE THEREFORE HEREBY SUMMONSED to appear on Friday, 6 November 20XX at the hour of 10am before the Stillopen Magistrates’ Court sitting at The Civic Centre, Carrington Street, Stillopen, ST1 7DB to answer to the said Information. DATED THE EIGHTEENTH DAY OF OCTOBER 20XX Delegated Legal Adviser for the Area first above mentioned

149

7.35  Criminal Sanctions

Precedent 7.3 PSHF Certificate CERTIFICATE Prevention of Social Housing Fraud Act 2013 Stillopen Borough Council v Stuart Pearson Evidence that was sufficient to warrant these proceedings in Stillopen Magistrates’ Court came to the prosecutor’s knowledge on 15 June 20XX Fiona Giggs Borough Solicitor Stillopen Borough Council 18.10.20XX 7.35

It should be noted:

(a) A  local authority can prosecute section 1 and section 2 (and associated) offences even if the premises are not theirs (eg it is a housing association let) and even if the property is not in their area.33 (b) For a summary offence, such as the lesser offence under sections 1(1) and 2(1) of the PSHF, a magistrates’ court may ordinarily not try a person unless the information was ‘laid’ (served on) the court within six months of the time that the offence was committed.34 However, section 3(1) of the PSHF provides that this six-month period does not start to run until ‘the date on which evidence sufficient in the opinion of the prosecutor to warrant the proceedings came to the prosecutor’s knowledge’. This is subject to a long-stop of three years from the commission of the offence after which no prosecution of the lesser offence is possible.35 Example: A tenant has been sub-letting his one-bedroom flat since November 2016 to various sub-tenants under six-month lets. His landlord housing association only finds out about this in January of 2020. He can be prosecuted then for all this activity under section 2(1) even though the offences started more than six months ago and, for example, the latest arrangement has been running for nine months. The contravention is continuous as the time runs from the last day. Criminal Procedure Rules 2020 ‘7.2(3) An application for the issue of a summons or warrant must – (a) Set out the allegation or allegations made by the applicant in terms that comply with 7.3(1); and (b) Demonstrate – 33 Ibid, s 3(5)(6). 34 Magistrates’ Courts Act 1980, s 127; Criminal Procedure Rules 2020, para 7.2(10). 35 PSHF, s 3(2).

150

Prevention of Social Housing Fraud Act 2013 7.36

(i) That the application is made in time, if legislation imposes a time limit, and (ii) That the applicant has the necessary consent, if legislation requires it.’36 ‘7.3(1) An allegation of an offence in an application for the issue of a summons or warrant or in a charge must contain— (a) a statement of the offence that— (i) describes the offence in ordinary language, and (ii) identifies any legislation that creates it; and (b) such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant, including the value of any damage or theft alleged where that value is known and where it affects the exercise of the court’s powers. (2) More than one incident of the commission of the offence may be included in the allegation if those incidents taken together amount to a course of conduct having regard to the time, place or purpose of commission.’ (d) Precedent 7.3 (set out above) is an example certificate confirming when the prosecutor had knowledge, in their view, of sufficient evidence to warrant the prosecution of the lesser offence (see (b) above). This is provided for under section 3(3) of the PSHF and is conclusive proof of its contents. (e) The more serious dishonesty offences at sections 1(2) and 2(2) are eitherway offences – so can be tried in either the magistrates’ court or the Crown Court. As such, they avoid the six-month limitation to prosecute provided for under section 127 of the Magistrates’ Courts Act 1980.37 Note that ‘either way’ offences must still begin with information ‘laid’ in a magistrates’ court, from which they may then be committed to the Crown Court for trial on indictment.

Trial 7.36 For those used to civil proceedings, a PSHF trial in the criminal courts has some significant differences, not least in the areas of disclosure, the production of the defendant’s case, hearsay evidence and, of course, the standard of proof. It is important in particular to have proper regard to the Criminal Procedure Rules 36 There may be other requirements but not if the prosecutor is the CPS or local authority (amongst others): s 17(6) of the Prosecution of Offenders Act 1985, Criminal Procedure Rules 2020, r 7.2(4)-(6). 37 Kemp v Leibherr (Great Britain) Ltd [1987] 1 WLR  607 at [615B] per Glidewell LJ; delay though can lead to the court refusing to issue the summons – see R  v Clerk to the Medway Justices, ex parte DHSS [1986] Crim LR 686.

151

7.37  Criminal Sanctions

2020 (the paragraphs that follow are just by way of an overview of some of the issues to note). 7.37 The standard of proof is straightforward. As noted at 7.4, the prosecution must prove its case beyond reasonable doubt. 7.38 Yet while the prosecutor in the magistrates’ court will have been required to serve initial details of their case:38 •

a summary of the circumstances of the offence;

•

the defendant’s criminal record, and, if the defendant is not also in police custody; also

•

any account given by the defendant in interview (this may be in the summary of the circumstances);

• any written statement or exhibit that the prosecutor has available and considers material to plea, allocation of the case for trial, or to sentence; •

any available statement as to the effect of the offence on a victim, their family or others

as early as possible (and in any event no later than the beginning of the day of the first hearing),39 that is not necessarily the case with the defendant. 7.39 Indeed, for a trial in the magistrates’ court, unlike in the Crown Court,40 a defendant does not even need to give a defence statement setting out their position, although they may do so.41 What they must do, however, is give a defendant witness notice indicating if they will be calling witnesses other than themselves and, if so, who those witnesses will be.42 7.40 Much of the evidence in a sub-letting case frequently relies on hearsay evidence, which is dealt with at Part 20 of the Criminal Procedure Rules 2020 and Part 11 Chapter 2 of the Criminal Justice Act 2003. 7.41 Hearsay evidence – ie  a statement not made in oral evidence – may include for example: (a) bank account details and statements obtained from the bank of either the defendant or a third party; (b) utility accounts; and 38 39 40 41

Criminal Procedure Rules 2020, r 8.3. Criminal Procedure Rules 2020, r 8.2. Criminal Procedure and Investigations Act 1996, s 5. Ibid, s 6; Criminal Procedure Rules 2020, r 15.4 – one advantage to a defendant of serving a defence statement may be that this then allows them, under r 15.5 and s 8 of the Criminal Procedure and Investigations Act 1996, to seek further prosecution disclosure. The Practice Direction to the Criminal Procedure Rules 2020 sets out forms for the defence statement and defence witness notice. 42 Criminal Procedure and Investigations Act 1996, s 6C.

152

Prevention of Social Housing Fraud Act 2013 7.45

(c) reports of visits to the subject premises by the social landlord or their contractors. 7.42 Hearsay evidence is not generally admissible in criminal proceedings, unless it is a statement43 the admissibility of which is agreed by the parties44 or it can fit through one of the gateways provided by the 2003 Act. These include: (a) evidence admissible where the court is satisfied it is in the interests of justice to so admit or a statutory provision makes it admissible (s 114(1)(a)(d)); (b) unavailability of witness (health, out of UK and not reasonably practicable to secure their attendance, due to fear of giving evidence, cannot be found or dead) (s 116); (c) evidence created in the course of a trade, business or profession where the maker of the statement had no personal knowledge of the matters dealt with (such as a statement from a bank worker exhibiting the defendant’s bank statements)(s 117(1)(b), (2)); and (d) a rule of law preserved by section 118 of the Criminal Justice Act 2003 makes it admissible (eg evidence relating to a person’s age or date or place of birth). 7.43 Reliance on hearsay by the prosecutor must generally45 be indicated by the service and lodging of a hearsay notice – to be found in the Rules’ Practice Direction – served not more than 20 business days after a not guilty plea has been entered by the defendant (10 business days in the Crown Court).46 7.44 Once the prosecution’s evidence has been heard then – either of its own motion or upon application by the defendant – the court may, after hearing any representations from the prosecution, acquit prior to the defendant’s case opening (or in the Crown Court direct the jury to acquit) on the ground that the prosecution evidence is insufficient for any reasonable court to properly convict.47 7.45 If the procedure at 7.44 does not apply the defendant is able to then present their case, having first been advised of their right to give evidence and the potential effect of not so doing or refusing to answer a question if they do.48

43 Under the Criminal Justice Act 2003, s 115 – (a) a ‘statement’ means any representation of fact or opinion, by any means, and includes a representation in pictorial form; and (b) a ‘matter stated’ is something stated by someone with the apparent purpose of— (i) causing another person to believe it, or (ii) causing another person, or a machine, to act or operate on the basis that the matter is as stated. 44 Ibid, at s 114(1)(c). 45 Criminal Procedure Rules 2020, r 20.2(1) – Where admission is sought under the Criminal Justice Act 2003, ss 114(1)(d), 116, 117(1)(c) and 121 (multiple hearsay). 46 Ibid, at r 20.2(3). 47 Ibid, at rr 24.3(3)(d) (magistrates’ court) or 25.9(2)(e) (Crown Court). 48 Ibid, at rr 24.3(3)(e) (magistrates’ court) or 25.9(2)(f) (Crown Court)

153

7.46  Criminal Sanctions

7.46 Unlike in the county court, it is the defendant who has the right to make the final representations.49

Sentence 7.47 A  person convicted on summary conviction in the magistrates’ court for the lesser offence can be liable for a fine not exceeding level 5 (unlimited for offences committed on or after 12 March 2015 or £5,000 if earlier).50 7.48 In respect of the major (dishonesty) offence, on summary conviction in the magistrates’ court, the defendant will be liable to a maximum of six months’ imprisonment and/or a fine not exceeding the statutory maximum (or both; if convicted on indictment in the Crown Court, they can be sentenced to a maximum of two years’ imprisonment and/or a fine).51 7.49 UPOs, which are dealt with in Chapter 5 in respect of civil remedies, are available if the defendant is convicted under sections 1 or 2 of the PSHF (or an associated offence52).53 Section 4(3) of the PSHF defines the UPO in this way: ‘(3) An “unlawful profit order” is an order requiring the offender to pay the landlord54 an amount representing the profit made by the offender as a result of the conduct constituting the offence.’ 7.50 The court can either make such an order of its own motion, if it considers it appropriate to do so, or accede to an application by the prosecution for a UPO.55 If the court declines to make such an order they must give reasons during the sentencing.56 7.51

49 50 51 52

53 54

55

56

Section 4 further provides:

Ibid, at rr 24.3(3)(i) (magistrates’ court) or 25.9(2)(k) (Crown Court) Section 1(5) (secure tenancies); s 2(6) (assured tenancies) – see n 14. Section 1(6) (secure tenancies); s 2(7) (assured tenancies). Defined at the PSHF  2013, s  11(10) as (a) an offence of aiding, abetting, counselling or procuring the commission of that offence, (b) an offence of attempting or conspiring to commit that offence, or (c) an offence under Part 2 of the Serious Crime Act 2007 (encouraging or assisting crime) in relation to that offence. See the PSHF 2013, s 4. Which s 4(13) explains ‘means the landlord under the tenancy in respect of which the offence was committed’. Section 11(6) also states: ‘References in this Act to the landlord under a secure or an assured tenancy include— (a) in a case where the tenancy has ended, a person who was the landlord under the tenancy, and (b) in a case where the tenancy has ceased to be a secure or an assured tenancy, the person who was the landlord under the tenancy when it was a secure or an assured tenancy.’ A  section 4  UPO is enforced in the same way as for costs and compensation – see the Administration of Justice Act 1970, s 41 and Sch 9, para 12B, and the Magistrates’ Courts Act 1980, ss 75–85 (eg attachment of earnings, benefits reduction, means inquiry, distress warrant, imprisonment and the taking of civil proceedings). PSHF, s 4(4).

154

Fraud Act 2006 7.54

(a) There is a maximum UPO that can be ordered which mirrors that for civil UPOs (see Chapter 5). In essence, it is the ‘profit element’ of the activity after deducting what the tenant has paid in rent during the sub-letting period. (b) If a civil UPO has already been made then the criminal UPO may only consist of the ‘profit element’ over and above the amount ordered in the civil court in addition to any unpaid portion of that earlier order. Enforcement of that latter element by the landlord requires the leave of the court.57 (c) UPOs take priority over fines. If the defendant cannot afford both, then only a UPO will be made.58 (d) Interest is payable at the usual civil judgment rate if the UPO is not paid by the time ordered.59

FRAUD ACT 2006 ‘The Act provides for a general offence of fraud with three ways of committing it, which are by false representation, by failing to disclose information and by abuse of position.’ Paragraph 7 of the Explanatory Notes to the Fraud Act 2006 7.52 The Housing Act 1996 and the PSHF deal with many of the primary areas of social housing fraud. However, a lacuna would certainly arise if they were the only pieces of legislation providing for criminal offences in this area, not least with respect to: (a) right to buy fraud (and that relating to right to acquire and shared ownership), and (b) fraud involving employees of the landlord. 7.53 The Fraud Act 2006, which received Royal Assent on 8 November 2006, outlines a general either way offence of fraud at section 1 if a person is guilty of fraud: (a) by false representation (s 2); (b) by failing to disclose information (s 3); and (c) by abuse of position (s 4). 7.54 All these fraud offences require dishonesty to be shown. This is determined by answering the question – would the defendant’s behaviour be regarded as dishonest by the ordinary standards of reasonable and honest people? Lord Hughes rejected, therefore, the long-standing two-stage Ghosh test:60 57 58 59 60

Ibid, at s 4(7). Ibid, at s 4(8)–(9). Ibid, at s 4(10)–(11) – see Judgments Act 1838, s 17. R v Ghosh [1982] QB 1053.

155

7.55  Criminal Sanctions

(1) Would the defendant’s behaviour be regarded as dishonest by the ordinary standards of reasonable and honest people? (2) Was the defendant aware that his conduct was dishonest and would be regarded as dishonest by reasonable and honest people? in the Ivey v Genting Casinos case referred to at 7.26 above and rather preferred Lord Hoffman’s analysis in Barlow Clowes International v Eurotrust International Ltd:61 ‘10 The judge stated the law in terms largely derived from the advice of the Board given by Lord Nicholls of Birkenhead in Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378. In summary, she said that liability for dishonest assistance requires a dishonest state of mind on the part of the person who assists in a breach of trust. Such a state of mind may consist in knowledge that the transaction is one in which he cannot honestly participate (for example, a misappropriation of other people’s money) or it may consist in suspicion combined with a conscious decision not to make inquiries which might result in knowledge: Manifest Shipping Co Ltd v Uni-Polaris Insurance Co Ltd [2003] 1 AC 469. Although a dishonest state of mind is a subjective mental state, the standard by which the law determines whether it is dishonest is objective. If by ordinary standards a defendant’s mental state would be characterised as dishonest, it is irrelevant that the defendant judges by different standards. The Court of Appeal held this to be a correct state of the law and their Lordships agree.’

False representation (section 2) ‘(1) A person is in breach of this section if he– (a) dishonestly makes a false representation, and (b) intends, by making the representation– (i) to make a gain for himself or another, or (ii) to cause loss to another or to expose another to a risk of loss.’ Fraud Act 2006, s 2 7.55 The section 2 offence of fraud by false representation requires four elements: (a) a false (ie untrue or misleading) representation must be made;62 (b) it must be made ‘dishonestly’;63 (c) the maker of the statement must know that it is false (or might be so);64 61 62 63 64

[2005] UKPC 37, [2006] 1 WLR 1476 at [1479–1480]. Fraud Act 2006, ss 2(1)(a), 2(2)(a). Ibid at s 2(1)(a) Ibid, at s 2(2)(b).

156

Fraud Act 2006 7.59

(d) it was made for the purpose of gain, or to cause loss to another (or expose them to it).65 7.56 An obvious example of a section 2 offence in a right-to-buy scenario is where the supposed tenant maintains in their application that they live at the relevant premises as their only or principal home, when that is not the case. 7.57 Indeed, to give one example of the particulars of an offence in a right-tobuy case:66 ‘[The appellants] on or about 31 January 2011, dishonestly and intending thereby to make a gain for themselves or another, made a representation to the London Borough of Lewisham in a “Notice Claiming the Right to Buy,” in relation to the council property at 43 Frankham House, Crossfield Estate, London, SE8, which was and which they knew was or might be untrue or misleading, namely that the said property was their only or principal home, which was false because they were, in fact, the joint owners of a residential property at 102 Brookehowse Road, Bellingham, London, SE6 which was their principal home, in breach of section 2 of the Fraud Act 2006.’ 7.58 The section 2 representation can be either of fact or law67 and can be express or implied.68 Attempts to argue that the (obvious) fraud had nothing to do with the beneficiary may also be difficult for any defendant to pursue successfully. 7.59 In Mohammed Idrees v Director of Public Prosecutions,69 the defendant had sought to argue that he had nothing to do with the fact that someone impersonating him had taken the theory driving test, which he had failed 15 times previously. Lord Justice Moses said: ‘5 The issue on this appeal, as the magistrates posed in the question they asked, was whether there was sufficient evidence at the close of the prosecution case. In my judgment there plainly was. Indeed, any contrary view would have been perverse. The magistrates rightly focused upon the fact that the only person who could possibly have benefited from this attempt by the unknown person to impersonate Mr Idrees was Mr Idrees himself. No other sensible explanation has been advanced. Courageously Mr Smith today, landed with this brief, sought to submit that somebody might have taken pity on Mr Idrees’ plight in failing to pass his test on 15 previous occasions and had arranged for the unknown man to impersonate him without Mr Idrees’ knowledge. Anything is possible. The magistrates are required to confine their deliberations on the facts to that which is not fanciful. Such a possibility advanced by Mr Smith was wholly fanciful. If 65 Ibid at s 1(b)(ii) 66 R v (1) Krissene Offormezie (2) Ngozika Eze [2015] EWCA Crim 324 – the defendants both successfully appealing against conviction. 67 Fraud Act 2006, s 2(3). 68 Ibid, at s 2(4). 69 [2011] EWHC 624 (Admin).

157

7.60  Criminal Sanctions

one adds to that benefit the circumstance that the test had been booked for Mr Idrees in English on this occasion, whereas previously he [had] taken it 15 times in Urdu, the evidence becomes overwhelming.’

Failure to disclose information (section 3) ‘A person is in breach of this section if he– (a) dishonestly fails to disclose to another person information which he is under a legal duty to disclose, and (b) intends, by failing to disclose the information– (i) to make a gain for himself or another, or (ii) to cause loss to another or to expose another to a risk of loss.’ Fraud Act 2006, s 3 7.60 The section 3 offence of fraud by failing to disclose information can extend to obligations imposed by contract, such (arguably) as a housing association accommodation application. 7.61 This offence is generally straightforward. It is the concept of ‘legal duty to disclose’, which requires some explanation. The Law Commission Report on Fraud70 explained it in this way: ‘7.28 … Such a duty may derive from statute (such as the provisions governing company prospectuses) from the fact that the transaction in question is one of the utmost good faith (such as a contract of insurance), from the express or implied terms of a contract, from the custom of a particular trade or market, or from the existence of a fiduciary relationship between the parties (such as that of agent and principal). 7.29 For this purpose there is a legal duty to disclose information not only if the defendant’s failure to disclose it gives the victim a cause of action for damages, but also if the law gives the victim a right to set aside any change in his or her legal position to which he or she may consent as a result of the non-disclosure. For example, a person in a fiduciary position has a duty to disclose material information when entering into a contract with his or her beneficiary, in the sense that a failure to make such disclosure will entitle the beneficiary to rescind the contract and to reclaim any property transferred under it.’ 7.62 Establishing this legal duty in the housing context can be difficult. Whilst an obligation to provide information may be apparent in either a contract of employment or a tenancy agreement, it may be more tenuous to argue that 70 Number 276 of 2002 – referred to by Lord Justice Pitchford in R  v Forrest (Nathan) [2014] EWCA Crim 308 at [10].

158

Fraud Act 2006 7.63

legal obligations arise in an application for housing, in which case a different offence (such as fraud by false representation) may prove to be a more natural fit. 7.63 In R v D71 the Court of Appeal (Criminal Division) agreed with the trial judge that the defendant was, for council tax purposes, not under a legal duty to disclose to the relevant local authority the fact of her residence at a particular address. Lord Justice Davis said, in delivering the judgment of the court: ‘15. Section 3, however, is specific that for criminal culpability to attach there must be a “legal duty” to disclose such information… 26…As Mr Dennis inevitably conceded, there was no common law relationship between the local authority and the defendant which could give rise to any such duty of notification; nor was there any relevant fiduciary duty or other equitable obligation existing in this regard so as to require notification. The local authority is itself a creature of statute; and if it is to be able to recover council tax from those resident within its area then it must look to statutory authority for so doing… 33. Moreover, a conclusion that such an implied duty of notification does not arise under the statutory scheme relating to payment of council tax by no means leaves a local authority without remedy. A local authority is in a good position to get the information which it needs. For example, it will almost invariably know who the registered owner of the property is and can always seek, in appropriate circumstances, information under  reg.3. Moreover, where failure to pay council tax has arisen, the local authority will have a remedy in the form of civil recovery in the civil courts.’

Abuse of position (section 4) (1) A person is in breach of this section if he– (a) occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person, (b) dishonestly abuses that position, and (c) intends, by means of the abuse of that position– (i) to make a gain for himself or another, or (ii) to cause loss to another or to expose another to a risk of loss. (2) A  person may be regarded as having abused his position even though his conduct consisted of an omission rather than an act. Fraud Act 2006, s 4

71 [2019] EWCA Crim 209; [2019] 2 Cr App R 15.

159

7.64  Criminal Sanctions

7.64 Section 4 makes it an offence to commit a fraud by dishonestly abusing one’s position. It follows that this is the section usually applied where a staff member has, for example, been involved in right-to-buy, right-to-acquire, shared ownership or allocation fraud. 7.65 It applies in situations where the defendant has been put in a privileged position and, by virtue of this position, is expected positively to safeguard another’s financial interests or at least not to act against those interests. 7.66 In the same report, referred to above at 7.61, the Law Commission explained the meaning of ‘position’: ‘7.38 The necessary relationship will be present between trustee and beneficiary, director and company, professional person and client, agent and principal, employee and employer, or between partners. It may arise otherwise, for example within a family, or in the context of voluntary work, or in any context where the parties are not at arm’s length. In nearly all cases where it arises, it will be recognised by the civil law as importing fiduciary duties, and any relationship that is so recognised will suffice. We see no reason, however, why the existence of such duties should be essential. This does not of course mean that it would be entirely a matter for the fact-finders whether the necessary relationship exists. The question whether the particular facts alleged can properly be described as giving rise to that relationship will be an issue capable of being ruled upon by the judge and, if the case goes to the jury, of being the subject of directions.’ 7.67 In the context of allocation fraud, this may include cases where an employee of a LHA fraudulently allocates its properties outside the lawful allocation scheme, with the caveat provided by Lord Neuberger in Birmingham City Council v Qasim:72 ‘43 Equally, it should be emphasised, that this is a case where the selection of the applicants in breach of the terms of the allocation scheme was made by a person to whom, as Mr Arden accepts, the Council had properly delegated the tasks of granting residential tenancies on its behalf. Different considerations would presumably apply where a tenancy had been purportedly granted by a person with no such authority, even if he had been employed by the Council.’

Sentence73 7.68

Section 1 of the Fraud Act 2006 provides:

72 Ibid. See also Lord Justice Sedley: ‘48 What then is the effect of a departure from the scheme? Clearly if an allocation bears what Lord Radcliffe in Smith v East Elloe Rural DC [1956] A.C. 736 called the brand of invalidity on its forehead (if, for example, it was issued by the doorkeeper) it is of no legal effect.’ 73 See Sentencing Act 2020 and the Sentencing Guidelines (Sentencing Council).

160

Fraud Act 2006 7.70

‘(3) A person who is guilty of fraud is liable– (a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum (or to both); (b) on conviction on indictment, to imprisonment for a term not exceeding 10 years or to a fine (or to both). (4) Subsection (3)(a) applies in relation to Northern Ireland as if the reference to 12 months were a reference to 6 months.’ 7.69 In R  v Hamza & Ahmed,74 the defendants had pleaded guilty to eight counts of fraud pursuant to section 1 of the Fraud Act 2006. They had made two right-to-buy applications, in 2011 and 2012, to Sandwell Metropolitan Borough Council concerning 245 Thimblemill Road in Smethwick. The first defendant was the tenant of this property. To be entitled to proceed with such an application: (a) it had to be the first defendant’s sole or principal residence (it was not and representations to the contrary were false); and (b) the second defendant had to be related to her and to have lived at the property for the previous 12 months (both these representations were untrue). Each defendant was sentenced to concurrent terms of 20 months’ imprisonment on each of the counts applicable to them, down from 30 months because of the guilty pleas. 7.70 In 2021 there was an appeal against sentence in R v Gerald Kenyon,75 which is also referred to at the conclusion to Chapter 1 at 1.31. Mr Kenyon had been sentenced to 18 months’ imprisonment in July 2019 having been convicted of five offences of fraud for failure to disclose information (sub-letting his flat and later seeking to purchase it, unsuccessfully as it turned out, with a right to buy application). Mrs Justice Yip, in delivering the court’s judgment rejecting the renewed permission application, said: ‘10. By his grounds of appeal, the applicant contends that the judge failed to make sufficient allowance for his mitigation, including his health problems. He also challenged the judge’s conclusion that only a custodial sentence could be justified. Further, he suggested that the claimed losses and profit were inadequately evidenced and that he was accordingly sentenced on an improper basis. 11.In refusing leave the single judge noted that the judge was well placed to assess the applicant’s criminality, having presided over the trial. She concluded that the judge correctly placed the offending in category 3A of the relevant Sentencing Council guideline. It was category A harm as the fraud was perpetrated over six years, which is on any view is a sustained 74 [2014] EWCA Crim 2378. 75 [2021] EWCA Crim 68.

161

7.71  Criminal Sanctions

period of time. The applicant’s activities also included a significant degree of planning, requiring him to find somewhere else to live, create a system for documents to be sent elsewhere, and direct those he sublet the property to about what to say if any official attended. There was both the risk of and actual harm, the amount of which justified placing the offending into category 3. The judge reflected the figure which the applicant actually obtained, his mitigation and totality by reducing the term that he imposed to the lowest end of the range for offences within category 3A. 12.We entirely agree with the single judge’s conclusions that the offences were too serious to justify a suspended sentence order and that the sentence was not arguably manifestly excessive. We also agree with the reasons she gave for so concluding. In the circumstances this renewed application for permission to appeal against sentence must be refused.’

PROCEEDS OF CRIME ACT 2002 Confiscation Orders 7.71 Section 6 of POCA provides for confiscation orders to be made by the Crown Court with the purpose of depriving the defendant of the benefit that they have obtained from crime: ‘(1) The Crown Court must proceed under this section if the following two conditions are satisfied. (2) The first condition is that a defendant falls within any of the following paragraphs— (a) he is convicted of an offence or offences in proceedings before the Crown Court; (b) he is committed to the Crown Court for sentence in respect of an offence or offences under any provision of sections 14 to 20 of the Sentencing Code;  (c) he is committed to the Crown Court in respect of an offence or offences under section 70 below (committal with a view to a confiscation order being considered). (3) The second condition is that— (a) the prosecutor asks the court to proceed under this section, or  (b) the court believes it is appropriate for it to do so. (4) The court must proceed as follows— (a) it must decide whether the defendant has a criminal lifestyle; (b) if it decides that he has a criminal lifestyle it must decide whether he has benefited from his general criminal conduct; 162

Proceeds of Crime Act 2002 7.74

(c) if it decides that he does not have a criminal lifestyle it must decide whether he has benefited from his particular criminal conduct. (5) If the court decides under subsection (4)(b) or (c) that the defendant has benefited from the conduct referred to it must— (a) decide the recoverable amount, and (b) make an order (a confiscation order) requiring him to pay that amount.

Paragraph (b) applies only if, or to the extent that, it would not be disproportionate to require the defendant to pay the recoverable amount.

(6) But the court must treat the duty in subsection (5) as a power if it believes that any victim of the conduct has at any time started or intends to start proceedings against the defendant in respect of loss, injury or damage sustained in connection with the conduct. (6A) The court must also treat the duty in subsection (5) as a power if— (a) an order has been made, or it believes an order may be made, against the defendant under section 4 (criminal unlawful profit orders) of the Prevention of Social Housing Fraud Act 2013 in respect of profit made by the defendant in connection with the conduct, or (b) it believes that a person has at any time started or intends to start proceedings against the defendant under section 5 (civil unlawful profit orders) of that Act in respect of such profit. (7) The court must decide any question arising under subsection (4) or (5) on a balance of probabilities. (8) The first condition is not satisfied if the defendant absconds (but section 27 may apply). (9) References in this Part to the offence (or offences) concerned are to the offence (or offences) mentioned in subsection (2).’ (emphasis added) 7.72 Chapter 5 deals with the UPO that may be obtained by a landlord under the PSHF, along with other potential civil remedies allowing for some financial ‘compensation’ to be paid to the landlord as a result of social housing fraud. 7.73 Paragraphs 7.49 to 7.51 above also deal with UPOs in criminal proceedings in cases brought under the PSHF. 7.74 As well as providing for civil remedies for unlawful conduct under Part 5, POCA (Recovery Orders: 7.87–7.90) section 6 also allows the court to make a confiscation order in the following circumstances:76 76 POCA, s 6 – the legitimate aim of the penalty is to remove the financial proceeds of the crime from the criminal: R v Waya (Terry) [2012] UKSC 51, [2012] 3 WLR 1188.

163

7.75  Criminal Sanctions

(1) The matter is before the Crown Court (either after trial and conviction, or committal to the Crown Court for sentence) – see section 6(2). (2) The prosecutor has asked for a confiscation order or the Court believes it appropriate to make such an order – see section 6(3). (3) The Court decides, on the balance of probabilities,77 that the defendant has a criminal lifestyle and has benefited from his criminal conduct or has simply so benefited from the particular criminal conduct before them – see section 6(4).78 7.75 If those conditions are satisfied then the Court must decide, again on the balance of probabilities, the just recoverable amount – based on the benefit from the conduct concerned79 – and make an order (unless civil recovery is being or is likely to be sought, when this duty becomes a power). 7.76 In R v Andrewes80 a confiscation order was quashed as disproportionate under section 6(5) of POCA where the defendant had applied for and obtained employment on the basis of statements about his qualifications and experience that were false and misleading, but had performed the employment competently and lawfully, giving full value for the remuneration received, and had thereby made full restoration. As Davis LJ said: ‘85. For this purpose, it is essential to bear in mind the fundamental point that a confiscation order is not designed to be a punishment (although no doubt some defendants may choose not to see it that way).’ 7.77 In practice, the court will typically only invoke its confiscation powers if the prosecution invites it to do so. The prosecution must do this after conviction but before sentence and need not give any indication of its intention to take this step. POCA proceedings can only be dealt with in the Crown Court; the magistrates’ court will commit summary proceedings to the Crown Court for this purpose upon the invitation of the prosecution under section 70(1), POCA.81 This is in contrast to UPOs, which can be made by the magistrates’ court. 7.78 POCA orders can be a time-consuming and costly process, involving disclosure by the defence and investigation by the prosecution, with exchange of reports and information with a view to agreeing two main figures: the ‘benefit figure’ (how much profit has been derived from criminality) and the ‘available 77 Ibid, at s 6(7). 78 Rental income from a criminally obtained house or flat constituted a ‘benefit’: see R v Oyebola (Folarin) [2013] EWCA Crim 1052, [2014] 1 Cr App R (S) 58. 79 Ibid, at s 7(1). 80 [2020] EWCA Crim 1055; [2020] Crim LR 1085. 81 ‘‘70 Committal by magistrates’ court (1) This section applies if— (a) a defendant is convicted of an offence by a magistrates’ court, and (b) the prosecutor asks the court to commit the defendant to the Crown Court with a view to a confiscation order being considered under section 6.’

164

Powers of Criminal Courts (Sentencing) Act 2000 7.83

amount’ (what assets are available for confiscation). A confiscation order is then made in the lower sum of these two amounts. 7.79 Under the Home Office Asset Recovery Incentivisation Scheme (ARIS), authorities that investigate and prosecute offences are entitled to recover approximately one-third of the total amount recovered by the court under a confiscation order. By contrast the UPO regime, however, provides for all monies recovered to be paid directly to the landlord. 7.80 The principal advantage of POCA proceedings over the UPO procedure is that there should be no deductions for expenditure incurred by offending. However, it is unlikely to be appropriate to pursue confiscation proceedings where a UPO would be available.

POWERS OF CRIMINAL COURTS (SENTENCING) ACT 2000 Compensation Orders 7.81 The criminal court must consider making a compensation order in any case where personal injury, loss or damage has resulted from the offence, and the court must also (as with the UPO) give reasons if it decides not to order such compensation. 7.82

Section 130, PCCSA provides: ‘(1) A court by or before which a person is convicted of an offence may, on application or otherwise, make an order (in this Act referred to as a “compensation order”) requiring him—  (a) to pay compensation for any personal injury, loss or damage resulting from that offence or any other offence which is taken into consideration by the court in determining sentence; or (b) to make payments for funeral expenses or bereavement in respect of a death resulting from any such offence, other than a death due to an accident arising out of the presence of a motor vehicle on a road; but this is subject to the following provisions of this section and to section 131 below. (1A) The power in subsection (1) is exercisable whether or not the court also deals with the offender for the offence in any other way.’

7.83

As for the operation of such orders – sections 130–133:

1. They are ordered by the criminal courts following a conviction, and in a housing fraud case may be made, for example, where the local authority ‘victim’ has been put to the expense of putting a household in temporary 165

7.84  Criminal Sanctions

accommodation because the defendant has wrongly been allocated housing due to their misrepresentation. 2. No upper limit applies to those aged 18 or over (see section  131  of the PCCSA, which limits the amount to no more than £5,000 for those convicted when under 18 years of age) though the amount of loss to the victim, such as the social landlord, is the matter being compensated. 3. Victim’s views are paramount whilst alternative civil remedies are ignored. 4. The court must, of course, take into account the offender’s means and this can focus on both income and (acquired by means of the fraud) assets (which could be sold to pay the order). Any compensation order must be realistic and long payment periods are to be discouraged. 5. Priority will be given to the compensation order over a fine where the offender has insufficient means to pay both. 6 They are susceptible to variation and discharge: section 133. 7.84

Mr Justice Cranston said in R v Stapylton (Ben):82 ‘11 Since the first legislation enabling compensation to be awarded by the criminal courts was enacted, section 1(1) of the Criminal Justice Act 1972, the courts have laid down a number of principles about the making of compensation orders. First, the court has no jurisdiction to make an order where there are real issues as to whether those to benefit have suffered any, and if so, what loss: R  v Horsham Justices ex p Richards [1985] 1 WLR 986, 993. Thus in R v Christopher Paul Watson (1990–91) 12 Cr. App. R. (S.) 508 no award was made in favour of insurers because there was no evidence as to the loss. Coupled with that is that because compensation orders are for straightforward cases: R v Donovan (1981) 3 Cr app R(S) 192, a court should not embark on a detailed inquiry as to the extent of any injury, loss or damage. If the matter demands such attention it is better left for civil proceedings. Further, compensation orders must not be made unless there is a realistic possibility of compliance (R v Webb (1979) 1  CR APP  R  (S) 16). Orders should not be made if they will be protracted in effect, although much will turn on the nature of the offence and the offender: R v Olliver (1989) 1 Cr App R (S) 10.’ (Emphasis added)

7.85 The amount of the loss will need to be agreed by the defendant or established by evidence. Any such ‘evidence hearings’ should be straightforward and simple (see Hyde v Emery.83 In appropriate cases, the court can award a sum representing the loss of interest if the compensation order is large and the period long: R v Schofield.84

82 [2012] EWCA Crim 728; [2013] 1 Cr App R (S) 12. 83 (1984) Cr App R (S) 206). 84 [1978] 2 All ER 705.

166

Powers of Criminal Courts (Sentencing) Act 2000 7.88

7.86 By way of example as to the appropriateness of the sums awarded under a compensation order, in R v Mohammed Hossain & Ors85 the three appellants appealed against what they said were excessive compensation orders (£6,695.55, £23,031.12 and £19,739.39). The Court of Appeal (Criminal Division) found that there was no evidence that the appellants could pay those sums and varied the orders to: •

£1,800 at £50 pcm: 3 years.

•

£3,600 at £75 pcm: 4 years.

•

£3,600 at £75 pcm: 4 years.

Civil recovery orders 7.87 As noted at 7.74, POCA allows, in Part 5,86 for the recovery in civil proceedings before the High Court of property obtained either through unlawful conduct87 or the forfeiting of cash which is (or represents) property obtained through unlawful conduct (or which is intended to be so used) through the magistrates’ court.88 Section 240 says: ‘(1) This Part has effect for the purposes of— (a) enabling the enforcement authority to recover, in civil proceedings before the High Court or Court of Session, property which is, or represents, property obtained through unlawful conduct, (b) enabling  property  which is, or represents, property obtained through unlawful conduct, or which is intended to be used in unlawful conduct, to be forfeited in civil proceedings before a magistrates’ court or (in Scotland) the sheriff  [  and, in certain circumstances, to be forfeited by the giving of a notice].  (2) The powers conferred by this Part are exercisable in relation to any property (including cash) whether or not any proceedings have been brought for an offence in connection with the property.’ 7.88 To give one example of the application of a recovery order, in Serious Organised Crime Agency v Olden89 Mr Olden was said to have engaged in mortgage fraud and other deception. In February 2006, he was convicted of a number of offences, including three counts of obtaining property by deception. His conviction was set aside by the Court of Appeal (Criminal Division) on 9 March 2007 and thereafter the Assets Recovery Agency successfully applied to the High Court for a property freezing order and for an order for possession of a number of assets. 85 [2016] EWCA Crim 1099. 86 Recovery orders and, from s 245A, property freezing orders. 87 POCA, s 240(1)(a). 88 Ibid, s 240(1)(b). 89 [2010] EWCA Civ 143; [2010] CP Rep 29.

167

7.89  Criminal Sanctions

7.89 Mr Olden won his appeal in part, in relation to the possession order of the properties (although not in relation to recoveries of identified money sources). It was found that POCA did not provide power for a possession order but rather a recovery order vesting any property in the trustee (who could then seek a possession order in the usual way under CPR Part 55). 7.90 This book does not go into any further detail as to the POCA civil remedies because they are exercisable in England not by the social landlord but by the Financial Conduct Authority, HMRC, the National Crime Agency, the Director of Public Prosecutions or the Director of the Serious Fraud Office.90

PRIVATE PROSECUTIONS 7.91 Sometimes legislation, such as the PSHF (section 3), makes express provision as to who may prosecute the criminal offences created thereunder: ‘(5) A  local authority may prosecute an offence under section 1 or 2 in relation to a dwelling-house— (a) whether or not the dwelling-house is or was let under a tenancy under which the local authority is or was the landlord, and (b) whether or not the dwelling-house is located in the local authority’s area.’ 7.92 In any event there is, in most instances,91 nothing to prevent any individual or organisation, such as a Housing Association for example, from bringing a private prosecution (and some, such as the RSPCA, exercise this right regularly). Section 6(1) of the Prosecution of Offences Act 1985 (POA) confirms: ‘(1) Subject to subsection (2) below, nothing in this Part shall preclude any person from instituting any criminal proceedings or conducting any criminal proceedings to which the Director’s duty to take over the conduct of proceedings does not apply. (2) Where criminal proceedings are instituted in circumstances in which the Director is not under a duty to take over their conduct, he may nevertheless do so at any stage.’ 7.93 In R  (Virgin Media Ltd) v Zinga92  the Court of Appeal (Criminal Division) confirmed that such a power to initiate criminal prosecutions extends to confiscation proceedings as well in holding:

90 The enforcement authority being so defined for England and Wales at POCA 2002, s 316(1). 91 The Director of Public Prosecutions (DPP) has power under s  6(2)  POA  1985 to take over private prosecutions and in some cases, the private prosecutor must seek the consent of the Attorney General or of the DPP before the commencement of proceedings. 92 [2014] EWCA Crim 52; [2014] 1 WLR 2228.

168

Private Prosecutions 7.97

(a) A private prosecutor could institute confiscation proceedings by inviting the court to proceed under section 6, POCA. In the overwhelming majority of cases involving a private prosecutor, initiation of confiscation proceedings would also serve the public interest. (b) The DPP may use the power under section 6(2)  POA  1985 to take over a private prosecution when the court asks for assistance from the CPS in dealing with confiscation proceedings that involve compensation or other recompense from a defendant. Alternatively, the court may simply ask the CPS to assist the court. 7.94 As for costs, the Practice Direction (Costs in Criminal Proceedings) 2015 (as amended) says at 1.2.1: ‘The powers enabling the court to award costs in criminal proceedings are primarily contained in Part II of the Prosecution of Offences Act 1985 (“the Act”) (sections 16 to 19B), the Access to Justice Act 1999 and the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (in relation to funded clients) and in regulations made under those Acts including the Costs in Criminal Cases (General) Regulations 1986, as amended (“the General Regulations”).’ 7.95 There are various options and variations therefore provided for, especially in the POA: (a) Defence costs to be paid out of central funds: section 16. (b) Prosecution costs to be paid out of central funds in limited circumstances (eg no order is possible in favour of a public authority): section 17. (c) Award of costs to the prosecutor and payable by the defendant ‘as it considers just and reasonable’:93 section 18. (d) Where the court is satisfied that a party has incurred costs ‘as a result of an unnecessary or improper act or omission by, or on behalf of, another party to the proceedings’: section 19; (e) Wasted costs provision against a legal or other representative: section 19A. 7.96 It may be thought that a prosecutor would always seek their costs but there will be instances where there is no point because of the defendant’s means, particularly when any compensation order or other financial penalty is factored in as these will be given priority. 7.97 To give four examples from press reports highlighted in the Cornerstone on Social Housing Fraud blog: 1. ‘A woman who sublet her Plymouth Community Homes property for around seven years has been ordered to pay £580 by Plymouth magistrates.’ 93 The Practice Direction says that an order for costs in such circumstances should be made where the defendant has the means to pay.

169

7.98  Criminal Sanctions

2. ‘Marita Head of Lower Trevivian, St Clether, Launceston, pleaded guilty to knowingly subletting a social housing property in Swinburne Gardens between 15  January 2013 and 16  October 2018. She was fined £100 and ordered to pay £450 costs and £50 victim surcharge.’ 3. ‘For sub-letting the property, Ketch was ordered to pay £1,796.30 back to Durham County Council. He must also pay £600 towards court costs and was given to separate penalty for failing to notify the council of his change in circumstances relating to council tax payment reductions.’ 4. ‘Both defendants were each ordered to undertake 120 hours of unpaid work, with Harry Harriman ordered to pay the council’s costs of £3,000 and Louisa Harriman £2,250.’ 7.98 Part 45 of the Criminal Procedure Rules 2020 supplement the legislative cost provisions and confirms at rule 45.5(3)(b) that if the prosecutor is seeking their costs following a successful prosecution then ‘the general rule is that the court must make an order if it is satisfied that the defendant can pay’. 7.99 In R v Adedeji94 the Court of Appeal set aside a prosecution costs order, made against a defendant who had unlawfully sub-let a social housing property, as procedural defects had led the judge to apply an arbitrary and overly broadbrush approach to the question of costs. A new prosecution costs order was made for £32,000, with the defendant liable for 50% of that figure (she was one of two appellants). Green LJ delivered the judgment of the court, including with regard to the award of costs, and stated at [42-45]: ‘…There are three particular aspects of the principles that are of relevance which we summarise as follows. 43 First, the prosecution is under an obligation to serve upon the defence, at the earliest time, full details of its costs in order to give the defendant a proper opportunity to make representations upon them, if appropriate. 44 Second, costs awarded should not ordinarily be greatly at variance with any fine imposed. We take this as imposing a general obligation to ensure that costs are broadly proportionate to the financial sanctions imposed. In R v Northallerton Magistrates’ Court, Ex parte Dove [2000] 1 Cr App R (S) 136 Lord Bingham CJ emphasised that an order for costs should never exceed the sum which the prosecutors actually and reasonably incurred. Lord Bingham also acknowledged that whilst there was no requirement that a sum ordered should stand in any “arithmetical relationship to any fine imposed” but, none the less, the order should not be grossly disproportionate to the fine. 45 Third, when setting costs, a judge should take into account that the prosecution might be seeking to defray costs incurred by the officers of 94 [2019] EWCA Crim 804; [2019] 4 WLR 136.

170

Private Prosecutions 7.100

a third party (such as a Council) which might be said to be “routine” and would have to be incurred in any event, in the normal way.’ 7.100 As for the assessment of costs under section 19 of the Act, Hickinbottom J said in Evans v Serious Fraud Office95), at [20]: ‘i) If making a s 19 order, the court has to order that a specified amount is paid by one party to another party … This requires the judge to assess the costs to be paid … ii) Unless the judge considers it appropriate to depart from the general rule (and gives reasons for doing so), the assessment must be of an amount that reasonably compensates the receiving party for costs ‘actually, reasonably and properly incurred’ as a result of the unnecessary or improper act or omission identified, and ‘reasonable in amount’, in this context, ‘reasonableness’ incorporating a degree of proportionality … iii) The statutory scheme envisages a summary assessment, adopting a broad-brush approach. Unlike a summary assessment of costs in civil proceedings, there is no fixed procedure; and the judge may adopt any procedure that gives all relevant parties a fair opportunity to make representations. iv) The judge must satisfy himself that the amounts claimed do not offend the indemnity principle … v) In making the assessment, the judge must take into account all relevant factors … vii) In making the assessment, the judge has a very wide discretion. There is no appeal: his determination will only be subject to challenge on public law grounds. viii) The judge is required to give reasons for his decision; but in the context of the fact that he is making a broad-brush summary assessment. His reasons need therefore cover only the main issues between the parties. The judge does not explain why he has come to the precise figure to which he has come – let alone descend to the consideration of individual items that would be appropriate in an assessment by a taxing authority – so long as the parties can understand broadly why he considers that figure reasonably to compensate the receiving party for costs reasonably incurred as a result of the identified unnecessary or improper act(s) or omission(s). There is simply no requirement that a receiving party should give the detail required on a detailed assessment, and the judge should not be drawn into performing anything akin to a detailed assessment …’

95 [2015] EWHC 1525 (QB); [2015] 3 Costs LR 557.

171

7.101  Criminal Sanctions

CONCLUSION 7.101 Social landlords will be familiar by now with the criminal sanction possibilities of the PSHF and no doubt will be aware, too, of its ‘predecessor’ the Fraud Act 2006 which, as made clear in this chapter, remains very much in force. They may also have had some success in recovery of monies pursuant to the PCCSA (compensation orders) in particular to cover any losses resulting from the offence. 7.102 Criminal prosecution potentially allows a social landlord to ‘send out a message’ about their being tough on housing fraud, ‘recover’ monies in some instances and, upon any conviction, provide incontrovertible evidence of wrongdoing for any civil action. However, it represents a small part of their activity in this area and they will naturally be more interested in recovering the properties relevant to the fraud or misuse, and the costs of so doing, as well as any civil orders available to recoup the perpetrators’ illicit gains. 7.103 Yet the criminal options and procedures available are important not only to put the seriousness of social housing fraud in its proper context, it is a criminal act, but also because civil remedies alone may not always encourage this fact to be sufficiently appreciated.

172

APPENDIX A

Statutes Law of Property Act 1925

PART V LEASES AND TENANCIES 146  Restrictions on and relief against forfeiture of leases and underleases.

(1) A right of re-entry or forfeiture under any proviso or stipulation in a lease for a breach of any covenant or condition in the lease shall not be enforceable, by action or otherwise, unless and until the lessor serves on the lessee a notice— (a) specifying the particular breach complained of; and (b) if the breach is capable of remedy, requiring the lessee to remedy the breach; and (c) in any case, requiring the lessee to make compensation in money for the breach; and the lessee fails, within a reasonable time thereafter, to remedy the breach, if it is capable of remedy, and to make reasonable compensation in money, to the satisfaction of the lessor, for the breach. (2) Where a lessor is proceeding, by action or otherwise, to enforce such a right of re-entry or forfeiture, the lessee may, in the lessor’s action, if any, or in any action brought by himself, apply to the court for relief; and the court may grant or refuse relief, as the court, having regard to the proceedings and conduct of the parties under the foregoing provisions of this section, and to all the other circumstances, thinks fit; and in case of relief may grant it on such terms, if any, as to costs, expenses, damages, compensation, penalty, or otherwise, including the granting of an injunction to restrain any like breach in the future, as the court, in the circumstances of each case, thinks fit. (3) A lessor shall be entitled to recover as a debt due to him from a lessee, and in addition to damages (if any), all reasonable costs and expenses properly incurred by the lessor in the employment of a solicitor and surveyor or valuer, or otherwise, in reference to any breach giving rise to a right of re-entry or forfeiture which, at the request of the lessee, is waived by the lessor, or from which the lessee is relieved, under the provisions of this Act.

173

Statutes

(4) Where a lessor is proceeding by action or otherwise to enforce a right of re-entry or forfeiture under any covenant, proviso, or stipulation in a lease, or for non-payment of rent, the court may, on application by any person claiming as under-lessee any estate or interest in the property comprised in the lease or any part thereof, either in the lessor’s action (if any) or in any action brought by such person for that purpose, make an order vesting, for the whole term of the lease or any less term, the property comprised in the lease or any part thereof in any person entitled as under-lessee to any estate or interest in such property upon such conditions as to execution of any deed or other document, payment of rent, costs, expenses, damages, compensation, giving security, or otherwise, as the court in the circumstances of each case may think fit, but in no case shall any such under-lessee be entitled to require a lease to be granted to him for any longer term than he had under his original sub-lease. (5) For the purposes of this section— (a) ‘Lease’ includes an original or derivative under-lease; also an agreement for a lease where the lessee has become entitled to have his lease granted; also a grant at a fee farm rent, or securing a rent by condition; (b) ‘Lessee’ includes an original or derivative under-lessee, and the persons deriving title under a lessee; also a grantee under any such grant as aforesaid and the persons deriving title under him; (c) ‘Lessor’ includes an original or derivative under-lessor, and the persons deriving title under a lessor; also a person making such grant as aforesaid and the persons deriving title under him; (d) ‘Under-lease’ includes an agreement for an under-lease where the underlessee has become entitled to have his underlease granted; (e) ‘Under-lessee’ includes any person deriving title under an under-lessee. (6) This section applies although the proviso or stipulation under which the right of re-entry or forfeiture accrues is inserted in the lease in pursuance of the directions of any Act of Parliament. (7) For the purposes of this section a lease limited to continue as long only as the lessee abstains from committing a breach of covenant shall be and take effect as a lease to continue for any longer term for which it could subsist, but determinable by a proviso for re-entry on such a breach. (8) This section does not extend— (i) To a covenant or condition against assigning, underletting, parting with the possession, or disposing of the land leased where the breach occurred before the commencement of this Act; or (ii) In the case of a mining lease, to a covenant or condition for allowing the lessor to have access to or inspect books, accounts, records, weighing machines or other things, or to enter or inspect the mine or the workings thereof. 174

Part V Leases and Tenancies

(9) This section does not apply to a condition for forfeiture on the bankruptcy of the lessee or on taking in execution of the lessee’s interest if contained in a lease of— (a) Agricultural or pastoral land; (b) Mines or minerals (c) A house used or intended to be used as a public-house or beershop; (d) A house let as a dwelling-house, with the use of any furniture, books, works of art, or other chattels not being in the nature of fixtures; (e) Any property with respect to which the personal qualifications of the tenant are of importance for the preservation of the value or character of the property, or on the ground of neighbourhood to the lessor, or to any person holding under him. (10)  Where a condition of forfeiture on the bankruptcy of the lessee or on taking in execution of the lessee’s interest is contained in any lease, other than a lease of any of the classes mentioned in the last sub-section, then— (a) if the lessee’s interest is sold within one year from the bankruptcy or taking in execution, this section applies to the forfeiture condition aforesaid; (b) if the lessee’s interest is not sold before the expiration of that year, this section only applies to the forfeiture condition aforesaid during the first year from the date of the bankruptcy or taking in execution. (11) This section does not, save as otherwise mentioned, affect the law relating to re-entry or forfeiture or relief in case of non-payment of rent. (12) This section has effect notwithstanding any stipulation to the contrary. [(13)

The county court has jurisdiction under this section—

(a) …1 (b) …1]2 Amendments 1 Repealed by the High Court and County Courts Jurisdiction Order 1991, SI 1991/724, art 2(8), Schedule, Pt I. 2 Inserted by the County Courts Act 1984, s 148(1), Sch 2, para 5

175

Statutes

Protection from Eviction Act 1977 PART I UNLAWFUL EVICTION AND HARASSMENT 2  Restriction on re-entry without due process of law.

Where any premises are let as a dwelling on a lease which is subject to a right of re-entry or forfeiture it shall not be lawful to enforce that right otherwise than by proceedings in the court while any person is lawfully residing in the premises or part of them. 3  Prohibition of eviction without due process of law.

(1) Where any premises have been let as a dwelling under a tenancy which is [neither a statutorily protected tenancy nor an excluded tenancy]1 and— (a) the tenancy (in this section referred to as the former tenancy) has come to an end, but (b) the occupier continues to reside in the premises or part of them, it shall not be lawful for the owner to enforce against the occupier, otherwise than by proceedings in the court, his right to recover possession of the premises. (2) In this section ‘the occupier’, in relation to any premises, means any person lawfully residing in the premises or part of them at the termination of the former tenancy. [(2A)  Subsections (1) and (2) above apply in relation to any restricted contract (within the meaning of the Rent Act 1977) which— (a) creates a licence; and (b) is entered into after the commencement of section 69 of the Housing Act 1980; as they apply in relation to a restricted contract which creates a tenancy.]2 [(2B)  Subsections (1) and (2) above apply in relation to any premises occupied as a dwelling under a licence, other than an excluded licence, as they apply in relation to premises let as a dwelling under a tenancy, and in those subsections the expressions ‘let’ and ‘tenancy’ shall be construed accordingly. (2C)  References in the preceding provisions of this section and section 4(2A) below to an excluded tenancy do not apply to— (a) a tenancy entered into before the date on which the Housing Act 1988 came into force, or (b) a tenancy entered into on or after that date but pursuant to a contract made before that date, 176

Part I Unlawful Eviction and Harassment

but, subject to that, ‘excluded tenancy’ and ‘excluded licence’ shall be construed in accordance with section 3A below.]3 (3) This section shall, with the necessary modifications, apply where the owner’s right to recover possession arises on the death of the tenant under a statutory tenancy within the meaning of the Rent Act 1977 or the Rent (Agriculture) Act 1976. Amendments 1 Substituted by the Housing Act 1988, s 30(1). 2 Inserted by the Housing Act 1980, s 69(1) 3 Inserted by the Housing Act 1988, s 30(2), 44(2)(b)

[3A  Excluded tenancies and licences.

(1) Any reference in this Act to an excluded tenancy or an excluded licence is a reference to a tenancy or licence which is excluded by virtue of any of the following provisions of this section. (2) A tenancy or licence is excluded if— (a) under its terms the occupier shares any accommodation with the landlord or licensor; and (b) immediately before the tenancy or licence was granted and also at the time it comes to an end, the landlord or licensor occupied as his only or principal home premises of which the whole or part of the shared accommodation formed part. (3) A tenancy or licence is also excluded if— (a) under its terms the occupier shares any accommodation with a member of the family of the landlord or licensor; (b) immediately before the tenancy or licence was granted and also at the time it comes to an end, the member of the family of the landlord or licensor occupied as his only or principal home premises of which the whole or part of the shared accommodation formed part; and (c) immediately before the tenancy or licence was granted and also at the time it comes to an end, the landlord or licensor occupied as his only or principal home premises in the same building as the shared accommodation and that building is not a purpose-built block of flats. (4) For the purposes of subsections (2) and (3) above, an occupier shares accommodation with another person if he has the use of it in common with that person (whether or not also in common with others) and any reference in those subsections to shared accommodation shall be construed accordingly, and if, in relation to any tenancy or licence, there is at any time more than one person who is the landlord or licensor, any reference in those subsections to the landlord or licensor shall be construed as a reference to any one of those persons. 177

Statutes

(5) In subsections (2) to (4) above— (a) ‘accommodation’ includes neither an area used for storage nor a staircase, passage, corridor or other means of access; (b) ‘occupier’ means, in relation to a tenancy, the tenant and, in relation to a licence, the licensee; and (c) ‘purpose-built block of flats’ has the same meaning as in Part III of Schedule 1 to the Housing Act 1988; and section 113 of the Housing Act 1985 shall apply to determine whether a person who is for the purposes of subsection (3) above a member of another’s family as it applies for the purposes of Part IV of that Act. (6) A tenancy or licence is excluded if it was granted as a temporary expedient to a person who entered the premises in question or any other premises as a trespasser (whether or not, before the beginning of that tenancy or licence, another tenancy or licence to occupy the premises or any other premises had been granted to him). (7) A tenancy or licence is excluded if— (a) it confers on the tenant or licensee the right to occupy the premises for a holiday only; or (b) it is granted otherwise than for money or money’s worth. [(7A) A  tenancy or licence is excluded if it is granted in order to provide accommodation [under section 4 or Part VI of the Immigration and Asylum Act 1999]1.]2 [(7C) A  tenancy or licence is excluded if it is granted in order to provide accommodation under the Displaced Persons (Temporary Protection) Regulations 2005.]3 [(7D)  A tenancy or licence is excluded if— (a) it is a residential tenancy agreement within the meaning of Chapter 1 of Part 3 of the Immigration Act 2014, and (b) the condition in section 33D(2) of that Act is met in relation to that agreement.]4 (8) A licence is excluded if it confers rights of occupation in a hostel, within the meaning of the Housing Act 1985, which is provided by— (a) the council of a county, [county borough,]5 district or London Borough, the Common Council of the City of London, the Council of the Isles of Scilly, the Inner London Education Authority, [a fire and rescue authority created by an order under section 4A of the Fire and Rescue Services Act 2004,]6 [the London Fire Commissioner,]7 a joint authority within the meaning of the Local Government Act 1985 or a residuary body within the meaning of that Act; 178

Part I Unlawful Eviction and Harassment

[(aa) an economic prosperity board established under section 88 of the Local Democracy, Economic Development and Construction Act 2009; (ab)  a combined authority established under section 103 of that Act;]8 (b) a development corporation within the meaning of the New Towns Act 1981; (c) the [new towns residuary body]9; (d) an urban development corporation established by an order under section 135 of the Local Government, Planning and Land Act 1980; [(da)  a Mayoral development corporation;]10 (e) a housing action trust established under Part III of the Housing Act 1988; (f) …11 (g) the [Regulator of Social Housing]12 …13; [(ga)  the Secretary of State under section 89 of the Housing Associations Act 1985;]14 [(h) a housing trust (within the meaning of the Housing Associations Act 1985) which is a charity[, a private registered provider of social housing]15 or a registered social landlord (within the meaning of the Housing Act 1985); or]16 (i) any other person who is, or who belongs to a class of person which is, specified in an order made by the Secretary of State. [(8A)  In subsection (8)(c) above ‘new towns residuary body’ means— (a) in relation to England, the Homes and Communities Agency so far as exercising functions in relation to anything transferred (or to be transferred) to it as mentioned in section 52(1)(a) to (d) of the Housing and Regeneration Act 2008 [or the Greater London Authority so far as exercising its new towns and urban development functions]17; and (b) in relation to Wales, means the Welsh Ministers so far as exercising functions in relation to anything transferred (or to be transferred) to them as mentioned in section 36(1)(a)(i) to (iii) of the New Towns Act 1981.]18 (9) The power to make an order under subsection (8)(i) above shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.]19 Amendments 1 Substituted by the Immigration, Asylum and Nationality Act 2006, s  43(4) (a), 62(1), 62(2); S.I. 2006/1497, art. 3, Sch. 2 Inserted by the Immigration and Asylum Act 1999, s 169(1), Sch 14, para 73. 3 Inserted by the Displaced Persons (Temporary Protection) Regulations 2005, SI 2005/1379, Schedule, para 1

179

Statutes

4 Inserted by the Immigration Act 2016, s 40(5). 5 Inserted by the Local Government (Wales) Act 1994, s 22(2), Sch 8, para 4(1). 6 Inserted by the Policing and Crime Act 2017, s 6, Sch 1, para 39. 7 Substituted by the Policing and Crime Act 2017, s 9(3), Sch 2, para 55. 8 Inserted by the Local Democracy, Economic Development and Construction Act 2009, s 119, Sch 6, para 47. 9 Substituted by the Housing and Regeneration Act 2008, s 56, Sch 8, para 24(1), (2). 10 Inserted by the Localism Act 2011, s 222, Sch 22, para 6. 11 Repealed by the Government of Wales Act 1998, s 152, Sch 18, Pt IV. 12 Substituted by the Housing and Regeneration Act 2008 (Consequential Provisions) Order 2010, SI 2010/866, art 5, Sch 2, para 13(a). 13 Repealed by the Government of Wales Act 1998, ss  140, 152, Sch  16, para  2(a), Sch 18, Pt IV. 14 Inserted by the Government of Wales Act 1998, s 140, Sch 16, para 2(b). 15 Inserted by the Housing and Regeneration Act 2008 (Consequential Provisions) Order 2010, SI 2010/866, art 5, Sch 2, para 13(b). 16 Substituted by the Housing Act 1996 (Consequential Provisions) Order 1996, SI 1996/2325, art 5(1), Sch 2, para 7 17 Inserted by the Localism Act 2011, s 195(1), Sch 19, para 6. 18 Inserted by the Housing and Regeneration Act 2008, s 56, Sch 8, para 24(1), (3). 19 Inserted by the Housing Act 1988, s 31, 44(2)(b)

PART II NOTICE TO QUIT 5  Validity of notices to quit.

(1) [Subject to subsection (1B) below]1 no notice by a landlord or a tenant to quit any premises let (whether before or after the commencement of this Act) as a dwelling shall be valid unless— (a) it is in writing and contains such information as may be prescribed, and (b) it is given not less than 4 weeks before the date on which it is to take effect. [(1A)  Subject to subsection (1B) below, no notice by a licensor or a licensee to determine a periodic licence to occupy premises as a dwelling (whether the licence was granted before or after the passing of this Act) shall be valid unless— (a) it is in writing and contains such information as may be prescribed, and (b) it is given not less than 4 weeks before the date on which it is to take effect. (1B)  Nothing in subsection (1) or subsection (1A) above applies to— 180

Part IV Secure tenancies and rights of secure tenants

(a) premises let on an excluded tenancy which is entered into on or after the date on which the Housing Act 1988 came into force unless it is entered into pursuant to a contract made before that date; or (b) premises occupied under an excluded licence.]1 (2) In this section ‘prescribed’ means prescribed by regulations made by the Secretary of State by statutory instrument, and a statutory instrument containing any such regulations shall be subject to annulment in pursuance of a resolution of either House of Parliament. (3) Regulations under this section may make different provision in relation to different descriptions of lettings and different circumstances. Amendments 1 Inserted by the Housing Act 1988, s 32.

Housing Act 1985 PART IV SECURE TENANCIES AND RIGHTS OF SECURE TENANTS Security of tenure 79  Secure tenancies.

(1) A tenancy under which a dwelling-house is let as a separate dwelling is a secure tenancy at any time when the conditions described in sections 80 and 81 as the landlord condition and the tenant condition are satisfied. (2) Subsection (1) has effect subject to— (a) the exceptions in Schedule 1 (tenancies which are not secure tenancies), (b) sections 89(3) and (4) and 90(3) and (4) (tenancies ceasing to be secure after death of tenant), and (c) sections 91(2) and 93(2) (tenancies ceasing to be secure in consequence of assignment of subletting). (3) The provisions of this Part apply in relation to a licence to occupy a dwellinghouse (whether or not granted for a consideration) as they apply in relation to a tenancy. (4) Subsection (3) does not apply to a licence granted as a temporary expedient to a person who entered the dwelling-house or any other land as a trespasser (whether or not, before the grant of that licence, another licence to occupy that or another dwelling-house had been granted to him). 181

Statutes

80  The landlord condition.

(1) The landlord condition is that the interest of the landlord belongs to one of the following authorities or bodies— a local authority, a [development]1 corporation, [a housing action trust,]2 [a Mayoral development corporation,]3 an urban development corporation, [in the case of a tenancy falling within subsections (2A) to (2E), the Homes and Communities Agency[, the Greater London Authority]4 or the Welsh Ministers (as the case may be),]5 …6 …7 …7 housing co-operative to which this section applies. (2) …7 [(2A) A  tenancy falls within this subsection if the interest of the landlord is transferred to— (a) the Homes and Communities Agency as mentioned in section 52(1)(a) to (d) of the Housing and Regeneration Act 2008, [(aa)  the Greater London Authority as mentioned in section 333ZI(2)(a) to (d) of the Greater London Authority Act 1999, or]8 (b) the Welsh Ministers as mentioned in section 36(1)(a)(i) to (iii) of the New Towns Act 1981. (2B) A  tenancy falls within this subsection if it is entered into pursuant to a contract under which the rights and liabilities of the prospective landlord are transferred to the Homes and Communities Agency[, the Greater London Authority]4 or the Welsh Ministers as mentioned in subsection (2A)(a)[, (aa)]4 or (b) (as the case may be). (2C) A  tenancy falls within this subsection if it is granted by the Homes and Communities Agency[, the Greater London Authority]4 or the Welsh Ministers to a person (alone or jointly with others) who, immediately before it was entered into, was a secure tenant of the Homes and Communities Agency[, the Greater London Authority]4 or the Welsh Ministers (as the case may be). (2D)  A tenancy falls within this subsection if— (a) it is granted by the Homes and Communities Agency[, the Greater London Authority]4 or the Welsh Ministers to a person (alone or jointly with others), 182

Part IV Secure tenancies and rights of secure tenants

(b) before the grant of the tenancy, an order for possession of a dwellinghouse let under a secure tenancy was made against the person (alone or jointly with others) and in favour of the Homes and Communities Agency[, the Greater London Authority]4 or the Welsh Ministers (as the case may be) on the court being satisfied as mentioned in section 84(2) (b) or (c), and (c) the tenancy is of the premises which constitute the suitable accommodation as to which the court was so satisfied. (2E) A  tenancy falls within this subsection if it is granted by the Homes and Communities Agency[, the Greater London Authority]4 or the Welsh Ministers pursuant to an obligation under section 554(2A).]5 (3) If a co-operative housing association ceases to be [a private registered provider of social housing or]9 [a registered social landlord]10, it shall, within the period of 21 days beginning with the date on which it ceases to be [such a body]11, notify each of its tenants who thereby becomes a secure tenant, in writing, that he has become a secure tenant. [(4) This section applies to a housing co-operative within the meaning of section 27B (agreements under certain superseded provisions) where the dwellinghouse is comprised in a housing co-operative agreement within the meaning of that section.]12 [(5) In this Act and in any provision made under this Act, or made by or under any other enactment, a reference to— (a) a person within section 80 or 80(1) of this Act, or (b) a person who satisfies the landlord condition under this section, includes a reference to the Homes and Communities Agency[, to the Greater London Authority]4 or to the Welsh Ministers so far as acting in their capacity as landlord (or, in the case of disposals, former landlord) in respect of a tenancy which falls within subsections (2A) to (2E) above but, subject to this, does not include the Homes and Communities Agency[, the Greater London Authority]4 or the Welsh Ministers. (6) Subsection (5)— (a) applies whether the person is described as an authority, body or landlord or in any other way and whether the reference is otherwise expressed in a different way, and (b) is subject to any provision to the contrary.]5 Amendments 1 Substituted by the Housing and Regeneration Act 2008 (Consequential Provisions) Order 2008, SI 2008/3002, art 4, Sch 1, paras 2, 10(1), (2)(a). 2 Inserted by the Housing Act 1988, s 83(1), (2). 3 Inserted by the Localism Act 2011, s 222, Sch 22, paras 9, 11. 4 Inserted by the Localism Act 2011, s 195(1), Sch 19, paras 10, 13(1), (2), (4)–(8).

183

Statutes

5 Inserted by the Housing and Regeneration Act 2008 (Consequential Provisions) Order 2008, SI 2008/3002, art 4, Sch 1, paras 2, 10(1), (2)(b), (3), (4). 6 Repealed by the Government of Wales Act 1998, s 152, Sch 18, Pt IV. 7 Repealed by the Housing Act 1988, s 140(2), Sch 18. 8 Substituted by the Localism Act 2011, s 195(1), Sch 19, paras 10, 13(1), (3). 9 Inserted by the Housing and Regeneration Act 2008 (Consequential Provisions) Order 2010, SI 2010/866, art 5, Sch 2, paras 15, 19(1), (4)(a). 10 Substituted by the Housing Act 1996 (Consequential Provisions) Order 1996, SI 1996/2325, art 5(1), Sch 2, para 14(1), (8)(b). 11 Substituted by the Housing and Regeneration Act 2008 (Consequential Provisions) Order 2010, SI 2010/866, art 5, Sch 2, paras 15, 19(1), (4)(b). 12 Substituted by the Housing and Planning Act 1986, s 24(2), Sch 5, para 26.

81  The tenant condition.

The tenant condition is that the tenant is an individual and occupies the dwellinghouse as his only or principal home; or, where the tenancy is a joint tenancy, that each of the joint tenants is an individual and at least one of them occupies the dwelling-house as his only or principal home. 82  Security of tenure.

(1) A secure tenancy which is either— (a) a weekly or other periodic tenancy, or (b) a tenancy for a term certain but subject to termination by the landlord, cannot be brought to an end by the landlord except [as]1 [mentioned in subsection (1A)]2. [(1A) The tenancy may be brought to an end by the landlord— (a) obtaining— (i) an order of the court for the possession of the dwelling-house, and (ii) the execution of the order, (b) obtaining an order under subsection (3), or (c) obtaining a demotion order under section 82A. (2) In the case mentioned in subsection (1A)(a), the tenancy ends when the order is executed.]1 (3) Where a secure tenancy is a tenancy for a term certain but with a provision for re-entry or forfeiture, the court shall not order possession of the dwellinghouse in pursuance of that provision, but in a case where the court would have made such an order it shall instead make an order terminating the tenancy on a date specified in the order and section 86 (periodic tenancy arising on termination of fixed term) shall apply. 184

Part IV Secure tenancies and rights of secure tenants

(4) Section 146 of the Law of Property Act 1925 (restriction on and relief against forfeiture), except subsection (4) (vesting in under-lessee), and any other enactment or rule of law relating to forfeiture, shall apply in relation to proceedings for an order under subsection (3) of this section as if they were proceedings to enforce a right of re-entry or forfeiture. Amendments 1 Substituted by the Housing and Regeneration Act 2008, s 299, Sch 11, paras 1, 2. 2 Substituted by the Anti-social Behaviour Act 2003, s 14(1)(a).

[83  Proceedings for possession or termination: [general]1 notice requirements.

[(A1)  This section applies in relation to proceedings for an order mentioned in section 82(1A) other than— (a) proceedings for possession of a dwelling-house under section 84A (absolute ground for possession for anti-social behaviour), including proceedings where possession is also sought on one or more of the grounds set out in Schedule 2, or (b) proceedings for possession of a dwelling-house under section 107D (recovery of possession on expiry of flexible tenancy).]1 (1) The court shall not entertain [proceedings to which this section applies]2 unless— (a) the landlord has served a notice on the tenant complying with the provisions of this section, or (b) the court considers it just and equitable to dispense with the requirement of such a notice. (2) A notice under this section shall— (a) be in a form prescribed by regulations made by the Secretary of State, (b) specify the ground on which the court will be asked to make [the order]3 and (c) give particulars of that ground. (3) Where the tenancy is a periodic tenancy and the ground or one of the grounds specified in the notice is Ground 2 in Schedule  2 (nuisance or other antisocial behaviour), the notice— (a) shall also— (i) state that proceedings for the possession of the dwelling-house may be begun immediately, and (ii) specify the date sought by the landlord as the date on which the tenant is to give up possession of the dwelling-house, and (b) ceases to be in force twelve months after the date so specified. 185

Statutes

(4) Where the tenancy is a periodic tenancy and Ground 2 in Schedule 2 is not specified in the notice, the notice— (a) shall also specify the date after which proceedings for the possession of the dwelling-house may be begun, and (b) ceases to be in force twelve months after the date so specified. [(4A)  If the proceedings are for a demotion order under section 82A the notice— (a) must specify the date after which the proceedings may be begun; (b) ceases to be in force twelve months after the date so specified.]4 (5) The date specified in accordance with subsection (3), [(4) or (4A)]3 must not be earlier than the date on which the tenancy could, apart from this Part, be brought to an end by notice to quit given by the landlord on the same date as the notice under this section. (6) Where a notice under this section is served with respect to a secure tenancy for a term certain, it has effect also with respect to any periodic tenancy arising on the termination of that tenancy by virtue of section 86; and subsections (3) to (5) of this section do not apply to the notice. (7) Regulations under this section shall be made by statutory instrument and may make different provision with respect to different cases or descriptions of case, including different provision for different areas.]5 Amendments 1 Inserted by the Anti-social Behaviour, Crime and Policing Act 2014, s 181(1), Sch 11, para 7(1)–(3). 2 Substituted by the Anti-social Behaviour, Crime and Policing Act 2014, s  181(1), Sch 11, para 7(1), (4). 3 Substituted by the Anti-social Behaviour Act 2003, s 14(3)(b), (d). 4 Inserted by the Anti-social Behaviour Act 2003, s 14(3)(c). 5 Substituted by the Housing Act 1996, s 147(1).

84  Grounds and orders for possession.

(1) The court shall not make an order for the possession of a dwelling-house let under a secure tenancy except on one or more of the grounds set out in Schedule  2 [or in accordance with [section 84A (absolute ground for possession for anti-social behaviour) or]1 section 107D (recovery of possession on expiry of flexible tenancy)]2. (2) The court shall not make an order for possession— (a) on the grounds set out in Part I of [Schedule 2]3 (grounds 1 to 8), unless it considers it reasonable to make the order, (b) on the grounds set out in Part II of that Schedule (grounds 9 to 11), unless it is satisfied that suitable accommodation will be available for the tenant when the order takes effect, 186

Part IV Secure tenancies and rights of secure tenants

(c) on the grounds set out in Part III of that Schedule (grounds 12 to 16), unless it both considers it reasonable to make the order and is satisfied that suitable accommodation will be available for the tenant when the order takes effect; and Part IV of that Schedule has effect for determining whether suitable accommodation will be available for a tenant. [(3) Where a notice under section 83 [or 83ZA]1 has been served on the tenant, the court shall not make [an order on any of the grounds mentioned in subsection (2)]3 unless the ground is specified in the notice; but the grounds so specified may be altered or added to with the leave of the court. (4) Where a date is specified in a notice under section 83 in accordance with subsection (3) of that section, the court shall not make an order which requires the tenant to give up possession of the dwelling-house in question before the date so specified.]4 Amendments 1 Inserted by the Anti-social Behaviour, Crime and Policing Act 2014, s 181(1), Sch 11, para 9(1), (2), (4)(a). 2 Inserted by the Localism Act 2011, s 155(2). 3 Substituted by the Anti-social Behaviour, Crime and Policing Act 2014, s  181(1), Sch 11, para 9(1), (3), (4)(b). 4 Substituted by the Housing Act 1996, s 147(2).

85  Extended discretion of court in certain proceedings for possession.

(1) Where proceedings are brought for possession of a dwelling-house let under a secure tenancy on any of the grounds set out in Part I  or Part III of Schedule 2 (grounds 1 to 8 and 12 to 16: cases in which the court must be satisfied that it is reasonable to make a possession order), the court may adjourn the proceedings for such period or periods as it thinks fit. (2) On the making of an order for possession of such a dwelling-house on any of those grounds, or at any time before the execution of the order, the court may— (a) stay or suspend the execution of the order, or (b) postpone the date of possession, for such period or periods as the court thinks fit. (3) On such an adjournment, stay, suspension or postponement the court— (a) shall impose conditions with respect to the payment by the tenant of arrears of rent (if any) and rent …1 unless it considers that to do so would cause exceptional hardship to the tenant or would otherwise be unreasonable, and (b) may impose such other conditions as it thinks fit. 187

Statutes

[(4) The court may discharge or rescind the order for possession if it thinks it appropriate to do so having had regard to— (a) any conditions imposed under subsection (3), and (b) the conduct of the tenant in connection with those conditions.]2 (5) …1 [(5A) …1]3 Amendments 1 Repealed by the Housing and Regeneration Act 2008, ss  299, 321(1), Sch  11, para 3(1), (2), (4), Sch 16. 2 Substituted by the Housing and Regeneration Act 2008, s 299, Sch 11, para 3(1), (3). 3 Inserted by the Family Law Act 1996, s 66(1), Sch 8, para 53(1), (3).

86  Periodic tenancy arising on termination of fixed term.

(1) Where a secure tenancy (‘the first tenancy’) is a tenancy for a term certain and comes to an end— (a) by effluxion of time, or (b) by an order of the court under section 82(3) (termination in pursuance of provision for re-entry or forfeiture), a periodic tenancy of the same dwelling-house arises by virtue of this section, unless the tenant is granted another secure tenancy of the same dwellinghouse (whether a tenancy for a term certain or a periodic tenancy) to begin on the coming to an end of the first tenancy. (2) Where a periodic tenancy arises by virtue of this section— (a) the periods of the tenancy are the same as those for which rent was last payable under the first tenancy, and (b) the parties and the terms of the tenancy are the same as those of the first tenancy at the end of it; except that the terms are confined to those which are compatible with a periodic tenancy and do not include any provision for re-entry or forfeiture. Succession on death of tenant [86A  Persons qualified to succeed tenant: England

(1) A person (‘P’) is qualified to succeed the tenant under a secure tenancy of a dwelling-house in England if— (a) P occupies the dwelling-house as P’s only or principal home at the time of the tenant’s death, and (b) P is the tenant’s spouse or civil partner. 188

Part IV Secure tenancies and rights of secure tenants

(2) A person (‘P’) is qualified to succeed the tenant under a secure tenancy of a dwelling-house in England if— (a) at the time of the tenant’s death the dwelling-house is not occupied by a spouse or civil partner of the tenant as his or her only or principal home, (b) an express term of the tenancy makes provision for a person other than such a spouse or civil partner of the tenant to succeed to the tenancy, and (c) P’s succession is in accordance with that term. (3) Subsection (1) or (2) does not apply if the tenant was a successor as defined in section 88. (4) In such a case, a person (‘P’) is qualified to succeed the tenant if— (a) an express term of the tenancy makes provision for a person to succeed a successor to the tenancy, and (b) P’s succession is in accordance with that term. [(5) For the purposes of this section, a person who was living with the tenant as if they were a married couple or civil partners is to be treated as the tenant’s spouse or civil partner.]1 (6) Subsection (7) applies if, on the death of the tenant, there is by virtue of subsection (5) more than one person who fulfils the condition in subsection (1)(b). (7) Such one of those persons as may be agreed between them or as may, where there is no such agreement, be selected by the landlord is for the purpose of this section to be treated …2 as the tenant’s spouse or civil partner.]3 Amendments 1 Substituted by the Civil Partnership (Opposite-sex Couples) Regulations 2019, SI 2019/1458, reg 41(1), Sch 3, para 10(1), (2)(a). 2 Repealed by the Civil Partnership (Opposite-sex Couples) Regulations 2019, SI 2019/1458, reg 41(1), Sch 3, para 10(1), (2)(b) 3 Inserted by the Localism Act 2011, s 160(1).

87  Persons qualified to succeed tenant[: Wales]1.

A person is qualified to succeed the tenant under a secure tenancy [of a dwellinghouse in Wales]1 if he occupies the dwelling-house as his only or principal home at the time of the tenant’s death and either— (a) he is the tenant’s spouse [or civil partner]2, or (b) he is another member of the tenant’s family and has resided with the tenant throughout the period of twelve months ending with the tenant’s death; unless, in either case, the tenant was himself a successor, as defined in section 88. 189

Statutes

Amendments 1 Inserted by the Localism Act 2011, s 160(2). 2 Inserted by the Civil Partnership Act 2004, s 81, Sch 8, para 20.

88  Cases where the tenant is a successor.

(1)

The tenant is himself a successor if— (a) the tenancy vested in him by virtue of section 89 (succession to a periodic tenancy), or (b) he was a joint tenant and has become the sole tenant, or (c) the tenancy arose by virtue of section 86 (periodic tenancy arising on ending of term certain) and the first tenancy there mentioned was granted to another person or jointly to him and another person, or (d) he became the tenant on the tenancy being assigned to him (but subject to subsections [(2) to (3)]1, or (e) he became the tenant on the tenancy being vested in him on the death of the previous tenant [or (f) the tenancy was previously an introductory tenancy and he was a successor to the introductory tenancy.]2

(2) A  tenant to whom the tenancy was assigned in pursuance of an order under section 24 of the Matrimonial Causes Act 1973 (property adjustment orders in connection with matrimonial proceedings) [or section 17(1) of the Matrimonial and Family Proceedings Act 1984 (property adjustment orders after overseas divorce, &c.)]3 is a successor only if the other party to the marriage was a successor. [(2A) A tenant to whom the tenancy was assigned in pursuance of an order under Part 2 of Schedule 5, or paragraph 9(2) or (3) of Schedule 7, to the Civil Partnership Act 2004 (property adjustment orders in connection with civil partnership proceedings or after overseas dissolution of civil partnership, etc.) is a successor only if the other civil partner was a successor.]4 (3) A  tenant to whom the tenancy was assigned by virtue of section 92 (assignments by way of exchange) is a successor only if he was a successor in relation to the tenancy which he himself assigned by virtue of that section. (4) Where within six months of the coming to an end of a secure tenancy which is a periodic tenancy (‘the former tenancy’) the tenant becomes a tenant under another secure tenancy which is a periodic tenancy, and— (a) the tenant was a successor in relation to the former tenancy, and (b) under the other tenancy either the dwelling-house or the landlord, or both, are the same as under the former tenancy, the tenant is also a successor in relation to the other tenancy unless the agreement creating that tenancy otherwise provides. 190

Part IV Secure tenancies and rights of secure tenants

Amendments 1 Substituted by the Civil Partnership Act 2004, s 81, Sch 8, para 21(1), (2). 2 Inserted by the Housing Act 1996, s 141(1), Sch 14, para 1. 3 Inserted by the Housing Act 1996, s 222, Sch 18, para 9. 4 Inserted by the Civil Partnership Act 2004, s 81, Sch 8, para 21(1), (3).

89  Succession to periodic tenancy.

(1) This section applies where a secure tenant dies and the tenancy is a periodic tenancy. [(1A)  Where there is a person qualified to succeed the tenant under section 86A, the tenancy vests by virtue of this section— (a) in that person, or (b) if there is more than one such person, in such one of them as may be agreed between them or as may, where there is no agreement, be selected by the landlord.]1 (2) Where there is a person qualified to succeed the tenant [under section 87]1, the tenancy vests by virtue of this section in that person, or if there is more than one such person in the one to be preferred in accordance with the following rules— (a) the tenant’s spouse [or civil partner]2 is to be preferred to another member of the tenant’s family; (b) of two or more other members of the tenant’s family such of them is to be preferred as may be agreed between them or as may, where there is no such agreement, be selected by the landlord. [(3) Where there is no person qualified to succeed the tenant, the tenancy ceases to be a secure tenancy— (a) when it is vested or otherwise disposed of in the course of the administration of the tenant’s estate, unless the vesting or other disposal is in pursuance of an order made under— (i) section 24 of the Matrimonial Causes Act 1973 (property adjustment orders made in connection with matrimonial proceedings), (ii) section 17(1) of the Matrimonial and Family Proceedings Act 1984 (property adjustment orders after overseas divorce, &c.), …3 (iii) paragraph  1 of Schedule  1 to the Children Act 1989 (orders for financial relief against parents)[, or (iv) Part 2 of Schedule  5, or paragraph  9(2) or (3) of Schedule  7, to the Civil Partnership Act 2004 (property adjustment orders in connection with civil partnership proceedings or after overseas dissolution of civil partnership, etc.)]2 191

Statutes

(b) when it is known that when the tenancy is so vested or disposed of it will not be in pursuance of such an order.]4 (4) A  tenancy which ceases to be a secure tenancy by virtue of this section cannot subsequently become a secure tenancy. Amendments 1 Inserted by the Localism Act 2011, s 160(3)–(5). 2 Inserted by the Civil Partnership Act 2004, s 81, Sch 8, para 22. 3 Repealed by the Civil Partnership Act 2004, s 261(4), Sch 30. 4 Substituted by the Housing Act 1996, s 222, Sch 18, para 10.

Assignment, lodgers and subletting 91  Assignment in general prohibited.

(1) A secure tenancy which is— (a) a periodic tenancy, or (b) a tenancy for a term certain granted on or after 5th November 1982, is not capable of being assigned except in the cases mentioned in subsection (3). (2) If a secure tenancy for a term certain granted before 5th November 1982 is assigned, then, except in the cases mentioned in subsection (3), it ceases to be a secure tenancy and cannot subsequently become a secure tenancy. (3) The exceptions are— (a) an assignment in accordance with section 92 (assignment by way of exchange); [(b) an assignment in pursuance of an order made under— (i) section 24 of the Matrimonial Causes Act 1973 (property adjustment orders in connection with matrimonial proceedings), (ii) section 17(1) of the Matrimonial and Family Proceedings Act 1984 (property adjustment orders after overseas divorce, &c.), …1 (iii) paragraph  1 of Schedule  1 to the Children Act 1989 (orders for financial relief against parents)[, or (iv) Part 2 of Schedule  5, or paragraph  9(2) or (3) of Schedule  7, to the Civil Partnership Act 2004 (property adjustment orders in connection with civil partnership proceedings or after overseas dissolution of civil partnership, etc.)]2]3 (c) an assignmment to a person who would be qualified to succeed the tenant if the tenant died immediately before the assignment. 192

Part IV Secure tenancies and rights of secure tenants

Amendments 1 Repealed by the Civil Partnership Act 2004, s 261(4), Sch 30. 2 Inserted by the Civil Partnership Act 2004, s 81, Sch 8, para 24. 3 Substituted by the Housing Act 1996, s 222, Sch 18, para 12.

92  Assignments by way of exchange.

(1) It is a term of every secure tenancy that the tenant may, with the written consent of the landlord, assign the tenancy to another secure tenant who satisfies the condition in subsection (2) [or to an assured tenant who satisfies the conditions in subsection (2A)]1. (2) The condition is that the other secure tenant has the written consent of his landlord to an assignment of his tenancy either to the first-mentioned tenant or to another secure tenant who satisfies the condition in this subsection. [(2A)  The conditions to be satisfied with respect to an assured tenant are— (a) that the landlord under his assured tenancy is [the Regulator of Social Housing, a private registered provider of social housing,]2 …3 [a registered social landlord]4 or a housing trust which is a charity; and (b) that he intends to assign his assured tenancy to the secure tenant referred to in subsection (1) or to another secure tenant who satisfies the condition in subsection (2).]1 (3) The consent required by virtue of this section shall not be withheld except on one or more of the grounds set out in Schedule 3, and if withheld otherwise than on one of those grounds shall be treated as given. (4) The landlord may not rely on any of the grounds set out in Schedule 3 unless he has, within 42 days of the tenant’s application for the consent, served on the tenant a notice specifying the ground and giving particulars of it. (5) Where rent lawfully due from the tenant has not been paid or an obligation of the tenancy has been broken or not performed, the consent required by virtue of this section may be given subject to a condition requiring the tenant to pay the outstanding rent, remedy the breach or perform the obligation. (6) Except as provided by subsection (5), a consent required by virtue of this section cannot be given subject to a condition, and a condition imposed otherwise than as so provided shall be disregarded. Amendments 1 Inserted by the Local Government and Housing Act 1989, s 163(1)–(3). 2 Substituted by the Housing and Regeneration Act 2008 (Consequential Provisions) Order 2010, SI 2010/866, art 5, Sch 2, paras 15, 21. 3 Repealed by the Government of Wales Act 1998, ss 140, 152, Sch 16, paras 4, 10, Sch 18, Pt VI. 4 Substituted by the Housing Act 1996 (Consequential Provisions) Order 1996, SI 1996/2325, art 5(1), Sch 2, para 14(1), (9).

193

Statutes

93  Lodgers and subletting.

(1) It is a term of every secure tenancy that the tenant— (a) may allow any persons to reside as lodgers in the dwelling-house, but (b) will not, without the written consent of the landlord, sublet or part with possession of part of the dwelling-house. (2) If the tenant under a secure tenancy parts with the possession of the dwelling-house or sublets the whole of it (or sublets first part of it and then the remainder), the tenancy ceases to be a secure tenancy and cannot subsequently become a secure tenancy. 94  Consent to subletting.

(1) This section applies to the consent required by virtue of section 93(1)(b) (landlord’s consent to subletting of part of dwelling-house). (2) Consent shall not be unreasonably withheld (and if unreasonably withheld shall be treated as given), and if a question arises whether the withholding of consent was unreasonable it is for the landlord to show that it was not. (3) In determining that question the following matters, if shown by the landlord, are among those to be taken into account— (a) that the consent would lead to overcrowding of the dwelling-house within the meaning of Part X (overcrowding); (b) that the landlord proposes to carry out works on the dwelling-house, or on the building of which it forms part, and that the proposed works will affect the accommodation likely to be used by the sub-tenant who would reside in the dwelling-house as a result of the consent. (4) Consent may be validly given notwithstanding that it follows, instead of preceding, the action requiring it. (5) Consent cannot be given subject to a condition (and it purporting to be given subject to a condition shall be treated as given unconditionally). (6) Where the tenant has applied in writing for consent, then— (a) if the landlord refuses to give consent, it shall give the tenant a written statement of the reasons why consent was refused, and (b) if the landlord neither gives nor refuses to give consent within a reasonable time, consent shall be taken to have been withheld. 95  Assignment or subletting where tenant condition not satisfied.

(1) This section applies to a tenancy which is not a secure tenancy but would be if the tenant condition referred to in section 81 (occupation by the tenant) were satisfied. 194

Part IV Secure tenancies and rights of secure tenants

(2) Sections 91 and 93(2) (restrictions on assignment or sub-letting of whole dwelling-house) apply to such a tenancy as they apply to a secure tenancy, except that— (a) section 91(3)(b) and (c) (assignments excepted from restrictions) do not apply to such a tenancy for a term certain granted before 5th November 1982, and (b) references to the tenancy ceasing to be secure shall be disregarded, without prejudice to the application of the remainder of the provisions in which those references occur. [Flexible tenancies 107A  Flexible tenancies

(1) For the purposes of this Act, a flexible tenancy is a secure tenancy to which any of the following subsections applies. (2) This subsection applies to a secure tenancy if— (a) it is granted by a landlord in England for a term certain of not less than two years, and (b) before it was granted the person who became the landlord under the tenancy served a written notice on the person who became the tenant under the tenancy stating that the tenancy would be a flexible tenancy. (3) This subsection applies to a secure tenancy if— (a) it becomes a secure tenancy by virtue of a notice under paragraph 4ZA(2) of Schedule 1 (family intervention tenancies becoming secure tenancies), (b) the landlord under the family intervention tenancy in question was a local housing authority in England, (c) the family intervention tenancy was granted to a person on the coming to an end of a flexible tenancy under which the person was a tenant, (d) the notice states that the tenancy is to become a secure tenancy that is a flexible tenancy for a term certain of the length specified in the notice, and sets out the other express terms of the tenancy, and (e) the length of the term specified in the notice is at least two years. (4) The length of the term of a flexible tenancy that becomes such a tenancy by virtue of subsection (3) is that specified in the notice under paragraph 4ZA(2) of Schedule 1. (5) The other express terms of the flexible tenancy are those set out in the notice, so far as those terms are compatible with the statutory provisions relating to flexible tenancies; and in this subsection ‘statutory provision’ means any provision made by or under an Act. (6) This subsection applies to a secure tenancy if— 195

Statutes

(a) it is created by virtue of section 137A of the Housing Act 1996 (introductory tenancies becoming flexible tenancies), or (b) it arises by virtue of section 143MA of that Act (demoted tenancies becoming flexible tenancies).]1 Amendments 1 Inserted by the Localism Act 2011, s 154.

[107B  Review of decisions relating to flexible tenancies

(1) This section applies if a person (‘the prospective landlord’)— (a) offers to grant a flexible tenancy (whether or not on the coming to an end of an existing tenancy of any kind), or (b) serves a notice under section 137A of the Housing Act 1996 stating that, on the coming to an end of an introductory tenancy, it will become a flexible tenancy. (2) A person to whom the offer is made or on whom the notice is served (‘the person concerned’) may request a review of the prospective landlord’s decision about the length of the term of the tenancy. (3) The review may only be requested on the basis that the length of the term does not accord with a policy of the prospective landlord as to the length of the terms of the flexible tenancies it grants. (4) A request for a review must be made before the end of— (a) the period of 21 days beginning with the day on which the person concerned first receives the offer or notice, or (b) such longer period as the prospective landlord may in writing allow. (5) On a request being duly made to it, the prospective landlord must review its decision. (6) The Secretary of State may by regulations make provision about the procedure to be followed in connection with a review under this section. (7) The regulations may, in particular, make provision— (a) requiring the decision on the review to be made by a person of appropriate seniority who was not involved in the original decision, and (b) as to the circumstances in which the person concerned is entitled to an oral hearing, and whether and by whom the person may be represented at such a hearing. (8) The prospective landlord must notify the person concerned in writing of the decision on the review. (9) If the decision is to confirm the original decision, the prospective landlord must also notify the person of the reasons for the decision. 196

Part IV Secure tenancies and rights of secure tenants

(10) Regulations under this section— (a) may contain transitional or saving provision; (b) are to be made by statutory instrument which is subject to annulment in pursuance of a resolution of either House of Parliament.]1 Amendments 1 Inserted by the Localism Act 2011, s 154.

[107C  Termination of flexible tenancy by tenant

(1) It is a term of every flexible tenancy that the tenant may terminate the tenancy in accordance with the following provisions of this section. (2) The tenant must serve a notice in writing on the landlord stating that the tenancy will be terminated on the date specified in the notice. (3) That date must be after the end of the period of four weeks beginning with the date on which the notice is served. (4) The landlord may agree with the tenant to dispense with the requirement in subsection (2) or (3). (5) The tenancy is terminated on the date specified in the notice or (as the case may be) determined in accordance with arrangements made under subsection (4) only if on that date— (a) no arrears of rent are payable under the tenancy, and (b) the tenant is not otherwise materially in breach of a term of the tenancy.]1 Amendments 1 Inserted by the Localism Act 2011, s 154.

[107D  Recovery of possession on expiry of flexible tenancy

(1) Subject as follows, on or after the coming to an end of a flexible tenancy a court must make an order for possession of the dwelling-house let on the tenancy if it is satisfied that the following conditions are met. (2) Condition 1 is that the flexible tenancy has come to an end and no further secure tenancy (whether or not a flexible tenancy) is for the time being in existence, other than a secure tenancy that is a periodic tenancy (whether or not arising by virtue of section 86). (3) Condition 2 is that the landlord has given the tenant not less than six months’ notice in writing— (a) stating that the landlord does not propose to grant another tenancy on the expiry of the flexible tenancy, (b) setting out the landlord’s reasons for not proposing to grant another tenancy, and 197

Statutes

(c) informing the tenant of the tenant’s right to request a review of the landlord’s proposal and of the time within which such a request must be made. (4) Condition 3 is that the landlord has given the tenant not less than two months’ notice in writing stating that the landlord requires possession of the dwelling-house. (5) A notice under subsection (4) may be given before or on the day on which the tenancy comes to an end. (6) The court may refuse to grant an order for possession under this section if— (a) the tenant has in accordance with section 107E requested a review of the landlord’s proposal not to grant another tenancy on the expiry of the flexible tenancy, and (b) the court is satisfied that the landlord has failed to carry out the review in accordance with provision made by or under that section or that the decision on the review is otherwise wrong in law. (7) If a court refuses to grant an order for possession by virtue of subsection (6) it may make such directions as to the holding of a review or further review under section 107E as it thinks fit. (8) This section has effect notwithstanding that, on the coming to an end of the flexible tenancy, a periodic tenancy arises by virtue of section 86. (9) Where a court makes an order for possession of a dwelling-house by virtue of this section, any periodic tenancy arising by virtue of section 86 on the coming to an end of the flexible tenancy comes to an end (without further notice and regardless of the period) in accordance with section 82(2). (10) This section is without prejudice to any right of the landlord under a flexible tenancy to recover possession of the dwelling-house let on the tenancy in accordance with this Part.]1 Amendments 1 Inserted by the Localism Act 2011, s 154.

[107E  Review of decision to seek possession

(1) A request for a review of a landlord’s decision to seek an order for possession of a dwelling-house let under a flexible tenancy must be made before the end of the period of 21 days beginning with the day on which the notice under section 107D(3) is served. (2) On a request being duly made to it, the landlord must review its decision. (3) The review must, in particular, consider whether the decision is in accordance with any policy of the landlord as to the circumstances in which it will grant a further tenancy on the coming to an end of an existing flexible tenancy. 198

Part IV Secure tenancies and rights of secure tenants

(4) The Secretary of State may by regulations make provision about the procedure to be followed in connection with a review under this section. (5) The regulations may, in particular, make provision— (a) requiring the decision on the review to be made by a person of appropriate seniority who was not involved in the original decision, and (b) as to the circumstances in which the person concerned is entitled to an oral hearing, and whether and by whom the person may be represented at such a hearing. (6) The landlord must notify the tenant in writing of the decision on the review. (7) If the decision is to confirm the original decision, the landlord must also notify the tenant of the reasons for the decision. (8) The review must be carried out, and the tenant notified, before the date specified in the notice of proceedings as the date after which proceedings for the possession of the dwelling-house may be begun. (9) Regulations under this section— (a) may contain transitional or saving provision; (b) are to be made by statutory instrument which is subject to annulment in pursuance of a resolution of either House of Parliament.]1 Amendments 1 Inserted by the Localism Act 2011, s 154.

Miscellaneous 109  Provisions not applying to tenancies of co-operative housing associations.

Sections 91 to 108 (assignment and subletting, repairs and improvements, variation of terms, provision of information and consultation, contributions to costs of transfers and heating charges) do not apply to a tenancy when the interest of the landlord belongs to a co-operative housing association. Supplementary provisions 112  Meaning of ‘dwelling-house’.

(1) For the purposes of this Part a dwelling-house may be a house or a part of a house. (2) Land let together with a dwelling-house shall be treated for the purposes of this Part as part of the dwelling-house unless the land is agricultural land (as defined in section 26(3)(a) of the General Rate Act 1967) exceeding two acres. 199

Statutes

113  Members of a person’s family.

(1) A person is a member of another’s family within the meaning of this Part if— (a) he is the spouse [or civil partner]1 of that person, or he and that person live together [as if they were a married couple or]2 [civil partners]1, or (b) he is that person’s parent, grandparent, child, grand-child, brother, sister, uncle, aunt, nephew or niece. (2) For the purpose of subsection (1)(b)— (a) a relationship by marriage [or civil partnership]1 shall be treated as a relationship by blood, (b) a relationship of the half-blood shall be treated as a relationship of the whole blood, (c) the stepchild of a person shall be treated as his child, and (d) an illegitimate child shall be treated as the legitimate child of his mother and reputed father. Amendments 1 Inserted by the Civil Partnership Act 2004, s 81, Sch 8, para 27. 2 Substituted by the Civil Partnership (Opposite-sex Couples) Regulations 2019, SI 2019/1458, reg 41(1), Sch 3, para 10(1), (3).

PART V THE RIGHT TO BUY The right to buy 118  The right to buy.

(1) A secure tenant [of a dwelling-house in England]1 has the right to buy, that is to say, the right, in the circumstances and subject to the conditions and exceptions stated in the following provisions of this Part— (a) if the dwelling-house is a house and the landlord owns the freehold, to acquire the freehold of the dwelling-house; (b) if the landlord does not own the freehold or if the dwelling-house is a flat (whether or not the landlord owns the freehold), to be granted a lease of the dwelling-house. (2) Where a secure tenancy is a joint tenancy then, whether or not each of the joint tenants occupies the dwelling-house as his only or principal home, the right to buy belongs jointly to all of them or to such one or more of them as may be agreed between them; but such an agreement is not valid unless the person or at least one of the persons to whom the right to buy is to belong occupies the dwelling-house as his only or principal home. 200

Part V The right to buy

[(3) For the purposes of this Part, a dwelling-house which is a commonhold unit (within the meaning of the Commonhold and Leasehold Reform Act 2002) shall be treated as a house and not as a flat.]2 Amendments 1 Inserted by the Abolition of the Right to Buy and Associated Rights (Wales) Act 2018 (Consequential Amendments and Savings Provisions) Regulations 2019, SI 2019/110, reg 3(b). 2 Inserted by the Commonhold and Leasehold Reform Act 2002, s 68, Sch 5, para 5.

119  Qualifying period for right to buy.

[(A1) [The]1 right to buy does not arise unless the period which, in accordance with Schedule 4, is to be taken into account for the purposes of this section is at least three years.]2 (1) …3 (2) Where the secure tenancy is a joint tenancy the condition in subsection [(A1) …3]2 …3 need be satisfied with respect to one only of the joint tenants. Amendments 1 Substituted by the Abolition of the Right to Buy and Associated Rights (Wales) Act 2018 (Consequential Amendments and Savings Provisions) Regulations 2019, SI 2019/110, reg 3(c)(i). 2 Inserted by the Deregulation Act 2015, s 28(1), (2), (4). 3 Repealed by the Abolition of the Right to Buy and Associated Rights (Wales) Act 2018 (Consequential Amendments and Savings Provisions) Regulations 2019, SI 2019/110, reg 3(c)(ii), (iii).

120  Exceptions to the right to buy

The right to buy does not arise in the cases specified in Schedule 5 (exceptions to the right to buy). 121  Circumstances in which the right to buy cannot be exercised.

[(1) The right to buy cannot be exercised if the tenant is subject to an order of the court for possession of the dwelling-house.]1 (2) The right to buy cannot be exercised if the person, or one of the persons, to whom the right to buy belongs— (a) [has made a bankruptcy application that has not been determined or]2 has a bankruptcy petition pending against him, (b) …3 (c) is an undischarged bankrupt, …4 (d) has made a composition or arrangement with his creditors the terms of which remain to be fulfilled, [or 201

Statutes

(e) is a person in relation to whom a moratorium period under a debt relief order applies (under Part 7A of the Insolvency Act 1986).]5 [(3) The right to buy cannot be exercised at any time during the suspension period under an order made under section 121A in respect of the secure tenancy.]6 Amendments 1 Substituted by the Housing and Regeneration Act 2008, s 304(1). 2 Inserted by the Enterprise and Regulatory Reform Act 2013 (Consequential Amendments) (Bankruptcy) and the Small Business, Enterprise and Employment Act 2015 (Consequential Amendments) Regulations 2016, SI 2016/481, reg 2(1), Sch 1, para 6. 3 Repealed by the Insolvency Act 1985, s 235(3), Sch 10, Pt III. 4 Repealed by the Tribunals, Courts and Enforcement Act 2007 (Consequential Amendments) Order 2012, SI 2012/2404, art 3(2), Sch 2, para 21(a). 5 Inserted by the Tribunals, Courts and Enforcement Act 2007 (Consequential Amendments) Order 2012, SI 2012/2404, art 3(2), Sch 2, para 21(b). 6 Inserted by the Housing Act 2004, s 192(1).

[121A  Order suspending right to buy because of anti-social behaviour

(1) The court may, on the application of the landlord under a secure tenancy, make a suspension order in respect of the tenancy. (2) A suspension order is an order providing that the right to buy may not be exercised in relation to the dwelling-house during such period as is specified in the order (‘the suspension period’). (3) The court must not make a suspension order unless it is satisfied— (a) that the tenant, or a person residing in or visiting the dwelling-house, has engaged or threatened to [engage in— [(i) conduct that is capable of causing nuisance or annoyance to some person (who need not be a particular identified person) and that directly or indirectly relates to or affects the landlord’s housing management functions, or (ii) conduct that consists of or involves using housing accommodation owned or managed by the landlord for an unlawful purpose, and]1]2 (b) that it is reasonable to make the order. (4) When deciding whether it is reasonable to make the order, the court must consider, in particular— (a) whether it is desirable for the dwelling-house to be managed by the landlord during the suspension period; and (b) where the conduct mentioned in subsection (3)(a) consists of conduct by a person which is capable of causing nuisance or annoyance, the effect 202

Part V The right to buy

that the conduct (or the threat of it) has had on other persons, or would have if repeated. (5) Where a suspension order is made— (a) any existing claim to exercise the right to buy in relation to the dwellinghouse ceases to be effective as from the beginning of the suspension period, and (b) section 138(1) shall not apply to the landlord, in connection with such a claim, at any time after the beginning of that period, but (c) the order does not affect the computation of any period in accordance with Schedule 4. (6) The court may, on the application of the landlord, make (on one or more occasions) a further order which extends the suspension period under the suspension order by such period as is specified in the further order. (7) The court must not make such a further order unless it is satisfied— (a) that, since the making of the suspension order (or the last order under subsection (6)), the tenant, or a person residing in or visiting the dwelling-house, has engaged or threatened to [engage in— [(i) conduct that is capable of causing nuisance or annoyance to some person (who need not be a particular identified person) and that directly or indirectly relates to or affects the landlord’s housing management functions, or (ii) conduct that consists of or involves using housing accommodation owned or managed by the landlord for an unlawful purpose, and]1]2 (b) that it is reasonable to make the further order. (8) When deciding whether it is reasonable to make such a further order, the court must consider, in particular— (a) whether it is desirable for the dwelling-house to be managed by the landlord during the further period of suspension; and (b) where the conduct mentioned in subsection (7)(a) consists of conduct by a person which is capable of causing nuisance or annoyance, the effect that the conduct (or the threat of it) has had on other persons, or would have if repeated. (9) In this section any reference to the tenant under a secure tenancy is, in relation to a joint tenancy, a reference to any of the joint tenants. [(10)  In this section ‘housing accommodation’ includes— (a) flats, lodging-houses and hostels; (b) any yard, garden, outhouses and appurtenances belonging to the accommodation or usually enjoyed with it; (c) any common areas used in connection with the accommodation.]1]3 203

Statutes

Amendments 1 Substituted by the Anti-social Behaviour, Crime and Policing Act 2014, s  181(1), Sch 11, para 11. 2 Substituted by the Police and Justice Act 2006, s 52, Sch 14, para 13(1), (2). 3 Inserted by the Housing Act 2004, s 192(2).

[121AA Information to help tenants decide whether to exercise right to buy etc.

(1) Every body which lets dwelling-houses [in England]1 under secure tenancies shall prepare a document that contains information for its secure tenants about such matters as are specified in an order made by the Secretary of State. (2) The matters that may be so specified are matters which the Secretary of State considers that it would be desirable for secure tenants to have information about when considering whether to exercise the right to buy or the right to acquire on rent to mortgage terms. (3) The information contained in the document shall be restricted to information about the specified matters, and the information about those matters— (a) shall be such as the body concerned considers appropriate, but (b) shall be in a form which the body considers best suited to explaining those matters in simple terms. (4) Once a body has prepared the document required by subsection (1), it shall revise it as often as it considers necessary in order to ensure that the information contained in it— (a) is kept up to date so far as is reasonably practicable, and (b) reflects any changes in the matters for the time being specified in an order under this section. (5) An order under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.]2 Amendments 1 Inserted by the Abolition of the Right to Buy and Associated Rights (Wales) Act 2018 (Consequential Amendments and Savings Provisions) Regulations 2019, SI 2019/110, reg 3(d). 2 Inserted by the Housing Act 2004, s 189(1). [121B  Provision of information

(1) This section sets out when the document prepared by a body under section 121AA is to be published or otherwise made available. 204

Part V The right to buy

(2) The body shall— (a) publish the document (whether in its original or a revised form), and (b) supply copies of it to the body’s secure tenants [of dwelling-houses in England]1, at such times as may be prescribed by, and otherwise in accordance with, an order made by the Secretary of State. (3) The body shall make copies of the current version of the document available to be supplied, free of charge, to persons requesting them. (4) The copies must be made available for that purpose— (a) at the body’s principal offices, and (b) at such other places as it considers appropriate, at reasonable hours. (5) The body shall take such steps as it considers appropriate to bring to the attention of its secure tenants [of dwelling-houses in England]1 the fact that copies of the current version of the document can be obtained free of charge from the places where, and at the times when, they are made available in accordance with subsection (4). (6) In this section any reference to the current version of the document is to the version of the document that was last published by the body in accordance with subsection (2)(a). (7) An order under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.]2 Amendments 1 Inserted by the Abolition of the Right to Buy and Associated Rights (Wales) Act 2018 (Consequential Amendments and Savings Provisions) Regulations 2019, SI 2019/110, reg 3(e). 2 Inserted by the Housing Act 2004, s 189(1).

Claim to exercise right to buy 122  Tenant’s notice claiming to exercise right to buy.

(1) [A]1 secure tenant claims to exercise the right to buy by written notice to that effect served on the landlord. (2) In this Part ‘the relevant time’, in relation to an exercise of the right to buy, means the date on which that notice is served. (3) The notice may be withdrawn at any time by notice in writing served on the landlord. 205

Statutes

Amendments 1 Substituted by the Abolition of the Right to Buy and Associated Rights (Wales) Act 2018 (Consequential Amendments and Savings Provisions) Regulations 2019, SI 2019/110, reg 3(f).

123  Claim to share right to buy with members of family.

(1) A secure tenant may in his notice under section 122 require that not more than three members of his family who are not joint tenants but occupy the dwelling-house as their only or principal home should share the right to buy with him. (2) He may validly do so in the case of any such member only if— (a) that member is his spouse[, is his civil partner]1 or has been residing with him throughout the period of twelve months ending with the giving of the notice, or (b) the landlord consents. (3) Where by such a notice any members of the tenant’s family are validly required to share the right to buy with the tenant, the right to buy belongs to the tenant and those members jointly and he and they shall be treated for the purposes of this Part as joint tenants. Amendments 1 Inserted by the Civil Partnership Act 2004, s 81, Sch 8, para 28.

124  Landlord’s notice admitting or denying right to buy.

(1) Where a notice under section 122 (notice claiming to exercise right to buy) has been served by the tenant, the landlord shall, unless the notice is withdrawn, serve on the tenant within the period specified in subsection (2) …1 a written notice either— (a) admitting his right, or (b) denying it and stating the reasons why, in the opinion of the landlord, the tenant does not have the right to buy. (2) The period for serving a notice under this section is four weeks where the requirement of section 119 (qualifying period for the right to buy) is satisfied by a period or periods during which the landlord was the landlord on which the tenant’s notice under section 122 was served, and eight weeks in any other case. (3) …1 Amendments 1 Repealed by the Abolition of the Right to Buy and Associated Rights (Wales) Act 2018 (Consequential Amendments and Savings Provisions) Regulations 2019, SI 2019/110, reg 3(i).

206

Part V The right to buy

125  Landlord’s notice of purchase price and other matters.

(1) Where a secure tenant has claimed to exercise the right to buy and that right has been established (whether by the landlord’s admission or otherwise), the landlord shall— (a) within eight weeks where the right is that mentioned in section 118(1) (a) (right to acquire freehold), and (b) within twelve weeks where the right is that mentioned in section 118(1) (b) (right to acquire leasehold interest). serve on the tenant a notice complying with this section. (2) The notice shall describe the dwelling-house, shall state the price at which, in the opinion of the landlord, the tenant is entitled to have the freehold conveyed or, as the case may be, the lease granted to him and shall, for the purpose of showing how the price has been arrived at, state— (a) the value at the relevant time, (b) the improvements disregarded in pursuance of section 127 (improvements to be disregarded in determining value), and (c) the discount to which the tenant is entitled, stating the period to be taken into account under section 129 (discount) and, where applicable, the amount mentioned in section 130(1) (reduction for previous discount) or section 131(1) or (2) (limits on amount of discount). (3) The notice shall state the provisions which, in the opinion of the landlord, should be contained in the conveyance or grant. [(4) Where the notice states provisions which would enable the landlord to recover from the tenant— (a) service charges, or (b) improvement contributions, the notice shall also contain the estimates and other information required by section 125A (service charges) or 125B (improvement contributions).]1 [(4A) The notice shall contain a description of any structural defect known to the landlord affecting the dwelling-house or the building in which it is situated or any other building over which the tenant will have rights under the conveyance or lease.]2 [(5) The notice shall also inform the tenant of— (a) the effect of sections 125D and 125E(1) and (4) (tenant’s notice of intention, landlord’s notice in default and effect of failure to comply), (b) his right under section 128 to have the value of the dwelling-house at the relevant time determined or re-determined by the district valuer, (c) the effect of section 136(2) (change of tenant after service of notice under section 125), 207

Statutes

(d) the effect of sections 140 and 141(1), (2) and (4) (landlord’s notices to complete and effect of failure to comply), (e) the effect of the provisions of this Part relating to the right to acquire on rent to mortgage terms, and (f) the relevant amount and multipliers for the time being declared by the Secretary of State for the purposes of section 143B.]3 Amendments 1 Substituted by the Housing and Planning Act 1986, s 4(1). 2 Inserted by the Housing and Planning Act 1986, s 24(1), Sch 5, para 3. 3 Substituted by the Leasehold Reform, Housing and Urban Development Act 1993, s 104.

[125A  Estimates and information about service charges.

(1) A  landlord’s notice under section 125 shall state as regards service charges (excluding, in the case of a flat, charges to which subsection (2) applies)— (a) the landlord’s estimate of the average annual amount (at current prices) which would be payable in respect of each head of charge in the reference period, and (b) the aggregate of those estimated amounts, and shall contain a statement of the reference period adopted for the purpose of the estimates. (2) A  landlord’s notice under section 125 given in respect of a flat shall, as regards service charges in respect of repairs (including works for the making good of structural defects), contain— (a) the estimates required by subsection (3), together with a statement of the reference period adopted for the purpose of the estimates, and (b) a statement of the effect of— paragraph  16B of Schedule  6 (which restricts by reference to the estimates the amounts payable by the tenant), and section 450A and the regulations made under that section (right to a loan in respect of certain service charges). (3) The following estimates are required for works in respect of which the landlord considers that costs may be incurred in the reference period— (a) for works itemised in the notice, estimates of the amount (at current prices) of the likely cost of, and of the tenant’s likely contribution in respect of, each item, and the aggregate amounts of those estimated costs and contributions, and 208

Part V The right to buy

(b) for works not so itemised, an estimate of the average annual amount (at current prices) which the landlord considers is likely to be payable by the tenant.]1 Amendments 1 Inserted by the Housing and Planning Act 1986, s 4(2).

[125B  Estimates and information about improvement contributions.

(1) A landlord’s notice under section 125 given in respect of a flat shall, as regards improvement contributions, contain— (a) the estimates required by this section, together with a statement of the reference period adopted for the purpose of the estimates, and (b) a statement of the effect of paragraph 16C of Schedule 6 (which restricts by reference to the estimates the amounts payable by the tenant). (2) Estimates are required for works in respect of which the landlord considers that costs may be incurred in the reference period. (3) The works to which the estimates relate shall be itemised and the estimates shall show— (a) the amount (at current prices) of the likely cost of, and of the tenant’s likely contribution in respect of, each item, and (b) the aggregate amounts of those estimated costs and contributions.]1 Amendments 1 Inserted by the Housing and Planning Act 1986, s 4(2).

[125C  Reference period for purposes of ss. 125A and 125B.

(1) The reference period for the purposes of the estimates required by section 125A or 125B is the period— (a) beginning on such date not more than six months after the notice is given as the landlord may reasonably specify as being a date by which the conveyance will have been made or the lease granted, and (b) ending five years after that date or, where the notice states that the conveyance or lease will provide for a service charge or improvement contribution to be calculated by reference to a specified annual period, with the end of the fifth such period beginning after that date. (2) For the purpose of the estimates it shall be assumed that the conveyance will be made or the lease granted at the beginning of the reference period on the terms stated in the notice.]1 Amendments 1 Inserted by the Housing and Planning Act 1986, s 4(2).

209

Statutes

[125D  Tenant’s notice of intention.

(1) Where a notice under section 125 has been served on a secure tenant, he shall within the period specified in subsection (2) either— (a) serve a written notice on the landlord stating either that he intends to pursue his claim to exercise the right to buy or that he withdraws that claim, or (b) serve a notice under section 144 claiming to exercise the right to acquire on rent to mortgage terms. (2) The period for serving a notice under subsection (1) is the period of twelve weeks beginning with whichever of the following is the later— (a) the service of the notice under section 125, …1 (b) where the tenant exercises his right to have the value of the dwellinghouse determined or re-determined by the district valuer [(or where the landlord exercises his right to have the value of the dwelling-house re-determined by the district valuer), the relevant event]2. [(3) In subsection (2)(b) ‘the relevant event’ means— (a) where a review notice was capable of being served under section 128A in relation to the determination or re-determination but no such notice was served during the period permitted by that section, the service of the notice under section 128(5) stating the effect of the determination or re-determination, (b) where a review notice was served under section 128A in relation to the determination or re-determination and section 128B(3) applied, the service on the tenant of the notice under section 128B(3), and (c) where a review notice was served under section 128A in relation to the determination or re-determination and section 128B(5) applied, the service of the notice under section 128B(7).]3]4 Amendments 1 Repealed by the Housing and Regeneration Act 2008, s 321(1), Sch 16. 2 Substituted by the Housing and Regeneration Act 2008, s 306(1), (3). 3 Inserted by the Housing and Regeneration Act 2008, s 306(1), (4). 4 Inserted by the Leasehold Reform, Housing and Urban Development Act 1993, s 105(1).

[125E  Landlord’s notice in default.

(1) The landlord may, at any time after the end of the period specified in section 125D(2) or, as the case may require, section 136(2), serve on the tenant a written notice— (a) requiring him, if he has failed to serve the notice required by section 125D(1), to serve that notice within 28 days, and 210

Part V The right to buy

(b) informing him of the effect of this subsection and subsection (4). (2) At any time before the end of the period mentioned in subsection (1)(a) (or that period as previously extended) the landlord may by written notice served on the tenant extend it (or further extend it). (3) If at any time before the end of that period (or that period as extended under subsection (2)) the circumstances are such that it would not be reasonable to expect the tenant to comply with a notice under this section, that period (or that period as so extended) shall by virtue of this subsection be extended (or further extended) until 28 days after the time when those circumstances no longer obtain. (4) If the tenant does not comply with a notice under this section, the notice claiming to exercise the right to buy shall be deemed to be withdrawn at the end of that period (or, as the case may require, that period as extended under subsection (2) or (3)).]1 Amendments 1 Inserted by the Leasehold Reform, Housing and Urban Development Act 1993, s 105(1).

Purchase price 126  Purchase price.

(1) The price payable for a dwelling-house on a conveyance or grant in pursuance of this Part is— (a) the amount which under section 127 is to be taken as its value at the relevant time, less (b) the discount to which the purchaser is entitled under this Part. (2) References in this Part to the purchase price include references to the consideration for the grant of a lease. 127  Value of dwelling-house.

(1) The value of a dwelling-house at the relevant time shall be taken to be the price which at that time it would realise if sold on the open market by a willing vendor— (a) on the assumptions stated for a conveyance in subsection (2) and for a grant in subsection (3), …1 (b) disregarding any improvements made by any of the persons specified in subsection (4) and any failure by any of those persons to keep the dwelling-house in good internal repair[, and (c) on the assumption that any service charges or improvement contributions payable will not be less than the amounts to be expected in accordance with the estimates contained in the landlord’s notice under section 125.]2 211

Statutes

(2) For a conveyance the assumptions are— (a) that the vendor was selling for an estate in fee simple with vacant possession, (b) that neither the tenant nor a member of his family residing with him wanted to buy, and (c) that the dwelling-house was to be conveyed with the same rights and subject to the same burdens as it would be in pursuance of this Part. (3) For the grant of a lease the assumptions are— (a) that the vendor was granting a lease with vacant posession for the appropriate term defined in paragraph 12 of Schedule 6 (but subject to sub-paragraph (3) of that paragraph). (b) that neither the tenant nor a member of his family residing with him wanted to take the lease, (c) that the ground rent would not exceed £10 per annum, and (d) that the grant was to be made with the same rights and subject to the same burdens as it would be in pursuance of this Part. (4) The persons referred to in subsection (1)(b) are— (a) the secure tenant, (b) any person who under the same tenancy was a secure tenant [or an introductory tenant]3 before him, and [(c) any member of his family who, immediately before the secure tenancy was granted (or, where an introductory tenancy has become the secure tenancy, immediately before the introductory tenancy was granted), was a secure tenant or, an introductory tenant of the same dwelling-house under another tenancy,]4 but do not include, in a case where the secure tenant’s tenancy has at any time been assigned by virtue of section 92 (assignments by way of exchange), a person who under that tenancy was a secure tenant [or an introductory tenant]3 before the assignment. [(5) In this section ‘introductory tenant’ and ‘introductory tenancy’ have the same meaning as in Chapter I of Part V of the Housing Act 1996.]3 Amendments 1 Repealed by the Housing and Planning Act 1986, s 24(2), (3), Sch 5, para 28, Sch 12, Pt I. 2 Inserted by the Housing and Planning Act 1986, s 4(3). 3 Inserted by the Housing Act 1996 (Consequential Amendments) Order 1997, SI 1997/74, art 2, Schedule, para 3(j)(i), (iii), (k). 4 Substituted by the Housing Act 1996 (Consequential Amendments) Order 1997, SI 1997/74, art 2, Schedule, para 3(j)(ii).

212

Part V The right to buy

128  Determination of value by district valuer.

(1) Any question arising under this Part as to the value of a dwelling-house at the relevant time shall be determined by the district valuer in accordance with this section. (2) A tenant may require that value to be determined …1 by a notice in writing served on the landlord not later than three months after the service on him of the notice under section 125 (landlord’s notice of purchase price and other matters) or, if proceedings are then pending between the landlord and the tenant for the determination of any other question arising under this Part, within three months of the final determination of the proceedings. (3) If such proceedings are begun after a previous determination under this section— (a) the tenant may, by notice in writing served on the landlord within four weeks of the final determination of the proceedings, require the value of the dwelling-house at the relevant time to be re-determined, and (b) the landlord may at any time within those four weeks, whether or not a notice under paragraph (a) is served, require the district valuer to re-determine that value; and where the landlord requires a re-determination to be made in pursuance of this subsection, it shall serve on the tenant a notice stating that the requirement is being or has been made. (4) Before making a determination or re-determination in pursuance of this section, the district valuer shall consider any representation made to him by the landlord or the tenant within four weeks from the service of the tenant’s notice under this section or, as the case may be, from the service of the landlord’s notice under subsection (3). (5) As soon as practicable after a determination or re-determination has been made in pursuance of this section, the landlord shall serve on the tenant a notice [stating— (a) the effect of the determination or re-determination, (b) the matters mentioned in section 125(2) and (3) (terms for exercise of right to buy), and (c) the effect of section 128A(2) (right of district valuer to serve review notice and of landlord and tenant to request that such a notice is served).]2 [(5A)  The landlord shall, as soon as practicable, serve a copy of the notice on the district valuer if— (a) the district valuer requests it; or (b) the landlord requests a review of the determination or re-determination under section 128A(2)(b). 213

Statutes

(5B) The tenant shall, as soon as practicable, serve a copy of the notice on the district valuer if the tenant requests a review of the determination or re-determination under section 128A(2)(b). (5C)  For the purposes of subsections (5A) and (5B) it does not matter whether the request in question was made before, on or after the service of the notice in accordance with subsection (5).]3 (6) …4 Amendments 1 Repealed by the Housing and Regeneration Act 2008, s 306(1), (5), 321(1), 325(2), Sch 16. 2 Substituted by the Housing and Regeneration Act 2008, s 306(1), (6). 3 Inserted by the Housing and Regeneration Act 2008, s 306(1), (7). 4 Repealed by the Leasehold Reform, Housing and Urban Development Act 1993, s 187(2), Sch 22.

[128A  Determination of value: review notices

(1) Subsection (2) applies if the value of a dwelling-house has been determined or re-determined under section 128 (‘the section 128 determination’). (2) The district valuer may— (a) on the valuer’s own initiative; or (b) at the request of the landlord or the tenant of the dwelling-house; serve on the landlord and the tenant a notice of intention to review the section 128 determination giving reasons for the intention (‘a review notice’). (3) A request under subsection (2)(b) must— (a) be in writing; (b) state the reason it is being made; and (c) confirm that the landlord has not made to the tenant a grant of the kind mentioned in section 138(1) in respect of the claim by the tenant to exercise the right to buy in respect of the dwelling-house. (4) The landlord or the tenant may not make a request under subsection (2) (b) after the end of the period of 28 days beginning with the section 128(5) service date. (5) The district valuer must, before the end of the period of 14 days beginning with the day on which such a request is made, serve on the landlord and the tenant— (a) a review notice; or (b) a notice stating— (i) that the request was made; 214

Part V The right to buy

(ii) that the district valuer has decided not to comply with it; and (iii) the reasons for the decision. (6) A review notice may not be served after the end of the period of 42 days beginning with the section 128(5) service date. (7) A  review notice may not be served in relation to a determination which is subject to a re-determination required in pursuance of section 128(3) (but this does not prevent the service of a review notice in relation to the re-determination). (8) A review notice may not be served if the landlord has made a grant of the kind mentioned in subsection (3)(c). (9) A  person who makes a request under subsection (2)(b) must inform the district valuer if a grant of the kind mentioned in subsection (3)(c) is made during the period of 14 days mentioned in subsection (5). (10)  Subsection (11) applies if the district valuer is considering whether to serve a review notice on the valuer’s own initiative. (11)  The landlord or the tenant must, if requested by the district valuer, inform the valuer whether a grant of the kind mentioned in subsection (3)(c) has been made. (12)  In this section and section 128B— ‘a review notice’ has the meaning given by subsection (2); ‘the section 128 determination’ has the meaning given by subsection (1); ‘the section 128(5) service date’ means the day on which the landlord serves a notice on the tenant under section 128(5) in relation to the section 128 determination.]1 Amendments 1 Inserted by the Housing and Regeneration Act 2008, s 306(1), (2).

[128B  Review of determination of value

(1) The district valuer must review the section 128 determination as soon as reasonably practicable after serving a review notice. (2) Subsection (3) applies if, following the review, the district valuer decides that neither of the withdrawal conditions is met. (3) The district valuer must, as soon as reasonably practicable, serve on the landlord and the tenant a notice stating— (a) the decision; (b) the reasons for it; and (c) that no further determination or (as the case may be) re-determination is to be made under this section. 215

Statutes

(4) Subsection (5) applies if, following the review, the district valuer decides that either withdrawal condition is met or both are met. (5) The district valuer must— (a) as soon as reasonably practicable, withdraw the section 128 determination by serving a further determination notice on the landlord and the tenant; and (b) make a further determination or (as the case may be) re-determination of the value of the dwelling-house at the relevant time. (6) Before making such a determination or re-determination, the district valuer must consider any representation made to the valuer by the landlord or the tenant before the end of the period of 14 days beginning with the day on which the further determination notice was served. (7) As soon as practicable after such a determination or re-determination has been made, the landlord must serve on the tenant a determination effect notice. (8) A determination effect notice is a notice stating— (a) the effect of the further determination or (as the case may be) re-determination; and (b) the matters mentioned in section 125(2) and (3). (9) For the purposes of this section, the withdrawal conditions are— (a) that a significant error was made in the section 128 determination; or (b) that the district valuer did not comply with section 128(4) in relation to the section 128 determination. (10) This section does not apply to a determination which is subject to a re-determination required in pursuance of section 128(3) (but this does not prevent this section applying to the re-determination). (11)  In this section— ‘a further determination notice’ is a notice stating— (a) that the section 128 determination is withdrawn; (b) the reasons for the withdrawal; and (c) that a further determination or (as the case may be) re-determination of the value of the dwelling-house at the relevant time will be made; ‘significant error’, in relation to the section 128 determination, means an error of fact, or a number of such errors, made in the section 128 determination as a result of which the value of the dwelling-house determined or (as the case may be) re-determined was at least 5% more or less than it would otherwise have been.]1 216

Part V The right to buy

Amendments 1 Inserted by the Housing and Regeneration Act 2008, s 306(1), (2).

129 Discount.

[(1) Subject to the following provisions of this Part, a person exercising the right to buy is entitled to a discount of a percentage calculated by reference to the period which is to be taken into account in accordance with Schedule 4 (qualifying period for right to buy and discount). (2) The discount is, subject to any order under subsection (2A)— (a) in the case of a house, [35 per cent]1 plus one per cent. for each complete year by which the qualifying period exceeds [five]1 years, up to a maximum of 60 per cent.; (b) in the case of a flat, [50 per cent]1 plus two per cent. for each complete year by which the qualifying period exceeds [five]1 years, up to a maximum of 70 per cent. (2A)  The Secretary of State may by order made with the consent of the Treasury provide that, in such cases as may be specified in the order— (a) the minimum percentage discount, (b) the percentage increase for each complete year of the qualifying period after the first [five]1, or (c) the maximum percentage discount, shall be such percentage, higher than that specified in subsection (2), as may be specified in the order. (2B)  An order— (a) may make different provision with respect to different cases or descriptions of case, (b) may contain such incidental, supplementary or transitional provisions as appear to the Secretary of State to be necessary or expedient, and (c) shall be made by statutory instrument and shall not be made unless a draft of it has been laid before and approved by resolution of each House of Parliament.]2 (2) The discount shall not exceed 60 per cent. (3) Where joint tenants exercise the right to buy, Schedule 4 shall be construed as if for the secure tenant there were substituted that one of the joint tenants whose substitution will produce the largest discount. Amendments 1 Substituted by the Housing Act 2004, s 180(2)–(4). 2 Substituted by the Housing and Planning Act 1986, s 2(1).

217

Statutes

130  Reduction of discount where previous discount given.

(1) There shall be deducted from the discount an amount equal to any previous discount qualifying, or the aggregate of previous discounts qualifying, under the provisions of this section. (2) A ‘previous discount’ means a discount given before the relevant time— (a) on conveyance of the freehold, or a grant or assignment of a long lease, of a dwelling-house by a person within paragraph 7 [or 7A]1 of Schedule 4 (public sector landlords) or, in such circumstances as may be prescribed by order of the Secretary of State, by a person so prescribed,or [(aa)  on conveyance of the freehold, or a grant or assignment of a long lease of a dwelling-house by a person against whom the right to buy was exercisable by virtue of section 171A (preservation of right to buy on disposal to private sector landlord) to a person who was a qualifying person for the purposes of the preserved right to buy and in relation to whom that dwelling-house was the qualifying dwelling-house, or]1 [(ab) in pursuance of the provision required by paragraphs 3 to 5 or paragraph 7 of Schedule 6A (redemption of landlord’s share), or]2 (b) in pursuance of the provision required by paragraph  1 of Schedule  8 (terms of shared ownership lease: right to acquire additional shares), or any other provision to the like effect [or (c) in pursuance of any provision of, or required by, this Part …3 by virtue of section 17 of the Housing Act 1996 (the right to acquire).]4 (3) A previous discount qualifies for the purposes of this section if it was given— (a) to the person or one of the persons exercising the right to buy, or (b) to the spouse[, or civil partner,]5 of that person or one of those persons (if they are living together at the relevant time), or (c) to a deceased spouse[, or deceased civil partner,]5 of that person or one of those persons (if they were living together at the time of the death); and where a previous discount was given to two or more persons jointly, this section has effect as if each of them had been given an equal proportion of the discount. (4) Where the whole or part of a previous discount has been recovered by the person by whom it was given (or a successor in title of his)— (a) by the receipt of a payment determined by reference to the discount, or (b) by a reduction so determined of any consideration given by that person (or a successor in title of his), or (c) in any other way, then, so much of the discount as has been so recovered shall be disregarded for the purposes of this section. 218

Part V The right to buy

(5) An order under this section— (a) may make different provision with respect to different cases or descriptions of case, including different provision for different areas, and (b) shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament. (6) In this section ‘dwelling-house’ includes any yard, garden, outhouses and appurtenances belonging to the dwelling-house or usually enjoyed with it. Amendments 1 Inserted by the Housing and Planning Act 1986, s 24(2), Sch 5, para 29. 2 Inserted by the Leasehold Reform, Housing and Urban Development Act 1993, s 187(1), Sch 21, para 11. 3 Repealed by the Abolition of the Right to Buy and Associated Rights (Wales) Act 2018 (Consequential Amendments and Savings Provisions) Regulations 2019, SI 2019/110, reg 3(j). 4 Inserted by the Housing Act 1996 (Consequential Amendments) (No. 2) Order 1997, SI 1997/627, art 2, Schedule, para 3(1), (3) 5 Inserted by the Civil Partnership Act 2004, s 81, Sch 8, para 29.

131  Limits on amount of discount

(1) Except where the Secretary of State so determines, the discount shall not reduce the price below the amount which, in accordance with a determination made by him, is to be taken as representing so much of the costs incurred in respect of the dwelling-house as, in accordance with the determination— [(a) is to be treated as incurred at or after the beginning of that period of account of the landlord in which falls the date which is eight years, or such other period of time as may be specified in an order made by the Secretary of State, earlier than the relevant time, and]1 (b) is to be treated as relevant for the purposes of this sub-section; and if the price before discount is below that amount, there shall be no discount. [(1A)  In subsection (1)(a) above ‘period of account’, in relation to any costs, means the period for which the landlord made up those of its accounts in which account is taken of those costs.]2 (2) The discount shall not in any case reduce the price by more than such sum as the Secretary of State may by order prescribe. (3) An order or determination under this section may make different provision for different cases or descriptions of case, including different provision for different areas. (4) An order under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament. 219

Statutes

Amendments 1 Substituted by the Housing Act 1988, s 122(1), (2). 2 Inserted by the Housing Act 1988, s 122(1), (3).

Change of tenant or landlord after service of notice claiming right to buy 136  Change of secure tenant after notice claiming right to buy.

(1) Where, after a secure tenant (‘the former tenant’) has given a notice claiming the right to buy, another person (‘the new tenant’)— (a) becomes the secure tenant under the same secure tenancy, otherwise than on an assignment made by virtue of section 92 (assignments by way of exchange), or (b) becomes the secure tenant under a periodic tenancy arising by virtue of section 86 (periodic tenancy arising on termination of fixed term) on the coming to an end of the secure tenancy, the new tenant shall be in the same position as if the notice had been given by him and he had been the secure tenant at the time it was given. [(2) If a notice under section 125 (landlord’s notice of purchase price and other matters) has been served on the former tenant, then, whether or not the former tenant has served a notice under subsection (1) of section 125D (tenant’s notice of intention), the new tenant shall serve a notice under that subsection within the period of twelve weeks beginning with whichever of the following is the later— (a) his becoming the secure tenant, …1 (b) where the right to have the value of the dwelling-house determined or re-determined by the district valuer is or has been exercised by him or the former tenant [(or where the right to have the value of the dwellinghouse re-determined by the district valuer is or has been exercised by the landlord), the relevant event]2.]3 [(2A)  In subsection (2)(b) ‘the relevant event’ means— (a) where a review notice was capable of being served under section 128A in relation to the determination or re-determination but no such notice was served during the period permitted by that section, the service of the notice under section 128(5) stating the effect of the determination or re-determination, (b) where a review notice was served under section 128A in relation to the determination or re-determination and section 128B(3) applied, the service on the new tenant or (as the case may be) the former tenant of the notice under section 128B(3), and (c) where a review notice was served under section 128A in relation to the determination or re-determination and section 128B(5) applied, the service of the notice under section 128B(7).]4 220

Part V The right to buy

(6) The preceding provisions of this section do not confer any right on a person required in pursuance of section 123 (claim to share right to buy with members of family) to share the right to buy, unless he could have been validly so required had the notice claiming to exercise the right to buy been given by the new tenant. (7) The preceding provisions of this section apply with the necessary modifications if there is a further change in the person who is the secure tenant. Amendments 1 Repealed by the Housing and Regeneration Act 2008, s 321(1), Sch 16 2 Substituted by the Housing and Regeneration Act 2008, s 306(1), (8). 3 Substituted by the Leasehold Reform, Housing and Urban Development Act 1993, s 105(2); S.I. 1993/2134, arts. 2, 4(b)(with saving in Sch. 1 para. 4(1)). 4 Inserted by the Housing and Regeneration Act 2008, s 306(1), (9).

137  Change of landlord after notice claiming right to buy or right to a mortgage.

[(1)]1  Where the interest of the landlord in the dwelling-house passes from the landlord to another body after a secure tenant has given a notice claiming to exercise the right to buy …2, all parties shall[, subject to subsection (2),]1 be in the same position as if the other body had become the landlord before the notice was given and had been given that notice and any further notice given by the tenant to the landlord and had taken all steps which the landlord had taken. [(2) If the circumstances after the disposal differ in any material respect, as for example where— (a) the interest of the disponee in the dwelling-house after the disposal differs from that of the disponor before the disposal, or (b) …2 (c) any of the provisions of Schedule  5 (exceptions to the right to buy) becomes or ceases to be applicable, all those concerned shall, as soon as practicable after the disposal, take all such steps (whether by way of amending or withdrawing and re-serving any notice or extending any period or otherwise) as may be requisite for the purpose of securing that all parties are, as nearly as may be, in the same position as they would have been if those circumstances had obtained before the disposal.]1 Amendments 1 Inserted by the Housing and Planning Act 1986, s 24(1), Sch 5, para 4. 2 Repealed by the Leasehold Reform, Housing and Urban Development Act 1993, s 187(2), Sch 22.

221

Statutes

Completion of purchase in pursuance of right to buy 138  Duty of landlord to convey freehold or grant lease.

(1) Where a secure tenant has claimed to exercise the right to buy and that right has been established, then, as soon as all matters relating to the grant …1 have been agreed or determined, the landlord shall make to the tenant— (a) if the dwelling-house is a house and the landlord owns the freehold, a grant of the dwelling-house for an estate in fee simple absolute, or (b) if the landlord does not own the freehold or if the dwelling-house is a flat (whether or not the landlord owns the freehold), a grant of a lease of the dwelling-house, in accordance with the following provisions of this Part. (2) If the tenant has failed to pay the rent or any other payment due from him as a tenant for a period of four weeks after it has been lawfully demanded from him, the landlord is not bound to comply with subsection (1) while the whole or part of that payment remains outstanding. [(2A)  Subsection (2B) applies if an application is pending before any court— (a) for a demotion[, Ground 2 or 2ZA possession order or section 84A possession order]2 to be made in respect of the tenant, or (b) for a suspension order to be made in respect of the tenancy. (2B)  The landlord is not bound to comply with subsection (1) until such time (if any) as the application is determined without— (a) a demotion order[, an operative Ground 2 or 2ZA possession order or an operative section 84A possession order]2 being made in respect of the tenant, or (b) a suspension order being made in respect of the tenancy, or the application is withdrawn. (2C)  For the purposes of subsection (2A) and (2B)— ‘demotion order’ means a demotion order under section 82A; [’Ground 2 or 2ZA possession order’ means an order for possession under Ground 2 or Ground 2ZA in Schedule 2;]2 [‘operative Ground 2 or 2ZA possession order’ means an order made under Ground 2 or Ground 2ZA in Schedule 2 which requires possession of the dwelling-house to be given up on a date specified in the order;]2 [‘operative section 84A possession order’ means an order under section 84A which requires possession of the dwelling-house to be given up on a date specified in the order; ‘section 84A possession order’ means an order for possession under section 84A;]3 222

Part V The right to buy

‘suspension order’ means a suspension order under section 121A. (2D) Subsection (1) has effect subject to section 121A(5) (disapplication of subsection (1) where suspension order is made).]4 [(2E)  Subsection (1) also has effect subject to— (a) section 138A(2) (operation of subsection (1) suspended while initial demolition notice is in force), and (b) section 138B(2) (subsection (1) disapplied where final demolition notice is served).]5 (3) The duty imposed on the landlord by subsection (1) is enforceable by injunction. Amendments 1 Repealed by the Leasehold Reform, Housing and Urban Development Act 1993, s 187(2), Sch 22. 2 Substituted by the Anti-social Behaviour, Crime and Policing Act 2014, s 100(1)(a)(d). 3 Inserted by the Anti-social Behaviour, Crime and Policing Act 2014, s 100(1)(e). 4 Inserted by the Housing Act 2004, s 193(1). 5 Inserted by the Housing Act 2004, s 183(1).

[138A  Effect of initial demolition notice served before completion

(1) This section applies where— (a) an initial demolition notice is served on a secure tenant under Schedule 5A, and (b) the notice is served on the tenant before the landlord has made to him such a grant as is required by section 138(1) in respect of a claim by the tenant to exercise the right to buy. (2) In such a case the landlord is not bound to comply with section 138(1), in connection with any such claim by the tenant, so long as the initial demolition notice remains in force under Schedule 5A. (3) Section 138C provides a right to compensation in certain cases where this section applies.]1 Amendments 1 Inserted by the Housing Act 2004, s 183(2).

[138B  Effect of final demolition notice served before completion

(1) This section applies where— (a) a secure tenant has claimed to exercise the right to buy, but 223

Statutes

(b) before the landlord has made to the tenant such a grant as is required by section 138(1) in respect of the claim, a final demolition notice is served on the tenant under paragraph 13 of Schedule 5. (2) In such a case— (a) the tenant’s claim ceases to be effective as from the time when the final demolition notice comes into force under that paragraph, and (b) section 138(1) accordingly does not apply to the landlord, in connection with the tenant’s claim, at any time after the notice comes into force. (3) Section 138C provides a right to compensation in certain cases where this section applies.]1 Amendments 1 Inserted by the Housing Act 2004, s 183(2).

[138C  Compensation where demolition notice served

(1) This section applies where— (a) a secure tenant has claimed to exercise the right to buy, (b) before the landlord has made to the tenant such a grant as is required by section 138(1) in respect of the claim, either an initial demolition notice is served on the tenant under Schedule 5A or a final demolition notice is served on him under paragraph 13 of Schedule 5, and (c) the tenant’s claim is established before that notice comes into force under Schedule 5A or paragraph 13 of Schedule 5 (as the case may be). (2) If, within the period of three months beginning with the date when the notice comes into force (‘the operative date’), the tenant serves on the landlord a written notice claiming an amount of compensation under subsection (3), the landlord shall pay that amount to the tenant. (3) Compensation under this subsection is compensation in respect of expenditure reasonably incurred by the tenant before the operative date in respect of legal and other fees, and other professional costs and expenses, payable in connection with the exercise by him of the right to buy. (4) A  notice under subsection (2) must be accompanied by receipts or other documents showing that the tenant incurred the expenditure in question.]1 Amendments 1 Inserted by the Housing Act 2004, s 183(2).

139  Terms and effect of conveyance or grant and mortgage.

(1) A conveyance of the freehold executed in pursuance of the right to buy shall conform with Parts I and II of Schedule 6; a grant of a lease so executed shall 224

Part V The right to buy

conform with Parts I and III of that Schedule; and Part IV of that Schedule has effect in relation to certain charges. (2) The secure tenancy comes to an end on the grant to the tenant of an estate in fee simple, or of a lease, in pursuance of the provisions of this Part relating to the right to buy; and if there is then a subtenancy section 139 of the Law of Property Act 1925 (effect of extinguishment of reversion) applies as on a merger or surrender. (3) …1 Amendments 1 Repealed by the Leasehold Reform, Housing and Urban Development Act 1993, s 187(2), Sch 22.

140  Landlord’s first notice to complete.

(1) The landlord may, subject to the provisions of this section, serve on the tenant at any time a written notice requiring him— (a) if all relevant matters have been agreed or determined, to complete the transaction within a period stated in the notice, or (b) if any relevant matters are outstanding, to serve on the landlord within that period a written notice to that effect specifying the matters, and informing the tenant of the effect of this section and of section 141(1), (2) and (4) landlord’s second notice to complete). (2) The period stated in a notice under this section shall be such period (of at least 56 days) as may be reasonable in the circumstances. [(3) A notice under this section shall not be served earlier than [three]1 months after— (a) the service of the landlord’s notice under section 125 (notice of purchase price and other matters), or (b) where a notice has been served under section 146 (landlord’s notice admitting or denying right to acquire on rent to mortgage terms), the service of that notice.]2 (4) A notice under this section shall not be served if— (a) a requirement for the determination or re-determination of the value of the dwelling-house by the district valuer has not been complied with, [(aa)  a review notice (within the meaning of section 128A) has been served in relation to such a determination or re-determination, section 128B applies and the district valuer has neither— (i) served a notice under section 128B(3) (refusal to make further determination), nor 225

Statutes

(ii) served a notice under section 128B(7) (a determination effect notice), (ab) no such review notice has been served but such a notice may still be served under section 128A,]3 (b) proceedings for the determination of any other relevant matter have not been disposed of, or (c) any relevant matter stated to be outstanding in a written notice served on the landlord by the tenant has not been agreed in writing or determined. (5) In this section ‘relevant matters’ means matters relating to the grant …4. Amendments 1 Substituted by the Housing Act 2004, s 184(1), (2). 2 Substituted by the Leasehold Reform, Housing and Urban Development Act 1993, s 187(1), Sch 21, para 12. 3 Inserted by the Housing and Regeneration Act 2008, s 306(1), (10). 4 Repealed by the Leasehold Reform, Housing and Urban Development Act 1993, s 187(2), Sch 22.

141  Landlord’s second notice to complete.

(1) If the tenant does not comply with a notice under section 140 (landlord’s first notice to complete), the landlord may serve on him a further written notice— (a) requiring him to complete the transaction within a period stated in the notice, and (b) informing him of the effect of this section in the event of his failing to comply. (2) The period stated in a notice under this section shall be such period (of at least 56 days) as may be reasonable in the circumstances. (3) At any time before the end of that period (or that period as previously extended) the landlord may by a written notice served on the tenant extend it (or further extend it). (4) If the tenant does not comply with a notice under this section the notice claiming to exercise the right to buy shall be deemed to be withdrawn at the end of that period (or as the case may require, that period as extended under subsection (3)). (5) If a notice under this section has been served on the tenant and by virtue of section 138(2) (failure of tenant to pay rent, etc.) the landlord is not bound to complete, the tenant shall be deemed not to comply with the notice. 142 …1 Amendments 1 Repealed by the Leasehold Reform, Housing and Urban Development Act 1993, s 187(2), Sch 22.

226

Part V The right to buy

[142A  Termination of the right to acquire on rent to mortgage terms

(1) As from the termination date, the right to acquire on rent to mortgage terms is not exercisable except in pursuance of a notice served under section 144 before that date. (2) In this section ‘the termination date’ means the date falling 8 months after the date of the passing of the Housing Act 2004.]1 Amendments 1 Inserted by the Housing Act 2004, s 190(1).

[Right to acquire on rent to mortgage terms 143  Right to acquire on rent to mortgage terms.

(1) Subject to subsection (2) and sections [142A,]1 143A and 143B, where— (a) a secure tenant has claimed to exercise the right to buy, and (b) his right to buy has been established and his notice claiming to exercise it remains in force, he also has the right to acquire on rent to mortgage terms in accordance with the following provisions of this Part. (2) The right to acquire on rent to mortgage terms cannot be exercised if the exercise of the right to buy is precluded by section 121 (circumstances in which right to buy cannot be exercised). (3) Where the right to buy belongs to two or more persons jointly, the right to acquire on rent to mortgage terms also belongs to them jointly.]2 Amendments 1 Inserted by the Housing Act 2004, s 190(2). 2 Substituted by the Leasehold Reform, Housing and Urban Development Act 1993, s 108.

[143A  Right excluded by entitlement to housing benefit.

(1) The right to acquire on rent to mortgage terms cannot be exercised if— (a) it has been determined that the tenant is or was entitled to housing benefit in respect of any part of the relevant period, or (b) a claim for housing benefit in respect of any part of that period has been made (or is treated as having been made) by or on behalf of the tenant and has not been determined or withdrawn. (2) In this section ‘the relevant period’ means the period— (a) beginning twelve months before the day on which the tenant claims to exercise the right to acquire on rent to mortgage terms, and 227

Statutes

(b) ending with the day on which the conveyance or grant is executed in pursuance of that right.]1 Amendments 1 Substituted by the Leasehold Reform, Housing and Urban Development Act 1993, s 108.

[143B Right excluded if minimum initial payment exceeds maximum initial payment.

(1) The right to acquire on rent to mortgage terms cannot be exercised if the minimum initial payment in respect of the dwelling-house exceeds the maximum initial payment in respect of it. (2) The maximum initial payment in respect of a dwelling-house is 80 per cent. of the price which would be payable if the tenant were exercising the right to buy. (3) Where, in the case of a dwelling-house which is a house, the weekly rent at the relevant time did not exceed the relevant amount, the minimum initial payment shall be determined by the formula— P = R × M where— P = the minimum initial payment; R = the amount of the weekly rent at the relevant time; M = the multiplier which at that time was for the time being declared by the Secretary of State for the purposes of this subsection. (4) Where, in the case of a dwelling-house which is a house, the weekly rent at the relevant time exceeded the relevant amount, the minimum initial payment shall be determined by the formula— P = Q + (E × M) where— P = the minimum initial payment; Q = the qualifying maximum for the year of assessment which included the relevant time; E = the amount by which the weekly rent at that time exceeded the relevant amount; M = the multiplier which at that time was for the time being declared by the Secretary of State for the purposes of this subsection. (5) The minimum initial payment in respect of a dwelling-house which is a flat is 80 per cent. of the amount which would be the minimum initial payment in respect of the dwelling-house if it were a house. 228

Part V The right to buy

(6) The relevant amount and multipliers for the time being declared for the purposes of this section shall be such that, in the case of a dwelling-house which is a house, they will produce a minimum initial payment equal to the capital sum which, in the opinion of the Secretary of State, could be raised on a 25 year repayment mortgage in the case of which the net amount of the monthly mortgage payments was equal to the rent at the relevant time calculated on a monthly basis. (7) For the purposes of subsection (6) the Secretary of State shall assume— (a) that the interest rate applicable throughout the 25 year term were the standard national rate for the time being declared by the Secretary of State under paragraph  2 of Schedule  16 (local authority mortgage interest rates); and (b) that the monthly mortgage payments represented payments of capital and interest only. (8) In this section— ‘net amount’, in relation to monthly mortgage payments, means the amount of such payments after deduction of tax under section 369 of the Income and Corporation Taxes Act 1988 (mortgage interest payable under deduction of tax); ‘qualifying maximum’ means the qualifying maximum defined in section 367(5) of that Act (limit on relief for interest on certain loans); ‘relevant amount’ means the amount which at the relevant time was for the time being declared by the Secretary of State for the purposes of this section; ‘relevant time’ means the time of the service of the landlord’s notice under section 146 (landlord’s notice admitting or denying right); ‘rent’ means rent payable under the secure tenancy, but excluding any element which is expressed to be payable for services, repairs, maintenance or insurance or the landlord’s costs of management.]1 Amendments 1 Substituted by the Leasehold Reform, Housing and Urban Development Act 1993, s 108.

[144  Tenant’s notice claiming right.

(1) [Subject to section 142A, a secure tenant]1 claims to exercise the right to acquire on rent to mortgage terms by written notice to that effect served on the landlord. (2) The notice may be withdrawn at any time by notice in writing served on the landlord. (3) On the service of a notice under this section, any notice served by the landlord under section 140 or 141 (landlord’s notices to complete purchase 229

Statutes

in pursuance of right to buy) shall be deemed to have been withdrawn; and no such notice may be served by the landlord whilst a notice under this section remains in force. (4) Where a notice under this section is withdrawn, the tenant may complete the transaction in accordance with the provisions of this Part relating to the right to buy.]2 Amendments 1 Substituted by the Housing Act 2004, s 190(3) 2 Substituted by the Leasehold Reform, Housing and Urban Development Act 1993, s 109.

145 …1

Amendments 1 Substituted by the Leasehold Reform, Housing and Urban Development Act 1993, s 109.

[146  Landlord’s notice admitting or denying right.

(1) Where a notice under section 144 (notice claiming to exercise the right to acquire on rent to mortgage terms) has been served by the tenant, the landlord shall, unless the notice is withdrawn, serve on the tenant as soon as practicable a written notice either— (a) admitting the tenant’s right and informing him of the matters mentioned in subsection (2), or (b) denying it and stating the reasons why, in the opinion of the landlord, the tenant does not have the right to acquire on rent to mortgage terms. (2) The matters are— (a) the relevant amount and multipliers for the time being declared by the Secretary of State for the purposes of section 143B; (b) the amount of the minimum initial payment; (c) the proportion which that amount bears to the price which would be payable if the tenant exercised the right to buy; (d) the landlord’s share on the assumption that the tenant makes the minimum initial payment; (e) the amount of the initial discount on that assumption; and (f) the provisions which, in the landlord’s opinion, should be contained in the conveyance or grant and the mortgage required by section 151B (mortgage for securing redemption of landlord’s share).]1 Amendments 1 Substituted by the Leasehold Reform, Housing and Urban Development Act 1993, s 110.

230

Part V The right to buy

[146A  Tenant’s notice of intention.

(1) Where a notice under section 146 has been served on a secure tenant, he shall within the period specified in subsection (2) serve a written notice on the landlord stating either— (a) that he intends to pursue his claim to exercise the right to acquire on rent to mortgage terms and the amount of the initial payment which he proposes to make, or (b) that he withdraws that claim and intends to pursue his claim to exercise the right to buy, or (c) that he withdraws both of those claims. (2) The period for serving a notice under subsection (1) is the period of twelve weeks beginning with the service of the notice under section 146. (3) The amount stated in a notice under subsection (1)(a)— (a) shall not be less than the minimum initial payment and not more than the maximum initial payment, and (b) may be varied at any time by notice in writing served on the landlord.]1 Amendments 1 Inserted by the Leasehold Reform, Housing and Urban Development Act 1993, s 111.

[146B  Landlord’s notice in default.

(1) The landlord may, at any time after the end of the period specified in section 146A(2), serve on the tenant a written notice— (a) requiring him, if he has failed to serve the notice required by section 146A(1), to serve that notice within 28 days, and (b) informing him of the effect of this subsection and subsection (4). (2) At any time before the end of the period mentioned in subsection (1)(a) (or that period as previously extended) the landlord may by written notice served on the tenant extend it (or further extend it). (3) If at any time before the end of that period (or that period as extended under subsection (2)) the circumstances are such that it would not be reasonable to expect the tenant to comply with a notice under this section, that period (or that period as so extended) shall by virtue of this subsection be extended (or further extended) until 28 days after the time when those circumstances no longer obtain. (4) If the tenant does not comply with a notice under this section the notice claiming to exercise the right to acquire on rent to mortgage terms shall be deemed to be withdrawn at the end of that period (or, as the case may require, that period as extended under subsection (2) or (3)).]1 231

Statutes

Amendments 1 Inserted by the Leasehold Reform, Housing and Urban Development Act 1993, s 111.

[147  Notice of landlord’s share and initial discount.

(1) Where a secure tenant has served— (a) a notice under section 146A(1)(a) stating that he intends to pursue his claim to exercise the right to acquire on rent to mortgage terms, and the amount of the initial payment which he proposes to make, or (b) a notice under section 146A(3)(b) varying the amount stated in a notice under section 146A(1)(a), the landlord shall, as soon as practicable, serve on the tenant a written notice complying with this section. (2) The notice shall state— (a) the landlord’s share on the assumption that the amount of the tenant’s initial payment is that stated in the notice under section 146A(1)(a) or, as the case may be, section 146A(3)(b), and (b) the amount of the initial discount on that assumption, determined in each case in accordance with section 148.]1 Amendments 1 Substituted by the Leasehold Reform, Housing and Urban Development Act 1993, s 112.

[148  Determination of landlord’s share, initial discount etc.

The landlord’s share shall be determined by the formula— S = (P – IP) / P × 100 the amount of the initial discount shall be determined by the formula— ID = IP / P × D and the amount of any previous discount which will be recovered by virtue of the transaction shall be determined by the formula— RD = IP / P × PD where— S = the landlord’s share expressed as a percentage; P = the price which would be payable if the tenant were exercising the right to buy; IP = the amount of the tenant’s initial payment (but disregarding any reduction in pursuance of section 153B(3)); 232

Part V The right to buy

ID = the amount of the initial discount; D = the amount of the discount which would be applicable if the tenant were exercising the right to buy; RD = the amount of any previous discount which will be recovered by virtue of the transaction; PD = the amount of any previous discount which would be recovered if the tenant were exercising the right to buy.]1 Amendments 1 Substituted by the Leasehold Reform, Housing and Urban Development Act 1993, s 113.

[149  Change of landlord after notice claiming right.

(1) Where the interest of the landlord in the dwelling-house passes from the landlord to another body after a secure tenant has given a notice claiming to exercise the right to acquire on rent to mortgage terms, all parties shall subject to subsection (2) be in the same position as if the other body— (a) had become the landlord before the notice was given, and (b) had been given that notice and any further notice given by the tenant to the landlord, and (c) had taken all steps which the landlord had taken. (2) If the circumstances after the disposal differ in any material respect, as for example where— (a) the interest of the disponee in the dwelling-house after the disposal differs from that of the disponor before the disposal, or (b) any of the provisions of Schedule  5 (exceptions to the right to buy) becomes or ceases to be applicable, all those concerned shall, as soon as practicable after the disposal, take all such steps (whether by way of amending or withdrawing and re-serving any notice or extending any period or otherwise) as may be requisite for the purpose of securing that all parties are, as nearly as may be, in the same position as they would have been if those circumstances had obtained before the disposal.]1 Amendments 1 Substituted by the Leasehold Reform, Housing and Urban Development Act 1993, s 114.

[150  Duty of landlord to convey freehold or grant lease.

(1) Where a secure tenant has claimed to exercise the right to acquire on rent to mortgage terms and that right has been established, then, as soon as all 233

Statutes

matters relating to the grant and to securing the redemption of the landlord’s share have been agreed or determined, the landlord shall make to the tenant— (a) if the dwelling-house is a house and the landlord owns the freehold, a grant of the dwelling-house for an estate in fee simple absolute, or (b) if the landlord does not own the freehold or if the dwelling-house is a flat (whether or not the landlord owns the freehold), a grant of a lease of the dwelling-house, in accordance with the following provisions of this Part. (2) If the tenant has failed to pay the rent or any other payment due from him as a tenant for a period of four weeks after it has been lawfully demanded from him, the landlord is not bound to comply with subsection (1) while the whole or part of that payment remains outstanding. (3) The duty imposed on the landlord by subsection (1) is enforceable by injunction.]1 Amendments 1 Substituted by the Leasehold Reform, Housing and Urban Development Act 1993, s 115.

[151  Terms and effect of conveyance or grant: general.

(1) A conveyance of the freehold executed in pursuance of the right to acquire on rent to mortgage terms shall conform with Parts I and II of Schedule 6; a grant of a lease so executed shall conform with Parts I  and  III  of that Schedule; and Part IV of that Schedule applies to such a conveyance or lease as it applies to a conveyance or lease executed in pursuance of the right to buy. (2) The secure tenancy comes to an end on the grant to the tenant of an estate in fee simple, or of a lease, in pursuance of the right to acquire on rent to mortgage terms; and if there is then a sub-tenancy section 139 of the Law of Property Act 1925 (effect of extinguishment of reversion) applies as on a merger or surrender.]1 Amendments 1 Substituted by the Leasehold Reform, Housing and Urban Development Act 1993, s 116(1).

[151A  Redemption of landlord’s share.

Schedule 6A (which makes provision for the redemption of the landlord’s share) shall have effect; and a conveyance of the freehold or a grant of a lease executed in pursuance of the right to acquire on rent to mortgage terms shall conform with that Schedule.]1 Amendments 1 Inserted by the Leasehold Reform, Housing and Urban Development Act 1993, s 117(1).

234

Part V The right to buy

[151B  Mortgage for securing redemption of landlord’s share.

(1) The liability that may arise under the covenant required by paragraph 1 of Schedule  6A (covenant for the redemption of the landlord’s share in the circumstances there mentioned) shall be secured by a mortgage. (2) Subject to subsections (3) and (4), the mortgage shall have priority immediately after any legal charge securing an amount advanced to the secure tenant by an approved lending institution for the purpose of enabling him to exercise the right to acquire on rent to mortgage terms. (3) The following, namely— (a) any advance which is made otherwise than for the purpose mentioned in subsection (2) and is secured by a legal charge having priority to the mortgage, and (b) any further advance which is so secured, shall rank in priority to the mortgage if, and only if, the landlord by written notice served on the institution concerned gives its consent; and the landlord shall so give its consent if the purpose of the advance or further advance is an approved purpose. (4) The landlord may at any time by written notice served on an approved lending institution postpone the mortgage to any advance or further advance which— (a) is made to the tenant by that institution, and (b) is secured by a legal charge not having priority to the mortgage; and the landlord shall serve such a notice if the purpose of the advance or further advance is an approved purpose. (5) The approved lending institutions for the purposes of this section are— the [Relevant Authority]1, [an authorised deposit taker an authorised insurer]2 [an authorised mortgage lender.]3 [(5A)  In subsection (5) ‘the Relevant Authority’ does not include the Regulator of Social Housing but does include the Homes and Communities Agency.]4 [(5B) In subsection (5) ‘the Relevant Authority’ also includes the Greater London Authority.]5 (6) The approved purposes for the purposes of this section are— (a) to enable the tenant to make an interim or final payment, (b) to enable the tenant to defray, or to defray on his behalf, any of the following— 235

Statutes

(i) the cost of any works to the dwelling-house, (ii) any service charge payable in respect of the dwelling-house for works, whether or not to the dwelling-house, and (iii) any service charge or other amount payable in respect of the dwelling-house for insurance, whether or not of the dwelling-house, and (c) to enable the tenant to discharge, or to discharge on his behalf, any of the following— (i) so much as is still outstanding of any advance or further advance which ranks in priority to the mortgage, (ii) any arrears of interest on such an advance or further advance, and (iii) any costs and expenses incurred in enforcing payment of any such interest, or repayment (in whole or in part) of any such advance or further advance. (7) Where different parts of an advance or further advance are made for different purposes, each of those parts shall be regarded as a separate advance or further advance for the purposes of this section. (8) The Secretary of State may by order prescribe— (a) matters for which the deed by which the mortgage is effected must make provision, and (b) terms which must, or must not, be contained in that deed, but only in relation to deeds executed after the order comes into force. (9) The deed by which the mortgage is effected may contain such other provisions as may be— (a) agreed between the mortgagor and the mortgagee, or (b) determined by the county court to be reasonably required by the mortgagor or the mortgagee. (10) An order under this section— (a) may make different provision with respect to different cases or descriptions of case, including different provision for different areas, and (b) shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.]6 Amendments 1 Substituted by the Government of Wales Act 1998, s 140, Sch 16, paras 4, 5. 2 Substituted by the Financial Services and Markets Act 2000 (Consequential Amendments and Repeals) Order 2001, SI 2001/3649, art 299(1), (3). 3 Substituted by the Housing and Regeneration Act 2008, s 307(5).

236

Part V The right to buy

4 Inserted by the Housing and Regeneration Act 2008 (Consequential Provisions) Order 2010, SI 2010/866, art 4, Sch 1, paras 1, 2. 5 Inserted by the Localism Act 2011, s 195(1), Sch 19, paras 10, 14. 6 Inserted by the Leasehold Reform, Housing and Urban Development Act 1993, s 118.

152  Landlord’s first notice to complete.

(1) The landlord may, subject to the provisions of this section, serve on the tenant at any time a written notice requiring him— (a) if all relevant matters have been agreed or determined, to complete the transaction within a period stated in the notice, or (b) if any relevant matters are outstanding, to serve on the landlord within that period a written notice to that effect specifying the matters, and informing the tenant of the effect of this section and of section 153(1), (2) and (4) (landlord’s second notice to complete and its effect). (2) The period stated in a notice under this section shall be such period (of at least 56 days) as may be reasonable in the circumstances. [(3) A notice under this section shall not be served earlier than twelve months after the service of the notice under section 146 (landlord’s notice admitting or denying right).]1 (4) A notice under this section shall not be served if— (a) a requirement for the determination or re-determination of the value of the dwelling-house by the district valuer has not been complied with, (b) proceedings for the determination of any other relevant matter have not been disposed of, or (c) any relevant matter stated to be outstanding in a written notice served on the landlord by the tenant has not been agreed in writing or determined. (5) In this section ‘relevant matters’ means matters relating to the grant and to [securing the redemption of the landlord’s share]1. Amendments 1 Substituted by the Leasehold Reform, Housing and Urban Development Act 1993, s 119(1), (2).

153  Landlord’s second notice to complete.

(1) If the tenant does not comply with a notice under section 152 (landlord’s first notice to complete), the landlord may serve on him a further written notice— (a) requiring him to complete the transaction within a period stated in the notice, and (b) informing him of the effect of this section in the event of his failing to comply. 237

Statutes

(2) The period stated in a notice under this section shall be such period (of at least 56 days) as may be reasonable in the circumstances. (3) At any time before the end of that period (or that period as previously extended) the landlord may by a written notice served on the tenant extend it (or further extend it). (4) If the tenant does not comply with a notice under this section, the notice claiming to exercise [the right to acquire on rent to mortgage terms]1 and the notice claiming to exercise the right to buy shall be deemed to have been withdrawn at the end of that period (or, as the case may require, that period as extended under subsection (3)). (5) If a notice under this section has been served on the tenant and by virtue of section 150(2) (failure of tenant to pay rent, etc.) the landlord is not bound to complete, the tenant shall be deemed not to comply with the notice. Amendments 1 Substituted by the Leasehold Reform, Housing and Urban Development Act 1993, s 119(3).

[Tenant’s sanction for landlord’s delays]1 [153A  Tenant’s notices of delay.

(1) Where a secure tenant has claimed to exercise the right to buy, he may serve on his landlord a notice (in this section referred to as an ‘initial notice of delay’) in any of the following cases, namely,— (a) where the landlord has failed to serve a notice under section 124 within the period appropriate under subsection (2) …2 of that section; (b) where the tenant’s right to buy has been established and the landlord has failed to serve a notice under section 125 within the period appropriate under subsection (1) of that section; (c) …3 (d) …3 (e) where the tenant considers that delays on the part of the landlord are preventing him from exercising expeditiously his right to buy or his [right to acquire on rent to mortgage terms]4; and where an initial notice of delay specifies [either of the cases in paragraphs (a) and (b)]4, any reference in this section or section 153B to the default date is a reference to the end of the period referred to in the paragraph in question or, if it is later, the day appointed for the coming into force of section 124 of the Housing Act 1988. (2) An initial notice of delay— 238

Part V The right to buy

(a) shall specify the most recent action of which the tenant is aware which has been taken by the landlord pursuant to this Part of this Act; and (b) shall specify a period (in this section referred to as ‘the response period’), not being less than one month, beginning on the date of service of the notice, within which the service by the landlord of a counter notice under subsection (3) will have the effect of cancelling the initial notice of delay. (3) Within the response period specified in an initial notice of delay or at any time thereafter, the landlord may serve on the tenant a counter notice in either of the following circumstances— (a) if the initial notice specifies [either of the cases in paragraphs (a) and (b)]4 of subsection (1) and the landlord has served, or is serving together with the counter notice, the required notice under section 124, [or section 125]4, as the case may be; or (b) if the initial notice specifies the case in subsection (1)(e) and there is no action under this Part which, at the beginning of the response period, it was for the landlord to take in order to allow the tenant expeditiously to exercise his right to buy or his [right to acquire on rent to mortgage terms]4 and which remains to be taken at the time of service of the counter notice. (4) A  counter notice under subsection (3) shall specify the circumstances by virtue of which it is served. (5) At any time when— (a) the response period specified in an initial notice of delay has expired, and (b) the landlord has not served a counter notice under subsection (3), the tenant may serve on the landlord a notice (in this section and section 153B referred to as an ‘operative notice of delay’) which shall state that section 153B will apply to payments of rent made by the tenant on or after the default date or, if the initial notice of delay specified the case in subsection (1)(e), the date of the service of the notice. (6) If, after a tenant has served an initial notice of delay, a counter notice has been served under subsection (3), then, whether or not the tenant has also served an operative notice of delay, if any of the cases in subsection (1) again arises, the tenant may serve a further initial notice of delay and the provisions of this section shall apply again accordingly.]5 Amendments 1 Inserted by the Leasehold Reform, Housing and Urban Development Act 1993, s 187(1), Sch 21, para 13(1). 2 Repealed by the Abolition of the Right to Buy and Associated Rights (Wales) Act 2018 (Consequential Amendments and Savings Provisions) Regulations 2019, SI 2019/110, reg 3(k).

239

Statutes

3 Repealed by the Leasehold Reform, Housing and Urban Development Act 1993, s 187(2), Sch 22. 4 Substituted by the Leasehold Reform, Housing and Urban Development Act 1993, s 187(1), Sch 21, para 13(2), (3). 5 Inserted by the Housing Act 1988, s 124.

[153B  Payments of rent attributable to purchase price etc.

(1) Where a secure tenant has served on his landlord an operative notice of delay, this section applies to any payment of rent which is made on or after the default date or, as the case may be, the date of the service of the notice and before the occurrence of any of the following events (and, if more than one event occurs, before the earliest to occur)— (a) the service by the landlord of a counter notice under section 153A(3); (b) the date on which the landlord makes to the tenant the grant required by section 138 or, as the case may be, section 150; (c) …1 (d) the date on which the tenant withdraws or is deemed to have withdrawn the notice claiming to exercise the right to buy or, as the case may be, the notice claiming to exercise the [right to acquire on rent to mortgage terms]2; and (e) the date on which the tenant ceases to be entitled to exercise the right to buy. (2) Except where this section ceases to apply on a date determined under [paragraph (d) or (e)]2 of subsection (1), so much of any payment of rent to which this section applies as does not consist of— (a) a sum due on account of rates [or council tax]3, or (b) a service charge (as defined in section 621A), shall be treated not only as a payment of rent but also as a payment on account by the tenant which is to be taken into account in accordance with subsection (3). (3) In a case where subsection (2) applies, the amount which, apart from this section, would be the purchase price or, as the case may be, [the tenant’s initial payment]2 shall be reduced by an amount equal to the aggregate of— (a) the total of any payments on account treated as having been paid by the tenant by virtue of subsection (2); and (b) if those payments on account are derived from payments of rent referable to a period of more than twelve months, a sum equal to the appropriate percentage of the total referred to in paragraph (a). 240

Part V The right to buy

(4) In subsection (3)(b) ‘the appropriate percentage’ means 50 per cent. or such other percentage as may be prescribed.]4 Amendments 1 Repealed by the Leasehold Reform, Housing and Urban Development Act 1993, s 187(2), Sch 22. 2 Substituted by the Leasehold Reform, Housing and Urban Development Act 1993, s 187(1), Sch 21, para 14. 3 Inserted by the Local Government Finance (Housing) (Consequential Amendments) Order 1993, SI 1993/651, art 2(1), Sch 1, para 14. 4 Inserted by the Housing Act 1988, s 124.

Registration of title 154  Registration of title.

(1) …1 (2) Where the landlord’s title to the dwelling-house is not registered, the landlord shall give the tenant a certificate stating that the landlord is entitled to convey the freehold or make the grant subject only to such incumbrances, rights and interests as are stated in the conveyance or grant or summarised in the certificate. (3) Where the landlord’s interest in the dwelling-house is a lease, the certificate under subsection (2) shall also state particulars of that lease and, with respect to each superior title— (a) where it is registered, the title number; (b) where it is not registered, whether it was investigated in the usual way on the grant of the landlord’s lease. (4) A certificate under subsection (2) shall be— (a) in a form approved by the Chief Land Registrar, and (b) signed by such officer of the landlord or such other person as may be approved by the Chief Land Registrar. (5) The Chief Land Registrar shall, for the purpose of the registration of title, accept such a certificate as sufficient evidence of the facts stated in it; but if as a result he has to meet a claim against him under the [Land Registration Act 2002]2 the landlord is liable to indemnify him. (6) …1 (7) …1 Amendments 1 Repealed by the Land Registration Act 2002, s 135, Sch 13. 2 Substituted by the Land Registration Act 2002, s 133, Sch 11, para 18(1), (3).

241

Statutes

Provisions affecting future disposals 155  Repayment of discount on early disposal.

(1) A conveyance of the freehold or grant of a lease in pursuance of this Part shall contain (unless, in the case of a conveyance or grant in pursuance of the right to buy, there is no discount) a covenant binding on the secure tenant and his successors in title to the following effect. [(2) In the case of a conveyance or grant in pursuance of the right to buy, the covenant shall be to pay the landlord such sum (if any) as the landlord may demand in accordance with section 155A on the occasion of the first relevant disposal (other than an exempted disposal) which takes place within the period of five years beginning with the conveyance or grant. (3) In the case of a conveyance or grant in pursuance of the right to acquire on rent to mortgage terms, the covenant shall be to pay the landlord such sum (if any) as the landlord may demand in accordance with section 155B on the occasion of the first relevant disposal (other than an exempted disposal) which takes place within the period of five years beginning with the making of the initial payment.]1 [(3A)  Where a secure tenant has served on his landlord an operative notice of delay, as defined in section 153A,— (a) the [five years]1 referred to in subsection (2) shall begin from a date which precedes the date of the conveyance of the freehold or grant of the lease by a period equal to the time (or, if there is more than one such notice, the aggregate of the times) during which, by virtue of section 153B, any payment of rent falls to be taken into account in accordance with subsection (3) of that section; and [(b) any reference in subsection (3) (other than paragraph (a) thereof) to the making of the initial payment shall be construed as a reference to the date which precedes that payment by the period referred to in paragraph (a) of this subsection.]2]3 Amendments 1 Substituted by the Housing Act 2004, s 185(1)-(3). 2 Substituted by the Leasehold Reform, Housing and Urban Development Act 1993, s 120(2). 3 Inserted by the Housing Act 1988, s 140(1), Sch 17, para 41.

[155A  Amount of discount which may be demanded by landlord: right to buy

(1) For the purposes of the covenant mentioned in section 155(2), the landlord may demand such sum as he considers appropriate, up to and including the maximum amount specified in this section. (2) The maximum amount which may be demanded by the landlord is a percentage of the price or premium paid for the first relevant disposal which 242

Part V The right to buy

is equal to the discount to which the secure tenant was entitled, where the discount is expressed as a percentage of the value which under section 127 was taken as the value of the dwelling-house at the relevant time. (3) But for each complete year which has elapsed after the conveyance or grant and before the disposal the maximum amount which may be demanded by the landlord is reduced by one-fifth. (4) This section is subject to section 155C.]1 Amendments 1 Inserted by the Housing Act 2004, s 185(4).

[155B  Amount of discount which may be demanded by landlord: right to acquire on rent to mortgage terms

(1) For the purposes of the covenant mentioned in section 155(3), the landlord may demand such sum as he considers appropriate, up to and including the maximum amount specified in this section. (2) The maximum amount which may be demanded by the landlord is the discount (if any) to which the tenant was entitled on the making of— (a) the initial payment, (b) any interim payment made before the disposal, or (c) the final payment if so made, reduced, in each case, by one-fifth for each complete year which has elapsed after the making of the initial payment and before the disposal.]1 Amendments 1 Inserted by the Housing Act 2004, s 185(4).

[155C  Increase attributable to home improvements

(1) In calculating the maximum amount which may be demanded by the landlord under section 155A, such amount (if any) of the price or premium paid for the disposal which is attributable to improvements made to the dwellinghouse— (a) by the person by whom the disposal is, or is to be, made, and (b) after the conveyance or grant and before the disposal, shall be disregarded. (2) The amount to be disregarded under this section shall be such amount as may be agreed between the parties or determined by the district valuer. (3) The district valuer shall not be required by virtue of this section to make a determination for the purposes of this section unless— 243

Statutes

(a) it is reasonably practicable for him to do so; and (b) his reasonable costs in making the determination are paid by the person by whom the disposal is, or is to be, made. (4) If the district valuer does not make a determination for the purposes of this section (and in default of an agreement), no amount is required to be disregarded under this section.]1 Amendments 1 Inserted by the Housing Act 2004, s 186(1).

156  Liability to repay is a charge on the premises.

(1) The liability that may arise under the covenant required by section 155 is a charge on the dwelling-house, taking effect as if it had been created by deed expressed to be by way of legal mortgage. [(2)  Subject to subsections (2A) and (2B), the charge has priority as follows— (a) if it secures the liability that may arise under the covenant required by section 155(2), immediately after any legal charge securing an amount advanced to the secure tenant by an approved lending institution for the purpose of enabling him to exercise the right to buy; (b) if it secures the liability that may arise under the covenant required by section 155(3), immediately after the mortgage— (i) which is required by section 151B (mortgage for securing redemption of landlord’s share), and (ii) which, by virtue of subsection (2) of that section, has priority immediately after any legal charge securing an amount advanced to the secure tenant by an approved lending institution for the purpose of enabling him to exercise the right to acquire on rent to mortgage terms. (2A)  The following, namely— (a) any advance which is made otherwise than for the purpose mentioned in paragraph (a) or (b) of subsection (2) and is secured by a legal charge having priority to the charge taking effect by virtue of this section, and (b) any further advance which is so secured, shall rank in priority to that charge if, and only if, the landlord by written notice served on the institution concerned gives its consent; and the landlord shall so give its consent if the purpose of the advance or further advance is an approved purpose. (2B) The landlord may at any time by written notice served on an approved lending institution postpone the charge taking effect by virtue of this section to any advance or further advance which— 244

Part V The right to buy

(a) is made to the tenant by that institution, and (b) is secured by a legal charge not having priority to that charge; and the landlord shall serve such a notice if the purpose of the advance or further advance is an approved purpose.]1 (3) …2 [(3A)  The covenant required by section 155 (covenant for repayment of discount) does not, by virtue of its binding successors in title of the tenant, bind a person exercising rights under a charge having priority over the charge taking effect by virtue of this section, or a person deriving title under him; and a provision of the conveyance or grant, or of a collateral agreement is void in so far as it purports to authorise a forfeiture, or to impose a penalty or disability, in the event of any such person failing to comply with that covenant.]3 (4) The approved lending institutions for the purposes of this section are— the [Relevant Authority]4, [an authorised deposit taker an authorised insurer]5 [an authorised mortgage lender.]6 …7 [(4ZA)  In subsection (4) ‘the Relevant Authority’ does not include the Regulator of Social Housing but does include the Homes and Communities Agency.]8 [(4ZB) In subsection (4) ‘the Relevant Authority’ also includes the Greater London Authority.]9 [(4A)  The approved purposes for the purposes of this section are— (a) to enable the tenant to make an interim or final payment, (b) to enable the tenant to defray, or to defray on his behalf, any of the following— (i) the cost of any works to the dwelling-house, (ii) any service charge payable in respect of the dwelling-house for works, whether or not to the dwelling-house, and (iii) any service charge or other amount payable in respect of the dwelling-house for insurance, whether or not of the dwelling-house, and (c) to enable the tenant to discharge, or to discharge on his behalf, any of the following— (i) so much as is still outstanding of any advance or further advance which ranks in priority to the charge taking effect by virtue of this section, (ii) any arrears of interest on such an advance or further advance, and 245

Statutes

(iii) any costs and expenses incurred in enforcing payment of any such interest, or repayment (in whole or in part) of any such advance or further advance. (4B) Where different parts of an advance or further advance are made for different purposes, each of those parts shall be regarded as a separate advance or further advance for the purposes of this section.]10 (5) …11 (6) …11 Amendments 1 Substituted by the Leasehold Reform, Housing and Urban Development Act 1993, s 120(3). 2 Repealed by the Land Registration Act 2002, s 135, Sch 13. 3 Inserted by the Housing and Planning Act 1986, s 24(1), Sch 5, para 1(2). 4 Substituted by the Government of Wales Act 1998, s 140, Sch 16, paras 4, 5. 5 Substituted by the Financial Services and Markets Act 2000 (Consequential Amendments and Repeals) Order 2001, SI 2001/3649, art 299(1), (4) 6 Substituted by the Housing and Regeneration Act 2008, s 307(1)(a). 7 Repealed by the Housing Act 1996, ss  222, 227, Sch  18, para  22(1)(c), Sch  19, Pt XIII. 8 Inserted by the Housing and Regeneration Act 2008 (Consequential Provisions) Order 2010, SI 2010/866, art 4, Sch 1, paras 1, 3. 9 Inserted by the Localism Act 2011, s 195(1), Sch 19, paras 10, 15. 10 Inserted by the Leasehold Reform, Housing and Urban Development Act 1993, s 120(4). 11 Repealed by the Housing and Regeneration Act 2008, ss 307(1)(b), 321(1), Sch 16.

[156A  Right of first refusal for landlord etc.

(1) A conveyance of the freehold or grant of a lease in pursuance of this Part shall contain the following covenant, which shall be binding on the secure tenant and his successors in title. This is subject to subsection (8). (2) The covenant shall be to the effect that, until the end of the period of ten years beginning with the conveyance or grant, there will be no relevant disposal which is not an exempted disposal, unless the prescribed conditions have been satisfied in relation to that or a previous such disposal. (3) In subsection (2) ‘the prescribed conditions’ means such conditions as are prescribed by regulations under this section at the time when the conveyance or grant is made. (4) The Secretary of State may by regulations prescribe such conditions as he considers appropriate for and in connection with conferring on— 246

Part V The right to buy

(a) a landlord who has conveyed a freehold or granted a lease to a person (‘the former tenant’) in pursuance of this Part, or (b) such other person as is determined in accordance with the regulations, a right of first refusal to have a disposal within subsection (5) made to him for such consideration as is mentioned in section 158. (5) The disposals within this subsection are— (a) a reconveyance or conveyance of the dwelling-house; and (b) a surrender or assignment of the lease. (6) Regulations under this section may, in particular, make provision— (a) for the former tenant to offer to make such a disposal to such person or persons as may be prescribed; (b) for a prescribed recipient of such an offer to be able either to accept the offer or to nominate some other person as the person by whom the offer may be accepted; (c) for the person who may be so nominated to be either a person of a prescribed description or a person whom the prescribed recipient considers, having regard to any prescribed matters, to be a more appropriate person to accept the offer; (d) for a prescribed recipient making such a nomination to give a notification of the nomination to the person nominated, the former tenant and any other prescribed person; (e) for authorising a nominated person to accept the offer and for determining which acceptance is to be effective where the offer is accepted by more than one person; (f) for the period within which the offer may be accepted or within which any other prescribed step is to be, or may be, taken; (g) for the circumstances in which the right of first refusal lapses (whether following the service of a notice to complete or otherwise) with the result that the former tenant is able to make a disposal on the open market; (h) for the manner in which any offer, acceptance or notification is to be communicated. (7) In subsection (6) any reference to the former tenant is a reference to the former tenant or his successor in title. Nothing in that subsection affects the generality of subsection (4). (8) In a case to which section 157(1) applies— (a) the conveyance or grant may contain a covenant such as is mentioned in subsections (1) and (2) above instead of a covenant such as is mentioned in section 157(1), but 247

Statutes

(b) it may do so only if the Secretary of State or, where the conveyance or grant is executed by a housing association within section 6A(3) or (4), the Relevant Authority consents. (9) Consent may be given in relation to— (a) a particular disposal, or (b) disposals by a particular landlord or disposals by landlords generally, and may, in any case, be given subject to conditions. (10)  Regulations under this section— (a) may make different provision with respect to different cases or descriptions of case; and (b) shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament. (11)  The limitation imposed by a covenant within subsection (2) (whether the covenant is imposed in pursuance of subsection (1) or (8)) is a local land charge. (12)  The Chief Land Registrar must enter in the register of title a restriction reflecting the limitation imposed by any such covenant.]1 Amendments 1 Inserted by the Housing Act 2004, s 188(1).

157  Restriction on disposal of dwelling-houses in National Parks, etc.

(1) Where in pursuance of this Part a conveyance or grant is executed by a local authority …1 or a housing association (‘the landlord’) of a dwelling-house situated in— (a) a National Park, (b) an area designated under [section 82 of the Countryside and Rights of Way Act 2000]2 as an area of outstanding natural beauty, or (c) an area designated by order of the Secretary of State as a rural area, the conveyance or grant may [(subject to section 156A(8)]3 contain a covenant limiting the freedom of the tenant (including any successor in title of his and any person deriving title under him or such a successor) to dispose of the dwelling-house in the manner specified below. (2) The limitation is …4 that until such time (if any) as may be notified in writing by the landlord to the tenant or a successor in title of his [(a)]5  there will be no relevant disposal which is not an exempted disposal without the written consent of the landlord; but that consent shall not be withheld if the disposal is to a person satisfying the condition stated in subsection (3) [and— 248

Part V The right to buy

(b) there will be no disposal by way of tenancy or licence without the written consent of the landlord unless the disposal is to a person satisfying that condition or by a person whose only or principal home is and, throughout the duration of the tenancy or licence, remains the dwelling-house]5. (3) The condition is that the person to whom the disposal is made (or, if it is made to more than one person, at least one of them) has, thoughout the period of three years immediately preceding the application for consent [or, in the case of a disposal by way of tenancy or licence, preceding the disposal]5— (a) had his place of work in a region designated by order of the Secretary of State which, or part of which, is comprised in the National Park or area, or (b) had his only or principal home in such a region; or has had the one in part or parts of that period and the other in the remainder; but the region need not have been the same throughout the period. (4) …4 (5) …4 (6) A disposal in breach of such a covenant as is mentioned in subsection (1) is void [and, so far as it relates to disposals by way of tenancy or licence, such a covenant may be enforced by the landlord as if— (a) the landlord were possessed of land adjacent to the house concerned; and (b) the covenant were expressed to be made for the benefit of such adjacent land]5. [(6A)  Any reference in the preceding provisions of this section to a disposal by way of tenancy or licence does not include a reference to a relevant disposal or an exempted disposal.]5 (7) Where such a covenant imposes the limitation specified in subsection (2), the limitation is a local land charge and the Chief Land Registrar shall enter [a restriction in the register of title reflecting the limitation]6. (8) An order under this section— (a) may make different provision with respect to different cases or descriptions of case, including different provision for different areas, and (b) shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament. Amendments 1 Repealed by the Government of Wales Act 1998, s 152, Sch 18, Pt IV. 2 Substituted by the Countryside and Rights of Way Act 2000, s 93, Sch 15, para 9. 3 Inserted by the Housing Act 2004, s 188(2)(a).

249

Statutes

4 Repealed by the Housing Act 2004, ss 188(2)(b), (c), 266, Sch 16. 5 Inserted by the Housing Act 1988, s 126(1)-(5). 6 Substituted by the Land Registration Act 2002, s 133, Sch 11, para 18(1), (4).

158  Consideration for [disposal under section 156A]1

[(1) The consideration for such a disposal as is mentioned in section 156A(4) shall be such amount as may be agreed between the parties, or determined by the district valuer, as being the amount which is to be taken to be the value of the dwelling-house at the time when the offer is made (as determined in accordance with regulations under that section).]1 (2) That value shall be taken to be the price which, at that time, the interest to be reconveyed[, conveyed, surrendered or assigned]1 would realise if sold on the open market by a willing vendor, on the assumption that any liability under— (a) the covenant required by section 155 (repayment of discount on early disposal), and [(aa) any covenant required by paragraph  1 of Schedule  6A (obligation to redeem landlord’s share where conveyance or grant executed in pursuance of right to acquire on rent to mortgage terms), and]2 (b) any convenant required by paragraph  6 of Schedule  8 (payment for outstanding share on disposal of dwelling-house subject to shared ownership lease), would be discharged by the vendor. (3) If the [the offer is accepted in accordance with regulations under section 156A,]1 no payment shall be required in pursuance of any such covenant as is mentioned in subsection (2), but the consideration shall be reduced[, subject to subsection (4),]3 by such amount (if any) as, on a disposal made at the time the offer was made, being a relevant disposal which is not an exempted disposal, would fall to be paid under that covenant. [(4) Where there is a charge on the dwelling-house having priority over the charge to secure payment of the sum due under the covenant mentioned in subsection (2), the consideration shall not be reduced under subsection (3) below the amount necessary to discharge the outstanding sum secured by the first-mentioned charge at the date of the offer to [(as determined in accordance with regulations under section 156A).]1]3 Amendments 1 Substituted by the Housing Act 2004, s 188(3). 2 Inserted by the Leasehold Reform, Housing and Urban Development Act 1993, s 187(1), Sch 21, para 15. 3 Inserted by the Housing and Planning Act 1986, s 24(1), Sch 5, para 1(3).

250

Part V The right to buy

159  Relevant disposals.

(1) A disposal, whether of the whole or part of the dwelling-house, is a relevant disposal for the purposes of this Part if it is— (a) a further conveyance of the freehold or an assignment of the lease, or (b) the grant of a lease (other than a mortgage term) for a term of more than 21 years otherwise than at a rack rent. (2) For the purposes of subsection (1)(b) it shall be assumed— (a) that any option to renew or extend a lease or sub-lease, whether or not forming part of a series of options, is exercised, and (b) that any option to terminate a lease or sub-lease is not exercised. 160  Exempted disposals.

(1) A disposal is an exempted disposal for the purposes of this Part if— (a) it is a disposal of the whole of the dwelling-house and a further conveyance of the freehold or an assignment of the lease and the person or each of the persons to whom it is made is a qualifying person (as defined in subsection (2)); (b) it is a vesting of the whole of the dwelling-house in a person taking under a will or on an intestacy; [(c) it is a disposal of the whole of the dwelling-house in pursuance of any such order as is mentioned in subsection (3);]1 (d) it is a compulsory disposal (as defined in section 161); or (e) it is a disposal of property consisting of land included in the dwellinghouse by virtue of section 184 (land let with or used for the purposes of the dwelling-house). (2) For the purposes of subsection (1)(a), a person is a qualifying person in relation to a disposal if— (a) he is the person, or one of the persons, by whom the disposal is made, (b) he is the spouse or a former spouse[, or the civil partner or a former civil partner,]2 of that person, or one of those persons, or (c) he is a member of the family of that person, or one of those persons, and has resided with him throughout the period of twelve months ending with the disposal. [(3) The orders referred to in subsection (1)(c) are orders under— (a) section 24 or 24A of the Matrimonial Causes Act 1973 (property adjustment orders or orders for the sale of property in connection with matrimonial proceedings), 251

Statutes

(b) section 2 of the Inheritance (Provision for Family and Dependants) Act 1975 (orders as to financial provision to be made from estate), (c) …3 (d) paragraph 1 of Schedule 1 to the Children Act 1989 (orders for financial relief against parents)[, or (e) Part 2 or 3 of Schedule  5, or paragraph  9 of Schedule  7, to the Civil Partnership Act 2004 (property adjustment orders, or orders for the sale of property, in connection with civil partnership proceedings or after overseas dissolution of civil partnership, etc.).]4]5 Amendments 1 2 3 4 5

Substituted by the Housing Act 1996, s 222, Sch 18, para 15(1), (2). Inserted by the Civil Partnership Act 2004, s 81, Sch 8, para 18. Repealed by the Civil Partnership Act 2004, s 261(4), Sch 30. Inserted by the Civil Partnership Act 2004, s 81, Sch 8, para 30. Inserted by the Housing Act 1996, s 222, Sch 18, para 15(1), (3).

161  Meaning of ‘compulsory disposal’.

In this Part a ‘compulsory disposal’ means a disposal of property which is acquired compulsorily, or is acquired by a person who has made or would have made, or for whom another person has made or would have made, a compulsory purchase order authorising its compulsory purchase for the purposes for which it is acquired. 162  Exempted disposals which end liability under covenants.

Where there is a relevant disposal which is an exempted disposal by virtue of section 160(1)(d) or (e) (compulsory disposals or disposals of land let with or used for purposes of dwelling-house)— (a) the covenant required by section 155 (repayment of discount on early disposal) is not binding on the person to whom the disposal is made or any successor in title of his and that covenant and the charge taking effect by virtue of section 156 cease to apply in relation to the property disposed of, and [(aa)  the covenant required by section 156A (right of first refusal for landlord etc.) is not binding on the person to whom the disposal is made or any successor in title of his, and that covenant ceases to apply in relation to the property disposed of, and]1 (b) any such covenant as is mentioned in section 157 (restriction on disposal of dwelling-houses in National Parks, etc.) ceases to apply in relation to the property disposed of. Amendments 1 Inserted by the Housing Act 2004, s 188(4).

252

Part V The right to buy

163  Treatment of options.

(1) For the purposes of this Part the grant of an option enabling a person to call for a relevant disposal which is not an exempted disposal shall be treated as such a disposal made to him. (2) For the purposes of section 157(2) (requirement of consent to disposal of dwelling-house in National Park, etc.) a consent to such a grant shall be treated as a consent to a disposal in pursuance of the option. [163A  Treatment of deferred resale agreements for purposes of section 155

(1) If a secure tenant or his successor in title enters into an agreement within subsection (3), any liability arising under the covenant required by section 155 shall be determined as if a relevant disposal which is not an exempted disposal had occurred at the appropriate time. (2) In subsection (1) ‘the appropriate time’ means— (a) the time when the agreement is entered into, or (b) if it was made before the beginning of the discount repayment period, immediately after the beginning of that period. (3) An agreement is within this subsection if it is an agreement between the secure tenant or his successor in title and any other person— (a) which is made (expressly or impliedly) in contemplation of, or in connection with, the tenant exercising, or having exercised, the right to buy, (b) which is made before the end of the discount repayment period, and (c) under which a relevant disposal (other than an exempted disposal) is or may be required to be made to any person after the end of that period. (4) Such an agreement is within subsection (3)— (a) whether or not the date on which the disposal is to take place is specified in the agreement, and (b) whether or not any requirement to make the disposal is or may be made subject to the fulfilment of any condition. (5) The Secretary of State may by order provide— (a) for subsection (1) to apply to agreements of any description specified in the order in addition to those within subsection (3); (b) for subsection (1) not to apply to agreements of any description so specified to which it would otherwise apply. (6) An order under subsection (5)— (a) may make different provision with respect to different cases or descriptions of case; and 253

Statutes

(b) shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament. (7) In this section— ‘agreement’ includes arrangement; ‘the discount repayment period’ means the period of three or five years that applies for the purposes of section 155(2) or (3) (depending on whether the tenant’s notice under section 122 was given before or on or after the date of the coming into force of section 185 of the Housing Act 2004).]1 Amendments 1 Inserted by the Housing Act 2004, s 187.

Powers of Secretary of State 164  Secretary of State’s general power to intervene.

(1) The Secretary of State may use his powers under this section where it appears to him that tenants generally, a tenant or tenants of a particular landlord, or tenants of a description of landlords, have or may have difficulty in exercising effectively and expeditiously the right to buy or the [right to acquire on rent to mortgage terms]1. (2) The powers may be exercised only after he has given the landlord or landlords notice in writing of his intention to do so and while the notice is in force. (3) Such a notice shall be deemed to be given 72 hours after it has been sent. (4) Where a notice under this section has been given to a landlord or landlords, no step taken by the landlord or any of the landlords while the notice is in force or before it was given has any effect in relation to the exercise by a secure tenant of the right to buy, [or the right to acquire on rent to mortgage terms]1, except in so far as the notice otherwise provides. (5) While a notice under this section is in force the Secretary of State may do all such things as appear to him necessary or expedient to enable secure tenants of the landlord or landlords to which the notice was given to exercise the right to buy, [and the right to acquire on rent to mortgage terms]1; and he is not bound to take the steps which the landlord would have been bound to take under this Part. (6) …2 Amendments 1 Substituted by the Leasehold Reform, Housing and Urban Development Act 1993, s 187(1), Sch 21, para 16. 2 Repealed by the Leasehold Reform, Housing and Urban Development Act 1993, s 187(2), Sch 22.

254

Part V The right to buy

165  Vesting orders for purposes of s. 164.

(1) For the purpose of conveying a freehold or granting a lease in the exercise of his powers under section 164 the Secretary of State may execute a document, to be known as a vesting order, containing such provisions as he may determine; and for the purposes of stamp duty the vesting order shall be treated as a document executed by the landlord. (2) A  vesting order has the like effect, except so far as it otherwise provides, as a conveyance or grant duly executed in pursuance of this Part, and, in particular, binds both the landlord and its successors in title and the tenant and his successors in title (including any person deriving title under him or them) to the same extent as if the covenants contained in it and expressed to be made on their behalf had been entered into by them. (3) If the landlord’s title to the dwelling-house in respect of which a vesting order is made is not registered, the vesting order shall contain a certificate stating that the freehold conveyed or grant made by it is subject only to such incumbrances, rights and interests as are stated elsewhere in the vesting order or summarised in the certificate. (4) The Chief Land Registrar shall, on a vesting order being presented to him, register the tenant as proprietor of the title concerned; and if the title has not previously been registered— (a) he shall so register him with an absolute title, or as the case may require a good leasehold title, and (b) he shall, for the purpose of the registration, accept any such certificate as is mentioned in subsection (3) as sufficient evidence of the facts stated in it. (5) …1 (6) If a person suffers loss in consequence of a registration under this section in circumstances in which he would have been entitled to be indemnified under [Schedule 8 to the Land Registration Act 2002]2 by the Chief Land Registrar had the registration of the tenant as proprietor of the title been effected otherwise than under this section, he is instead entitled to be indemnified by the Secretary of State and section 166(4) of this Act (recovery of Secretary of State’s costs from landlord) applies accordingly. Amendments 1 Repealed by the Land Registration Act 1988, s 2, Schedule. 2 Substituted by the Land Registration Act 2002, s 133, Sch 11, para 18(1), (5).

166  Other provisions supplementary to s. 164.

(1) A notice under section 164 may be withdrawn by a further notice in writing, either completely or in relation to a particular landlord or a particular case or description of case. 255

Statutes

(2) The further notice may give such directions as the Secretary of State may think fit for the completion of a transaction begun before the further notice was given; and such directions are binding on the landlord, and may require the taking of steps different from those which the landlord would have been required to take if the Secretary of State’s powers under section 164 had not been used. (3) Where in consequence of the exercise of his powers under section 164 the Secretary of State receives sums due to a landlord, he may retain them while a notice under that section is in force in relation to the landlord and is not bound to account to the landlord for interest accruing on them. (4) Where the Secretary of State exercises his powers under section 164 with respect to secure tenants of a landlord, he may— (a) calculate, in such manner and on such assumptions as he may determine, the costs incurred by him in doing so, and (b) certify a sum as representing those costs; and a sum so certified is a debt from the landlord to the Secretary of State payable on a date specified in the certificate, together with interest from that date at a rate so specified. (5) sums payable under subsection (4) may, without prejudice to any other method of recovery, be recovered from the landlord by the withholding of sums due from the Secretary of State, including sums payable to the landlord and received by the Secretary of State in consequence of his exercise of his powers under section 164. (6) …1 Amendments 1 Repealed by the Leasehold Reform, Housing and Urban Development Act 1993, s 187(2), Sch 22.

167  Power to give directions as to covenants and conditions.

(1) Where it appears to the Secretary of State that, if covenants or conditions of any kind were included in conveyances or grants of dwelling-houses of any description executed in pursuance of this Part— (a) the conveyances would not conform with Parts I and II of Schedule 6, or (b) the grants would not conform with Parts I and III of that Schedule [or (c) in the case of conveyances or grants executed in pursuance of the right to acquire on rent to mortgage terms, the conveyances or grants would not conform with Schedule 6A,]1 he may direct landlords generally, landlords of a particular description or particular landlords not to include covenants or conditions of that kind in such conveyances or grants executed on or after a date specified in the direction. 256

Part V The right to buy

(2) A direction under this section may be varied or withdrawn by a subsequent direction. Amendments 1 Inserted by the Leasehold Reform, Housing and Urban Development Act 1993, s 187(1), Sch 21, para 17.

168  Effect of direction under s. 167 on existing covenants and conditions.

(1) If a direction under section 167 so provides, the provisions of this section shall apply in relation to a covenant or condition which— (a) was included in a conveyance or grant executed before the date specified in the direction, and (b) could not have been so included if the conveyance or grant had been executed on or after that date. (2) The covenant or condition shall be discharged or (if the direction so provides) modified, as from the specified date, to such extent or in such manner as may be provided by the direction; and the discharge or modification is binding on all persons entitled or capable of becoming entitled to the benefit of the covenant or condition. (3) The landlord by whom the conveyance or grant was executed shall, within such period as may be specified in the direction— (a) serve on the person registered as the proprietor of the dwelling-house, and on any person registered as the proprietor of a charge affecting the dwelling-house, a written notice informing him of the discharge or modification, and (b) on behalf of the person registered as the proprietor of the dwellinghouse, apply to the Chief Land Registrar (and pay the appropriate fee) for notice of the discharge or modification to be entered in the register. (4) …1 (5) …2 Amendments 1 Repealed by the Land Registration Act 1988, s 2, Schedule. 2 Repealed by the Land Registration Act 2002, s 135, Sch 13.

169  Power to obtain information, etc.

(1) Where it appears to the Secretary of State necessary or expedient for the purpose of determining whether his powers under section 164 or 166 (general power to intervene) or section 167 or 168 (power to give directions as to covenants and conditions) are exercisable, or for or in connection with the exercise of those powers, he may by notice in writing to a landlord require it— 257

Statutes

(a) at such time and at such place as may be specified in the notice, to produce any document, or (b) within such period as may be so specified or such longer period as the Secretary of State may allow, to furnish a copy of any document or supply any information. (2) Any officer of the landlord designated in the notice for that purpose or having custody or control of the document or in a position to give that information shall, without instructions from the landlord, take all reasonable steps to ensure that the notice is complied with. (3) In this section references to a landlord include— (a) a landlord by whom a conveyance or grant was executed in pursuance of this Part …1 (b) …1 Amendments 1 Repealed by the Leasehold Reform, Housing and Urban Development Act 1993, s 187(2), Sch 22.

170  Power to give assistance in connection with legal proceedings.

(1) This section applies to— (a) proceedings under this Part or to determine a question arising under or in connection with this Part, and (b) proceedings to determine a question arising under or in connection with a conveyance or grant executed in pursuance of this Part, other than proceedings to determine a question as to the value of a dwellinghouse (or part of a dwelling-house). (2) A party or prospective party to proceedings or prospective proceedings to which this section applies, who— (a) has claimed to exercise or has exercised the right to buy or the [right to acquire on rent to mortgage terms]1, or (b) is a successor in title of a person who has exercised either of those rights, may apply to the Secretary of State for assistance under this section. (3) The Secretary of State may grant the application if he thinks fit to do so on the ground— (a) that the case raises a question of principle, or (b) that it is unreasonable having regard to the complexity of the case, or to any other matter, to expect the applicant to deal with it without such assistance, or by reason of any other special consideration. 258

Part V The right to buy

(4) Assistance by the Secretary of State under this section may include— (a) giving advice. (b) procuring or attempting to procure the settlement of the matter in dispute, (c) arranging for the giving of advice or assistance by a solicitor or counsel, (d) arranging for representation by a solicitor or counsel, including such asistance as is usually given by a solicitor or counsel in the steps preliminary or incidental to any proceedings, or in arriving at or giving effect to a compromise to avoid or bring to an end any proceedings, and (e) any other form of assistance which the Secretary of State may consider appropriate; but paragraph (d) does not affect the law and practice regulating the descriptions of persons who may appear in, conduct, defend and address the court in any proceedings. (5) In so far as expenses are incurred by the Secretary of State in providing the applicant with assistance under this section, the recovery of those expenses (as taxed or assessed in such manner as may be prescribed by rules of court) shall constitute a first charge for the benefit of the Secretary of State— (a) on any costs which (whether by virtue of a judgment or order of a court or an agreement or otherwise) are payable to the applicant by any other person in respect of the matter in connection with which the assistance was given, and (b) so far as relates to any costs, on his rights under any compromise or settlement arrived at in connection with that matter to avoid or bring to an end any proceedings; but subject to any charge [imposed by [section 25 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012]2 and any provision in, or made under, Part I of that Act for the payment of any sum to the [Lord Chancellor]2]3. (6) References in this section to a solicitor include the Treasury Solicitor. Amendments 1 Substituted by the Leasehold Reform, Housing and Urban Development Act 1993, s 187(1), Sch 21, para 18. 2 Substituted by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, s 39(1), Sch 5, para 33. 3 Substituted by the Access to Justice Act 1999, s 24, Sch 4, para 37.

259

Statutes

Power to extend right to buy, etc. 171  Power to extend right to buy, etc.

(1) The Secretary of State may by order provide that, where there are in a dwelling-house let on a secure tenancy one or more interest to which this section applies, this Part and Part IV (secure tenancies) have effect with such modifications as are specified in the order. (2) This section applies to an interest held by— a local authority, a new town corporation, [a housing action trust]1 an urban development corporation, [a Mayoral development corporation,]2 …3 The [[Regulator of Social Housing]4 or Scottish Homes]5, [a non-profit registered provider of social housing]6 or a [registered social landlord]7, which is immediately superior to the interest of the landlord or to another interest to which this section applies. (3) An order under this section— (a) may make different provision with respect to different cases or descriptions of case; (b) may contain such consequential, supplementary or transitional provisions as appear to the Secretary of State to be necessary or expedient; and (c) shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament. Amendments 1 Inserted by the Housing Act 1988, s 83(1), (5) 2 Inserted by the Localism Act 2011, s 222, Sch 22, paras 9, 13 3 Repealed by the Government of Wales Act 1998, s 152, Sch 18, Pt IV. 4 Substituted by the Housing and Regeneration Act 2008 (Consequential Provisions) Order 2010, SI 2010/866, art 5, Sch 2, paras 15, 27(a). 5 Substituted by the Government of Wales Act 1998, s 140, Sch 16, paras 4, 13. 6 Inserted by the Housing and Regeneration Act 2008 (Consequential Provisions) Order 2010, SI 2010/866, art 5, Sch 2, paras 15, 27(b). 7 Substituted by the Housing Act 1996 (Consequential Provisions) Order 1996, SI 1996/2325, art 5(1), Sch 2, para 14(1), (15)

260

Part V The right to buy

[Preservation of right to buy on disposal to private sector landlord 171A  Cases in which right to buy is preserved.

(1) The provisions of this Part continue to apply where a person ceases to be a secure tenant of a dwelling-house by reason of the disposal by the landlord of an interest in the dwelling-house [in England]1 to a person who is not an authority or body within section 80 (the landlord condition for secure tenancies). (2) In the following provisions of this Part— (a) references to the preservation of the right to buy and to a person having the preserved right to buy are to the continued application of the provisions of this Part by virtue of this section and to a person in relation to whom those provisions so apply; (b) ‘qualifying disposal’ means a disposal in relation to which this section applies, and (c) ‘former secure tenant’ and the ‘former landlord’ are the persons mentioned in subsection (1). (3) This section does not apply— (a) where the former landlord was a person against whom the right to buy could not be exercised by virtue of paragraph 1, 2 or 3 of Schedule 5 (charities and certain housing associations), or (b) in such other cases as may be excepted from the operation of this section by order of the Secretary of State. (4) Orders under subsection (3)(b)— (a) may relate to particular disposals and may make different provision with respect to different cases or descriptions of case, including different provision for different areas, and (b) shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.]2 Amendments 1 Inserted by the Abolition of the Right to Buy and Associated Rights (Wales) Act 2018 (Consequential Amendments and Savings Provisions) Regulations 2019, SI 2019/110, reg 3(l). 2 Inserted by the Housing and Planning Act 1986, s 8(1)

[171B  Extent of preserved right: qualifying persons and dwelling-houses.

(1) A  person to whom this section applies has the preserved right to buy [a relevant dwelling-house in England]1 so long as he occupies the relevant dwelling-house as his only or principal home, subject to the following provisions of this Part. 261

Statutes

[(1A) A  person to whom this section applies ceases to have the preserved right to buy if the tenancy of a relevant dwelling-house becomes a demoted tenancy by virtue of a demotion order under section 6A of the Housing Act 1988.]2 (2) References in this Part to a ‘qualifying person’ and ‘qualifying dwellinghouse’, in relation to the preserved right to buy, are to a person who has that right and to a dwelling-house in relation to which a person has that right. (3) The following are the persons to whom this section applies— (a) the former secure tenant, or in the case of a joint tenancy, each of them; (b) a qualifying successor as defined in subsection (4); and (c) a person to whom a tenancy of a dwelling-house is granted jointly with a person who has the preserved right to buy in relation to that dwellinghouse. (4) The following are qualifying successors for this purpose— [(a) where the former secure tenancy was not a joint tenancy and, immediately before his death, the former secure tenant was tenant under an assured tenancy of a dwelling-house in relation to which he had the preserved right to buy, a member of the former secure tenant’s family who acquired that assured tenancy under the will or intestacy of the former secure tenant [or in whom that assured tenancy vested under section 17 of the Housing Act 1988 (statutory succession to assured tenancy)]3; (aa) where the former secure tenancy was not a joint tenancy, a member of the former secure tenant’s family to whom the former secure tenant assigned his assured tenancy of a dwelling-house in relation to which, immediately before the assignment, he had the preserved right to buy;]4 (b) a person who becomes the tenant of a dwelling-house in pursuance of— (i) a property adjustment order undersection 23A or 24 of the Matrimonial Causes Act 1973, or (ii) an order under Schedule 1 to the Matrimonial Homes Act 1983 [or Schedule 7 to the Family Law Act 1996]5 transferring the tenancy, [or (iii) a property adjustment order under section 17(1) of the Matrimonial and Family Proceedings Act 1984 (property adjustment orders after overseas divorce, &c.), or (iv) an order under paragraph 1 of Schedule 1 to the Children Act 1989 (orders for financial relief against parents),]6 [or (v) an order under Part 2 of Schedule 5, or a property adjustment order under paragraph 9(2) or (3) of Schedule 7, to the Civil Partnership Act 2004 (property adjustment orders in connection with civil partnership proceedings or after overseas dissolution of civil partnership, etc.),]7 262

Part V The right to buy

in place of a person who had the preserved right to buy in relation to that dwelling-house. (5) The relevant dwelling-house is in the first instance— (a) in relation to a person within paragraph (a) subsection (3), the dwellinghouse which was the subject of thequalifying disposal; (b) in relation to a person within paragraph (b) of that subsection, the dwelling-house of which he became the statutory tenant or tenant as mentioned in [subsection (4)]8; (c) in relation to a person within paragraph (c) of subsection (3), the dwelling-house of which he became a joint tenant as mentioned in that paragraph. (6) If a person having the preserved right to buy becomes the tenant of another dwelling-house [in England]1 in place of the relevant dwellinghouse (whether the new dwelling-house is entirely different or partly or substantially the same as the previous dwelling-house) and the landlord is the same person as the landlord of the previous dwelling-house or, where that landlord was a company, is a connected company, the new dwellinghouse becomes the relevant dwelling-house for the purposes of the preserved right to buy. For this purpose ‘connected company’ means a subsidiary or holding company within the meaning of [section 1159 of the Companies Act 2006]9. (7) …10]11 Amendments 1 Inserted by the Abolition of the Right to Buy and Associated Rights (Wales) Act 2018 (Consequential Amendments and Savings Provisions) Regulations 2019, SI 2019/110, reg 3(m). 2 Inserted by the Anti-social Behaviour Act 2003, s 14(5), Sch 1, para 2(1), (3). 3 Inserted by the Housing Act 1996, s 222, Sch 18, para 26(1)(a). 4 Substituted by the Housing Act 1988, s 127(1). 5 Inserted by the Family Law Act 1996, s 66(1), Sch 8, para 56. 6 Inserted by the Housing Act 1996, s 222, Sch 18, para 16. 7 Inserted by the Civil Partnership Act 2004, s 81, Sch 8, para 31. 8 Substituted by the Housing Act 1996, s 222, Sch 18, para 26(1)(b). 9 Substituted by the Companies Act 2006 (Consequential Amendments, Transitional Provisions and Savings) Order 2009, SI 2009/1941, art 2(1), Sch 1, para 62(1), (5). 10 Repealed by the Abolition of the Right to Buy and Associated Rights (Wales) Act 2018, s 6(2)(a). 11 Inserted by the Housing and Planning Act 1986, s 8(1).

263

Statutes

[171C  Modifications of this Part in relation to preserved right.

(1) Where the right to buy is preserved, the provisions of this Part have effect subject to such exceptions, adaptations and other modifications as may be prescribed by regulations made by the Secretary of State. (2) The regulations may in particular provide— (a) that paragraphs [1, 3 and]1 5 to 11 of Schedule 5 (certain exceptions to the right to buy) do not apply; (b) …2 (c) that the provisions of this Part relating to the [right to acquire on rent to mortgage terms]3 do not apply; and (d) that the landlord is not required to but may include a covenant for the repayment of discount, provided its terms are no more onerous than those of the covenant provided for in section 155. (3) The prescribed exceptions, adaptations and other modifications shall take the form of textual amendments of the provisions of this Part as they apply in cases where the right to buy is preserved; and the first regulations, and any subsequent consolidating regulations, shall set out the provisions of this Part as they so apply. (4) The regulations— (a) may make different provision for different cases or descriptions of case, including different provision for different areas, (b) may contain such incidental, supplementary and transitional provisions as the Secretary of State considers appropriate, and (c) shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament. [(5) The disapplication by the regulations of paragraph 1 of Schedule 5 shall not be taken to authorise any action on the part of a charity which would conflict with the trusts of the charity.]1]4 Amendments 1 Inserted by the Housing Act 1988, s 127(2), (3). 2 Repealed by the Leasehold Reform, Housing and Urban Development Act 1993, s 187(2), Sch 22. 3 Substituted by the Leasehold Reform, Housing and Urban Development Act 1993, s 187(1), Sch 21, para 19. 4 Inserted by the Housing and Planning Act 1986, s 8(1).

[171D Subsequent dealings: disposal of landlord’s interest in qualifying dwelling-house.

(1) The disposal by the landlord of an interest in the qualifying dwelling-house, whether his whole interest or a lesser interest, does not affect the preserved right to buy, unless— 264

Part V The right to buy

(a) as a result of the disposal an authority or body within section 80(1) (the landlord condition for secure tenancies) becomes the landlord of the qualifying person or persons, or (b) paragraph 6 of Schedule 9A applies (effect of failure to register entry protecting preserved right to buy), in which case the right to buy ceases to be preserved. (2) The disposal by the landlord of a qualifying dwelling-house of less than his whole interest as landlord of the dwelling-house, or in part of it, requires the consent of the [Secretary of State]1, unless the disposal is to the qualifying person or persons. [(2ZA)  Subsection (2) does not apply to a disposal of land by a private registered provider of social housing [or by a registered social landlord]2.]3 [(2A) …4]5 (3) Consent may be given in relation to a particular disposal or generally in relation to disposals of a particular description and may, in either case, be given subject to conditions. (4) A  disposal made without the consent required by subsection (2) is void, except in a case where, by reason of a failure to make the entries on the land register or land charges register required by Schedule 9A, the preserved right to buy does not bind the person to whom the disposal is made.]6 Amendments 1 Substituted by the Abolition of the Right to Buy and Associated Rights (Wales) Act 2018 (Consequential Amendments and Savings Provisions) Regulations 2019, SI 2019/110, reg 3(n)(i). 2 Inserted by the Regulation of Registered Social Landlords (Wales) Act 2018, s 13(1). 3 Inserted by the Housing and Planning Act 2016, s 92, Sch 4, para 1(1), (2). 4 Repealed by the Abolition of the Right to Buy and Associated Rights (Wales) Act 2018 (Consequential Amendments and Savings Provisions) Regulations 2019, SI 2019/110, reg 3(n)(ii). 5 Inserted by the Housing and Regeneration Act 2008, s 191(1)(b). 6 Inserted by the Housing and Planning Act 1986, s 8(1).

[171E Subsequent dealings: termination of landlord’s interest in qualifying dwelling-house.

(1) On the termination of the landlord’s interest in the qualifying dwellinghouse— (a) on the occurrence of an event determining his estate or interest, or by re-entry on a breach of condition or forfeiture, or (b) where the interest is a leasehold interest, by notice given by him or a superior landlord, on the expiry or surrender of the term, or otherwise (subject to subsection (2)), 265

Statutes

the right to buy ceases to be preserved. (2) The termination of the landlord’s interest by merger on his acquiring a superior interest, or on the acquisition by another person of the landlord’s interest together with a superior interest, does not affect the preserved right to buy, unless— (a) as a result of the acquisition an authority or body within section 80(1) (the landlord condition for secure tenancies) becomes the landlord of the qualifying person or persons, or (b) paragraph 6 of Schedule 9A applies (effect of failure to register entry protecting preserved right to buy), in which case the right to buy ceases to be preserved. (3) Where the termination of the landlord’s interest as mentioned in subsection (1) is caused by the act or omission of the landlord, a qualifying person who is thereby deprived of the preserved right to buy is entitled to be compensated by him.]1 Amendments 1 Inserted by the Housing and Planning Act 1986, s 8(1)

[171F Subsequent dealings: transfer of qualifying person to alternative accommodation.

The court shall not order a qualifying person to give up possession of the qualifying dwelling-house in pursuance of section 98(1)(a) of the Rent Act 1977 [or on Ground 9 in Schedule 2 to the Housing Act 1988]1 (suitable alternative accommodation) unless the court is satisfied— (a) that the preserved right to buy will, by virtue of section 171B(6) (accommodation with same landlord or connected company), continue to be exercisable in relation to the dwelling-house offered by way of alternative accommodation and that the interest of the landlord in the new dwelling-house will be— (i) where the new dwelling-house is a house, not less than the interest of the landlord in the existing dwelling-house, or (ii) where the new dwelling-house is a flat, not less than the interest of the landlord in the existing dwelling-house or a term of years of which 80 years or more remain unexpired, whichever is the less; or (b) that the landlord of the new dwelling-house will be an authority or body within section 80(1) (the landlord condition for secure tenancies).]2 Amendments 1 Inserted by the Housing Act 1988, s 140(1), Sch 17, para 42. 2 Inserted by the Housing and Planning Act 1986, s 8(1).

266

Part V The right to buy

[171G  Land registration and related matters.

Schedule 9A has effect with respect to registration of title and related matters arising in connection with the preservation of the right to buy.]1 Amendments 1 Inserted by the Housing and Planning Act 1986, s 8(1).

[171H  Disposal after notice claiming to exercise right to buy, etc.

(1) Where notice has been given in respect of a dwelling-house claiming to exercise the right to buy …1 and before the completion of the exercise of that right the dwelling-house is the subject of— (a) a qualifying disposal, or (b) a disposal to which section 171D(1)(a) or 171E(2)(a) applies (disposal to authority or body satisfying landlord condition for secure tenancies), all parties shall, subject to subsection (2), be in the same position as if the disponee had become the landlord before the notice was given and had been given that notice and any further notice given by the tenant to the landlord and had taken all steps which the landlord had taken. (2) If the circumstances after the disposal differ in any material respect, as for example where— (a) the interest of the disponee in the dwelling-house after the disposal differs from that of the disponor before the disposal, or (b) …1 (c) any of the provisions of Schedule  5 (exceptions to the right to buy) becomes or ceases to be applicable, all those concerned shall, as soon as practicable after the disposal, take all such steps (whether by way of amending or withdrawing and re-serving any notice or extending any period or otherwise) as may be requisite for the purpose of securing that all parties are, as nearly as may be, in the same position as they would have been if those circumstances had obtained before the disposal.]2 Amendments 1 Repealed by the Leasehold Reform, Housing and Urban Development Act 1993, s 187(2), Sch 22. 2 Inserted by the Housing and Planning Act 1986, s 8(1).

267

Statutes

Modifications of Leasehold Reform Act 1967 in relation to leases granted under this Part 172 Exclusion of leases where landlord is housing association and freeholder is a charity.

(1) Part I  of the Leasehold Reform Act 1967 (enfranchisement and extension of long leaseholds) does not apply where, in the case of a tenancy or subtenancy to which this section applies, the landlord is a housing association and the freehold is owned by a body of persons or trust established for charitable purposes only. (2) This section applies to a tenancy created by the grant of a lease in pursuance of this Part of a dwelling-house which is a house. (3) Where Part I of the 1967 Act applies as if there had been a single tenancy granted for a term beginning at the same time as the term under a tenancy falling within subsection (2) and expiring at the same time as the term under a later tenancy, this section also applies to that later tenancy. (4) This section applies to any sub-tenancy directly or indirectly derived out of a tenancy falling within subsection (2) or (3). 173 …1

Amendments 1 Repealed by the Statute Law (Repeals) Act 1998, s 1(1), Sch 1, Pt X, Group 5.

174  Leases granted under this Part to be treated as long leases at a low rent.

For the purposes of Part I of the Leasehold Reform Act 1967 (enfranchisement and extension of long leaseholds)— (a) a tenancy created by the grant of a lease in pursuance of this part of a dwelling-house which is a house shall be treated as being a long tenancy notwithstanding that it is granted for a term of 21 years or less, …1 (b) …1 Amendments 1 Repealed by the Statute Law (Repeals) Act 1998, s 1(1), Sch 1, Pt X, Group 5.

175  Determination of price payable.

(1) Where, in the case of a tenancy or sub-tenancy to which this section applies, the tenant exercises his right to acquire the freehold under Part I  of the Leasehold Reform Act 1967, the price payable for the dwelling-house shall be determined in accordance with section 9(1A) of that Act notwithstanding that [the circumstances specified in that section do not apply]1. (2) This section applies to a tenancy created by the grant of a lease in pursuance of this Part of a dwelling-house which is a house. 268

Part V The right to buy

(3) Where Part I of the 1967 Act applies as if there had been a single tenancy granted for a term beginning at the same time as the term under a tenancy falling within subsection (2) and expiring at the same time as the term under a later tenancy, this section also applies to that later tenancy. (4) This section applies to any sub-tenancy directly or indirectly derived out of a tenancy falling within subsection (2) or (3). (5) This section also applies to a tenancy granted in substitution for a tenancy or sub-tenancy falling within subsections (2) to (4) in pursuance of Part I of the 1967 Act. Amendments 1 Substituted by the References to Rating (Housing) Regulations 1990, SI 1990/434, reg 2, Schedule, para 20.

Supplementary provisions 176 Notices.

(1) The Secretary of State may by regulations prescribe the form of any notice under this Part and the particulars to be contained in the notice. (2) Where the form of, and the particulars to be contained in, a notice under this Part are so prescribed, a tenant who proposes to claim, or has claimed, to exercise the right to buy may request the landlord to supply him with a form for use in giving such notice; and the landlord shall do so within seven days of the request. (3) A notice under this Part may be served by sending it by post. (4) Where the landlord is a housing association, a notice to be served by the tenant on the landlord under this Part may be served by leaving it at, or sending it to, the principal office of the association or the office of the association with which the tenant usually deals. (5) Regulations under this section— (a) may make different provision with respect to different cases or descriptions of case, including different provision for different areas, and (b) shall be made by statutory instrument. 177  Errors and omissions in notices.

(1) A notice served by a tenant under this Part is not invalidated by an error in, or omission from, the particulars which are required by regulations under section 176 to be contained in the notice. (2) Where as a result of such an error or omission— 269

Statutes

(a) the landlord has mistakenly admitted or denied the right to buy or the [right to acquire on rent to mortgage terms]1 in a notice under section 124 or 146, or (b) the landlord …2 has formed a mistaken opinion as to any matter required to be stated in a notice by any of the provisions mentioned in sub-section (3) and has stated that opinion in the notice, the parties shall, as soon as practicable after they become aware of the mistake, take all such steps (whether by way of amending, withdrawing or re-serving any notice or extending any period or otherwise) as may be requisite for the propose of securing that all parties are, as nearly as may be, in the same position as they would have been if the mistake had not been made. (3) The provisions referred to in subsection (2)(b) are— section 125 (notice of purchase price, etc.), …2 [section 146 (landlord’s notice admitting or denying right to acquire on rent to mortgage terms).]1 …2 (4) Subsection (2) does not apply where the tenant has exercised the right to which the notice relates before the parties become aware of the mistake. Amendments 1 Substituted by the Leasehold Reform, Housing and Urban Development Act 1993, s 187(1), Sch 21, para 20. 2 Repealed by the Leasehold Reform, Housing and Urban Development Act 1993, s 187(2), Sch 22.

[178 Costs.

An agreement between the landlord and a tenant claiming to exercise— (a) the right to buy, (b) the right to acquire on rent to mortgage terms, or (c) any such right as is mentioned in paragraph  2(1) or 6(1) of Schedule  6A (redemption of landlord’s share: right to make final or interim payment), is void in so far as it purports to oblige the tenant to bear any part of the costs incurred by the landlord in connection with the tenant’s exercise of that right.]1 Amendments 1 Substituted by the Leasehold Reform, Housing and Urban Development Act 1993, s 187(1), Sch 21, para 21.

270

Part V The right to buy

179  Provisions restricting right to buy, etc. of no effect.

(1) A provision of a lease held by the landlord or a superior landlord, or of an agreement (whenever made), is void in so far as it purports to prohibit or restrict— (a) the grant of a lease in pursuance of the right to buy or the [right to acquire on rent to mortgage terms]1, or (b) the subsequent disposal (whether by way of assignment, sub-lease or otherwise) of a lease so granted or to authorise a forfeiture, or impose on the landlord or superior landlord a penalty or disability, in the event of such a grant or disposal. (2) Where a dwelling-house let on a secure tenancy is land held— (a) for the purposes of section 164 of the Public Health Act 1875 (pleasure grounds),or (b) in accordance with section 10 of the Open Spaces Act 1906 (duty of local authority to maintain open spaces and burial grounds), then, for the purposes of this Part, the dwelling-house shall be deemed to be freed from any trust arising solely by virtue of its being land held in trust for enjoyment by the public in accordance with section 164 or, as the case may be, section 10. Amendments 1 Substituted by the Leasehold Reform, Housing and Urban Development Act 1993, s 187(1) Sch. 21 para. 22.

180  Statutory declarations.

A landlord, …1 or the Secretary of State may, if the landlord, …1 or Secretary of State thinks fit, accept a statutory declaration made for the purposes of this Part as sufficient evidence of the matters declared in it. Amendments 1 repealed by the Leasehold Reform, Housing and Urban Development Act 1993, s 187(2), Sch 22.

181  Jurisdiction of county court.

(1) [The county court]1 has jurisdiction— (a) to entertain any proceedings brought under this Part, and (b) to determine any question arising under this Part or under [a conveyance or grant executed in pursuance of the right to acquire on rent to mortgage terms]2; but subject to sections 128[, 128B]3[, 155C and 158]4 …5 (which provide for matters of valuation to be determined by the district valuer). 271

Statutes

(2) The jurisdiction conferred by this section includes jurisdiction to entertain proceedings on any such question as is mentioned in subsection (1)(b) notwithstanding that no other relief is sought than a declaration. (3) If a person takes proceedings in the High Court which, by virtue of this section, he could have taken in the county court, he is not entitled to recover any costs. (4) …6 (5) …6 Amendments 1 Substituted by the Crime and Courts Act 2013, s 17(5), Sch 9, para 52. 2 Substituted by the Leasehold Reform, Housing and Urban Development Act 1993, s 187(1), Sch 21, para 23. 3 Inserted by the Housing and Regeneration Act 2008, s 306(1), (11). 4 Substituted by the Housing Act 2004, s 186(2). 5 Repealed by the Leasehold Reform, Housing and Urban Development Act 1993, s 187(2), Sch 22. 6 Repealed by the Constitutional Reform Act 2005, ss 15, 146, Sch 4, para 182, Sch 18, Pt 2.

182  Power to repeal or amend local Acts.

(1) The Secretary of State may by order repeal or amend a provision of a local Act passed before 8th August 1980 where it appears to him that the provision is inconsistent with a provision of this Part relating to the right to buy …1. (2) Before making an order under this section the Secretary of State shall consult any local housing authority appearing to him to be concerned. (3) An order made under this section may contain such transitional, incidental or supplementary provisions as the Secretary of State considers appropriate. (4) An order under this section— (a) may make different provision with respect to different cases or descriptions of case, including different provision for different areas, and (b) shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament. Amendments 1 Repealed by the Leasehold Reform, Housing and Urban Development Act 1993, s 187(2), Sch 22.

183  Meaning of ‘house’, ‘flat’ and ‘dwelling-house’.

(1) The following provisions apply to the interpretation of ‘house’, ‘flat’ and ‘dwelling-house’ when used in this Part. 272

Part V The right to buy

(2) A dwelling-house is a house if, and only if, it (or so much of its as does not consist of land included by virtue of section 184) is a structure reasonably so called; so that— (a) where a building is divided horizontally, the flats or other units into which it is divided are not houses; (b) where a building is divided vertically, the units into which it is divided may be houses; (c) where a building is not structurally detached, it is not a house if a material part of it lies above or below the remainder of the structure. (3) A dwelling-house which is not a house is a flat. 184  Land let with or used for purposes of dwelling-house.

(1) For the purpose of this Part land let together with a dwelling-house shall be treated as part of the dwelling-house, unless the land is agricultural land (within the meaning set out in section 26(3)(a) of the General Rate Act 1967) exceeding two acres. (2) There shall be treated as included in a dwelling-house any land which is not within subsection (1) but is or has been used for the purpose of the dwellinghouse if— (a) the tenant, by a written notice served on the landlord at any time before he exercises the right to buy or the [right to acquire on rent to mortgage terms]1, requires the land to be included in the dwelling-house, and (b) it is reasonable in all the circumstances for the land to be so included. (3) A notice under subsection (2) may be withdrawn by a written notice served on the landlord at any time before the tenant exercises the right to buy or the [right to acquire on rent to mortgage terms]1. (4) Where a notice under subsection (2) is served or withdrawn after the service of the notice under section 125 (landlord’s notice of purchase price, etc.), the parties shall, as soon as practicable after the service or withdrawal, take all such steps (whether by way of amending, withdrawing or re-serving any notice or extending any period or otherwise) as may be requisite for the purpose of securing that all parties are, as nearly as may be, in the same position as they would have been in if the notice under subsection (2) had been served or withdrawn before the service of the notice under section 125. Amendments 1 Substituted by the Leasehold Reform, Housing and Urban Development Act 1993, s 187(1), Sch 21, para 24.

185  Meaning of ‘secure tenancy’ and ‘secure tenant’.

(1) References in this Part to a secure tenancy or a secure tenant in relation to a time before 26th August 1984 are to a tenancy which would have been a 273

Statutes

secure tenancy if Chapter II of Part I of the Housing Act 1980 and Part I of the Housing and Building Control Act 1984 had then been in force or to a person who would then have been a secure tenant. (2) For the purpose of determining whether a person would have been a secure tenant and his tenancy a secure tenancy— (a) a predecessor of a local authority shall be deemed to have been such an authority, and (b) a housing association shall be deemed to have been registered if it is or was [a [private registered provider of social housing or]1 registered social landlord]2 at any later time. Amendments 1 Inserted by the Housing and Regeneration Act 2008 (Consequential Provisions) Order 2010, SI 2010/866, art 5, Sch 2, paras 15, 28. 2 Substituted by the Housing Act 1996 (Consequential Provisions) Order 1996, SI 1996/2325, art 5(1), Sch 2, para 14(1), (16).

186  Members of a person’s family.

(1) A person is a member of another’s family within the meaning of this Part if— (a) he is the spouse [or civil partner]1 of that person, or he and that person live together [as if they were a married couple or]2 [civil partners]1, or (b) he is that person’s parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew or neice. (2) For the purposes of subsection (1)(b)— (a) a relationship by marriage [or civil partnership]1 shall be treated as a relationship by blood, (b) a relationship of the half-blood shall be treated as a relationship of the whole blood, (c) the stepchild of a person shall be treated as his child, and (d) an illegitimate child shall be treated as as the legitimate child of his mother and reputed father. Amendments 1 Inserted by the Civil Partnership Act 2004, s 81, Sch 8, para 27. 2 Substituted by the Civil Partnership (Opposite-sex Couples) Regulations 2019, SI 2019/1458, reg 41(1), Sch 3, para 10(1), (4).

187  Minor definitions.

In this Part— 274

Part V The right to buy

‘improvement’ means[, in relation to a dwelling house,]1 any alteration in, or addition to, [the dwelling-house]2 and includes— (a) any addition to, or alteration in, landlord’s fixtures and fittings and any addition or alteration connected with the provision of services to [the dwelling-house]2, (b) the erection of a wireless or television aerial, and (c) the carrying out of external decoration; [and shall be similarly construed in relation to any other building or land;]1 [‘improvement contribution’ means an amount payable by a tenant of a flat in respect of improvements to the flat, the building in which it is situated or any other building or land, other than works carried out in discharge of any such obligations as are referred to in paragraph 16A(1) of Schedule 6 (obligations to repair, reinstate, etc.);]1 ‘long tenancy’ means— (a) a long tenancy within the meaning of part IV, (b) a tenancy falling within paragraph 1 of Schedule 1 to the Tenants’ Rights, Etc. (Scotland) Act 1980, or (c) a tenancy falling within paragraph 1 of Schedule 2 to the Housing (Northern Ireland) Order 1983; and ‘long lease’ shall be construed accordingly; …3. Amendments 1 Inserted by the Housing and Planning Act 1986, s 24(2), Sch 5, para 30(1), (2)(a), (c), (3). 2 Substituted by the Housing and Planning Act 1986, s 24(2), Sch 5, para 30(1), (2)(b). 3 Repealed by the Leasehold Reform, Housing and Urban Development Act 1993, s 187(2), Sch 22.

188  Index of defined expressions: Part V

The following Table shows provisions defining or otherwise explaining expressions used in this Part (other than provisions defining or explaining an expression used in the same section or paragraph):— …1

…1

Bank

section 622

building society

section 622

cemetery

section 622

Charity

section 662

275

Statutes compulsory disposal

section 161

co-operative housing association

section 5(2)

…

…2

[disposal and instrument effecting disposal (in Schedule 9A)]3

[paragraph 10 of Schedule]3

[district valuer]4

[section 622]4

dwelling-house

sections 183 and 184

…

…1

exempted disposal

section 160

family (member of)

section 186

[final payment]4

[paragraph 1 of Schedule 6A]4

Flat

section 183

[former landlord and former secure tenant (in relation to a qualifying disposal)]3

[section 171A(2)(c)]3

friendly society

section 622

…1

…1

House

section 183

housing association

section 5(1)

housing trust

section 6

2

1

Improvement

section 187

[improvement contribution]

[section 187]3

3

Incumbrances

paragraph 7 of Schedule 6

[initial payment and interim payment]4

[section 143B and paragraph 6 of Schedule 6A]4

…1

…1

insurance company

section 622

[landlord’s share]4

[section 148 and paragraph 7 of Schedule 6A]4

Lease

section 621

local authority

section 4(e)

local housing authority

section 1, 2(2)

long tenancy (and long lease)

section 187

[minimum initial payment and maximum initial payment]

[section 143B]4

new town corporation

section 4(b)

…

…1

4

1

[prescribed]4 [preserved right to buy]

[section 614]4 3

[section 171A(2)(a)]3

public sector tenancy (and public sector tenant)

paragraphs 6 to 10 of Schedule 4

276

Part V The right to buy purchase price

section 126

[qualifying disposal (in relation to the preserved right to buy)]3

[section 171A(2)(b)]3

[qualifying dwelling-house and qualifying person (in relation to the preserved right to buy)]3

[section 171B(1)]3

[reference period (for purposes of s. 125A or 125B)]3

[section 125C]3

[registered social landlord]5

[section 5(4) and (5)]5

regular armed forces of the Crown

section 622

[the Relevant Authority]

[section 6A]6

relevant disposal

section 159 (and see section 452(3))

relevant time

section 122(2)

6

…1

…

1

[right to acquire on rent to mortgage terms]

[section 143]4

right to buy

section 118(1)

…1

…1

…1

…1

4

secure tenancy and secure tenant

sections 79 and 185

[service charge]

[section 621A]3

tenant’s incumbrance

paragraph 7 of Schedule 6

…1

…1

trustee savings bank

section 622

urban development corporation

section 4(d)

3

Amendments 1 Repealed by the Leasehold Reform, Housing and Urban Development Act 1993, s 187(2), Sch 22. 2 Repealed by the Government of Wales Act 1998, ss 140, 152, Sch 16, paras 4, 14(a), Sch 18, Pt VI. 3 Inserted by the Housing and Planning Act 1986, s 24(2), Sch 5, para 31. 4 Inserted by the Leasehold Reform, Housing and Urban Development Act 1993, s 187(1), Sch 21, para 25. 5 Substituted by the Housing Act 1996 (Consequential Provisions) Order 1996, SI 1996/2325, art 5(1), Sch 2, para 14(1), (17) 6 Inserted by the Government of Wales Act 1998, s 140, Sch 16, paras 4, 14(b).

277

Statutes

SCHEDULE 2 GROUNDS FOR POSSESSION OF DWELLING-HOUSES LET UNDER SECURE TENANCIES Section 84.

Part I Grounds on which Court may Order Possession if it Considers it Reasonable Ground 1

Rent lawfully due from the tenant has not been paid or an obligation of the tenancy has been broken or not performed. Ground 5

The tenant is the person, or one of the persons, to whom the tenancy was granted and the landlord was induced to grant the tenancy by a false statement made knowingly or recklessly [by— (a) the tenant, or (b) a person acting at the tenant’s instigation]1. Amendments 1 Substituted by the Housing Act 1996, s 146.

278

Part I Rented Accommodation

Housing Act 1988 PART I RENTED ACCOMMODATION Chapter I Assured Tenancies Meaning of assured tenancy etc. 1  Assured tenancies.

(1) A tenancy under which a dwelling-house is let as a separate dwelling is for the purposes of this Act an assured tenancy if and so long as— (a) the tenant or, as the case may be, each of the joint tenants is an individual; and (b) the tenant or, as the case may be, at least one of the joint tenants occupies the dwelling-house as his only or principal home; and (c) the tenancy is not one which, by virtue of subsection (2) or subsection (6) below, cannot be an assured tenancy. [(1A)  Subsection (1) has effect subject to section 15A (loss of assured tenancy status).]1 (2) Subject to subsection (3) below, if and so long as a tenancy falls within any paragraph in Part I of Schedule 1 to this Act, it cannot be an assured tenancy; and in that Schedule— (a) ‘tenancy’ means a tenancy under which a dwelling-house is let as a separate dwelling; (b) Part II has effect for determining the rateable value of a dwelling-house for the purposes of Part I; and (c) Part III has effect for supplementing paragraph 10 in Part I. [(2A)  The Secretary of State may by order replace any amount referred to in paragraphs 2 and 3A of Schedule 1 to this Act by such amount as is specified in the order; and such an order shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.]2 (3) Except as provided in Chapter V below, at the commencement of this Act, a tenancy— (a) under which a dwelling-house was then let as a separate dwelling, and (b) which immediately before that commencement was an assured tenancy for the purposes of sections 56 to 58 of the Housing Act 1980 (tenancies granted by approved bodies), shall become an assured tenancy for the purposes of this Act. 279

Statutes

(4) In relation to an assured tenancy falling within subsection (3) above— (a) Part I of Schedule 1 to this Act shall have effect, subject to subsection (5) below, as if it consisted only of paragraphs 11 and 12; and (b) sections 56 to 58 of the Housing Act 1980 (and Schedule 5 to that Act) shall not apply after the commencement of this Act. (5) In any case where— (a) immediately before the commencement of this Act the landlord under a tenancy is a fully mutual housing association, and (b) at the commencement of this Act the tenancy becomes an assured tenancy by virtue of subsection (3) above, then, so long as that association remains the landlord under that tenancy (and under any statutory periodic tenancy which arises on the coming to an end of that tenancy), paragraph 12 of Schedule 1 to this Act shall have effect in relation to that tenancy with the omission of sub-paragraph (1)(h). (6) …3 (7) …3 Amendments 1 Inserted by the Prevention of Social Housing Fraud Act 2013, s 10, Schedule, para 4. 2 Inserted by the References to Rating (Housing) Regulations 1990, SI 1990/434, reg 2, Schedule, para 27. 3 Repealed by the Housing Act 1996, s 227, Sch 19, Pt VIII.

Security of tenure 5  Security of tenure.

[(1) An assured tenancy cannot be brought to an end by the landlord except by— (a) obtaining— (i) an order of the court for possession of the dwelling-house under section 7 or 21, and (ii) the execution of the order, (b) obtaining an order of the court under section 6A (demotion order), …1 (c) in the case of a fixed term tenancy which contains power for the landlord to determine the tenancy in certain circumstances, by the exercise of that power[, or (d) in the case of an assured tenancy— (i) which is a residential tenancy agreement within the meaning of Chapter 1 of Part 3 of the Immigration Act 2014, and 280

Part I Rented Accommodation

(ii) in relation to which the condition in section 33D(2) of that Act is met, giving a notice in accordance with that section,]2 and, accordingly, the service by the landlord of a notice to quit is of no effect in relation to a periodic assured tenancy. (1A) Where an order of the court for possession of the dwelling-house is obtained, the tenancy ends when the order is executed.]3 (2) If an assured tenancy which is a fixed term tenancy comes to an end otherwise than by virtue of— (a) an order of the court [of the kind mentioned in subsection (1)(a) or (b) or any other order of the court]4, …1 (b) a surrender or other action on the part of the tenant[, or (c) the giving of a notice under section 33D of the Immigration Act 2014,]2 then, subject to section 7 and Chapter II below, the tenant shall be entitled to remain in possession of the dwelling-house let under that tenancy and, subject to subsection (4) below, his right to possession shall depend upon a periodic tenancy arising by virtue of this section. (3) The periodic tenancy referred to in subsection (2) above is one— (a) taking effect in possession immediately on the coming to an end of the fixed term tenancy; (b) deemed to have been granted by the person who was the landlord under the fixed term tenancy immediately before it came to an end to the person who was then the tenant under that tenancy; (c) under which the premises which are let are the same dwelling-house as was let under the fixed term tenancy; (d) under which the periods of the tenancy are the same as those for which rent was last payable under the fixed term tenancy; and (e) under which, subject to the following provisions of this Part of this Act, the other terms are the same as those of the fixed term tenancy immediately before it came to an end, except that any term which makes provision for determination by the landlord or the tenant shall not have effect while the tenancy remains an assured tenancy. (4) The periodic tenancy referred to in subsection (2) above shall not arise if, on the coming to an end of the fixed term tenancy, the tenant is entitled, by virtue of the grant of another tenancy, to possession of the same or substantially the same dwelling-house as was let to him under the fixed term tenancy. (5) If, on or before the date on which a tenancy is entered into or is deemed to have been granted as mentioned in subsection (3)(b) above, the person who is to be the tenant under that tenancy— 281

Statutes

(a) enters into an obligation to do any act which (apart from this subsection) will cause the tenancy to come to an end at a time when it is an assured tenancy, or (b) executes, signs or gives any surrender, notice to quit or other document which (apart from this subsection) has the effect of bringing the tenancy to an end at a time when it is an assured tenancy, the obligation referred to in paragraph (a) above shall not be enforceable or, as the case may be, the surrender, notice to quit or other document referred to in paragraph (b) above shall be of no effect. [(5A)  Nothing in subsection (5) affects any right of pre-emption— (a) which is exercisable by the landlord under a tenancy in circumstances where the tenant indicates his intention to dispose of the whole of his interest under the tenancy, and (b) in pursuance of which the landlord would be required to pay, in respect of the acquisition of that interest, an amount representing its market value. ‘Dispose’ means dispose by assignment or surrender, and ‘acquisition’ has a corresponding meaning.]5 (6) If, by virtue of any provision of this Part of this Act, Part I of Schedule 1 to this Act has effect in relation to a fixed term tenancy as if it consisted only of paragraphs 11 and 12, that Part shall have the like effect in relation to any periodic tenancy which arises by virtue of this section on the coming to an end of the fixed term tenancy. (7) Any reference in this Part of this Act to a statutory periodic tenancy is a reference to a periodic tenancy arising by virtue of this section. Amendments 1 Repealed by the Immigration Act 2016, s 40(6). 2 Inserted by the Immigration Act 2016, s 40(6). 3 Substituted by the Housing and Regeneration Act 2008, s 299, Sch 11, paras 5, 6(1), (2). 4 Inserted by the Housing and Regeneration Act 2008, s 299, Sch 11, paras 5, 6(1), (3). 5 Inserted by the Housing Act 2004, s 222(1), (2).

7  Orders for possession.

(1) The court shall not make an order for possession of a dwelling-house let on an assured tenancy except on one or more of the grounds set out in Schedule 2 to this Act; but nothing in this Part of this Act relates to proceedings for possession of such a dwelling-house which are brought by a mortgagee, within the meaning of the Law of Property Act 1925, who has lent money on the security of the assured tenancy. 282

Part I Rented Accommodation

(2) The following provisions of this section have effect, subject to section 8 below, in relation to proceedings for the recovery of possession of a dwellinghouse let on an assured tenancy. (3) If the court is satisfied that any of the grounds in Part I of Schedule 2 to this Act is established then, subject to [subsections (5A) and (6)]1 [and section 10A]2 below [(and to any available defence based on the tenant’s Convention rights, within the meaning of the Human Rights Act 1998)]3, the court shall make an order for possession. (4) If the court is satisfied that any of the grounds in Part II of Schedule 2 to this Act is established, then, subject to [subsections (5A) and (6)]1 below, the court may make an order for possession if it considers it reasonable to do so. (5) Part III of Schedule 2 to this Act shall have effect for supplementing Ground 9 in that Schedule and Part IV of that Schedule shall have effect in relation to notices given as mentioned in Grounds 1 to 5 of that Schedule. [(5A) The court shall not make an order for possession of a dwellinghouse let on an assured periodic tenancy arising under Schedule 10 to the Local Government and Housing Act 1989 on any of the following grounds, that is to say,— (a) Grounds 1, 2[, 5[, 7A and 7B]4]5 in Part I of Schedule 2 to this Act; (b) Ground 16 in Part II of that Schedule; and (c) if the assured periodic tenancy arose on the termination of a former 1954 Act tenancy, within the meaning of the said Schedule 10, Ground 6 in Part I of Schedule 2 to this Act.]6 (6) The court shall not make an order for possession of a dwelling-house to take effect at a time when it is let on an assured fixed term tenancy unless— (a) the ground for possession is Ground 2[, Ground 7A]3[, Ground 7B]2 or Ground 8 in Part I of Schedule 2 to this Act or any of the grounds in Part II of that Schedule, other than Ground 9 or Ground 16; and (b) the terms of the tenancy make provision for it to be brought to an end on the ground in question (whether that provision takes the form of a provision for re-entry, for forfeiture, for determination by notice or otherwise). [(6A)  In the case of a dwelling-house in England, subsection (6)(a) has effect as if it also referred to Ground 7 in Part 1 of Schedule 2 to this Act.]7 [(6B) The requirement in subsection (6)(b) that would otherwise apply to an order for possession of a dwelling-house let on an assured fixed term tenancy does not apply where the ground for possession is Ground 7B in Part 1 of Schedule 2 to this Act.]2 (7) Subject to the preceding provisions of this section, the court may make an order for possession of a dwelling-house on grounds relating to a fixed term tenancy which has come to an end; and where an order is made in 283

Statutes

such circumstances, any statutory periodic tenancy which has arisen on the ending of the fixed term tenancy shall end (without any notice and regardless of the period) [in accordance with section 5(1A)]8. Amendments 1 Substituted by the Local Government and Housing Act 1989, s  194(1), Sch  11, para 101(1), (2). 2 Inserted by the Immigration Act 2016, s 41(1), (3)(a), (c), (d). 3 Inserted by the Anti-social Behaviour, Crime and Policing Act 2014, s 181(1), Sch 11, para 18(1), (2), (4). 4 Substituted by the Immigration Act 2016, s 41(1), (3)(b). 5 Substituted by the Anti-social Behaviour, Crime and Policing Act 2014, s  181(1), Sch 11, para 18(1), (3). 6 Inserted by the Local Government and Housing Act 1989, s  194(1), Sch  11, para 101(3). 7 Inserted by the Localism Act 2011, s 162(4). 8 Substituted by the Housing and Regeneration Act 2008, s 299, Sch 11, paras 5, 7.

8  Notice of proceedings for possession.

(1) The court shall not entertain proceedings for possession of a dwelling-house let on an assured tenancy unless— (a) the landlord or, in the case of joint landlords, at least one of them has served on the tenant a notice in accordance with this section and the proceedings are begun within the time limits stated in the notice in accordance with [subsections (3) to (4B)]1 below; or (b) the court considers it just and equitable to dispense with the requirement of such a notice. (2) The court shall not make an order for possession on any of the grounds in Schedule 2 to this Act unless that ground and particulars of it are specified in the notice under this section; but the grounds specified in such a notice may be altered or added to with the leave of the court. (3) A notice under this section is one in the prescribed form informing the tenant that— (a) the landlord intends to begin proceedings for possession of the dwellinghouse on one or more of the grounds specified in the notice; and (b) those proceedings will not begin earlier than a date specified in the notice [in accordance with [subsections (3A)]2 to (4B) below]1; and (c) those proceedings will not begin later than twelve months from the date of service of the notice. [(3A)  If a notice under this section specifies in accordance with subsection (3) (a) Ground 7A in Schedule  2 to this Act (whether with or without other 284

Part I Rented Accommodation

grounds), the date specified in the notice as mentioned in subsection (3)(b) is not to be earlier than— (a) in the case of a periodic tenancy, (b) in the case of a fixed term tenancy, one month after the date on which the notice was served.]3 [(4) If a notice under this section specifies in accordance with subsection (3)(a) above Ground 14 in Schedule 2 to this Act [(whether without other grounds or with any ground other than Ground 7A)]2, the date specified in the notice as mentioned in subsection (3)(b) above shall not be earlier than the date of the service of the notice. (4A)  If a notice under this section specifies in accordance with subsection (3) (a) above, any of Grounds 1, 2, 5 to 7, 9 and 16 in Schedule 2 to this Act (whether without other grounds or with any ground other than Ground [7A or]3 14), the date specified in the notice as mentioned in subsection (3)(b) above shall not be earlier than— (a) two months from the date of service of the notice; and (b) if the tenancy is a periodic tenancy, the earliest date on which, apart from section 5(1) above, the tenancy could be brought to an end by a notice to quit given by the landlord on the same date as the date of service of the notice under this section. (4B)  In any other case, the date specified in the notice as mentioned in subsection (3)(b) above shall not be earlier than the expiry of the period of two weeks from the date of the service of the notice.]1 [(4C) A notice under this section that specifies in accordance with subsection (3)(a) Ground 7A in Schedule 2 to this Act (whether with or without other grounds) must be served on the tenant within the time period specified in subsection (4D), (4E) or (4F). (4D)  Where the landlord proposes to rely on condition 1, 3 or 5 in Ground 7A, the notice must be served on the tenant within— (a) the period of 12 months beginning with the day of the conviction, or (b) if there is an appeal against the conviction, the period of 12 months beginning with the day on which the appeal is finally determined or abandoned. (4E) Where the landlord proposes to rely on condition 2 in Ground 7A, the notice must be served on the tenant within— (a) the period of 12 months beginning with the day on which the court has made the finding, or (b) if there is an appeal against the finding, the period of 12 months beginning with the day on which the appeal is finally determined, abandoned or withdrawn. 285

Statutes

(4F) Where the landlord proposes to rely on condition 4 in Ground 7A, the notice must be served on the tenant within— (a) the period of 3 months beginning with the day on which the closure order was made, or (b) if there is an appeal against the making of the order, the period of 3 months beginning with the day on which the appeal is finally determined, abandoned or withdrawn.]3 (5) The court may not exercise the power conferred by subsection (1)(b) above if the landlord seeks to recover possession on Ground [7A[, 7B]4 or]3 8 in Schedule 2 to this Act. (6) Where a notice under this section— (a) is served at a time when the dwelling-house is let on a fixed term tenancy, or (b) is served after a fixed term tenancy has come to an end but relates (in whole or in part) to events occurring during that tenancy, the notice shall have effect notwithstanding that the tenant becomes or has become tenant under a statutory periodic tenancy arising on the coming to an end of the fixed term tenancy. Amendments 1 Substituted by the Housing Act 1996, s 151. 2 Substituted by the Anti-social Behaviour, Crime and Policing Act 2014, s 97(2)(a), (c). 3 Inserted by the Anti-social Behaviour, Crime and Policing Act 2014, s 97(2)(b), (d)– (f). 4 Inserted by the Immigration Act 2016, s 41(1), (4).

9  Extended discretion of court in possession claims.

(1) Subject to subsection (6) below, the court may adjourn for such period or periods as it thinks fit proceedings for possession of a dwelling-house let on an assured tenancy. (2) On the making of an order for possession of a dwelling-house let on an assured tenancy or at any time before the execution of such an order, the court, subject to subsection (6) below, may— (a) stay or suspend execution of the order, or (b) postpone the date of possession, for such period or periods as the court thinks just. (3) On any such adjournment as is referred to in subsection (1) above or on any such stay, suspension or postponement as is referred to in subsection (2) above, the court, unless it considers that to do so would cause exceptional 286

Part I Rented Accommodation

hardship to the tenant or would otherwise be unreasonable, shall impose conditions with regard to payment by the tenant of arrears of rent (if any) and rent …1 and may impose such other conditions as it thinks fit. (4) If any such conditions as are referred to in subsection (3) above are complied with, the court may, if it thinks fit, discharge or rescind any such order as is referred to in subsection (2) above. (5) …1 [(5A) …1]2 (6) This section does not apply if the court is satisfied that the landlord is entitled to possession of the dwelling-house— (a) on any of the grounds in Part I of Schedule 2 to this Act; or (b) by virtue of subsection (1) or subsection (4) of section 21 below. Amendments 1 Repealed by the Housing and Regeneration Act 2008, ss  299, 321(1), Sch  11, para 8(1), (2), (4). 2 Inserted by the Family Law Act 1996, s 66(1), Sch 8, para 59(1), (3)

12  Compensation for misrepresentation or concealment.

Where a landlord obtains an order for possession of a dwelling-house let on an assured tenancy on one or more of the grounds in Schedule  2 to this Act and it is subsequently made to appear to the court that the order was obtained by misrepresentation or concealment of material facts, the court may order the landlord to pay to the former tenant such sum as appears sufficient as compensation for damage or loss sustained by that tenant as a result of the order. Rent and other terms 15  Limited prohibition on assignment etc. without consent.

(1) Subject to subsection (3) below, it shall be an implied term of every assured tenancy which is a periodic tenancy that, except with the consent of the landlord, the tenant shall not— (a) assign the tenancy (in whole or in part); or (b) sub-let or part with possession of the whole or any part of the dwellinghouse let on the tenancy. (2) Section 19 of the Landlord and Tenant Act 1927 (consents to assign not to be unreasonably withheld etc.) shall not apply to a term which is implied into an assured tenancy by subsection (1) above. (3) In the case of a periodic tenancy which is not a statutory periodic tenancy [or an assured periodic tenancy arising under Schedule  10 to the Local 287

Statutes

Government and Housing Act 1989]1 subsection (1) above does not apply if— (a) there is a provision (whether contained in the tenancy or not) under which the tenant is prohibited (whether absolutely or conditionally) from assigning or sub-letting or parting with possession or is permitted (whether absolutely or conditionally) to assign, sub-let or part with possession; or (b) a premium is required to be paid on the grant or renewal of the tenancy. (4) In subsection (3)(b) above ‘premium’ includes— (a) any fine or other like sum; (b) any other pecuniary consideration in addition to rent; and (c) any sum paid by way of deposit, other than one which does not exceed one-sixth of the annual rent payable under the tenancy immediately after the grant or renewal in question. Amendments 1 Inserted by the Local Government and Housing Act 1989, s 194(1), Sch 11, para 102.

[15A  Loss of assured tenancy status

(1) Subsection (2) applies if, in breach of an express or implied term of the tenancy, a tenant of a dwelling-house let under an assured tenancy to which this section applies— (a) parts with possession of the dwelling-house, or (b) sub-lets the whole of the dwelling-house (or sub-lets first part of it and then the remainder). (2) The tenancy ceases to be an assured tenancy and cannot subsequently become an assured tenancy. (3) This section applies to an assured tenancy— (a) under which the landlord is a private registered provider of social housing or a registered social landlord, and (b) which is not a shared ownership lease. (4) In this section ‘registered social landlord’ has the same meaning as in Part 1 of the Housing Act 1996. (5) In this section ‘shared ownership lease’ means a lease of a dwelling-house— (a) granted on payment of a premium calculated by reference to a percentage of the value of the dwelling-house or of the cost of providing it, or (b) under which the lessee (or the lessee’s personal representatives) will or may be entitled to a sum calculated by reference, directly or indirectly, to the value of the dwelling-house.]1 288

Part I Rented Accommodation

Amendments 1 Inserted by the Prevention of Social Housing Fraud Act 2013, s 6.

Miscellaneous 17  Succession to [assured tenancy]1.

(1) [Subject to subsection (1D),]2 in any case where— (a) the sole tenant under an assured periodic tenancy dies, and (b) immediately before the death, the tenant’s spouse [or civil partner]3 was occupying the dwelling-house as his or her only or principal home, …4 (c) …4 then, on the death, the tenancy vests by virtue of this section in the spouse [or civil partner]3 (and, accordingly, does not devolve under the tenant’s will or intestacy). [(1A) Subject to subsection (1D), in any case where— (a) there is an assured periodic tenancy of a dwelling-house in England under which— (i) the landlord is a private registered provider of social housing, and (ii) the tenant is a sole tenant, (b) the tenant under the tenancy dies, (c) immediately before the death, the dwelling-house was not occupied by a spouse or civil partner of the tenant as his or her only or principal home, (d) an express term of the tenancy makes provision for a person other than such a spouse or civil partner of the tenant to succeed to the tenancy, and (e) there is a person whose succession is in accordance with that term, then, on the death, the tenancy vests by virtue of this section in that person (and, accordingly, does not devolve under the tenant’s will or intestacy). (1B)  Subject to subsection (1D), in any case where— (a) there is an assured tenancy of a dwelling-house in England for a fixed term of not less than two years under which— (i) the landlord is a private registered provider of social housing, and (ii) the tenant is a sole tenant, (b) the tenant under the tenancy dies, and (c) immediately before the death, the tenant’s spouse or civil partner was occupying the dwelling-house as his or her only or principal home, 289

Statutes

then, on the death, the tenancy vests by virtue of this section in the spouse or civil partner (and, accordingly, does not devolve under the tenant’s will or intestacy). (1C)  Subject to subsection (1D), in any case where— (a) there is an assured tenancy of a dwelling-house in England for a fixed term of not less than two years under which— (i) the landlord is a private registered provider of social housing, and (ii) the tenant is a sole tenant, (b) the tenant under the tenancy dies, (c) immediately before the death, the dwelling-house was not occupied by a spouse or civil partner of the tenant as his or her only or principal home, (d) an express term of the tenancy makes provision for a person other than such a spouse or civil partner of the tenant to succeed to the tenancy, and (e) there is a person whose succession is in accordance with that term, then, on the death, the tenancy vests by virtue of this section in that person (and accordingly does not devolve under the tenant’s will or intestacy). (1D)  Subsection (1), (1A), (1B) or (1C) does not apply if the tenant was himself a successor as defined in subsection (2) or subsection (3). (1E)  In such a case, on the death, the tenancy vests by virtue of this section in a person (‘P’) (and, accordingly, does not devolve under the tenant’s will or intestacy) if, and only if— (a) (in a case within subsection (1)) the tenancy is of a dwelling-house in England under which the landlord is a private registered provider of social housing, (b) an express term of the tenancy makes provision for a person to succeed a successor to the tenancy, and (c) P’s succession is in accordance with that term.]2 (2) For the purposes of this section, a tenant is a successor in relation to a tenancy if— (a) the tenancy became vested in him either by virtue of this section or under the will or intestacy of a previous tenant; or (b) at some time before the tenant’s death the tenancy was a joint tenancy held by himself and one or more other persons and, prior to his death, he became the sole tenant by survivorship; or (c) he became entitled to the tenancy as mentioned in section 39(5) below. (3) For the purposes of this section, a tenant is also a successor in relation to a tenancy (in this subsection referred to as ‘the new tenancy’) which was granted to him (alone or jointly with others) if— 290

Part I Rented Accommodation

(a) at some time before the grant of the new tenancy, he was, by virtue of subsection (2) above, a successor in relation to an earlier tenancy of the same or substantially the same dwelling-house as is let under the new tenancy; and (b) at all times since he became such a successor he has been a tenant (alone or jointly with others) of the dwelling-house which is let under the new tenancy or of a dwelling-house which is substantially the same as that dwelling-house. [(4) For the purposes of this section, a person who was living with the tenant as if they were a married couple or civil partners is to be treated as the tenant’s spouse or civil partner.]5 (5) If, on the death of the tenant, there is, by virtue of subsection (4) above, more than one person who fulfils the condition in subsection (1)(b) [or (1B) (c)]2 above, such one of them as may be decided by agreement or, in default of agreement, by the county court [shall for the purposes of this section be [treated as the tenant’s spouse]6 [or civil partner]5.]7 [(6) If, on the death of the tenant, there is more than one person in whom the tenancy would otherwise vest by virtue of subsection (1A), (1C) or (1E), the tenancy vests in such one of them as may be agreed between them or, in default of agreement, as is determined by the county court. (7) This section does not apply to a fixed term assured tenancy that is a lease of a dwelling-house— (a) granted on payment of a premium calculated by reference to a percentage of the value of the dwelling-house or of the cost of providing it, or (b) under which the lessee (or the lessee’s personal representatives) will or may be entitled to a sum calculated by reference, directly or indirectly, to the value of the dwelling-house.]2 Amendments 1 2 3 4 5

Substituted by the Localism Act 2011, s 161(1), (2). Inserted by the Localism Act 2011, s 161(1), (3)(a), (4)–(6). Inserted by the Civil Partnership Act 2004, s 81, Sch 8, para 41(1), (2). Repealed by the Localism Act 2011, s 161(1), (3)(b), 237, Sch 25, Pt 23. Substituted by the Civil Partnership (Opposite-sex Couples) Regulations 2019, SI 2019/1458, reg 41, Sch 3, para 12(2). 6 Substituted by the Marriage (Same Sex Couples) Act 2013 (Consequential and Contrary Provisions and Scotland) Order 2014, SI 2014/560, art 2, Sch 1, para 20. 7 Substituted by the Civil Partnership Act 2004, s 81, Sch 8, para 41(1), (4).

291

Statutes

Chapter II Assured Shorthold Tenancies [19A  Assured shorthold tenancies: post-Housing Act 1996 tenancies.

An assured tenancy which— (a) is entered into on or after the day on which section 96 of the Housing Act 1996 comes into force (otherwise than pursuant to a contract made before that day), or (b) comes into being by virtue of section 5 above on the coming to an end of an assured tenancy within paragraph (a) above, is an assured shorthold tenancy unless it falls within any paragraph in Schedule 2A to this Act.]1 Amendments 1 Inserted by the Housing Act 1996, s 96(1).

[20  Assured shorthold tenancies: pre-Housing Act 1996 tenancies.

(1) Subject to subsection (3) below, an assured tenancy which is not one to which section 19A above applies is an assured shorthold tenancy if— (a) it is a fixed term tenancy granted for a term certain of not less than six months, (b) there is no power for the landlord to determine the tenancy at any time earlier than six months from the beginning of the tenancy; and (c) a notice in respect of it is served as mentioned in subsection (2) below.]1 (2) The notice referred to in subsection (1)(c) above is one which— (a) is in such form as may be prescribed; (b) is served before the assured tenancy is entered into; (c) is served by the person who is to be the landlord under the assured tenancy on the person who is to be the tenant under that tenancy; and (d) states that the assured tenancy to which it relates is to be a shorthold tenancy. (3) Notwithstanding anything in subsection (1) above, where— (a) immediately before a tenancy (in this subsection referred to as ‘the new tenancy’) is granted, the person to whom it is granted or, as the case may be, at least one of the persons to whom it is granted was a tenant under an assured tenancy which was not a shorthold tenancy, and (b) the new tenancy is granted by the person who, immediately before the beginning of the tenancy, was the landlord under the assured tenancy referred to in paragraph (a) above, the new tenancy cannot be an assured shorthold tenancy. 292

Part I Rented Accommodation

(4) Subject to subsection (5) below, if, on the coming to an end of an assured shorthold tenancy (including a tenancy which was an assured shorthold but ceased to be assured before it came to an end), a new tenancy of the same or substantially the same premises comes into being under which the landlord and the tenant are the same as at the coming to an end of the earlier tenancy, then, if and so long as the new tenancy is an assured tenancy, it shall be an assured shorthold tenancy, whether or not it fulfils the conditions in paragraphs (a) to (c) of subsection (1) above. (5) Subsection (4) above does not apply if, before the new tenancy is entered into (or, in the case of a statutory periodic tenancy, takes effect in possession), the landlord serves notice on the tenant that the new tenancy is not to be a shorthold tenancy. [(5A)  Subsections (3) and (4) above do not apply where the new tenancy is one to which section 19A above applies]2 (6) In the case of joint landlords— (a) the reference in subsection (2)(c) above to the person who is to be the landlord is a reference to at least one of the persons who are to be joint landlords; and (b) the reference in subsection (5) above to the landlord is a reference to at least one of the joint landlords. (7) …3 Amendments 1 Substituted by the Housing Act 1996, s 104, Sch 8, para 2(1), (3). 2 Inserted by the Housing Act 1996, s 104, Sch 8, para 2(1), (4). 3 Repealed by the Housing Act 1996, s 227, Sch 19, Pt IV.

[20A  Post-Housing Act 1996 tenancies: duty of landlord to provide statement as to terms of tenancy.

(1) Subject to subsection (3) below, a tenant under an assured shorthold tenancy to which section 19A above applies may, by notice in writing, require the landlord under that tenancy to provide him with a written statement of any term of the tenancy which— (a) falls within subsection (2) below, and (b) is not evidenced in writing. (2) The following terms of a tenancy fall within this subsection, namely— (a) the date on which the tenancy began or, if it is a statutory periodic tenancy or a tenancy to which section 39(7) below applies, the date on which the tenancy came into being, (b) the rent payable under the tenancy and the dates on which that rent is payable, 293

Statutes

(c) any term providing for a review of the rent payable under the tenancy, and (d) in the case of a fixed term tenancy, the length of the fixed term. (3) No notice may be given under subsection (1) above in relation to a term of the tenancy if— (a) the landlord under the tenancy has provided a statement of that term in response to an earlier notice under that subsection given by the tenant under the tenancy, and (b) the term has not been varied since the provision of the statement referred to in paragraph (a) above. (4) A landlord who fails, without reasonable excuse, to comply with a notice under subsection (1) above within the period of 28 days beginning with the date on which he received the notice is liable on summary conviction to a fine not exceeding level 4 on the standard scale. (5) A statement provided for the purposes of subsection (1) above shall not be regarded as conclusive evidence of what was agreed by the parties to the tenancy in question. (6) Where— (a) a term of a statutory periodic tenancy is one which has effect by virtue of section 5(3)(e) above, or (b) a term of a tenancy to which subsection (7) of section 39 below applies is one which has effect by virtue of subsection (6)(e) of that section, subsection (1) above shall have effect in relation to it as if paragraph (b) related to the term of the tenancy from which it derives. (7) In subsections (1) and (3) above— (a) references to the tenant under the tenancy shall, in the case of joint tenants, be taken to be references to any of the tenants, and (b) references to the landlord under the tenancy shall, in the case of joint landlords, be taken to be references to any of the landlords.] Amendments 1 Inserted by the Housing Act 1996, s 97.

[20B  Demoted assured shorthold tenancies

(1) An assured tenancy is an assured shorthold tenancy to which this section applies (a demoted assured shorthold tenancy) if— (a) the tenancy is created by virtue of an order of the court under section 82A of the Housing Act 1985 or section 6A of this Act (a demotion order), and 294

Part I Rented Accommodation

(b) the landlord is [a private registered provider of social housing or]1 a registered social landlord. (2) At the end of the period of one year starting with the day when the demotion order takes effect a demoted assured shorthold tenancy ceases to be an assured shorthold tenancy unless subsection (3) applies[, but see section 20C]2. (3) This subsection applies if before the end of the period mentioned in subsection (2) the landlord gives notice of proceedings for possession of the dwelling house. (4) If subsection (3) applies the tenancy continues to be a demoted assured shorthold tenancy until the end of the period mentioned in subsection (2) or (if later) until one of the following occurs— (a) the notice of proceedings for possession is withdrawn; (b) the proceedings are determined in favour of the tenant; (c) the period of six months beginning with the date on which the notice is given ends and no proceedings for possession have been brought. (5) Registered social landlord has the same meaning as in Part 1 of the Housing Act 1996.]3 Amendments 1 Inserted by the Housing and Regeneration Act 2008 (Consequential Provisions) Order 2010, SI 2010/866, art 5, Sch 2, paras 63, 65. 2 Inserted by the Localism Act 2011, s 163(1). 3 Inserted by the Anti-Social Behaviour Act 2003, s 15(1).

[20C  Assured shorthold tenancies following demoted tenancies

(1) Subsection (2) applies if— (a) section 20B applies to an assured shorthold tenancy of a dwelling-house in England (‘the demoted tenancy’), (b) the landlord is a private registered provider of social housing, (c) the demoted tenancy was created by an order under section 6A made after the coming into force of section 163(2) of the Localism Act 2011, (d) the assured tenancy that was terminated by that order was an assured shorthold tenancy that, whether or not it was a fixed term tenancy when terminated by the order, was granted for a term certain of not less than two years, (e) apart from subsection (2), the demoted tenancy would cease to be an assured shorthold tenancy by virtue of section 20B(2) or (4), and 295

Statutes

(f) the landlord has served a notice within subsection (3) on the tenant before the demoted tenancy ceases to be an assured shorthold tenancy by virtue of section 20B(2) or (4). (2) The demoted tenancy does not cease to be an assured shorthold tenancy by virtue of section 20B(2) or (4), and at the time when it would otherwise cease to be an assured shorthold tenancy by virtue of section 20B(2) to (4)— (a) it becomes an assured shorthold tenancy which is a fixed term tenancy for a term certain, and (b) section 20B ceases to apply to it. (3) The notice must— (a) state that, on ceasing to be a demoted assured shorthold tenancy, the tenancy will become an assured shorthold tenancy which is a fixed term tenancy for a term certain of the length specified in the notice, (b) specify a period of at least two years as the length of the term of the tenancy, and (c) set out the other express terms of the tenancy. (4) Where an assured shorthold tenancy becomes a fixed term tenancy by virtue of subsection (2)— (a) the length of its term is that specified in the notice under subsection (3), and (b) its other express terms are those set out in the notice.]1 Amendments 1 Inserted by the Localism Act 2011, s 163(2).

[20D  Assured shorthold tenancies following family intervention tenancies

(1) An assured tenancy that arises by virtue of a notice under paragraph 12ZA(2) of Schedule  1 in respect of a family intervention tenancy is an assured shorthold tenancy if— (a) the landlord under the assured tenancy is a private registered provider of social housing, (b) the dwelling-house is in England, (c) the family intervention tenancy was granted to a person on the coming to an end of an assured shorthold tenancy under which the person was a tenant, and (d) the notice states that the family intervention tenancy is to be regarded as an assured shorthold tenancy. (2) This section does not apply if the family intervention tenancy was granted before the coming into force of section 163(3) of the Localism Act 2011.]1 296

Part I Rented Accommodation

Amendments 1 Inserted by the Localism Act 2011, s 163(2).

21 Recovery of possession on expiry or termination of assured shorthold tenancy.

(1) Without prejudice to any right of the landlord under an assured shorthold tenancy to recover possession of the dwelling-house let on the tenancy in accordance with Chapter I  above, on or after the coming to an end of an assured shorthold tenancy which was a fixed term tenancy, a court shall make an order for possession of the dwelling-house if it is satisfied— (a) that the assured shorthold tenancy has come to an end and no further assured tenancy (whether shorthold or not) is for the time being in existence, other than [an assured shorthold periodic tenancy (whether statutory or not)]1; and (b) the landlord or, in the case of joint landlords, at least one of them has given to the tenant not less than two months’ notice [in writing]2 stating that he requires possession of the dwelling-house. [(1A)  Subsection (1B) applies to an assured shorthold tenancy of a dwellinghouse in England if— (a) it is a fixed term tenancy for a term certain of not less than two years, and (b) the landlord is a private registered provider of social housing. (1B)  The court may not make an order for possession of the dwelling-house let on the tenancy unless the landlord has given to the tenant not less than six months’ notice in writing— (a) stating that the landlord does not propose to grant another tenancy on the expiry of the fixed term tenancy, and (b) informing the tenant of how to obtain help or advice about the notice and, in particular, of any obligation of the landlord to provide help or advice.]3 (2) A notice under paragraph (b) of subsection (1) above may be given before or on the day on which the tenancy comes to an end; and that subsection shall have effect notwithstanding that on the coming to an end of the fixed term tenancy a statutory periodic tenancy arises. (3) Where a court makes an order for possession of a dwelling-house by virtue of subsection (1) above, any statutory periodic tenancy which has arisen on the coming to an end of the assured shorthold tenancy shall end (without further notice and regardless of the period) [in accordance with section 5(1A)]4. (4) Without prejudice to any such right as is referred to in subsection (1) above, a court shall make an order for possession of a dwelling-house let on an assured shorthold tenancy which is a periodic tenancy if the court is satisfied— 297

Statutes

(a) that the landlord or, in the case of joint landlords, at least one of them has given to the tenant a notice [in writing]2 stating that, after a date specified in the notice, being the last day of a period of the tenancy and not earlier than two months after the date the notice was given, possession of the dwelling-house is required by virtue of this section; and (b) that the date specified in the notice under paragraph (a) above is not earlier than the earliest day on which, apart from section 5(1) above, the tenancy could be brought to an end by a notice to quit given by the landlord on the same date as the notice under paragraph (a) above. [(4ZA) In the case of a dwelling-house in England, subsection (4)(a) above has effect with the omission of the requirement for the date specified in the notice to be the last day of a period of the tenancy.]5 [(4A) Where a court makes an order for possession of a dwelling-house by virtue of subsection (4) above, the assured shorthold tenancy shall end in accordance with section 5(1A).]6 [(4B) A notice under subsection (1) or (4) may not be given in relation to an assured shorthold tenancy of a dwelling-house in England— (a) in the case of a tenancy which is not a replacement tenancy, within the period of four months beginning with the day on which the tenancy began, and (b) in the case of a replacement tenancy, within the period of four months beginning with the day on which the original tenancy began. (4C)  Subsection (4B) does not apply where the tenancy has arisen due to section 5(2). (4D)  Subject to subsection (4E), proceedings for an order for possession under this section in relation to a dwelling-house in England may not be begun after the end of the period of six months beginning with the date on which the notice was given under subsection (1) or (4). (4E) Where— (a) a notice under subsection (4) has been given in relation to a dwellinghouse in England, and (b) paragraph (b) of that subsection requires the date specified in the notice to be more than two months after the date the notice was given, proceedings for an order for possession under this section may not be begun after the end of the period of four months beginning with the date specified in the notice.]7 [(5) Where an order for possession under subsection (1) or (4) above is made in relation to a dwelling-house let on a tenancy to which section 19A above applies, the order may not be made so as to take effect earlier than— 298

Part I Rented Accommodation

(a) in the case of a tenancy which is not a replacement tenancy, six months after the beginning of the tenancy, and (b) in the case of a replacement tenancy, six months after the beginning of the original tenancy. [(5A)  Subsection (5) above does not apply to an assured shorthold tenancy to which section 20B (demoted assured shorthold tenancies) applies.]8 (6) In [subsections (4B)(b) and]9 (5)(b) above, the reference to the original tenancy is— (a) where the replacement tenancy came into being on the coming to an end of a tenancy which was not a replacement tenancy, to the immediately preceding tenancy, and (b) where there have been successive replacement tenancies, to the tenancy immediately preceding the first in the succession of replacement tenancies. (7) For the purposes of this section, a replacement tenancy is a tenancy— (a) which comes into being on the coming to an end of an assured shorthold tenancy, and (b) under which, on its coming into being— (i) the landlord and tenant are the same as under the earlier tenancy as at its coming to an end, and (ii) the premises let are the same or substantially the same as those let under the earlier tenancy as at that time.]10 [(8) The Secretary of State may by regulations made by statutory instrument prescribe the form of a notice under subsection (1) or (4) given in relation to an assured shorthold tenancy of a dwelling-house in England. (9) A  statutory instrument containing regulations made under subsection (8) is subject to annulment in pursuance of a resolution of either House of Parliament.]11 Amendments 1 Inserted by the Local Government and Housing Act 1989, s 194(1), Sch 11, para 103. 2 Inserted by the Housing Act 1996, s 98. 3 Inserted by the Localism Act 2011, s 164(1). 4 Substituted by the Housing and Regeneration Act 2008, s 299, Sch 11, paras 5, 9(1), (2). 5 Inserted by the Deregulation Act 2015, s 35. 6 Inserted by the Housing and Regeneration Act 2008, s 299, Sch 11, paras 5, 9(1), (3). 7 Inserted by the Deregulation Act 2015, s 36(1), (2). 8 Inserted by the Anti-Social Behaviour Act 2003, s 15(2). 9 Substituted by the Deregulation Act 2015, s 36(1), (3).

299

Statutes

10 Inserted by the Housing Act 1996, s 99. 11 Inserted by the Deregulation Act 2015, s 37.

[21A  Compliance with prescribed legal requirements

(1) A  notice under subsection (1) or (4) of section 21 may not be given in relation to an assured shorthold tenancy of a dwelling-house in England at a time when the landlord is in breach of a prescribed requirement. (2) The requirements that may be prescribed are requirements imposed on landlords by any enactment and which relate to— (a) the condition of dwelling-houses or their common parts, (b) the health and safety of occupiers of dwelling-houses, or (c) the energy performance of dwelling-houses. (3) In subsection (2) ‘enactment’ includes an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978. (4) For the purposes of subsection (2)(a) ‘common parts’ has the same meaning as in Ground 13 in Part 2 of Schedule 2. (5) A  statutory instrument containing regulations made under this section is subject to annulment in pursuance of a resolution of either House of Parliament.]1 Amendments 1 Inserted by the Deregulation Act 2015, s 38.

[21B  Requirement for landlord to provide prescribed information

(1) The Secretary of State may by regulations require information about the rights and responsibilities of a landlord and a tenant under an assured shorthold tenancy of a dwelling-house in England (or any related matters) to be given by a landlord under such a tenancy, or a person acting on behalf of such a landlord, to the tenant under such a tenancy. (2) Regulations under subsection (1) may— (a) require the information to be given in the form of a document produced by the Secretary of State or another person, (b) provide that the document to be given is the version that has effect at the time the requirement applies, and (c) specify cases where the requirement does not apply. (3) A  notice under subsection (1) or (4) of section 21 may not be given in relation to an assured shorthold tenancy of a dwelling-house in England at a time when the landlord is in breach of a requirement imposed by regulations under subsection (1). 300

Part I Rented Accommodation

(4) A  statutory instrument containing regulations made under subsection (1) is subject to annulment in pursuance of a resolution of either House of Parliament.]1 Amendments 1 Inserted by the Deregulation Act 2015, s 39.

[21C  Repayment of rent where tenancy ends before end of a period

(1) A tenant under an assured shorthold tenancy of a dwelling-house in England is entitled to a repayment of rent from the landlord where— (a) as a result of the service of a notice under section 21 the tenancy is brought to an end before the end of a period of the tenancy, (b) the tenant has paid rent in advance for that period, and (c) the tenant was not in occupation of the dwelling-house for one or more whole days of that period. (2) The amount of repayment to which a tenant is entitled under subsection (1) is to be calculated in accordance with the following formula— R × D / P where— R is the rent paid for the final period; D is the number of whole days of the final period for which the tenant was not in occupation of the dwelling-house; and P is the number of whole days in that period. (3) If the repayment of rent described in subsections (1) and (2) has not been made when the court makes an order for possession under section 21, the court must order the landlord to repay the amount of rent to which the tenant is entitled. (4) Nothing in this section affects any other right of the tenant to a repayment of rent from the landlord.]1 Amendments 1 Inserted by the Deregulation Act 2015, s 40.

301

Statutes

SCHEDULE 2 GROUNDS FOR POSSESSION OF DWELLING-HOUSES LET ON ASSURED TENANCIES Section 7.

Part II Grounds on which Court may Order Possession Ground 12

Any obligation of the tenancy (other than one related to the payment of rent) has been broken or not performed. [Ground 17

The tenant is the person, or one of the persons, to whom the tenancy was granted and the landlord was induced to grant the tenancy by a false statement made knowingly or recklessly by— (a) the tenant, or (b) a person acting at the tenant’s instigation.]1 Amendments 1 Inserted by the Housing Act 1996, s 102.

302

Part V Conduct of tenants

Housing Act 1996 PART V CONDUCT OF TENANTS Chapter I Introductory Tenancies General provisions 124  Introductory tenancies.

(1) A local housing authority or a housing action trust may elect to operate an introductory tenancy regime. (2) When such an election is in force, every periodic tenancy of a dwelling-house entered into or adopted by the authority or trust shall, if it would otherwise be a secure tenancy, be an introductory tenancy, unless immediately before the tenancy was entered into or adopted the tenant or, in the case of joint tenants, one or more of them was— (a) a secure tenant of the same or another dwelling-house, or [(b) a tenant under a relevant assured tenancy, other than an assured shorthold tenancy, of the same or another dwelling-house.]1 [(2A)  In subsection (2)(b) ‘relevant assured tenancy’ means— (a) an assured tenancy in respect of social housing under which the landlord is a private registered provider of social housing, or (b) an assured tenancy under which the landlord is a registered social landlord; and for these purposes ‘social housing’ has the same meaning as in Part 2 of the Housing and Regeneration Act 2008.]2 (3) Subsection (2) does not apply to a tenancy entered into or adopted in pursuance of a contract made before the election was made. (4) For the purposes of this Chapter a periodic tenancy is adopted by a person if that person becomes the landlord under the tenancy, whether on a disposal or surrender of the interest of the former landlord. (5) An election under this section may be revoked at any time, without prejudice to the making of a further election. Amendments 1 Substituted by the Housing and Regeneration Act 2008 (Consequential Provisions) Order 2010, SI 2010/866, art 5, Sch 2, paras 81, 96(1), (2). 2 Inserted by the Housing and Regeneration Act 2008 (Consequential Provisions) Order 2010, SI 2010/866, art 5, Sch 2, paras 81, 96(1), (3).

303

Statutes

125  Duration of introductory tenancy.

(1) A tenancy remains an introductory tenancy until the end of the trial period, unless one of the events mentioned in subsection (5) occurs before the end of that period. (2) The ‘trial period’ is the period of one year beginning with— (a) in the case of a tenancy which was entered into by a local housing authority or housing action trust— (i) the date on which the tenancy was entered into, or (ii) if later, the date on which a tenant was first entitled to possession under the tenancy; or (b) in the case of a tenancy which was adopted by a local housing authority or housing action trust, the date of adoption; [but this is subject to subsections (3) and (4) and to section 125A (extension of trial period by 6 months).]1 (3) Where the tenant under an introductory tenancy was formerly a tenant under another introductory tenancy, [or a relevant assured shorthold tenancy]2, any period or periods during which he was such a tenant shall count towards the trial period, provided— (a) if there was one such period, it ended immediately before the date specified in subsection (2), and (b) if there was more than one such period, the most recent period ended immediately before that date and each period succeeded the other without interruption. [(3A)  In subsection (3) ‘relevant assured shorthold tenancy’ means— (a) an assured shorthold tenancy in respect of social housing under which the landlord is a private registered provider of social housing, or (b) an assured shorthold tenancy under which the landlord is a registered social landlord; and for these purposes ‘social housing’ has the same meaning as in Part 2 of the Housing and Regeneration Act 2008.]3 (4) Where there are joint tenants under an introductory tenancy, the reference in subsection (3) to the tenant shall be construed as referring to the joint tenant in whose case the application of that subsection produces the earliest starting date for the trial period. (5) A tenancy ceases to be an introductory tenancy if, before the end of the trial period— (a) the circumstances are such that the tenancy would not otherwise be a secure tenancy, 304

Part V Conduct of tenants

(b) a person or body other than a local housing authority or housing action trust becomes the landlord under the tenancy, (c) the election in force when the tenancy was entered into or adopted is revoked, or (d) the tenancy ceases to be an introductory tenancy by virtue of section 133(3) (succession). (6) A  tenancy does not come to an end merely because it ceases to be an introductory tenancy, but a tenancy which has once ceased to be an introductory tenancy cannot subsequently become an introductory tenancy. (7) This section has effect subject to section 130 (effect of beginning proceedings for possession). Amendments 1 Substituted by the Housing Act 2004, s 179(1), (2). 2 Substituted by the Housing and Regeneration Act 2008 (Consequential Provisions) Order 2010, SI 2010/866, art 5, Sch 2, paras 81, 97(1), (2). 3 Inserted by the Housing and Regeneration Act 2008 (Consequential Provisions) Order 2010, SI 2010/866, art 5, Sch 2, paras 81, 97(1), (3).

[125A  Extension of trial period by 6 months

(1) If both of the following conditions are met in relation to an introductory tenancy, the trial period is extended by 6 months. (2) The first condition is that the landlord has served a notice of extension on the tenant at least 8 weeks before the original expiry date. (3) The second condition is that either— (a) the tenant has not requested a review under section 125B in accordance with subsection (1) of that section, or (b) if he has, the decision on the review was to confirm the landlord’s decision to extend the trial period. (4) A notice of extension is a notice— (a) stating that the landlord has decided that the period for which the tenancy is to be an introductory tenancy should be extended by 6 months, and (b) complying with subsection (5). (5) A notice of extension must— (a) set out the reasons for the landlord’s decision, and (b) inform the tenant of his right to request a review of the landlord’s decision and of the time within which such a request must be made. 305

Statutes

(6) In this section and section 125B ‘the original expiry date’ means the last day of the period of one year that would apply as the trial period apart from this section.]1 Amendments 1 Inserted by the Housing Act 2004, s 179(1), (3).

[125B  Review of decision to extend trial period

(1) A request for review of the landlord’s decision that the trial period for an introductory tenancy should be extended under section 125A must be made before the end of the period of 14 days beginning with the day on which the notice of extension is served. (2) On a request being duly made to it, the landlord shall review its decision. (3) The Secretary of State may make provision by regulations as to the procedure to be followed in connection with a review under this section. Nothing in the following provisions affects the generality of this power. (4) Provision may be made by regulations— (a) requiring the decision on review to be made by a person of appropriate seniority who was not involved in the original decision, and (b) as to the circumstances in which the person concerned is entitled to an oral hearing, and whether and by whom he may be represented at such a hearing. (5) The landlord shall notify the tenant of the decision on the review. If the decision is to confirm the original decision, the landlord shall also notify him of the reasons for the decision. (6) The review shall be carried out and the tenant notified before the original expiry date.]1 Amendments 1 Inserted by the Housing Act 2004, s 179(1), (3).

126 Licences.

(1) The provisions of this Chapter apply in relation to a licence to occupy a dwelling-house (whether or not granted for a consideration) as they apply in relation to a tenancy. (2) Subsection (1) does not apply to a licence granted as a temporary expedient to a person who entered the dwelling-house or any other land as a trespasser (whether or not, before the grant of that licence, another licence to occupy that or another dwelling-house had been granted to him). 306

Part V Conduct of tenants

Proceedings for possession 127  Proceedings for possession.

(1) The landlord may only bring an introductory tenancy to an end by obtaining[— (a) an order of the court for the possession of the dwelling-house, and (b) the execution of the order.]1 [(1A)  In such a case, the tenancy ends when the order is executed.]2 (2) The court shall make [an order of the kind mentioned in subsection (1)(a)]1 unless the provisions of section 128 apply. (3) …3 Amendments 1 Substituted by the Housing and Regeneration Act 2008, s  299, Sch  11, paras 10, 11(1), (2), (4). 2 Inserted by the Housing and Regeneration Act 2008, s 299, Sch 11, paras 10, 11(1), (3). 3 Repealed by the Housing and Regeneration Act 2008, s 299, Sch 11, paras 10, 11(1), (5), Sch. 16.

128  Notice of proceedings for possession.

(1) The court shall not entertain proceedings for the possession of a dwellinghouse let under an introductory tenancy unless the landlord has served on the tenant a notice of proceedings complying with this section. (2) The notice shall state that the court will be asked to make an order for the possession of the dwelling-house. (3) The notice shall set out the reasons for the landlord’s decision to apply for such an order. (4) The notice shall specify a date after which proceedings for the possession of the dwelling-house may be begun. The date so specified must not be earlier than the date on which the tenancy could, apart from this Chapter, be brought to an end by notice to quit given by the landlord on the same date as the notice of proceedings. (5) The court shall not entertain any proceedings for possession of the dwellinghouse unless they are begun after the date specified in the notice of proceedings. (6) The notice shall inform the tenant of his right to request a review of the landlord’s decision to seek an order for possession and of the time within which such a request must be made. 307

Statutes

(7) The notice shall also inform the tenant that if he needs help or advice about the notice, and what to do about it, he should take it immediately to a Citizens’ Advice Bureau, a housing aid centre, a law centre or a solicitor. 129  Review of decision to seek possession.

(1) A request for review of the landlord’s decision to seek an order for possession of a dwelling-house let under an introductory tenancy must be made before the end of the period of 14 days beginning with the day on which the notice of proceedings is served. (2) On a request being duly made to it, the landlord shall review its decision. (3) The Secretary of State may make provision by regulations as to the procedure to be followed in connection with a review under this section. Nothing in the following provisions affects the generality of this power. (4) Provision may be made by regulations— (a) requiring the decision on review to be made by a person of appropriate seniority who was not involved in the original decision, and (b) as to the circumstances in which the person concerned is entitled to an oral hearing, and whether and by whom he may be represented at such a hearing. (5) The landlord shall notify the person concerned of the decision on the review. If the decision is to confirm the original decision, the landlord shall also notify him of the reasons for the decision. (6) The review shall be carried out and the tenant notified before the date specified in the notice of proceedings as the date after which proceedings for the possession of the dwelling-house may be begun. 130  Effect of beginning proceedings for possession.

(1) This section applies where the landlord has begun proceedings for the possession of a dwelling-house let under an introductory tenancy and— (a) the trial period ends, or (b) any of the events specified in section 125(5) occurs (events on which a tenancy ceases to be an introductory tenancy). (2) Subject to the following provisions, the tenancy remains an introductory tenancy until— (a) the tenancy comes to an end [in accordance with section 127(1A)]1, or (b) the proceedings are otherwise finally determined. (3) If any of the events specified in section 125(5)(b) to (d) occurs, the tenancy shall thereupon cease to be an introductory tenancy but— 308

Part V Conduct of tenants

(a) the landlord (or, as the case may be, the new landlord) may continue the proceedings, and (b) if he does so, section [127(1A) and (2)]1 (termination by landlord) apply as if the tenancy had remained an introductory tenancy. (4) Where in accordance with subsection (3) a tenancy ceases to be an introductory tenancy and becomes a secure tenancy, the tenant is not entitled to exercise the right to buy under Part V  of the Housing Act 1985 unless and until the proceedings are finally determined on terms such that he is not required to give up possession of the dwelling-house. (5) For the purposes of this section proceedings shall be treated as finally determined if they are withdrawn or any appeal is abandoned or the time for appealing expires without an appeal being brought. Amendments 1 Substituted by the Housing and Regeneration Act 2008, s 299, Sch 11, paras 10, 12.

Succession on death of tenant 131  Persons qualified to succeed tenant.

A person is qualified to succeed the tenant under an introductory tenancy if he occupies the dwelling-house as his only or principal home at the time of the tenant’s death and either— (a) he is the tenant’s spouse [or civil partner]1, or (b) he is another member of the tenant’s family and has resided with the tenant throughout the period of twelve months ending with the tenant’s death; unless, in either case, the tenant was himself a successor, as defined in section 132. Amendments 1 Inserted by the Civil Partnership (Family Proceedings and Housing Consequential Amendments) Order 2005, SI 2005/3336, art 20.

132  Cases where the tenant is a successor.

(1) The tenant is himself a successor if— (a) the tenancy vested in him by virtue of section 133 (succession to introductory tenancy), (b) he was a joint tenant and has become the sole tenant, (c) he became the tenant on the tenancy being assigned to him (but subject to subsections (2) and (3)), or 309

Statutes

(d) he became the tenant on the tenancy being vested in him on the death of the previous tenant. (2) A  tenant to whom the tenancy was assigned in pursuance of an order under section 24 of the Matrimonial Causes Act 1973 (property adjustment orders in connection with matrimonial proceedings) or section 17(1) of the Matrimonial and Family Proceedings Act 1984 (property adjustment orders after overseas divorce, &c.) is a successor only if the other party to the marriage was a successor. [(2A)  A tenant to whom the tenancy was assigned in pursuance of an order under Part 2 of Schedule 5, or paragraph 9(2) or (3) of Schedule 7, to the Civil Partnership Act 2004 (property adjustment orders in connection with civil partnership proceedings or after overseas dissolution of civil partnership, etc.) is a successor only if the other civil partner was a successor.]1 (3) Where within six months of the coming to an end of an introductory tenancy (‘the former tenancy’) the tenant becomes a tenant under another introductory tenancy, and— (a) the tenant was a successor in relation to the former tenancy, and (b) under the other tenancy either the dwelling-house or the landlord, or both, are the same as under the former tenancy, the tenant is also a successor in relation to the other tenancy unless the agreement creating that tenancy otherwise provides. Amendments 1 Inserted by the Civil Partnership Act 2004, s 81, Sch 8, para 52.

133  Succession to introductory tenancy.

(1) This section applies where a tenant under an introductory tenancy dies. (2) Where there is a person qualified to succeed the tenant, the tenancy vests by virtue of this section in that person, or if there is more than one such person in the one to be preferred in accordance with the following rules— (a) the tenant’s spouse [or civil partner]1 is to be preferred to another member of the tenant’s family; (b) of two or more other members of the tenant’s family such of them is to be preferred as may be agreed between them or as may, where there is no such agreement, be selected by the landlord. (3) Where there is no person qualified to succeed the tenant, the tenancy ceases to be an introductory tenancy— (a) when it is vested or otherwise disposed of in the course of the administration of the tenant’s estate, unless the vesting or other disposal is in pursuance of an order made under— 310

Part V Conduct of tenants

(i) section 24 of the Matrimonial Causes Act 1973 (property adjustment orders made in connection with matrimonial proceedings), (ii) section 17(1) of the Matrimonial and Family Proceedings Act 1984 (property adjustment orders after overseas divorce, &c.), …2 (iii) paragraph  1 of Schedule  1 to the Children Act 1989 (orders for financial relief against parents); [or (iv) Part 2 of Schedule  5, or paragraph  9(2) or (3) of Schedule  7, to the Civil Partnership Act 2004 (property adjustment orders in connection with civil partnership proceedings or after overseas dissolution of civil partnership, etc.)]1 (b) when it is known that when the tenancy is so vested or disposed of it will not be in pursuance of such an order. Amendments 1 Inserted by the Civil Partnership Act 2004, s 81, Sch 8, para 53. 2 Repealed by the Civil Partnership Act 2004, s 261(4), Sch 30.

Assignment 134  Assignment in general prohibited.

(1) An introductory tenancy is not capable of being assigned except in the cases mentioned in subsection (2). (2) The exceptions are— (a) an assignment in pursuance of an order made under— (i) section 24 of the Matrimonial Causes Act 1973 (property adjustment orders in connection with matrimonial proceedings), (ii) section 17(1) of the Matrimonial and Family Proceedings Act 1984 (property adjustment orders after overseas divorce, &c.), …1 (iii) paragraph  1 of Schedule  1 to the Children Act 1989 (orders for financial relief against parents); [or (iv) Part 2 of Schedule  5, or paragraph  9(2) or (3) of Schedule  7, to the Civil Partnership Act 2004 (property adjustment orders in connection with civil partnership proceedings or after overseas dissolution of civil partnership, etc.)]2 (b) an assignment to a person who would be qualified to succeed the tenant if the tenant died immediately before the assignment. (3) Subsection (1) also applies to a tenancy which is not an introductory tenancy but would be if the tenant, or where the tenancy is a joint tenancy, at least one of the tenants, were occupying or continuing to occupy the dwelling-house as his only or principal home. 311

Statutes

Amendments 1 Repealed by the Civil Partnership Act 2004, s 261(4), Sch 30. 2 Inserted by the Civil Partnership Act 2004, s 81, Sch 8, para 54.

Repairs 135  Right to carry out repairs.

The Secretary of State may by regulations under section 96 of the Housing Act 1985 (secure tenants: right to carry out repairs) apply to introductory tenants any provision made under that section in relation to secure tenants. Provision of information and consultation 136  Provision of information about tenancies.

(1) Every local housing authority or housing action trust which lets dwellinghouses under introductory tenancies shall from time to time publish information about its introductory tenancies, in such form as it considers best suited to explain in simple terms, and, so far as it considers it appropriate, the effect of— (a) the express terms of its introductory tenancies, (b) the provisions of this Chapter, and (c) the provisions of sections 11 to 16 of the Landlord and Tenant Act 1985 (landlord’s repairing obligations), and shall ensure that so far as is reasonably practicable the information so published is kept up to date. (2) The landlord under an introductory tenancy shall supply the tenant with— (a) a copy of the information for introductory tenants published by it under subsection (1), and (b) a written statement of the terms of the tenancy, so far as they are neither expressed in the lease or written tenancy agreement (if any) nor implied by law; and the statement required by paragraph (b) shall be supplied on the grant of the tenancy or as soon as practicable afterwards. 137  Consultation on matters of housing management.

(1) This section applies in relation to every local housing authority and housing action trust which lets dwelling-houses under introductory tenancies and which is a landlord authority for the purposes of Part IV of the Housing Act 1985 (secure tenancies). 312

Part V Conduct of tenants

(2) The authority or trust shall maintain such arrangements as it considers appropriate to enable those of its introductory tenants who are likely to be substantially affected by a relevant matter of housing management— (a) to be informed of the proposals of the authority or trust in respect of the matter, and (b) to make their views known to the authority or trust within a specified period; and the authority or trust shall, before making a decision on the matter, consider any representations made to it in accordance with those arrangements. (3) A matter is one of housing management if, in the opinion of the authority or trust concerned, it relates to— (a) the management, improvement, maintenance or demolition of dwelling-houses let by the authority or trust under introductory or secure tenancies, or (b) the provision of services or amenities in connection with such dwellinghouses; but not so far as it relates to the rent payable under an introductory or secure tenancy or to charges for services or facilities provided by the authority or trust. (4) A matter is relevant if, in the opinion of the authority or trust concerned, it represents— (a) a new programme of maintenance, improvement or demolition, or (b) a change in the practice or policy of the authority or trust, and is likely substantially to affect either its introductory tenants as a whole or a group of them who form a distinct social group or occupy dwellinghouses which constitute a distinct class (whether by reference to the kind of dwelling-house, or the housing estate or other larger area in which they are situated). (5) In the case of a local housing authority, the reference in subsection (3) to the provision of services or amenities is a reference only to the provision of services or amenities by the authority acting in its capacity as landlord of the dwelling-houses concerned. (6) The authority or trust shall publish details of the arrangements which it makes under this section, and a copy of the documents published under this subsection shall— (a) be made available at its principal office for inspection at all reasonable hours, without charge, by members of the public, and (b) be given, on payment of a reasonable fee, to any member of the public who asks for one. 313

Statutes

[Introductory tenancies that are to become flexible tenancies 137A  Introductory tenancies that are to become flexible tenancies

(1) Where this section applies, a tenancy of a dwelling-house in England that ceases to be an introductory tenancy and becomes a secure tenancy in accordance with this Chapter becomes a flexible tenancy for a term certain. (2) This section applies if, before entering into or adopting the introductory tenancy, the person who became the landlord under the tenancy served a written notice on the person who was or became the tenant under the tenancy— (a) stating that, on ceasing to be an introductory tenancy, the tenancy would become a secure tenancy that would be a flexible tenancy for a term certain of the length specified in the notice, (b) specifying a period of at least two years as the length of the term of the tenancy, and (c) setting out the other express terms of the tenancy. (3) The length of the term of a flexible tenancy that becomes such a tenancy by virtue of this section is that specified in the notice under subsection (2). (4) The other express terms of the flexible tenancy are those set out in the notice, so far as those terms are compatible with the statutory provisions relating to flexible tenancies; and in this subsection ‘statutory provision’ means any provision made by or under an Act.]1 Amendments 1 Inserted by the Localism Act 2011, s 155(6).

Supplementary 138  Jurisdiction of county court.

(1) [The county court]1 has jurisdiction to determine questions arising under this Chapter and to entertain proceedings brought under this Chapter and claims, for whatever amount, in connection with an introductory tenancy. (2) That jurisdiction includes jurisdiction to entertain proceedings as to whether a statement supplied in pursuance of section 136(2)(b) (written statement of certain terms of tenancy) is accurate notwithstanding that no other relief is sought than a declaration. (3) If a person takes proceedings in the High Court which, by virtue of this section, he could have taken in the county court, he is not entitled to recover any costs. (4) …1 (5) …1 314

Part V Conduct of tenants

(6) …1 Amendments 1 Substituted by the Crime and Courts Act 2013, s 17(5), Sch 9, para 52. 2 Repealed by the Constitutional Reform Act 2005, ss 15(1), 146, Sch 4, paras 256, 257, Sch 18, Pt 2.

139  Meaning of ‘dwelling-house’.

(1) For the purposes of this Chapter a dwelling-house may be a house or a part of a house. (2) Land let together with a dwelling-house shall be treated for the purposes of this Chapter as part of the dwelling-house unless the land is agricultural land which would not be treated as part of a dwelling-house for the purposes of Part IV of the Housing Act 1985 (see section 112(2) of that Act). 140  Members of a person’s family: Chapter I.

(1) A person is a member of another’s family within the meaning of this Chapter if— (a) he is the spouse [or civil partner]1 of that person, or he and that person live together [F331as if they were a married couple or] [civil partners]1, or (b) he is that person’s parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew or niece. (2) For the purpose of subsection (1)(b)— (a) a relationship by marriage [or civil partnership]1 shall be treated as a relationship by blood, (b) a relationship of the half-blood shall be treated as a relationship of the whole blood, and (c) the stepchild of a person shall be treated as his child. Amendments 1 Inserted by the Civil Partnership Act 2004, s 81, Sch 8, para 51. 2 Substituted by the Civil Partnership (Opposite-sex Couples) Regulations 2019, SI 2019/1458, reg 41, Sch 3, para 20(1), (3).

141  Consequential amendments: introductory tenancies.

(1) The enactments mentioned in Schedule 14 have effect with the amendments specified there which are consequential on the provisions of this Chapter. (2) The Secretary of State may by order make such other amendments or repeals of any enactment as appear to him necessary or expedient in consequence of the provisions of this Chapter. 315

Statutes

(3) Without prejudice to the generality of subsection (2), an order under that subsection may make such provision in relation to an enactment as the Secretary of State considers appropriate as regards its application (with or without modifications) or non-application in relation to introductory tenants or introductory tenancies. 142  Regulations and orders.

Any regulations or order under this Part— (a) may contain such incidental, supplementary or transitional provisions, or savings, as the Secretary of State thinks fit, and (b) shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament. 143  Index of defined expressions: introductory tenancies.

The following Table shows provisions defining or otherwise explaining provisions used in this Chapter (other than provisions defining or explaining an expression in the same section)— adopt (in relation to periodic tenancy)

section 124(4)

assured tenancy and assured shorthold tenancy

section 230

dwelling-house

section 139

housing action trust

section 230

introductory tenancy and introductory tenant

section 124

local housing authority

section 230

member of family

section 140

registered social landlord

section 2

secure tenancy and secure tenant

section 230

PART VI ALLOCATION OF HOUSING ACCOMMODATION Supplementary 171  False statements and withholding information.

(1) A person commits an offence if, in connection with the exercise by a local housing authority of their functions under this Part— (a) he knowingly or recklessly makes a statement which is false in a material particular, or (b) he knowingly withholds information which the authority have reasonably required him to give in connection with the exercise of those functions. 316

Part VII Homelessness[F416: England]

(2) A  person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

PART VII HOMELESSNESS[F416: ENGLAND] General provisions 214 False statements, withholding information and failure to disclose change of circumstances.

(1) It is an offence for a person, with intent to induce a local housing authority to believe in connection with the exercise of their functions under this Part that he or another person is entitled to accommodation or assistance in accordance with the provisions of this Part, or is entitled to accommodation or assistance of a particular description— (a) knowingly or recklessly to make a statement which is false in a material particular, or (b) knowingly to withhold information which the authority have reasonably required him to give in connection with the exercise of those functions. (2) If before an applicant receives notification of the local housing authority’s decision on his application there is any change of facts material to his case, he shall notify the authority as soon as possible. The authority shall explain to every applicant, in ordinary language, the duty imposed on him by this subsection and the effect of subsection (3). (3) A person who fails to comply with subsection (2) commits an offence unless he shows that he was not given the explanation required by that subsection or that he had some other reasonable excuse for non-compliance. (4) A  person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 5 on the standard scale. Amendments 1 Inserted by the Housing (Wales) Act 2014, s 100, Sch 3, paras 2, 4.

317

Statutes

Powers of Criminal Courts (Sentencing) Act 2000 PART VI FINANCIAL PENALTIES AND ORDERS Compensation orders 130  Compensation orders against convicted persons.

(1) A court by or before which a person is convicted of an offence, instead of or in addition to dealing with him in any other way, may, on application or otherwise, make an order (in this Act referred to as a ‘compensation order’) requiring him— (a) to pay compensation for any personal injury, loss or damage resulting from that offence or any other offence which is taken into consideration by the court in determining sentence; or (b) to make payments for funeral expenses or bereavement in respect of a death resulting from any such offence, other than a death due to an accident arising out of the presence of a motor vehicle on a road; but this is subject to the following provisions of this section and to section 131 below. (2) Where the person is convicted of an offence the sentence for which is fixed by law or falls to be imposed under [a provision mentioned in subsection (2ZA)]1, subsection (1) above shall have effect as if the words ‘instead of or’ were omitted. [(2ZA)  The provisions referred to in subsection (2) are— (a) section 1(2B) or 1A(5) of the Prevention of Crime Act 1953; (b) section 51A(2) of the Firearms Act 1968; (c) section 139(6B), 139A(5B) or 139AA(7) of the Criminal Justice Act 1988; (d) section 110(2) or 111(2) of this Act; (e) section 224A, 225(2) or 226(2) of the Criminal Justice Act 2003; (f) section 29(4) or (6) of the Violent Crime Reduction Act 2006.]2 [(2A)  A court must consider making a compensation order in any case where this section empowers it to do so.]3 (3) A  court shall give reasons, on passing sentence, if it does not make a compensation order in a case where this section empowers it to do so. (4) Compensation under subsection (1) above shall be of such amount as the court considers appropriate, having regard to any evidence and to any representations that are made by or on behalf of the accused or the prosecutor. 318

Part VI Financial penalties and orders

(5) In the case of an offence under the Theft Act 1968 [or Fraud Act 2006]4, where the property in question is recovered, any damage to the property occurring while it was out of the owner’s possession shall be treated for the purposes of subsection (1) above as having resulted from the offence, however and by whomever the damage was caused. (6) A compensation order may only be made in respect of injury, loss or damage (other than loss suffered by a person’s dependants in consequence of his death) which was due to an accident arising out of the presence of a motor vehicle on a road, if— (a) it is in respect of damage which is treated by subsection (5) above as resulting from an offence under the Theft Act 1968 [or Fraud Act 2006]4; or (b) it is in respect of injury, loss or damage as respects which— (i) the offender is uninsured in relation to the use of the vehicle; and (ii) compensation is not payable under any arrangements to which the Secretary of State is a party. (7) Where a compensation order is made in respect of injury, loss or damage due to an accident arising out of the presence of a motor vehicle on a road, the amount to be paid may include an amount representing the whole or part of any loss of or reduction in preferential rates of insurance attributable to the accident. (8) A vehicle the use of which is exempted from insurance by section 144 of the Road Traffic Act 1988 is not uninsured for the purposes of subsection (6) above. (9) A compensation order in respect of funeral expenses may be made for the benefit of anyone who incurred the expenses. (10)  A compensation order in respect of bereavement may be made only for the benefit of a person for whose benefit a claim for damages for bereavement could be made under section 1A of the Fatal Accidents Act 1976; and the amount of compensation in respect of bereavement shall not exceed the amount for the time being specified in section 1A(3) of that Act. (11)  In determining whether to make a compensation order against any person, and in determining the amount to be paid by any person under such an order, the court shall have regard to his means so far as they appear or are known to the court. (12)  Where the court considers— (a) that it would be appropriate both to impose a fine and to make a compensation order, but (b) that the offender has insufficient means to pay both an appropriate fine and appropriate compensation, 319

Statutes

the court shall give preference to compensation (though it may impose a fine as well). Amendments 1 Substituted by the Criminal Justice and Courts Act 2015, s 28(8), Sch 5, paras 3, 6(1), (2). 2 Inserted by the Criminal Justice and Courts Act 2015, s 28(8), Sch 5, paras 3, 6(1), (3). 3 Inserted by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, s 63(1). 4 Inserted by the Fraud Act 2006, s 14(1), Sch 1, para 29.

131 Limit on amount payable under compensation order of magistrates’ court [in case of young offender]1.

[(A1)  This section applies if (but only if) a magistrates’ court has convicted a person aged under 18 (‘the offender’) of an offence or offences.]1 (1) The compensation to be paid under a compensation order made by [the court in respect of the offence, or any one of the offences,]2 shall not exceed £5,000. (2) The compensation or total compensation to be paid under a compensation order or compensation orders made by [the]2 court in respect of any offence or offences taken into consideration in determining sentence shall not exceed the difference (if any) between— (a) the amount or total amount which under subsection (1) above is the maximum for the offence or offences of which the offender has been convicted; and (b) the amount or total amounts (if any) which are in fact ordered to be paid in respect of that offence or those offences. Amendments 1 Inserted by the Crime and Courts Act 2013, s 44, Sch 16, para 8(1), (2), (5). 2 Substituted by the Crime and Courts Act 2013, s 44, Sch 16, para 8(1), (3), (4).

132  Compensation orders: appeals etc.

(1) A person in whose favour a compensation order is made shall not be entitled to receive the amount due to him until (disregarding any power of a court to grant leave to appeal out of time) there is no further possibility of an appeal on which the order could be varied or set aside. (2) [Criminal Procedure Rules]1 may make provision regarding the way in which the magistrates’ court for the time being having functions (by virtue of section 41(1) of the Administration of Justice Act 1970) in relation to the enforcement of a compensation order is to deal with money paid in satisfaction of the order where the entitlement of the person in whose favour it was made is suspended. 320

Part VI Financial penalties and orders

(3) The Court of Appeal may by order annul or vary any compensation order made by the court of trial, although the conviction is not quashed; and the order, if annulled, shall not take effect and, if varied, shall take effect as varied. (4) Where the [Supreme Court]2 restores a conviction, it may make any compensation order which the court of trial could have made. [(4A) Where an order is made in respect of a person under subsection (3) or (4) above, the Court of Appeal or House of Lords shall make such order for the payment of a surcharge under section 161A of the Criminal Justice Act 2003, or such variation of the order of the Crown Court under that section, as is necessary to secure that the person’s liability under that section is the same as it would be if he were being dealt with by the Crown Court.]3 (5) Where a compensation order has been made against any person in respect of an offence taken into consideration in determining his sentence— (a) the order shall cease to have effect if he successfully appeals against his conviction of the offence or, if more than one, all the offences, of which he was convicted in the proceedings in which the order was made; (b) he may appeal against the order as if it were part of the sentence imposed in respect of the offence or, if more than one, any of the offences, of which he was so convicted. Amendments 1 Substituted by the Courts Act 2003 (Consequential Amendments) Order 2004, SI 2004/2035, art 3, Schedule, para 42. 2 Substituted by the Constitutional Reform Act 2005, s 40(4), Sch 9, para 69. 3 Inserted by the Domestic Violence, Crime and Victims Act 2004, s  58(1), Sch  10, para 49.

133  Review of compensation orders.

(1) The magistrates’ court for the time being having functions in relation to the enforcement of a compensation order (in this section referred to as ‘the appropriate court’) may, on the application of the person against whom the compensation order was made, discharge the order or reduce the amount which remains to be paid; but this is subject to subsections (2) to (4) below. (2) The appropriate court may exercise a power conferred by subsection (1) above only— (a) at a time when (disregarding any power of a court to grant leave to appeal out of time) there is no further possibility of an appeal on which the compensation order could be varied or set aside; and (b) at a time before the person against whom the compensation order was made has paid into court the whole of the compensation which the order requires him to pay. 321

Statutes

(3) The appropriate court may exercise a power conferred by subsection (1) above only if it appears to the court— (a) that the injury, loss or damage in respect of which the compensation order was made has been held in civil proceedings to be less than it was taken to be for the purposes of the order; or (b) in the case of a compensation order in respect of the loss of any property, that the property has been recovered by the person in whose favour the order was made; or (c) that the means of the person against whom the compensation order was made are insufficient to satisfy in full both the order and [any or all of the following made against him in the same proceedings— (i) a confiscation order under Part 6 of the Criminal Justice Act 1988 or Part 2 of the Proceeds of Crime Act 2002; (ii) an unlawful profit order under section 4 of the Prevention of Social Housing Fraud Act 2013; (iii) a slavery and trafficking reparation order under section 8 of the Modern Slavery Act 2015; or]1 (d) that the person against whom the compensation order was made has suffered a substantial reduction in his means which was unexpected at the time when the order was made, and that his means seem unlikely to increase for a considerable period. (4) Where the compensation order was made by the Crown Court, the appropriate court shall not exercise any power conferred by subsection (1) above in a case where it is satisfied as mentioned in paragraph (c) or (d) of subsection (3) above unless it has first obtained the consent of the Crown Court. (5) Where a compensation order has been made on appeal, for the purposes of subsection (4) above it shall be deemed— (a) if it was made on an appeal brought from a magistrates’ court, to have been made by that magistrates’ court; (b) if it was made on an appeal brought from the Crown Court or from the criminal division of the Court of Appeal, to have been made by the Crown Court. Amendments 1 Substituted by the Modern Slavery Act 2015, s 57(1), Sch 5, para 14.

134 Effect of compensation order on subsequent award of damages in civil proceedings.

(1) This section shall have effect where a compensation order, or a service compensation order …1, has been made in favour of any person in respect of any injury, loss or damage and a claim by him in civil proceedings for 322

Part VI Financial penalties and orders

damages in respect of the injury, loss or damage subsequently falls to be determined. (2) The damages in the civil proceedings shall be assessed without regard to the order …1, but the plaintiff may only recover an amount equal to the aggregate of the following— (a) any amount by which they exceed the compensation; and (b) a sum equal to any portion of the compensation which he fails to recover, and may not enforce the judgment, so far as it relates to a sum such as is mentioned in paragraph (b) above, without the leave of the court. [(3) In this section ‘service compensation order’ means a service compensation order under the Armed Forces Act 2006.]2 Amendments 1 Repealed by the Armed Forces Act 2006, s 378, Sch 16, para 167(1), (2), Sch 17. 2 Substituted by the Armed Forces Act 2006, s 378(1), Sch 16, para 167(1), (3).

323

Statutes

Commonhold and Leasehold Reform Act 2002 PART 2 LEASEHOLD REFORM Chapter 1 Right to manage Qualifying rules 76  Long leases

(1) This section and section 77 specify what is a long lease for the purposes of this Chapter. (2) Subject to section 77, a lease is a long lease if— (a) it is granted for a term of years certain exceeding 21 years, whether or not it is (or may become) terminable before the end of that term by notice given by or to the tenant, by re-entry or forfeiture or otherwise, (b) it is for a term fixed by law under a grant with a covenant or obligation for perpetual renewal (but is not a lease by sub-demise from one which is not a long lease), (c) it takes effect under section 149(6) of the Law of Property Act 1925 (c. 20) (leases terminable after a death or marriage [or the formation of a civil partnership]1), (d) it was granted in pursuance of the right to buy conferred by Part 5 of the Housing Act 1985 (c. 68) or in pursuance of the right to acquire on rent to mortgage terms conferred by that Part of that Act, (e) it is a shared ownership lease, whether granted in pursuance of that Part of that Act or otherwise, where the tenant’s total share is 100 per cent., or (f) it was granted in pursuance of that Part of that Act as it has effect by virtue of section 17 of the Housing Act 1996 (c. 52) (the right to acquire). (3) ‘Shared ownership lease’ means a lease— (a) granted on payment of a premium calculated by reference to a percentage of the value of the demised premises or the cost of providing them, or (b) under which the tenant (or his personal representatives) will or may be entitled to a sum calculated by reference, directly or indirectly, to the value of those premises. (4) ‘Total share’, in relation to the interest of a tenant under a shared ownership lease, means his initial share plus any additional share or shares in the demised premises which he has acquired. Amendments 1 Inserted by the Civil Partnership Act 2004, s 81, Sch 8, para 64.

324

Part 2 Leasehold reform

77  Long leases: further provisions

(1) A lease terminable by notice after [a death, a marriage or the formation of a civil partnership]1 is not a long lease if— (a) the notice is capable of being given at any time after the death or marriage of[, or the formation of a civil partnership by,]2 the tenant, (b) the length of the notice is not more than three months, and (c) the terms of the lease preclude both its assignment otherwise than by virtue of section 92 of the Housing Act 1985 (assignments by way of exchange) and the sub-letting of the whole of the demised premises. (2) Where the tenant of any property under a long lease, on the coming to an end of the lease, becomes or has become tenant of the property or part of it under any subsequent tenancy (whether by express grant or by implication of law), that tenancy is a long lease irrespective of its terms. (3) A lease— (a) granted for a term of years certain not exceeding 21 years, but with a covenant or obligation for renewal without payment of a premium (but not for perpetual renewal), and (b) renewed on one or more occasions so as to bring to more than 21 years the total of the terms granted (including any interval between the end of a lease and the grant of a renewal), is to be treated as if the term originally granted had been one exceeding 21 years. (4) Where a long lease— (a) is or was continued for any period under Part 1 of the Landlord and Tenant Act 1954 (c. 56) or under Schedule 10 to the Local Government and Housing Act 1989 (c. 42), or (b) was continued for any period under the Leasehold Property (Temporary Provisions) Act 1951 (c. 38), it remains a long lease during that period. (5) Where in the case of a flat there are at any time two or more separate leases, with the same landlord and the same tenant, and— (a) the property comprised in one of those leases consists of either the flat or a part of it (in either case with or without appurtenant property), and (b) the property comprised in every other lease consists of either a part of the flat (with or without appurtenant property) or appurtenant property only, there shall be taken to be a single long lease of the property comprised in such of those leases as are long leases. 325

Statutes

Amendments 1 Substituted by the Civil Partnership Act 2004, s 81, Sch 8, para 65(a). 2 Inserted by the Civil Partnership Act 2004, s 81, Sch 8, para 65(b).

Chapter 5 Other provisions about leases Forfeiture of leases of dwellings 168  No forfeiture notice before determination of breach

(1) A landlord under a long lease of a dwelling may not serve a notice under section 146(1) of the Law of Property Act 1925 (c. 20) (restriction on forfeiture) in respect of a breach by a tenant of a covenant or condition in the lease unless subsection (2) is satisfied. (2) This subsection is satisfied if— (a) it has been finally determined on an application under subsection (4) that the breach has occurred, (b) the tenant has admitted the breach, or (c) a court in any proceedings, or an arbitral tribunal in proceedings pursuant to a post-dispute arbitration agreement, has finally determined that the breach has occurred. (3) But a notice may not be served by virtue of subsection (2)(a) or (c) until after the end of the period of 14 days beginning with the day after that on which the final determination is made. (4) A  landlord under a long lease of a dwelling may make an application to [the appropriate tribunal]1 for a determination that a breach of a covenant or condition in the lease has occurred. (5) But a landlord may not make an application under subsection (4) in respect of a matter which— (a) has been, or is to be, referred to arbitration pursuant to a post-dispute arbitration agreement to which the tenant is a party, (b) has been the subject of determination by a court, or (c) has been the subject of determination by an arbitral tribunal pursuant to a post-dispute arbitration agreement. [(6) For the purposes of subsection (4), ‘appropriate tribunal’ means— (a) in relation to a dwelling in England, the First-tier Tribunal or, where determined by or under Tribunal Procedure Rules, the Upper Tribunal; and (b) in relation to a dwelling in Wales, a leasehold valuation tribunal.]2 326

Part 2 Leasehold reform

Amendments 1 Substituted by the Transfer of Tribunal Functions Order 2013, SI 2013/1036, art 6(1), Sch 1, para 141(a). 2 Inserted by the Transfer of Tribunal Functions Order 2013, SI 2013/1036, art 6(1), Sch 1, para 141(b).

169  Section 168: supplementary

(1) An agreement by a tenant under a long lease of a dwelling (other than a postdispute arbitration agreement) is void in so far as it purports to provide for a determination— (a) in a particular manner, or (b) on particular evidence, of any question which may be the subject of an application under section 168(4). (2) For the purposes of section 168 it is finally determined that a breach of a covenant or condition in a lease has occurred— (a) if a decision that it has occurred is not appealed against or otherwise challenged, at the end of the period for bringing an appeal or other challenge, or (b) if such a decision is appealed against or otherwise challenged and not set aside in consequence of the appeal or other challenge, at the time specified in subsection (3). (3) The time referred to in subsection (2)(b) is the time when the appeal or other challenge is disposed of— (a) by the determination of the appeal or other challenge and the expiry of the time for bringing a subsequent appeal (if any), or (b) by its being abandoned or otherwise ceasing to have effect. (4) In section 168 and this section ‘long lease of a dwelling’ does not include— (a) a tenancy to which Part 2 of the Landlord and Tenant Act 1954 (c. 56) (business tenancies) applies, (b) a tenancy of an agricultural holding within the meaning of the Agricultural Holdings Act 1986 (c. 5) in relation to which that Act applies, or (c) a farm business tenancy within the meaning of the Agricultural Tenancies Act 1995 (c. 8). (5) In section 168 and this section— ‘arbitration agreement’ and ‘arbitral tribunal’ have the same meaning as in Part 1 of the Arbitration Act 1996 (c. 23) and ‘post-dispute arbitration agreement’, in relation to any breach (or alleged breach), means an

327

Statutes

arbitration agreement made after the breach has occurred (or is alleged to have occurred), ‘dwelling’ has the same meaning as in the 1985 Act, ‘landlord’ and ‘tenant’ have the same meaning as in Chapter 1 of this Part, and ‘long lease’ has the meaning given by sections 76 and 77 of this Act, except that a shared ownership lease is a long lease whatever the tenant’s total share. (6) Section 146(7) of the Law of Property Act 1925 (c. 20) applies for the purposes of section 168 and this section. (7) Nothing in section 168 affects the service of a notice under section 146(1) of the Law of Property Act 1925 in respect of a failure to pay— (a) a service charge (within the meaning of section 18(1) of the 1985 Act), or (b) an administration charge (within the meaning of Part 1 of Schedule 11 to this Act).

328

Part 2 Confiscation: England and Wales

Proceeds of Crime Act 2002 PART 2 CONFISCATION: ENGLAND AND WALES Confiscation orders 6  Making of order

(1) The Crown Court must proceed under this section if the following two conditions are satisfied. (2) The first condition is that a defendant falls within any of the following paragraphs— (a) he is convicted of an offence or offences in proceedings before the Crown Court; (b) he is committed to the Crown Court for sentence in respect of an offence or offences under [section 3, 3A, 3B, 3C, 4, 4A or 6]1 of the Sentencing Act; (c) he is committed to the Crown Court in respect of an offence or offences under section 70 below (committal with a view to a confiscation order being considered). (3) The second condition is that— (a) the prosecutor …2 asks the court to proceed under this section, or (b) the court believes it is appropriate for it to do so. (4) The court must proceed as follows— (a) it must decide whether the defendant has a criminal lifestyle; (b) if it decides that he has a criminal lifestyle it must decide whether he has benefited from his general criminal conduct; (c) if it decides that he does not have a criminal lifestyle it must decide whether he has benefited from his particular criminal conduct. (5) If the court decides under subsection (4)(b) or (c) that the defendant has benefited from the conduct referred to it must— (a) decide the recoverable amount, and (b) make an order (a confiscation order) requiring him to pay that amount. [Paragraph (b) applies only if, or to the extent that, it would not be disproportionate to require the defendant to pay the recoverable amount.]3 (6) But the court must treat the duty in subsection (5) as a power if it believes that any victim of the conduct has at any time started or intends to start proceedings against the defendant in respect of loss, injury or damage sustained in connection with the conduct. 329

Statutes

[(6A)  The court must also treat the duty in subsection (5) as a power if— (a) an order has been made, or it believes an order may be made, against the defendant under section 4 (criminal unlawful profit orders) of the Prevention of Social Housing Fraud Act 2013 in respect of profit made by the defendant in connection with the conduct, or (b) it believes that a person has at any time started or intends to start proceedings against the defendant under section 5 (civil unlawful profit orders) of that Act in respect of such profit.]4 (7) The court must decide any question arising under subsection (4) or (5) on a balance of probabilities. (8) The first condition is not satisfied if the defendant absconds (but section 27 may apply). (9) References in this Part to the offence (or offences) concerned are to the offence (or offences) mentioned in subsection (2). Amendments 1 2 3 4

Substituted by the Criminal Justice Act 2003, s 41, Sch 3, para 75(1), (2). Repealed by the Serious Crime Act 2007, ss 74(2), 92, Sch 8, paras 1, 2, Sch 14. Inserted by the Serious Crime Act 2015, s 85(1), Sch 4, para 19. Inserted by the Prevention of Social Housing Fraud Act 2013, s 10, Schedule, paras 11, 12.

7  Recoverable amount

(1) The recoverable amount for the purposes of section 6 is an amount equal to the defendant’s benefit from the conduct concerned. (2) But if the defendant shows that the available amount is less than that benefit the recoverable amount is— (a) the available amount, or (b) a nominal amount, if the available amount is nil. (3) But if section 6(6) [or 6(6A)]1 applies the recoverable amount is such amount as— (a) the court believes is just, but (b) does not exceed the amount found under subsection (1) or (2) (as the case may be). (4) In calculating the defendant’s benefit from the conduct concerned for the purposes of subsection (1), [the following must be ignored— (a) any property in respect of which a recovery order is in force under section 266, (b) any property which has been forfeited in pursuance of a forfeiture notice under section 297A [or an account forfeiture notice under section 303Z9]2, …3 330

Part 2 Confiscation: England and Wales

(c) any property in respect of which a forfeiture order is in force under section 298(2)[, 303O(3), 303R(3) or 303Z14(4)]2[, and (d) any property which is the forfeitable property in relation to an order under section 303Q(1).]2]4 (5) If the court decides the available amount, it must include in the confiscation order a statement of its findings as to the matters relevant for deciding that amount. Amendments 1 Inserted by the Prevention of Social Housing Fraud Act 2013, s 10, Schedule, paras 11, 13. 2 Inserted by the Criminal Finances Act 2017, s 53, Sch 5, paras 17, 20(a), (c), (d). 3 Repealed by the Criminal Finances Act 2017, s  53, Sch  5, paras 17, 20(b);  S.I. 2018/78, reg. 5(3)(c) 4 Substituted by the Policing and Crime Act 2009, s 112(1), Sch 7, paras 99, 100.

8  Defendant’s benefit

(1) If the court is proceeding under section 6 this section applies for the purpose of— (a) deciding whether the defendant has benefited from conduct, and (b) deciding his benefit from the conduct. (2) The court must— (a) take account of conduct occurring up to the time it makes its decision; (b) take account of property obtained up to that time. (3) Subsection (4) applies if— (a) the conduct concerned is general criminal conduct, (b) a confiscation order mentioned in subsection (5) has at an earlier time been made against the defendant, and (c) his benefit for the purposes of that order was benefit from his general criminal conduct. (4) His benefit found at the time the last confiscation order mentioned in subsection (3)(c) was made against him must be taken for the purposes of this section to be his benefit from his general criminal conduct at that time. (5) If the conduct concerned is general criminal conduct the court must deduct the aggregate of the following amounts— (a) the amount ordered to be paid under each confiscation order previously made against the defendant; (b) the amount ordered to be paid under each confiscation order previously made against him under any of the provisions listed in subsection (7). 331

Statutes

(6) But subsection (5) does not apply to an amount which has been taken into account for the purposes of a deduction under that subsection on any earlier occasion. (7) These are the provisions— (a) the Drug Trafficking Offences Act 1986 (c. 32); (b) Part 1 of the Criminal Justice (Scotland) Act 1987 (c. 41); (c) Part 6 of the Criminal Justice Act 1988 (c. 33); (d) the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17)); (e) Part 1 of the Drug Trafficking Act 1994 (c. 37); (f) Part 1 of the Proceeds of Crime (Scotland) Act 1995 (c. 43); (g) the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)); (h) Part 3 or 4 of this Act. (8) The reference to general criminal conduct in the case of a confiscation order made under any of the provisions listed in subsection (7) is a reference to conduct in respect of which a court is required or entitled to make one or more assumptions for the purpose of assessing a person’s benefit from the conduct. 9  Available amount

(1) For the purposes of deciding the recoverable amount, the available amount is the aggregate of— (a) the total of the values (at the time the confiscation order is made) of all the free property then held by the defendant minus the total amount payable in pursuance of obligations which then have priority, and (b) the total of the values (at that time) of all tainted gifts. (2) An obligation has priority if it is an obligation of the defendant— (a) to pay an amount due in respect of a fine or other order of a court which was imposed or made on conviction of an offence and at any time before the time the confiscation order is made, or (b) to pay a sum which would be included among the preferential debts if the defendant’s bankruptcy had commenced on the date of the confiscation order or his winding up had been ordered on that date. (3) ‘Preferential debts’ has the meaning given by section 386 of the Insolvency Act 1986 (c. 45). 10  Assumptions to be made in case of criminal lifestyle

(1) If the court decides under section 6 that the defendant has a criminal lifestyle it must make the following four assumptions for the purpose of— 332

Part 2 Confiscation: England and Wales

(a) deciding whether he has benefited from his general criminal conduct, and (b) deciding his benefit from the conduct. (2) The first assumption is that any property transferred to the defendant at any time after the relevant day was obtained by him— (a) as a result of his general criminal conduct, and (b) at the earliest time he appears to have held it. (3) The second assumption is that any property held by the defendant at any time after the date of conviction was obtained by him— (a) as a result of his general criminal conduct, and (b) at the earliest time he appears to have held it. (4) The third assumption is that any expenditure incurred by the defendant at any time after the relevant day was met from property obtained by him as a result of his general criminal conduct. (5) The fourth assumption is that, for the purpose of valuing any property obtained (or assumed to have been obtained) by the defendant, he obtained it free of any other interests in it. (6) But the court must not make a required assumption in relation to particular property or expenditure if— (a) the assumption is shown to be incorrect, or (b) there would be a serious risk of injustice if the assumption were made. (7) If the court does not make one or more of the required assumptions it must state its reasons. (8) The relevant day is the first day of the period of six years ending with— (a) the day when proceedings for the offence concerned were started against the defendant, or (b) if there are two or more offences and proceedings for them were started on different days, the earliest of those days. (9) But if a confiscation order mentioned in section 8(3)(c) has been made against the defendant at any time during the period mentioned in subsection (8)— (a) the relevant day is the day when the defendant’s benefit was calculated for the purposes of the last such confiscation order; (b) the second assumption does not apply to any property which was held by him on or before the relevant day. (10)  The date of conviction is— 333

Statutes

(a) the date on which the defendant was convicted of the offence concerned, or (b) if there are two or more offences and the convictions were on different dates, the date of the latest. [10A  Determination of extent of defendant’s interest in property

(1) Where it appears to a court making a confiscation order that— (a) there is property held by the defendant that is likely to be realised or otherwise used to satisfy the order, and (b) a person other than the defendant holds, or may hold, an interest in the property, the court may, if it thinks it appropriate to do so, determine the extent (at the time the confiscation order is made) of the defendant’s interest in the property. (2) The court must not exercise the power conferred by subsection (1) unless it gives to anyone who the court thinks is or may be a person holding an interest in the property a reasonable opportunity to make representations to it. (3) A determination under this section is conclusive in relation to any question as to the extent of the defendant’s interest in the property that arises in connection with— (a) the realisation of the property, or the transfer of an interest in the property, with a view to satisfying the confiscation order, or (b) any action or proceedings taken for the purposes of any such realisation or transfer. (4) Subsection (3)— (a) is subject to section 51(8B), and (b) does not apply in relation to a question that arises in proceedings before the Court of Appeal or the Supreme Court. (5) In this Part, the ‘extent’ of the defendant’s interest in property means the proportion that the value of the defendant’s interest in it bears to the value of the property itself.]1 Amendments 1 Inserted by the Serious Crime Act 2015, s 1.

[11  Time for payment

(1) Unless subsection (2) applies, the full amount ordered to be paid under a confiscation order must be paid on the day on which the order is made. 334

Part 2 Confiscation: England and Wales

(2) If the court making the confiscation order is satisfied that the defendant is unable to pay the full amount on that day, it may make an order requiring whatever cannot be paid on that day to be paid— (a) in a specified period, or (b) in specified periods each of which relates to a specified amount. (3) A specified period— (a) must start with the day on which the confiscation order is made, and (b) must not exceed three months. (4) If— (a) within any specified period the defendant applies to the Crown Court for that period to be extended, and (b) the court is satisfied that, despite having made all reasonable efforts, the defendant is unable to pay the amount to which the specified period relates within that period, the court may make an order extending the period (for all or any part or parts of the amount in question). (5) An extended period— (a) must start with the day on which the confiscation order is made, and (b) must not exceed six months. (6) An order under subsection (4)— (a) may be made after the end of the specified period to which it relates, but (b) must not be made after the end of the period of six months starting with the day on which the confiscation order is made. (7) Periods specified or extended under this section must be such that, where the court believes that a defendant will by a particular day be able— (a) to pay the amount remaining to be paid, or (b) to pay an amount towards what remains to be paid, that amount is required to be paid no later than that day. (8) The court must not make an order under subsection (2) or (4) unless it gives the prosecutor an opportunity to make representations.]1 Amendments 1 Substituted by the Serious Crime Act 2015, s 5(1).

12  Interest on unpaid sums

(1) If [any amount required to be paid]1 by a person under a confiscation order is not paid when it is required to be paid, he [must pay interest on that amount]1 for the period for which it remains unpaid. 335

Statutes

(2) The rate of interest is the same rate as that for the time being specified in section 17 of the Judgments Act 1838 (c. 110) (interest on civil judgment debts). [(3) If— (a) an application has been made under section 11(4) for a specified period to be extended, (b) the application has not been determined by the court, and (c) the period of six months starting with the day on which the confiscation order was made has not ended, the amount on which interest is payable under this section does not include the amount to which the specified period relates.]2 (4) In applying this Part the amount of the interest must be treated as part of the amount to be paid under the confiscation order. Amendments 1 Substituted by the Serious Crime Act 2015, s 85(1), Sch 4, para 20. 2 Substituted by the Serious Crime Act 2015, s 5(2).

13  Effect of order on court’s other powers

(1) If the court makes a confiscation order it must proceed as mentioned in subsections (2) and (4) in respect of the offence or offences concerned. (2) The court must take account of the confiscation order before— (a) it imposes a fine on the defendant, or (b) it makes an order falling within subsection (3). (3) These orders fall within this subsection— (a) an order involving payment by the defendant, other than [an order under section 21A of the Prosecution of Offences Act 1985 (criminal courts charge) or]1 [a priority order]2; (b) an order under section 27 of the Misuse of Drugs Act 1971 (c. 38) (forfeiture orders); (c) an order under section 143 of the Sentencing Act (deprivation orders); (d) an order under section 23 [or 23A]3 of the Terrorism Act 2000 (c. 11) (forfeiture orders). [(3A)  In this section ‘priority order’ means any of the following— (a) a compensation order under section 130 of the Sentencing Act; (b) an order requiring payment of a surcharge under section 161A of the Criminal Justice Act 2003; 336

Part 2 Confiscation: England and Wales

(c) an unlawful profit order under section 4 of the Prevention of Social Housing Fraud Act 2013; [(d) a slavery and trafficking reparation order under section 8 of the Modern Slavery Act 2015.]4]5 (4) Subject to subsection (2), the court must leave the confiscation order out of account in deciding the appropriate sentence for the defendant. [(5) Subsection (6) applies if— (a) the Crown Court makes both a confiscation order and one or more priority orders against the same person in the same proceedings, and (b) the court believes the person will not have sufficient means to satisfy all those orders in full.]2 (6) In such a case the court must direct that so much of the [amount payable under the priority order (or orders)]2 as it specifies is to be paid out of any sums recovered under the confiscation order; and the amount it specifies must be the amount it believes will not be recoverable because of the insufficiency of the person’s means. Amendments 1 Inserted by the Criminal Justice and Courts Act 2015, s 54(3), Sch 12, para 11. 2 Substituted by the Serious Crime Act 2015, s 6(1), (2), (4), (5). 3 Inserted by the Counter-Terrorism Act 2008, s 39, Sch 3, para 7(1), (2). 4 Inserted by the Modern Slavery Act 2015, s  57(1), Sch  5, para  15 (as substituted by the Modern Slavery Act 2015 (Consequential Amendments) Regulations 2016, SI 2016/244, reg 26). 5 Inserted by the Serious Crime Act 2015, s 6(1), (3).

[13A  Orders for securing compliance with confiscation order

(1) This section applies where the court makes a confiscation order. (2) The court may make such order as it believes is appropriate for the purpose of ensuring that the confiscation order is effective (a ‘compliance order’). (3) The court must consider whether to make a compliance order— (a) on the making of the confiscation order, and (b) if it does not make a compliance order then, at any later time (while the confiscation order is still in effect) on the application of the prosecutor. (4) In considering whether to make a compliance order, the court must, in particular, consider whether any restriction or prohibition on the defendant’s travel outside the United Kingdom ought to be imposed for the purpose mentioned in subsection (2). (5) The court may discharge or vary a compliance order on an application made by— 337

Statutes

(a) the prosecutor; (b) any person affected by the order.]1 Amendments 1 Inserted by the Serious Crime Act 2015, s 7.

[13B  Appeals against orders under section 13A

(1) If on an application under section 13A(3)(b) the Crown Court decides not to make a compliance order, the prosecutor may appeal to the Court of Appeal against the decision. (2) The following persons may appeal to the Court of Appeal in respect of the Crown Court’s decision to make, discharge or vary a compliance order— (a) the prosecutor; (b) any person affected by the order. (3) On an appeal under subsection (1) or (2) the Court of Appeal may— (a) confirm the decision, or (b) make such order as it believes is appropriate. (4) An appeal lies to the Supreme Court against a decision of the Court of Appeal under subsection (3). (5) An appeal under subsection (4) lies at the instance of any person who was a party to the proceedings before the Court of Appeal. (6) On an appeal under subsection (4) the Supreme Court may— (a) confirm the decision of the Court of Appeal, or (b) make such order as it believes is appropriate. (7) In this section ‘compliance order’ means an order made under section 13A.] Amendments 1 Inserted by the Serious Crime Act 2015, s 7.

PART 5 CIVIL RECOVERY OF THE PROCEEDS ETC. OF UNLAWFUL CONDUCT Chapter 1 Introductory 240  General purpose of this Part

(1) This Part has effect for the purposes of— 338

Part 5 Civil recovery of the proceeds etc.

(a) enabling the enforcement authority to recover, in civil proceedings before the High Court or Court of Session, property which is, or represents, property obtained through unlawful conduct, (b) enabling [property]1 which is, or represents, property obtained through unlawful conduct, or which is intended to be used in unlawful conduct, to be forfeited in civil proceedings before a magistrates’ court or (in Scotland) the sheriff [and, in certain circumstances, to be forfeited by the giving of a notice]2. (2) The powers conferred by this Part are exercisable in relation to any property (including cash) whether or not any proceedings have been brought for an offence in connection with the property. Amendments 1 Substituted by the Criminal Finances Act 2017, s 53, Sch 5, paras 17, 28(a). 2 Inserted by the Criminal Finances Act 2017, s 53, Sch 5, paras 17, 28(b).

241  ‘Unlawful conduct’

(1) Conduct occurring in any part of the United Kingdom is unlawful conduct if it is unlawful under the criminal law of that part. (2) Conduct which— (a) occurs in a country [or territory]1 outside the United Kingdom and is unlawful under the criminal law [applying in that country or territory]2, and (b) if it occurred in a part of the United Kingdom, would be unlawful under the criminal law of that part, is also unlawful conduct. [(2A) Conduct which— (a) occurs in a country or territory outside the United Kingdom, (b) constitutes, or is connected with, the commission of a gross human rights abuse or violation (see section 241A), and (c) if it occurred in a part of the United Kingdom, would be an offence triable under the criminal law of that part on indictment only or either on indictment or summarily, is also unlawful conduct.]3 (3) The court or sheriff must decide on a balance of probabilities whether it is proved— (a) that any matters alleged to constitute unlawful conduct have occurred, or (b) that any person intended to use any [property]4 in unlawful conduct. 339

Statutes

Amendments 1 Inserted by the Serious Organised Crime and Police Act 2005, s 109, Sch 6, paras 4, 8(a). 2 Substituted by the Serious Organised Crime and Police Act 2005, s 109, Sch 6, paras 4, 8(b). 3 Inserted by the Criminal Finances Act 2017, s 13(1), (2). 4 Substituted by the Criminal Finances Act 2017, s 53, Sch 5, paras 17, 29.

[241A  ‘Gross human rights abuse or violation’

(1) Conduct constitutes the commission of a gross human rights abuse or violation if each of the following three conditions is met. (2) The first condition is that— (a) the conduct constitutes the torture of a person who has sought— (i) to expose illegal activity carried out by a public official or a person acting in an official capacity, or (ii) to obtain, exercise, defend or promote human rights and fundamental freedoms, or (b) the conduct otherwise involves the cruel, inhuman or degrading treatment or punishment of such a person. (3) The second condition is that the conduct is carried out in consequence of that person having sought to do anything falling within subsection (2)(a)(i) or (ii). (4) The third condition is that the conduct is carried out— (a) by a public official, or a person acting in an official capacity, in the performance or purported performance of his or her official duties, or (b) by a person not falling within paragraph (a) at the instigation or with the consent or acquiescence— (i) of a public official, or (ii) of a person acting in an official capacity, who in instigating the conduct, or in consenting to or acquiescing in it, is acting in the performance or purported performance of his or her official duties. (5) Conduct is connected with the commission of a gross human rights abuse or violation if it is conduct by a person that involves— (a) acting as an agent for another in connection with activities relating to conduct constituting the commission of a gross human rights abuse or violation, (b) directing, or sponsoring, such activities, 340

Part 5 Civil recovery of the proceeds etc.

(c) profiting from such activities, or (d) materially assisting such activities. (6) Conduct that involves the intentional infliction of severe pain or suffering on another person is conduct that constitutes torture for the purposes of subsection (2)(a). (7) It is immaterial whether the pain or suffering is physical or mental and whether it is caused by an act or omission. (8) The cases in which a person materially assists activities for the purposes of subsection (5)(d) include those where the person— (a) provides goods or services in support of the carrying out of the activities, or (b) otherwise provides any financial or technological support in connection with their carrying out.]1 Amendments 1 Inserted by the Criminal Finances Act 2017, s 13(1), (3).

242  ‘Property obtained through unlawful conduct’

(1) A  person obtains property through unlawful conduct (whether his own conduct or another’s) if he obtains property by or in return for the conduct. (2) In deciding whether any property was obtained through unlawful conduct— (a) it is immaterial whether or not any money, goods or services were provided in order to put the person in question in a position to carry out the conduct, (b) it is not necessary to show that the conduct was of a particular kind if it is shown that the property was obtained through conduct of one of a number of kinds, each of which would have been unlawful conduct.

Chapter 2 Civil recovery in the High Court or Court of Session Proceedings for recovery orders 243 Proceedings for recovery orders in England and Wales or Northern Ireland

(1) Proceedings for a recovery order may be taken by the enforcement authority in the High Court against any person who the authority thinks holds recoverable property. (2) The enforcement authority must serve the claim form— (a) on the respondent, and 341

Statutes

(b) unless the court dispenses with service, on any other person who the authority thinks holds any associated property which the authority wishes to be subject to a recovery order, wherever domiciled, resident or present. (3) If any property which the enforcement authority wishes to be subject to a recovery order is not specified in the claim form it must be described in the form in general terms; and the form must state whether it is alleged to be recoverable property or associated property. (4) The references above to the claim form include the particulars of claim, where they are served subsequently. [(5) Nothing in sections 245A to 255 limits any power of the court apart from those sections to grant interim relief in connection with proceedings (including prospective proceedings) under this Chapter.]1 Amendments 1 Inserted by the Serious Organised Crime and Police Act 2005, s 109, Sch 6, paras 4, 9.

244  Proceedings for recovery orders in Scotland

(1) Proceedings for a recovery order may be taken by the enforcement authority in the Court of Session against any person who the authority thinks holds recoverable property. (2) The enforcement authority must serve the application— (a) on the respondent, and (b) unless the court dispenses with service, on any other person who the authority thinks holds any associated property which the authority wishes to be subject to a recovery order, wherever domiciled, resident or present. (3) If any property which the enforcement authority wishes to be subject to a recovery order is not specified in the application it must be described in the application in general terms; and the application must state whether it is alleged to be recoverable property or associated property. 245  ‘Associated property’

(1) ‘Associated property’ means property of any of the following descriptions (including property held by the respondent) which is not itself the recoverable property— (a) any interest in the recoverable property, (b) any other interest in the property in which the recoverable property subsists, 342

Part 5 Civil recovery of the proceeds etc.

(c) if the recoverable property is a tenancy in common, the tenancy of the other tenant, (d) if (in Scotland) the recoverable property is owned in common, the interest of the other owner, (e) if the recoverable property is part of a larger property, but not a separate part, the remainder of that property. (2) References to property being associated with recoverable property are to be read accordingly. (3) No property is to be treated as associated with recoverable property consisting of rights under a pension scheme (within the meaning of sections 273 to 275). [245ZA  Notice to local authority: Scotland

(1) This section applies if, in proceedings under this Chapter for a recovery order, the enforcement authority applies under section 266(8ZA) for decree of removing and warrant for ejection in relation to heritable property which consists of or includes a dwellinghouse. (2) The enforcement authority must give notice of the application to the local authority in whose area the dwellinghouse is situated. (3) Notice under subsection (2) must be given in the form and manner prescribed under section 11(3) of the Homelessness etc. (Scotland) Act 2003. (4) In this section— ‘dwellinghouse’ has the meaning given by section 11(8) of the Homelessness etc. (Scotland) Act 2003; ‘local authority’ means a council constituted under section 2 of the Local Government  etc.  (Scotland) Act 1994; and ‘area’, in relation to a local authority, means the local government area for which the authority is constituted.]1 Amendments 1 Inserted by the Criminal Finances Act 2017, s 29(1), (2).

[Property freezing orders (England and Wales and Northern Ireland) 245A  Application for property freezing order

(1) Where the enforcement authority may take proceedings for a recovery order in the High Court, the authority may apply to the court for a property freezing order (whether before or after starting the proceedings). (2) A property freezing order is an order that— (a) specifies or describes the property to which it applies, and 343

Statutes

(b) subject to any exclusions (see section 245C(1)(b) and (2)), prohibits any person to whose property the order applies from in any way dealing with the property. (3) An application for a property freezing order may be made without notice if the circumstances are such that notice of the application would prejudice any right of the enforcement authority to obtain a recovery order in respect of any property. (4) The court may make a property freezing order on an application if it is satisfied that the condition in subsection (5) is met and, where applicable, that the condition in subsection (6) is met. (5) The first condition is that there is a good arguable case— (a) that the property to which the application for the order relates is or includes recoverable property, and (b) that, if any of it is not recoverable property, it is associated property. (6) The second condition is that, if— (a) the property to which the application for the order relates includes property alleged to be associated property, and (b) the enforcement authority has not established the identity of the person who holds it, the authority has taken all reasonable steps to do so.]1 Amendments 1 Inserted by the Serious Organised Crime and Police Act 2005, s 98(1).

[245B  Variation and setting aside of order

(1) The court may at any time vary or set aside a property freezing order. (2) If the court makes an interim receiving order that applies to all of the property to which a property freezing order applies, it must set aside the property freezing order. (3) If the court makes an interim receiving order that applies to some but not all of the property to which a property freezing order applies, it must vary the property freezing order so as to exclude any property to which the interim receiving order applies. (4) If the court decides that any property to which a property freezing order applies is neither recoverable property nor associated property, it must vary the order so as to exclude the property. (5) Before exercising power under this Chapter to vary or set aside a property freezing order, the court must (as well as giving the parties to the proceedings an opportunity to be heard) give such an opportunity to any person who may be affected by its decision. 344

Part 5 Civil recovery of the proceeds etc.

(6) Subsection (5) does not apply where the court is acting as required by subsection (2) or (3).]1 Amendments 1 Inserted by the Serious Organised Crime and Police Act 2005, s 98(1).

[245C Exclusions

(1) The power to vary a property freezing order includes (in particular) power to make exclusions as follows— (a) power to exclude property from the order, and (b) power, otherwise than by excluding property from the order, to make exclusions from the prohibition on dealing with the property to which the order applies. (2) Exclusions from the prohibition on dealing with the property to which the order applies (other than exclusions of property from the order) may also be made when the order is made. (3) An exclusion may, in particular, make provision for the purpose of enabling any person— (a) to meet his reasonable living expenses, or (b) to carry on any trade, business, profession or occupation. (4) An exclusion may be made subject to conditions. (5) Where the court exercises the power to make an exclusion for the purpose of enabling a person to meet legal expenses that he has incurred, or may incur, in respect of proceedings under this Part, it must ensure that the exclusion— (a) is limited to reasonable legal expenses that the person has reasonably incurred or that he reasonably incurs, (b) specifies the total amount that may be released for legal expenses in pursuance of the exclusion, and (c) is made subject to the required conditions (see section 286A) in addition to any conditions imposed under subsection (4). (6) The court, in deciding whether to make an exclusion for the purpose of enabling a person to meet legal expenses of his in respect of proceedings under this Part— (a) must have regard (in particular) to the desirability of the person being represented in any proceedings under this Part in which he is a participant, and (b) must, where the person is the respondent, disregard the possibility that legal representation of the person in any such proceedings might, were an exclusion not made, be [made available under arrangements made for 345

Statutes

the purposes of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 or funded by]1 [the Department of Justice]2. (7) If excluded property is not specified in the order it must be described in the order in general terms. (8) The power to make exclusions must, subject to subsection (6), be exercised with a view to ensuring, so far as practicable, that the satisfaction of any right of the enforcement authority to recover the property obtained through unlawful conduct is not unduly prejudiced. (9) Subsection (8) does not apply where the court is acting as required by section 245B(3) or (4).]3 Amendments 1 Substituted by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, s 39(1), Sch 5, paras 58, 59. 2 Substituted by the Legal Aid and Coroners‘ Courts Act (Northern Ireland) 2014, s 6, Sch 2, para 4. 3 Inserted by the Serious Organised Crime and Police Act 2005, s 98(1).

[245D  Restriction on proceedings and remedies

(1) While a property freezing order has effect— (a) the court may stay any action, execution or other legal process in respect of the property to which the order applies, and (b) no distress may be levied[, and no power to use the procedure in Schedule 12 to the Tribunals, Courts and Enforcement Act 2007 (taking control of goods) may be exercised,]1 against the property to which the order applies except with the leave of the court and subject to any terms the court may impose. (2) If a court (whether the High Court or any other court) in which proceedings are pending in respect of any property is satisfied that a property freezing order has been applied for or made in respect of the property, it may either stay the proceedings or allow them to continue on any terms it thinks fit. (3) If a property freezing order applies to a tenancy of any premises, no landlord or other person to whom rent is payable may exercise the right of forfeiture by peaceable re-entry in relation to the premises in respect of any failure by the tenant to comply with any term or condition of the tenancy, except with the leave of the court and subject to any terms the court may impose. (4) Before exercising any power conferred by this section, the court must (as well as giving the parties to any of the proceedings concerned an opportunity to be heard) give such an opportunity to any person who may be affected by the court’s decision.]2 Amendments 1 Inserted by the Criminal Finances Act 2017, s 34(5).

346

Part 5 Civil recovery of the proceeds etc.

2 Inserted by the Serious Organised Crime and Police Act 2005, s 98(1).

[245E  Receivers in connection with property freezing orders

(1) Subsection (2) applies if— (a) the High Court makes a property freezing order on an application by an enforcement authority, and (b) the authority applies to the court to proceed under subsection (2) (whether as part of the application for the property freezing order or at any time afterwards). (2) The High Court may by order appoint a receiver in respect of any property to which the property freezing order applies. (3) An application for an order under this section may be made without notice if the circumstances are such that notice of the application would prejudice any right of the enforcement authority to obtain a recovery order in respect of any property. (4) In its application for an order under this section, the enforcement authority must nominate a suitably qualified person for appointment as a receiver. (5) Such a person may be a member of staff of the enforcement authority. (6) The enforcement authority may apply a sum received by it under section 280(2) in making payment of the remuneration and expenses of a receiver appointed under this section. (7) Subsection (6) does not apply in relation to the remuneration of the receiver if he is a member of the staff of the enforcement authority (but it does apply in relation to such remuneration if the receiver is a person providing services under arrangements made by the enforcement authority).]1 Amendments 1 Inserted by the Serious Crime Act 2007, s 83(1).

[245F  Powers of receivers appointed under section 245E

(1) If the High Court appoints a receiver under section 245E on an application by an enforcement authority, the court may act under this section on the application of the authority. (2) The court may by order authorise or require the receiver— (a) to exercise any of the powers mentioned in paragraph 5 of Schedule 6 (management powers) in relation to any property in respect of which the receiver is appointed, (b) to take any other steps the court thinks appropriate in connection with the management of any such property (including securing the detention, custody or preservation of the property in order to manage it). 347

Statutes

(3) The court may by order require any person in respect of whose property the receiver is appointed— (a) to bring the property to a place (in England and Wales or, as the case may be, Northern Ireland) specified by the receiver or to place it in the custody of the receiver (if, in either case, he is able to do so), (b) to do anything he is reasonably required to do by the receiver for the preservation of the property. (4) The court may by order require any person in respect of whose property the receiver is appointed to bring any documents relating to the property which are in his possession or control to a place (in England and Wales or, as the case may be, Northern Ireland) specified by the receiver or to place them in the custody of the receiver. (5) In subsection (4) ‘document’ means anything in which information of any description is recorded. (6) Any prohibition on dealing with property imposed by a property freezing order does not prevent a person from complying with any requirements imposed by virtue of this section. (7) If— (a) the receiver deals with any property which is not property in respect of which he is appointed under section 245E, and (b) at the time he deals with the property he believes on reasonable grounds that he is entitled to do so by virtue of his appointment, the receiver is not liable to any person in respect of any loss or damage resulting from his dealing with the property except so far as the loss or damage is caused by his negligence.]1 Amendments 1 Inserted by the Serious Crime Act 2007, s 83(1).

[245G  Supervision of section 245E receiver and variations

(1) Any of the following persons may at any time apply to the High Court for directions as to the exercise of the functions of a receiver appointed under section 245E— (a) the receiver, (b) any party to the proceedings for the appointment of the receiver or the property freezing order concerned, (c) any person affected by any action taken by the receiver, (d) any person who may be affected by any action proposed to be taken by the receiver. 348

Part 5 Civil recovery of the proceeds etc.

(2) Before giving any directions under subsection (1), the court must give an opportunity to be heard to— (a) the receiver, (b) the parties to the proceedings for the appointment of the receiver and for the property freezing order concerned, (c) any person who may be interested in the application under subsection (1). (3) The court may at any time vary or set aside the appointment of a receiver under section 245E, any order under section 245F or any directions under this section. (4) Before exercising any power under subsection (3), the court must give an opportunity to be heard to— (a) the receiver, (b) the parties to the proceedings for the appointment of the receiver, for the order under section 245F or, as the case may be, for the directions under this section; (c) the parties to the proceedings for the property freezing order concerned, (d) any person who may be affected by the court’s decision.]1 Amendments 1 Inserted by the Serious Crime Act 2007, s 83(1).

349

Statutes

Fraud Act 2006 Fraud 1 Fraud

(1) A person is guilty of fraud if he is in breach of any of the sections listed in subsection (2) (which provide for different ways of committing the offence). (2) The sections are— (a) section 2 (fraud by false representation), (b) section 3 (fraud by failing to disclose information), and (c) section 4 (fraud by abuse of position). (3) A person who is guilty of fraud is liable— (a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum (or to both); (b) on conviction on indictment, to imprisonment for a term not exceeding 10 years or to a fine (or to both). (4) Subsection (3)(a) applies in relation to Northern Ireland as if the reference to 12 months were a reference to 6 months. 2  Fraud by false representation

(1) A person is in breach of this section if he— (a) dishonestly makes a false representation, and (b) intends, by making the representation— (i) to make a gain for himself or another, or (ii) to cause loss to another or to expose another to a risk of loss. (2) A representation is false if— (a) it is untrue or misleading, and (b) the person making it knows that it is, or might be, untrue or misleading. (3) ‘Representation’ means any representation as to fact or law, including a representation as to the state of mind of— (a) the person making the representation, or (b) any other person. (4) A representation may be express or implied. (5) For the purposes of this section a representation may be regarded as made if it (or anything implying it) is submitted in any form to any system or device 350

Part 5 Civil recovery of the proceeds etc.

designed to receive, convey or respond to communications (with or without human intervention). 3  Fraud by failing to disclose information

A person is in breach of this section if he— (a) dishonestly fails to disclose to another person information which he is under a legal duty to disclose, and (b) intends, by failing to disclose the information— (i) to make a gain for himself or another, or (ii) to cause loss to another or to expose another to a risk of loss. 4  Fraud by abuse of position

(1) A person is in breach of this section if he— (a) occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person, (b) dishonestly abuses that position, and (c) intends, by means of the abuse of that position— (i) to make a gain for himself or another, or (ii) to cause loss to another or to expose another to a risk of loss. (2) A  person may be regarded as having abused his position even though his conduct consisted of an omission rather than an act. 5  ‘Gain’ and ‘loss’

(1) The references to gain and loss in sections 2 to 4 are to be read in accordance with this section. (2) ‘Gain’ and ‘loss’— (a) extend only to gain or loss in money or other property; (b) include any such gain or loss whether temporary or permanent; and ‘property’ means any property whether real or personal (including things in action and other intangible property). (3) ‘Gain’ includes a gain by keeping what one has, as well as a gain by getting what one does not have. (4) ‘Loss’ includes a loss by not getting what one might get, as well as a loss by parting with what one has. 6  Possession etc. of articles for use in frauds

(1) A  person is guilty of an offence if he has in his possession or under his control any article for use in the course of or in connection with any fraud. 351

Statutes

(2) A person guilty of an offence under this section is liable— (a) on summary conviction, to imprisonment for a term not exceeding 12  months or to a fine not exceeding the statutory maximum (or to both); (b) on conviction on indictment, to imprisonment for a term not exceeding 5 years or to a fine (or to both). (3) Subsection (2)(a) applies in relation to Northern Ireland as if the reference to 12 months were a reference to 6 months. 7  Making or supplying articles for use in frauds

(1) A  person is guilty of an offence if he makes, adapts, supplies or offers to supply any article— (a) knowing that it is designed or adapted for use in the course of or in connection with fraud, or (b) intending it to be used to commit, or assist in the commission of, fraud. (2) A person guilty of an offence under this section is liable— (a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum (or to both); (b) on conviction on indictment, to imprisonment for a term not exceeding 10 years or to a fine (or to both). (3) Subsection (2)(a) applies in relation to Northern Ireland as if the reference to 12 months were a reference to 6 months. 8 ‘Article’

(1) For the purposes of— (a) sections 6 and 7, and (b) the provisions listed in subsection (2), so far as they relate to articles for use in the course of or in connection with fraud, ‘article’ includes any program or data held in electronic form. (2) The provisions are— (a) section 1(7)(b) of the Police and Criminal Evidence Act 1984 (c. 60), (b) section 2(8)(b) of the Armed Forces Act 2001 (c. 19), and (c) Article 3(7)(b) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)); (meaning of ‘prohibited articles’ for the purposes of stop and search powers). 352

Part 5 Civil recovery of the proceeds etc.

9  Participating in fraudulent business carried on by sole trader etc.

(1) A person is guilty of an offence if he is knowingly a party to the carrying on of a business to which this section applies. (2) This section applies to a business which is carried on— (a) by a person who is outside the reach of [section 993 of the Companies Act 2006]1 (offence of fraudulent trading) , and (b) with intent to defraud creditors of any person or for any other fraudulent purpose. (3) The following are within the reach of [that section]1— (a) a company [(as defined in section 1(1) of the Companies Act 2006)]2; (b) a person to whom that section applies (with or without adaptations or modifications) as if the person were a company; (c) a person exempted from the application of that section. (4) …3 (5) ‘Fraudulent purpose’ has the same meaning as in [that section]1. (6) A person guilty of an offence under this section is liable— (a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum (or to both); (b) on conviction on indictment, to imprisonment for a term not exceeding 10 years or to a fine (or to both). (7) Subsection (6)(a) applies in relation to Northern Ireland as if the reference to 12 months were a reference to 6 months. Amendments 1 Substituted by the Companies Act 2006 (Commencement No. 3, Consequential Amendments, Transitional Provisions and Savings) Order 2007, SI  2007/2194, art 10(1), Sch 4, para 111(1), (2), (3)(a), (5). 2 Substituted by the Companies Act 2006 (Consequential Amendments, Transitional Provisions and Savings) Order 2009, SI 2009/1941, art 2(1), Sch 1, para 257. 3 Repealed by the Companies Act 2006 (Commencement No. 3, Consequential Amendments, Transitional Provisions and Savings) Order 2007, SI  2007/2194, art 10(1), Sch 4, para 111(1), (4)

353

Statutes

Prevention of Social Housing Fraud Act 2013 1  Unlawful sub-letting: secure tenancies

(1) A tenant of a dwelling-house let under a secure tenancy commits an offence if— (a) in breach of an express or implied term of the tenancy, the tenant sublets or parts with possession of— (i) the whole of the dwelling-house, or (ii) part of the dwelling-house without the landlord’s written consent, (b) the tenant ceases to occupy the dwelling-house as the tenant’s only or principal home, and (c) the tenant knows that the conduct described in paragraph (a) is a breach of a term of the tenancy. (2) A tenant of a dwelling-house let under a secure tenancy commits an offence if— (a) dishonestly and in breach of an express or implied term of the tenancy, the tenant sub-lets or parts with possession of— (i) the whole of the dwelling-house, or (ii) part of the dwelling-house without the landlord’s written consent, and (b) the tenant ceases to occupy the dwelling-house as the tenant’s only or principal home. (3) The offence under subsection (1) is not committed where the tenant takes the action described in paragraphs (a) and (b) of that subsection because of violence or threats of violence by a person residing in, or in the locality of, the dwelling-house— (a) towards the tenant, or (b) towards a member of the family of the tenant who was residing with the tenant immediately before the tenant ceased to occupy the dwellinghouse. (4) The offence under subsection (1) is not committed if a person (‘P’) who occupies the dwelling-house as a result of the conduct described in subsection (1)(a) is— (a) a person entitled to apply to the court for an order giving P a right to occupy the dwelling-house or to have the tenancy transferred to P, or (b) a person in respect of whom an application may be made to have the tenancy transferred to P or to another person to be held for P’s benefit. 354

Part 5 Civil recovery of the proceeds etc.

(5) A person convicted of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale. (6) A person convicted of an offence under subsection (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). 2  Unlawful sub-letting: assured tenancies

(1) A  tenant of a dwelling-house let under an assured tenancy to which this section applies commits an offence if— (a) in breach of an express or implied term of the tenancy, the tenant sublets or parts with possession of the whole or part of the dwelling-house, (b) the tenant ceases to occupy the dwelling-house as the tenant’s only or principal home, and (c) the tenant knows that the conduct described in paragraph (a) is a breach of a term of the tenancy. (2) A  tenant of a dwelling-house let under an assured tenancy to which this section applies commits an offence if— (a) dishonestly and in breach of an express or implied term of the tenancy, the tenant sub-lets or parts with possession of the whole or part of the dwelling-house, and (b) the tenant ceases to occupy the dwelling-house as the tenant’s only or principal home. (3) This section applies to an assured tenancy— (a) under which the landlord is a private registered provider of social housing or a registered social landlord, and (b) which is not a shared ownership lease. (4) The offence under subsection (1) is not committed where the tenant takes the action described in paragraphs (a) and (b) of that subsection because of violence or threats of violence by a person residing in, or in the locality of, the dwelling-house— (a) towards the tenant, or (b) towards a member of the family of the tenant who was residing with the tenant immediately before the tenant ceased to occupy the dwellinghouse. (5) The offence under subsection (1) is not committed if a person (‘P’) who occupies the dwelling-house as a result of the conduct described in subsection (1)(a) is— 355

Statutes

(a) a person entitled to apply to the court for an order giving P a right to occupy the dwelling-house or to have the tenancy transferred to P, or (b) a person in respect of whom an application may be made to have the tenancy transferred to P or to another person to be held for P’s benefit. (6) A person convicted of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale. (7) A person convicted of an offence under subsection (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  Prosecution of offences

(1) Proceedings for an offence under section 1(1) or 2(1) may be brought within the period of 6 months beginning with the date on which evidence sufficient in the opinion of the prosecutor to warrant the proceedings came to the prosecutor’s knowledge. (2) But no such proceedings may be brought more than three years— (a) after the commission of the offence, or (b) in the case of continuous contravention, after the last date on which the offence was committed. (3) A  certificate signed by the prosecutor and stating the date on which such evidence came to the prosecutor’s knowledge is conclusive evidence of that fact; and a certificate to that effect and purporting to be so signed is to be treated as being so signed unless the contrary is proved. (4) Subsections (1) to (3) also apply in relation to an associated offence which is a summary offence (to the extent that they would not otherwise apply to that offence). (5) A local authority may prosecute an offence under section 1 or 2 in relation to a dwelling-house— (a) whether or not the dwelling-house is or was let under a tenancy under which the local authority is or was the landlord, and (b) whether or not the dwelling-house is located in the local authority’s area. (6) Subsection (5) also applies in relation to an associated offence (to the extent that it would not otherwise apply to that offence). 4  Unlawful profit orders: criminal proceedings

(1) This section applies if a person (‘the offender’) is convicted of— (a) an offence under section 1 or 2, or 356

Part 5 Civil recovery of the proceeds etc.

(b) an associated offence in relation to an offence under section 1 or 2. (2) The court by or before which the offender is convicted— (a) must, on application or otherwise, decide whether to make an unlawful profit order, and (b) may, if it considers it appropriate to do so, make such an order, instead of or in addition to dealing with the offender in any other way. (3) An ‘unlawful profit order’ is an order requiring the offender to pay the landlord an amount representing the profit made by the offender as a result of the conduct constituting the offence. (4) If the court decides not to make an unlawful profit order, it must give reasons for that decision on passing sentence on the offender. (5) The amount payable under an unlawful profit order must be such amount as the court considers appropriate, having regard to any evidence and to any representations that are made by or on behalf of the offender or the prosecutor, but subject to subsections (6) and (7). (6) The maximum amount payable under an unlawful profit order is calculated as follows— Step 1 Determine the total amount the offender received as a result of the conduct constituting the offence (or the best estimate of that amount). Step 2 Deduct from the amount determined under step 1 the total amount, if any, paid by the offender as rent to the landlord (including service charges) over the period during which the offence was committed. (7) Where an unlawful profit order has been made against the offender under section 5, an order under this section may only provide for the landlord to recover an amount equal to the aggregate of the following— (a) any amount by which the amount of the offender’s profit found under this section exceeds the amount payable under the order made under section 5, and (b) a sum equal to any portion of the amount payable under the order made under section 5 that the landlord fails to recover, and the landlord may not enforce the order under this section, so far as it relates to a sum mentioned in paragraph (b), without the leave of the court. (8) Subsection (9) applies where the court considers— (a) that, as well as being appropriate to make an unlawful profit order, it would be appropriate to impose a fine, and (b) that the offender has insufficient means to pay both— (i) an appropriate sum under an unlawful profit order, and (ii) an appropriate sum under a fine. 357

Statutes

(9) The court must give preference to making an unlawful profit order (though it may impose a fine as well). (10)  If the amount required to be paid by a person under an unlawful profit order is not paid when it is required to be paid, that person must pay interest on the amount for the period for which it remains unpaid. (11)  The rate of interest is the same rate as that for the time being specified in section 17 of the Judgments Act 1838 (interest on civil judgment debts). (12)  Sections 131 to 133 of the Powers of Criminal Courts (Sentencing) Act 2000 (supplementary provisions about compensation orders) apply to unlawful profit orders as if— (a) references to a compensation order were to an unlawful profit order (subject to paragraph (d)), (b) references to the compensation to be paid under a compensation order were to the amount to be paid under an unlawful profit order, (c) section 133(3)(a) and (b) were omitted, and (d) the reference in section [133(3)(c)(ii) to an unlawful profit order under section 4 were to]1 a compensation order under section 130 of the Powers of Criminal Courts (Sentencing) Act 2000 …2. (13)  In this section ‘the landlord’ means the landlord under the tenancy in respect of which the offence was committed. Amendments 1 Substituted by the Modern Slavery Act 2015, s 57(1), Sch 5, para 27(1), (2)(a). 2 Repealed by the Modern Slavery Act 2015, s 57(1), Sch 5, para 27(1), (2)(b).

5  Unlawful profit orders: civil proceedings

(1) The court may, on the application of the landlord of a dwelling-house let under a secure or an assured tenancy, make an unlawful profit order if— (a) in the case of a secure tenancy, the conditions in subsection (3) are met, and (b) in the case of an assured tenancy, the conditions in subsection (4) are met. (2) An ‘unlawful profit order’ is an order requiring the tenant against whom it is made to pay the landlord an amount representing the profit made by the tenant from the conduct described in subsection (3)(a) or (4)(c). (3) The conditions in the case of a secure tenancy are that a tenant under the tenancy— (a) in breach of an express or implied term of the tenancy, has sub-let or parted with possession of— (i) the whole of the dwelling-house, or 358

Part 5 Civil recovery of the proceeds etc.

(ii) part of the dwelling-house without the landlord’s written consent, (b) has ceased to occupy the dwelling-house as the tenant’s only or principal home, and (c) has received money as a result of the conduct described in paragraph (a). (4) The conditions in the case of an assured tenancy are that— (a) the landlord is a private registered provider of social housing or a registered social landlord, (b) the tenancy is not a shared ownership lease, (c) in breach of an express or implied term of the tenancy, a tenant under the tenancy has sub-let or parted with possession of the whole or part of the dwelling-house, (d) the tenant has ceased to occupy the dwelling-house as the tenant’s only or principal home, and (e) the tenant has received money as a result of the conduct described in paragraph (c). (5) The amount payable under an unlawful profit order must be such amount as the court considers appropriate, having regard to any evidence and to any representations that are made by or on behalf of the landlord or the tenant, but subject to subsections (6) and (7). (6) The maximum amount payable under an unlawful profit order is calculated as follows— Step 1  Determine the total amount the tenant received as a result of the conduct described in subsection (3)(a) or (4)(c) (or the best estimate of that amount). Step 2 Deduct from the amount determined under step 1 the total amount, if any, paid by the tenant as rent to the landlord (including service charges) over the period during which the conduct described in subsection (3)(a) or (4)(c) took place. (7) Where an unlawful profit order has been made against the tenant under section 4, an order under this section may only provide for the landlord to recover an amount equal to the aggregate of the following— (a) any amount by which the amount of the tenant’s profit found under this section exceeds the amount payable under the order made under section 4, and (b) a sum equal to any portion of the amount payable under the order made under section 4 that the landlord fails to recover, and the landlord may not enforce the order under this section, so far as it relates to a sum mentioned in paragraph (b), without the leave of the court. 359

Statutes

(8) For the purposes of this section ‘the court’ means the High Court or the county court. (9) Section 110(3) of the Housing Act 1985 (by which the claimant in proceedings relating to a secure tenancy may not recover the claimant’s costs if the proceedings are taken in the High Court) does not apply to proceedings under this section. 7  Regulations about powers to require information

(1) The appropriate authority may by regulations provide for the exercise, for prescribed housing fraud investigation purposes, of powers to require the provision of information. (2) The appropriate authority may by regulations— (a) make provision about the persons by whom powers conferred by regulations under this section may be exercised; (b) in particular, make provision for the authorisation by local authorities of persons to exercise those powers. (3) The provision that may be made by regulations under this section includes, in particular, provision equivalent to— (a) provision made by a relevant enactment, or (b) provision that is capable of being made under a relevant enactment, with such modifications as the appropriate authority thinks fit. (4) For the purposes of subsection (3), each of the following enactments is a ‘relevant enactment’— (a) section 109B of the Social Security Administration Act 1992 (powers to require information); (b) section 110A of that Act (authorisations by local authorities to exercise powers of investigation); (c) section 121DA(2) and (3) of that Act (interpretation of Part 6 of that Act). (5) After the repeal of section 110A of the Social Security Administration Act 1992 by Part 1 of Schedule 14 to the Welfare Reform Act 2012, the reference to that section in subsection (4) is to that section as it had effect immediately before it was repealed. (6) A person exercising powers conferred by regulations under this section must have regard to guidance issued or approved by the appropriate authority. (7) In this section ‘housing fraud investigation purposes’ means purposes relating to the prevention, detection or securing of evidence for a conviction of— (a) an offence under this Act; 360

Part 5 Civil recovery of the proceeds etc.

(b) an offence under the Fraud Act 2006 relating to the unlawful sub-letting or parting with possession of the whole or part of a dwelling-house let by a local authority, a private registered provider of social housing or a registered social landlord, (c) an offence under the Fraud Act 2006 relating to an application for an allocation of housing accommodation under Part 6 of the Housing Act 1996, (d) an offence under the Fraud Act 2006 relating to an application for accommodation, or for assistance in obtaining accommodation, under Part 7 of the Housing Act 1996, (e) an offence under the Fraud Act 2006 relating to— (i) a claim to exercise the right to buy under Part 5 of the Housing Act 1985, (ii) a claim to exercise the right to acquire under section 16 of the Housing Act 1996 [before the repeal of that section by the Abolition of the Right to Buy and Associated Rights (Wales) Act 2017 came into force]1, or (iii) a claim to exercise the right to acquire under section 180 of the Housing and Regeneration Act 2008, or (f) an associated offence in relation to an offence mentioned in any of paragraphs (a) to (e). (8) In this section ‘prescribed’ means prescribed by regulations under this section. Amendments 1 Inserted by the Abolition of the Right to Buy and Associated Rights (Wales) Act 2018, s 6(3), Sch 1, para 8.

8  Regulations about related offence

(1) The appropriate authority may by regulations provide for the creation of an offence that may be committed by a person by refusing or failing to provide any information or document when required to do so by or under regulations under section 7. (2) Regulations under this section— (a) must provide for an offence under the regulations to be triable only summarily; (b) may not provide for such an offence to be punishable with a fine exceeding level 3 on the standard scale. (3) Regulations under this section— (a) may provide, in a case where a person is convicted of an offence under the regulations and the act or omission constituting the offence continues 361

Statutes

after the conviction, for the person to be guilty of a further offence and liable on summary conviction to a daily fine; (b) may not provide for the daily fine to exceed £40. (4) The appropriate authority may by regulations make provision— (a) about defences to an offence under regulations under this section; (b) about the commission by a body corporate of such an offence; (c) about the conduct of proceedings for such an offence; (d) about the time limits for bringing such proceedings; (e) about the determination of issues arising in such proceedings; (f) about other matters of procedure and evidence in relation to such an offence. 9  Regulations: supplementary

(1) In sections 7 and 8 ‘the appropriate authority’ means— (a) the Secretary of State, in relation to England, and (b) the Welsh Ministers, in relation to Wales. (2) Regulations under section 7 or 8— (a) are to be made by statutory instrument, (b) may make different provision for different cases or circumstances, and (c) may contain incidental, supplementary, consequential, transitional, transitory or saving provision. (3) A statutory instrument containing regulations made by the Secretary of State under section 7 or 8 may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament. (4) A statutory instrument containing regulations made by the Welsh Ministers under section 7 or 8 may not be made unless a draft of the instrument has been laid before and approved by a resolution of the National Assembly for Wales. 10  Consequential amendments

The Schedule (consequential amendments) has effect. 11 Interpretation

(1) In this Act— (a) ‘secure tenancy’ has the meaning given by section 79 of the Housing Act 1985, and 362

Part 5 Civil recovery of the proceeds etc.

(b) ‘assured tenancy’ has the same meaning as in Part 1 of the Housing Act 1988. (2) In the application of this Act in relation to a secure tenancy, the following expressions have the same meaning as in the Housing Act 1985— ‘dwelling-house’ (see section 112 of that Act); ‘landlord’ (see section 621 of that Act); ‘tenancy’ (see section 621 of that Act); ‘tenant’ (see section 621 of that Act). (3) In the application of this Act in relation to an assured tenancy, the following expressions have the same meaning as in the Housing Act 1988— ‘dwelling-house’ (see section 45(1) of that Act); ‘landlord’ (see section 45(1) and (3) of that Act); ‘tenancy’ (see section 45(1) of that Act); ‘tenant’ (see section 45(1) and (3) of that Act). (4) References in this Act to a member of the tenant’s family (in relation to a secure or an assured tenancy) are to be construed in accordance with section 113 of the Housing Act 1985. (5) In this Act ‘shared ownership lease’ means a lease of a dwelling-house— (a) granted on payment of a premium calculated by reference to a percentage of the value of the dwelling-house or of the cost of providing it, or (b) under which the lessee (or the lessee’s personal representatives) will or may be entitled to a sum calculated by reference, directly or indirectly, to the value of the dwelling-house. (6) References in this Act to the landlord under a secure or an assured tenancy include— (a) in a case where the tenancy has ended, a person who was the landlord under the tenancy, and (b) in a case where the tenancy has ceased to be a secure or an assured tenancy, the person who was the landlord under the tenancy when it was a secure or an assured tenancy. (7) References in this Act to the tenant under a secure or an assured tenancy include— (a) in a case where the tenancy has ended, a person who was the tenant under the tenancy, and (b) in a case where the tenancy has ceased to be a secure or an assured tenancy, a person who was the tenant under the tenancy when it was a secure or an assured tenancy. 363

Statutes

(8) In this Act ‘local authority’ means a county council, a county borough council, a district council, a London borough council, the Common Council of the City of London or the Council of the Isles of Scilly. (9) In this Act ‘registered social landlord’ has the same meaning as in Part 1 of the Housing Act 1996. (10) In this Act ‘associated offence’, in relation to an offence, means— (a) an offence of aiding, abetting, counselling or procuring the commission of that offence, (b) an offence of attempting or conspiring to commit that offence, or (c) an offence under Part 2 of the Serious Crime Act 2007 (encouraging or assisting crime) in relation to that offence. 12  Extent, commencement and short title

(1) This Act extends to England and Wales only, subject to subsection (2). (2) An amendment of an Act made by this Act has the same extent as the provision to which it relates. (3) The provisions of this Act, apart from this section, come into force— (a) in relation to England, on such day as the Secretary of State may by order appoint; (b) in relation to Wales, on such day as the Welsh Ministers may by order appoint. (4) An order under subsection (3) is to be made by statutory instrument. (5) An order under subsection (3) may— (a) appoint different days for different purposes, and (b) make transitional, transitory or saving provision. (6) This Act may be cited as the Prevention of Social Housing Fraud Act 2013.

364

Part 1 Preliminary

Data Protection Act 2018 PART 1 PRELIMINARY 1 Overview

(1) This Act makes provision about the processing of personal data. (2) Most processing of personal data is subject to the [UK GDPR]1. (3) Part 2 supplements the [UK GDPR]1. (4) Part 3 makes provision about the processing of personal data by competent authorities for law enforcement purposes …2. (5) Part 4 makes provision about the processing of personal data by the intelligence services. (6) Part 5 makes provision about the Information Commissioner. (7) Part 6 makes provision about the enforcement of the data protection legislation. (8) Part 7 makes supplementary provision, including provision about the application of this Act to the Crown and to Parliament. Amendments 1 Substituted by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 2(1)-(3). 2 Repealed by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 2(1), (4).

2  Protection of personal data

(1) The [UK GDPR]1 and this Act protect individuals with regard to the processing of personal data, in particular by— (a) requiring personal data to be processed lawfully and fairly, on the basis of the data subject’s consent or another specified basis, (b) conferring rights on the data subject to obtain information about the processing of personal data and to require inaccurate personal data to be rectified, and (c) conferring functions on the Commissioner, giving the holder of that office responsibility for monitoring and enforcing their provisions. (2) When carrying out functions under the [UK GDPR]1 and this Act, the Commissioner must have regard to the importance of securing an appropriate 365

Statutes

level of protection for personal data, taking account of the interests of data subjects, controllers and others and matters of general public interest. Amendments 1 Substituted by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 3.

3  Terms relating to the processing of personal data

(1) This section defines some terms used in this Act. (2) ‘Personal data’ means any information relating to an identified or identifiable living individual (subject to subsection (14)(c)). (3) ‘Identifiable living individual’ means a living individual who can be identified, directly or indirectly, in particular by reference to— (a) an identifier such as a name, an identification number, location data or an online identifier, or (b) one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of the individual. (4) ‘Processing’, in relation to information, means an operation or set of operations which is performed on information, or on sets of information, such as— (a) collection, recording, organisation, structuring or storage, (b) adaptation or alteration, (c) retrieval, consultation or use, (d) disclosure by transmission, dissemination or otherwise making available, (e) alignment or combination, or (f) restriction, erasure or destruction, (subject to subsection (14)(c) and sections 5(7), 29(2) and 82(3), which make provision about references to processing in the different Parts of this Act). (5) ‘Data subject’ means the identified or identifiable living individual to whom personal data relates. (6) ‘Controller’ and ‘processor’, in relation to the processing of personal data to which …1 Part 2, Part 3 or Part 4 applies, have the same meaning as in that Chapter or Part (see sections 5, 6, 32 and 83 and see also subsection (14)(d)). (7) ‘Filing system’ means any structured set of personal data which is accessible according to specific criteria, whether held by automated means or manually and whether centralised, decentralised or dispersed on a functional or geographical basis. (8) ‘The Commissioner’ means the Information Commissioner (see section 114). 366

Part 1 Preliminary

(9) ‘The data protection legislation’ means— [(a) the UK GDPR,]2 (b) …1 (c) this Act, (d) regulations made under this Act, and (e) regulations made under section 2(2) of the European Communities Act 1972 which relate to [the EU GDPR]2 or the Law Enforcement Directive. (10) [‘The UK GDPR’]2 means  Regulation (EU) 2016/679  of the European Parliament and of the Council of 27  April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data [(United Kingdom General Data Protection Regulation), as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018 (and see section 205(4))]2. [(10A) ‘The EU GDPR’ means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27th April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) as it has effect in EU law.]3 (11) …1 (12)  ‘The Law Enforcement Directive’ means Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA. (13)  ‘The Data Protection Convention’ means the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data which was opened for signature on 28 January 1981, as amended up to the day on which this Act is passed. (14)  In Parts 5 to 7, except where otherwise provided— [(a) references to the UK GDPR are to the UK GDPR read with Part 2;]2 (b) …1 (c) references to personal data, and the processing of personal data, are to personal data and processing to which …1 Part 2, Part 3 or Part 4 applies; (d) references to a controller or processor are to a controller or processor in relation to the processing of personal data to which …1 Part 2, Part 3 or Part 4 applies. (15)  There is an index of defined expressions in section 206. 367

Statutes

Amendments 1 Repealed by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 4(1), (2), (3)(b), (6), (7)(b), (c). 2 Substituted by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 4(1), (3)(a), (c), (4), (7)(a). 3 Inserted by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 4(1), (5).

PART 2 GENERAL PROCESSING Chapter 1 Scope and definitions 4  Processing to which this Part applies

(1) This Part is relevant to most processing of personal data. (2) [This Part]1— (a) applies to the types of processing of personal data to which the [UK GDPR]1 applies by virtue of Article 2 of the [UK GDPR]1, and (b) supplements, and must be read with, the [UK GDPR]1. (3) …2 Amendments 1 Substituted by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 5(1), (2). 2 Repealed by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 5(1), (3).

5 Definitions

(1) Terms used in …1 this Part and in the [UK GDPR]2 have the same meaning in [this Part as]2 they have in the [UK GDPR]2. (2) In subsection (1), the reference to a term’s meaning in the [UK GDPR]2 is to its meaning in the [UK GDPR]2 read with any provision of [this Part]2 which modifies the term’s meaning for the purposes of the [UK GDPR]2. (3) Subsection (1) is subject to any provision in [this Part]2 which provides expressly for the term to have a different meaning and to section 204. (4) …1 368

Part 2 General processing

(5) …1 (6) …1 (7) A reference in …1 this Part to the processing of personal data is to processing to which [this Part]2 applies. (8) Sections 3 and 205 include definitions of other expressions used in this Part. Amendments 1 Repealed by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 6(1), (2)(a), (5), (6)(a). 2 Substituted by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 6(1), (2)(b), (c), (3), (4), (6)(b).

Chapter 2 [The UK GDPR]1 Meaning of certain terms used in the [UK GDPR]1 6  Meaning of ‘controller’

(1) The definition of ‘controller’ in Article 4(7) of the [UK GDPR]1 has effect subject to— (a) subsection (2), (b) section 209, and (c) section 210. (2) For the purposes of the [UK GDPR]1, where personal data is processed only— (a) for purposes for which it is required by an enactment to be processed, and (b) by means by which it is required by an enactment to be processed, the person on whom the obligation to process the data is imposed by the enactment (or, if different, one of the enactments) is the controller. Amendments 1 Substituted by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 7-9.

7  Meaning of ‘public authority’ and ‘public body’

(1) For the purposes of the [UK GDPR]1, the following (and only the following) are ‘public authorities’ and ‘public bodies’ …2— 369

Statutes

(a) a public authority as defined by the Freedom of Information Act 2000, (b) a Scottish public authority as defined by the Freedom of Information (Scotland) Act 2002 (asp 13), and (c) an authority or body specified or described by the Secretary of State in regulations, subject to subsections (2), (3) and (4). (2) An authority or body that falls within subsection (1) is only a ‘public authority’ or ‘public body’ for the purposes of the [UK GDPR]1 when performing a task carried out in the public interest or in the exercise of official authority vested in it. (3) The references in subsection (1)(a) and (b) to public authorities and Scottish public authorities as defined by the Freedom of Information Act 2000 and the Freedom of Information (Scotland) Act 2002 (asp 13) do not include any of the following that fall within those definitions— (a) a parish council in England; (b) a community council in Wales; (c) a community council in Scotland; (d) a parish meeting constituted under section 13 of the Local Government Act 1972; (e) a community meeting constituted under section 27 of that Act; (f) charter trustees constituted— (i) under section 246 of that Act, (ii) under Part 1 of the Local Government and Public Involvement in Health Act 2007, or (iii) by the Charter Trustees Regulations 1996 (S.I. 1996/263). (4) The Secretary of State may by regulations provide that a person specified or described in the regulations that is a public authority described in subsection (1)(a) or (b) is not a ‘public authority’ or ‘public body’ for the purposes of the [UK GDPR]1. (5) Regulations under this section are subject to the affirmative resolution procedure. Amendments 1 Substituted by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 10(1), (2)(a), (3). 2 Repealed by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 10(1), (2)(b).

370

Part 2 General processing

Lawfulness of processing 8  Lawfulness of processing: public interest etc

In Article 6(1) of the [UK GDPR]1 (lawfulness of processing), the reference in point (e) to processing of personal data that is necessary for the performance of a task carried out in the public interest or in the exercise of the controller’s official authority includes processing of personal data that is necessary for— (a) the administration of justice, (b) the exercise of a function of either House of Parliament, (c) the exercise of a function conferred on a person by an enactment or rule of law, (d) the exercise of a function of the Crown, a Minister of the Crown or a government department, or (e) an activity that supports or promotes democratic engagement. Amendments 1 Substituted by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU  Exit) Regulations 2019, SI  2019/419, reg  4, Sch  2, paras 1, 11.

9 …1

…1 Amendments 1 Repealed by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU  Exit) Regulations 2019, SI  2019/419, reg  4, Sch  2, paras 1, 12.

Special categories of personal data 10  Special categories of personal data and criminal convictions etc data

(1) Subsections (2) and (3) make provision about the processing of personal data described in Article 9(1) of the [UK GDPR]1 (prohibition on processing of special categories of personal data) in reliance on an exception in one of the following points of Article 9(2)— (a) point (b) (employment, social security and social protection); (b) point (g) (substantial public interest); (c) point (h) (health and social care); (d) point (i) (public health); (e) point (j) (archiving, research and statistics). 371

Statutes

(2) The processing meets the requirement in point (b), (h), (i) or (j) of Article 9(2) of the [UK GDPR]1 for authorisation by, or a basis in, the law of the United Kingdom or a part of the United Kingdom only if it meets a condition in Part 1 of Schedule 1. (3) The processing meets the requirement in point (g) of Article 9(2) of the [UK GDPR]1 for a basis in the law of the United Kingdom or a part of the United Kingdom only if it meets a condition in Part 2 of Schedule 1. (4) Subsection (5) makes provision about the processing of personal data relating to criminal convictions and offences or related security measures that is not carried out under the control of official authority. (5) The processing meets the requirement in Article [10(1) of the UK GDPR]1 for authorisation by the law of the United Kingdom or a part of the United Kingdom only if it meets a condition in Part 1, 2 or 3 of Schedule 1. (6) The Secretary of State may by regulations— (a) amend Schedule 1— (i) by adding or varying conditions or safeguards, and (ii) by omitting conditions or safeguards added by regulations under this section, and (b) consequentially amend this section. (7) Regulations under this section are subject to the affirmative resolution procedure. Amendments 1 Substituted by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU  Exit) Regulations 2019, SI  2019/419, reg  4, Sch  2, paras 1, 13.

11  Special categories of personal data etc: supplementary

(1) For the purposes of Article 9(2)(h) of the [UK GDPR]1 (processing for health or social care purposes etc), the circumstances in which the processing of personal data is carried out subject to the conditions and safeguards referred to in Article 9(3) of the [UK GDPR]1 (obligation of secrecy) include circumstances in which it is carried out— (a) by or under the responsibility of a health professional or a social work professional, or (b) by another person who in the circumstances owes a duty of confidentiality under an enactment or rule of law. (2) In Article 10 of the [UK GDPR]1 and section 10, references to personal data relating to criminal convictions and offences or related security measures include personal data relating to— 372

Part 2 General processing

(a) the alleged commission of offences by the data subject, or (b) proceedings for an offence committed or alleged to have been committed by the data subject or the disposal of such proceedings, including sentencing. Amendments 1 Substituted by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 14.

[Exemptions etc]1 15  Exemptions etc

(1) Schedules 2, 3 and 4 make provision for exemptions from, and restrictions and adaptations of the application of, rules of the [UK GDPR]1. (2) In Schedule 2— (a) Part 1 makes provision adapting or restricting the application of rules contained in Articles 13 to 21 and 34 of the [UK GDPR]1 in specified circumstances [(of a kind described in]1 Article 6(3) and Article 23(1) of the [UK GDPR)]1; (b) Part 2 makes provision restricting the application of rules contained in Articles 13 to 21 and 34 of the [UK GDPR]1 in specified circumstances [(of a kind described in]1 Article 23(1) of the [UK GDPR)]1; (c) Part 3 makes provision restricting the application of Article  15 of the [UK GDPR]1 where this is necessary to protect the rights of others [(of a kind described in]1 Article 23(1) of the [UK GDPR)]1; (d) Part 4 makes provision restricting the application of rules contained in Articles 13 to 15 of the [UK GDPR]1 in specified circumstances [(of a kind described in]1 Article 23(1) of the [UK GDPR)]1; (e) Part 5 makes provision containing exemptions or derogations from Chapters II, III, IV [ and V of the UK GDPR]1 for reasons relating to freedom of expression [(of a kind described in Article 85(2) of the UK GDPR]1; (f) Part 6 makes provision containing derogations from rights contained in Articles 15, 16, 18, 19, 20 and 21 of the [UK GDPR]1 for scientific or historical research purposes, statistical purposes and archiving purposes …2. (3) Schedule 3 makes provision restricting the application of rules contained in Articles 13 to 21 of the [UK GDPR]1 to health, social work, education and child abuse data [(of a kind described in]1 Article 23(1) of the [UK GDPR)]1. (4) Schedule  4 makes provision restricting the application of rules contained in Articles  13 to 21 of the [UK GDPR]1 to information the disclosure of 373

Statutes

which is prohibited or restricted by an enactment [(of a kind described in]1 Article 23(1) of the [UK GDPR)]1. [(4A)  In connection with the manual unstructured processing of personal data held by an FOI public authority, see Chapter 3 of this Part (sections 21, 24 and 25).]3 (5) In connection with the safeguarding of national security and with defence, see Chapter 3 of this Part [(sections 26 to 28)]1. Amendments 1 Substituted by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 15(1)-(7), (8)(a), (9), (10), (12). 2 Repealed by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 15(1), (8)(b). 3 Inserted by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 15(1), (11).

16  Power to make further exemptions etc by regulations

(1) The following powers to make provision altering the application of the [UK GDPR]1 may be exercised by way of regulations made by the Secretary of State under this section— (a) the power in Article 6(3) for …2 to lay down a legal basis containing specific provisions to adapt the application of rules of the [UK GDPR]1 where processing is necessary for compliance with a legal obligation, for the performance of a task in the public interest or in the exercise of official authority; (b) the power in Article 23(1) to make [provision]1 restricting the scope of the obligations and rights mentioned in that Article where necessary and proportionate to safeguard certain objectives of general public interest; (c) the power in Article  85(2) to provide for exemptions or derogations from certain Chapters of the [UK GDPR]1 where necessary to reconcile the protection of personal data with the freedom of expression and information. (2) Regulations under this section may— (a) amend Schedules 2 to 4— (i) by adding or varying provisions, and (ii) by omitting provisions added by regulations under this section, …2 (b) consequentially amend section 15[, and 374

Part 3 Law enforcement processing

(c) consequentially amend the UK GDPR by adding, varying or omitting a reference to section 15, Schedule 2, 3 or 4, this section or regulations under this section.]3 (3) Regulations under this section are subject to the affirmative resolution procedure. Amendments 1 Substituted by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 16(1), (2)(a), (b)(ii), (c), (d). 2 Repealed by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 16(1), (2)(b)(i), (3)(a). 3 Inserted by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 16(1), (3)(b).

PART 3 LAW ENFORCEMENT PROCESSING Chapter 1 Scope and definitions Scope 29  Processing to which this Part applies

(1) This Part applies to— (a) the processing by a competent authority of personal data wholly or partly by automated means, and (b) the processing by a competent authority otherwise than by automated means of personal data which forms part of a filing system or is intended to form part of a filing system. (2) Any reference in this Part to the processing of personal data is to processing to which this Part applies. (3) For the meaning of ‘competent authority’, see section 30. Definitions 30  Meaning of ‘competent authority’

(1) In this Part, ‘competent authority’ means— (a) a person specified or described in Schedule 7, and 375

Statutes

(b) any other person if and to the extent that the person has statutory functions for any of the law enforcement purposes. (2) But an intelligence service is not a competent authority within the meaning of this Part. (3) The Secretary of State may by regulations amend Schedule 7— (a) so as to add or remove a person or description of person; (b) so as to reflect any change in the name of a person specified in the Schedule. (4) Regulations under subsection (3) which make provision of the kind described in subsection (3)(a) may also make consequential amendments of section 73(4)(b). (5) Regulations under subsection (3) which make provision of the kind described in subsection (3)(a), or which make provision of that kind and of the kind described in subsection (3)(b), are subject to the affirmative resolution procedure. (6) Regulations under subsection (3) which make provision only of the kind described in subsection (3)(b) are subject to the negative resolution procedure. (7) In this section— ‘intelligence service’ means— (a) the Security Service; (b) the Secret Intelligence Service; (c) the Government Communications Headquarters; ‘statutory function’ means a function under or by virtue of an enactment. 31  ‘The law enforcement purposes’

For the purposes of this Part, ‘the law enforcement purposes’ are the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security. 32  Meaning of ‘controller’ and ‘processor’

(1) In this Part, ‘controller’ means the competent authority which, alone or jointly with others— (a) determines the purposes and means of the processing of personal data, or (b) is the controller by virtue of subsection (2). (2) Where personal data is processed only— (a) for purposes for which it is required by an enactment to be processed, and 376

Part 3 Law enforcement processing

(b) by means by which it is required by an enactment to be processed, the competent authority on which the obligation to process the data is imposed by the enactment (or, if different, one of the enactments) is the controller. (3) In this Part, ‘processor’ means any person who processes personal data on behalf of the controller (other than a person who is an employee of the controller). 33  Other definitions

(1) This section defines certain other expressions used in this Part. (2) ‘Employee’, in relation to any person, includes an individual who holds a position (whether paid or unpaid) under the direction and control of that person. (3) ‘Personal data breach’ means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed. (4) ‘Profiling’ means any form of automated processing of personal data consisting of the use of personal data to evaluate certain personal aspects relating to an individual, in particular to analyse or predict aspects concerning that individual’s performance at work, economic situation, health, personal preferences, interests, reliability, behaviour, location or movements. (5) ‘Recipient’, in relation to any personal data, means any person to whom the data is disclosed, whether a third party or not, but it does not include a public authority to whom disclosure is or may be made in the framework of a particular inquiry in accordance with the law. (6) ‘Restriction of processing’ means the marking of stored personal data with the aim of limiting its processing for the future. (7) ‘Third country’ means a country or territory [outside the United Kingdom]1. (8) Sections 3 and 205 include definitions of other expressions used in this Part. Amendments 1 Substituted by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU  Exit) Regulations 2019, SI  2019/419, reg  4, Sch  2, paras 1, 37.

Chapter 2 Principles 34  Overview and general duty of controller

(1) This Chapter sets out the six data protection principles as follows— 377

Statutes

(a) section 35(1) sets out the first data protection principle (requirement that processing be lawful and fair); (b) section 36(1) sets out the second data protection principle (requirement that purposes of processing be specified, explicit and legitimate); (c) section 37 sets out the third data protection principle (requirement that personal data be adequate, relevant and not excessive); (d) section 38(1) sets out the fourth data protection principle (requirement that personal data be accurate and kept up to date); (e) section 39(1) sets out the fifth data protection principle (requirement that personal data be kept for no longer than is necessary); (f) section 40 sets out the sixth data protection principle (requirement that personal data be processed in a secure manner). (2) In addition— (a) each of sections 35, 36, 38 and 39 makes provision to supplement the principle to which it relates, and (b) sections 41 and 42 make provision about the safeguards that apply in relation to certain types of processing. (3) The controller in relation to personal data is responsible for, and must be able to demonstrate, compliance with this Chapter. 35  The first data protection principle

(1) The first data protection principle is that the processing of personal data for any of the law enforcement purposes must be lawful and fair. (2) The processing of personal data for any of the law enforcement purposes is lawful only if and to the extent that it is based on law and either— (a) the data subject has given consent to the processing for that purpose, or (b) the processing is necessary for the performance of a task carried out for that purpose by a competent authority. (3) In addition, where the processing for any of the law enforcement purposes is sensitive processing, the processing is permitted only in the two cases set out in subsections (4) and (5). (4) The first case is where— (a) the data subject has given consent to the processing for the law enforcement purpose as mentioned in subsection (2)(a), and (b) at the time when the processing is carried out, the controller has an appropriate policy document in place (see section 42). (5) The second case is where— (a) the processing is strictly necessary for the law enforcement purpose, 378

Part 3 Law enforcement processing

(b) the processing meets at least one of the conditions in Schedule 8, and (c) at the time when the processing is carried out, the controller has an appropriate policy document in place (see section 42). (6) The Secretary of State may by regulations amend Schedule 8— (a) by adding conditions; (b) by omitting conditions added by regulations under paragraph (a). (7) Regulations under subsection (6) are subject to the affirmative resolution procedure. (8) In this section, ‘sensitive processing’ means— (a) the processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs or trade union membership; (b) the processing of genetic data, or of biometric data, for the purpose of uniquely identifying an individual; (c) the processing of data concerning health; (d) the processing of data concerning an individual’s sex life or sexual orientation. 36  The second data protection principle

(1) The second data protection principle is that— (a) the law enforcement purpose for which personal data is collected on any occasion must be specified, explicit and legitimate, and (b) personal data so collected must not be processed in a manner that is incompatible with the purpose for which it was collected. (2) Paragraph (b) of the second data protection principle is subject to subsections (3) and (4). (3) Personal data collected for a law enforcement purpose may be processed for any other law enforcement purpose (whether by the controller that collected the data or by another controller) provided that— (a) the controller is authorised by law to process the data for the other purpose, and (b) the processing is necessary and proportionate to that other purpose. (4) Personal data collected for any of the law enforcement purposes may not be processed for a purpose that is not a law enforcement purpose unless the processing is authorised by law. 37  The third data protection principle

The third data protection principle is that personal data processed for any of the law enforcement purposes must be adequate, relevant and not excessive in relation to the purpose for which it is processed. 379

Statutes

38  The fourth data protection principle

(1) The fourth data protection principle is that— (a) personal data processed for any of the law enforcement purposes must be accurate and, where necessary, kept up to date, and (b) every reasonable step must be taken to ensure that personal data that is inaccurate, having regard to the law enforcement purpose for which it is processed, is erased or rectified without delay. (2) In processing personal data for any of the law enforcement purposes, personal data based on facts must, so far as possible, be distinguished from personal data based on personal assessments. (3) In processing personal data for any of the law enforcement purposes, a clear distinction must, where relevant and as far as possible, be made between personal data relating to different categories of data subject, such as— (a) persons suspected of having committed or being about to commit a criminal offence; (b) persons convicted of a criminal offence; (c) persons who are or may be victims of a criminal offence; (d) witnesses or other persons with information about offences. (4) All reasonable steps must be taken to ensure that personal data which is inaccurate, incomplete or no longer up to date is not transmitted or made available for any of the law enforcement purposes. (5) For that purpose— (a) the quality of personal data must be verified before it is transmitted or made available, (b) in all transmissions of personal data, the necessary information enabling the recipient to assess the degree of accuracy, completeness and reliability of the data and the extent to which it is up to date must be included, and (c) if, after personal data has been transmitted, it emerges that the data was incorrect or that the transmission was unlawful, the recipient must be notified without delay. 39  The fifth data protection principle

(1) The fifth data protection principle is that personal data processed for any of the law enforcement purposes must be kept for no longer than is necessary for the purpose for which it is processed. (2) Appropriate time limits must be established for the periodic review of the need for the continued storage of personal data for any of the law enforcement purposes. 380

Part 3 Law enforcement processing

40  The sixth data protection principle

The sixth data protection principle is that personal data processed for any of the law enforcement purposes must be so processed in a manner that ensures appropriate security of the personal data, using appropriate technical or organisational measures (and, in this principle, ‘appropriate security’ includes protection against unauthorised or unlawful processing and against accidental loss, destruction or damage). 41  Safeguards: archiving

(1) This section applies in relation to the processing of personal data for a law enforcement purpose where the processing is necessary— (a) for archiving purposes in the public interest, (b) for scientific or historical research purposes, or (c) for statistical purposes. (2) The processing is not permitted if— (a) it is carried out for the purposes of, or in connection with, measures or decisions with respect to a particular data subject, or (b) it is likely to cause substantial damage or substantial distress to a data subject. 42  Safeguards: sensitive processing

(1) This section applies for the purposes of section 35(4) and (5) (which require a controller to have an appropriate policy document in place when carrying out sensitive processing in reliance on the consent of the data subject or, as the case may be, in reliance on a condition specified in Schedule 8). (2) The controller has an appropriate policy document in place in relation to the sensitive processing if the controller has produced a document which— (a) explains the controller’s procedures for securing compliance with the data protection principles (see section 34(1)) in connection with sensitive processing in reliance on the consent of the data subject or (as the case may be) in reliance on the condition in question, and (b) explains the controller’s policies as regards the retention and erasure of personal data processed in reliance on the consent of the data subject or (as the case may be) in reliance on the condition in question, giving an indication of how long such personal data is likely to be retained. (3) Where personal data is processed on the basis that an appropriate policy document is in place, the controller must during the relevant period— (a) retain the appropriate policy document, (b) review and (if appropriate) update it from time to time, and 381

Statutes

(c) make it available to the Commissioner, on request, without charge. (4) The record maintained by the controller under section 61(1) and, where the sensitive processing is carried out by a processor on behalf of the controller, the record maintained by the processor under section 61(3) must include the following information— (a) whether the sensitive processing is carried out in reliance on the consent of the data subject or, if not, which condition in Schedule 8 is relied on, (b) how the processing satisfies section 35 (lawfulness of processing), and (c) whether the personal data is retained and erased in accordance with the policies described in subsection (2)(b) and, if it is not, the reasons for not following those policies. (5) In this section, ‘relevant period’, in relation to sensitive processing in reliance on the consent of the data subject or in reliance on a condition specified in Schedule 8, means a period which— (a) begins when the controller starts to carry out the sensitive processing in reliance on the data subject’s consent or (as the case may be) in reliance on that condition, and (b) ends at the end of the period of 6 months beginning when the controller ceases to carry out the processing.

PART 4 INTELLIGENCE SERVICES PROCESSING Chapter 1 Scope and definitions Scope 82  Processing to which this Part applies

(1) This Part applies to— (a) the processing by an intelligence service of personal data wholly or partly by automated means, and (b) the processing by an intelligence service otherwise than by automated means of personal data which forms part of a filing system or is intended to form part of a filing system. (2) In this Part, ‘intelligence service’ means— (a) the Security Service; (b) the Secret Intelligence Service; (c) the Government Communications Headquarters. (3) A reference in this Part to the processing of personal data is to processing to which this Part applies. 382

Part 5 The Information Commissioner

PART 5 THE INFORMATION COMMISSIONER The Commissioner 114  The Information Commissioner

(1) There is to continue to be an Information Commissioner. (2) Schedule 12 makes provision about the Commissioner. General functions 115  General functions under the [UK GDPR]1 and safeguards

(1) …2 (2) General functions are conferred on the Commissioner by— (a) Article 57 of the [UK GDPR]1 (tasks), and (b) Article 58 of the [UK GDPR]1 (powers), (and see also the Commissioner’s duty under section 2 [and section 28(5)]3). (3) The Commissioner’s functions in relation to the processing of personal data to which the [UK GDPR]1 applies include— (a) a duty to advise Parliament, the government and other institutions and bodies on legislative and administrative measures relating to the protection of individuals’ rights and freedoms with regard to the processing of personal data, and (b) a power to issue, on the Commissioner’s own initiative or on request, opinions to Parliament, the government or other institutions and bodies as well as to the public on any issue related to the protection of personal data. (4) The Commissioner’s functions under Article  58 of the [UK GDPR]1 are subject to the safeguards in subsections (5) to (9). (5) The Commissioner’s power under Article  58(1)(a) of the [UK GDPR]1 (power to require a controller or processor to provide information that the Commissioner requires for the performance of the Commissioner’s tasks under the [UK GDPR]1) is exercisable only by giving an information notice under section 142. (6) The Commissioner’s power under Article  58(1)(b) of the [UK GDPR]1 (power to carry out data protection audits) is exercisable only in accordance with section 146. (7) The Commissioner’s powers under Article  58(1)(e) and (f) of the [UK GDPR]1 (power to obtain information from controllers and processors and access to their premises) are exercisable only— 383

Statutes

(a) in accordance with Schedule 15 (see section 154), or (b) to the extent that they are exercised in conjunction with the power under Article 58(1)(b) of the [UK GDPR]1, in accordance with section 146. (8) The following powers are exercisable only by giving an enforcement notice under section 149— (a) the Commissioner’s powers under Article 58(2)(c) to (g) and (j) of the [UK GDPR]1 (certain corrective powers); (b) the Commissioner’s powers under Article 58(2)(h) to order a certification body to withdraw, or not to issue, a certification under Articles 42 and 43 of the [UK GDPR]1. (9) The Commissioner’s powers under Articles  58(2)(i) and 83 of the [UK GDPR]1 (administrative fines) are exercisable only by giving a penalty notice under section 155. (10) This section is without prejudice to other functions conferred on the Commissioner, whether by the [UK GDPR]1, this Act or otherwise. Amendments 1 Substituted by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 47(1), (2), (4)(a), (5)-(10). 2 Repealed by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 47(1), (3). 3 Inserted by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 47(1), (4)(b).

116  Other general functions

[(A1)  The Commissioner is responsible for monitoring the application of Part 3 of this Act, in order to protect the fundamental rights and freedoms of individuals in relation to processing by a competent authority for any of the law enforcement purposes (as defined in Part 3) and to facilitate the free flow of personal data.]1 (1) The Commissioner— (a) …2 (b) is to continue to be the designated authority in the United Kingdom for the purposes of Article 13 of the Data Protection Convention. (2) Schedule 13 confers general functions on the Commissioner in connection with processing to which the [UK GDPR]3 does not apply (and see also the Commissioner’s duty under section 2). (3) This section and Schedule  13 are without prejudice to other functions conferred on the Commissioner, whether by this Act or otherwise. 384

Part 5 The Information Commissioner

Amendments 1 Inserted by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 48(1), (2). 2 Repealed by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 48(1), (3). 3 Substituted by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 48(1), (4).

117  Competence in relation to courts etc

Nothing in this Act [or the UK GDPR]1 permits or requires the Commissioner to exercise functions in relation to the processing of personal data by— (a) an individual acting in a judicial capacity, or (b) a court or tribunal acting in its judicial capacity …2. Amendments 1 Inserted by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 49(1), (2). 2 Repealed by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 49(1), (3).

Codes of practice 121  Data-sharing code

(1) The Commissioner must prepare a code of practice which contains— (a) practical guidance in relation to the sharing of personal data in accordance with the requirements of the data protection legislation, and (b) such other guidance as the Commissioner considers appropriate to promote good practice in the sharing of personal data. (2) Where a code under this section is in force, the Commissioner may prepare amendments of the code or a replacement code. (3) Before preparing a code or amendments under this section, the Commissioner must consult the Secretary of State and such of the following as the Commissioner considers appropriate— (a) trade associations; (b) data subjects; 385

Statutes

(c) persons who appear to the Commissioner to represent the interests of data subjects. (4) A code under this section may include transitional provision or savings. (5) In this section— ‘good practice in the sharing of personal data’ means such practice in the sharing of personal data as appears to the Commissioner to be desirable having regard to the interests of data subjects and others, including compliance with the requirements of the data protection legislation; ‘the sharing of personal data’ means the disclosure of personal data by transmission, dissemination or otherwise making it available; ‘trade association’ includes a body representing controllers or processors.

SCHEDULE 1 SPECIAL CATEGORIES OF PERSONAL DATA AND CRIMINAL CONVICTIONS ETC DATA Part 1 Conditions relating to employment, health and research etc 1  Employment, social security and social protection

(1) This condition is met if— (a) the processing is necessary for the purposes of performing or exercising obligations or rights which are imposed or conferred by law on the controller or the data subject in connection with employment, social security or social protection, and (b) when the processing is carried out, the controller has an appropriate policy document in place (see paragraph 39 in Part 4 of this Schedule). (2) See also the additional safeguards in Part 4 of this Schedule. (3) In this paragraph— ‘social security’ includes any of the branches of social security listed in Article 3(1) of Regulation (EC) No. 883/2004 of the European Parliament and of the Council on the co-ordination of social security systems (as amended from time to time); ‘social protection’ includes an intervention described in Article  2(b) of Regulation (EC) 458/2007 of the European Parliament and of the Council of 25 April 2007 on the European system of integrated social protection statistics (ESSPROS) (as amended from time to time). 2  Health or social care purposes

(1) This condition is met if the processing is necessary for health or social care purposes. 386

Schedule 1 Special categories of personal data and criminal convictions etc data

(2) In this paragraph ‘health or social care purposes’ means the purposes of— (a) preventive or occupational medicine, (b) the assessment of the working capacity of an employee, (c) medical diagnosis, (d) the provision of health care or treatment, (e) the provision of social care, or (f) the management of health care systems or services or social care systems or services. (3) See also the conditions and safeguards in Article 9(3) of the [UK GDPR]1 (obligations of secrecy) and section 11(1). Amendments 1 Substituted by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 91(1), (2).

3  Public health

This condition is met if the processing— (a) is necessary for reasons of public interest in the area of public health, and (b) is carried out— (i) by or under the responsibility of a health professional, or (ii) by another person who in the circumstances owes a duty of confidentiality under an enactment or rule of law. 4  Research etc

This condition is met if the processing— (a) is necessary for archiving purposes, scientific or historical research purposes or statistical purposes, (b) is carried out in accordance with Article 89(1) of the [UK GDPR]1 (as supplemented by section 19), and (c) is in the public interest. Amendments 1 Substituted by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 91(1), (3).

387

Statutes

Part 2 Substantial public interest conditions 5 Requirement for an appropriate policy document when relying on conditions in this Part

(1) Except as otherwise provided, a condition in this Part of this Schedule is met only if, when the processing is carried out, the controller has an appropriate policy document in place (see paragraph 39 in Part 4 of this Schedule). (2) See also the additional safeguards in Part 4 of this Schedule. 6  Statutory etc and government purposes

(1) This condition is met if the processing— (a) is necessary for a purpose listed in sub-paragraph (2), and (b) is necessary for reasons of substantial public interest. (2) Those purposes are— (a) the exercise of a function conferred on a person by an enactment or rule of law; (b) the exercise of a function of the Crown, a Minister of the Crown or a government department. 7  Administration of justice and parliamentary purposes

This condition is met if the processing is necessary— (a) for the administration of justice, or (b) for the exercise of a function of either House of Parliament. 8  Equality of opportunity or treatment

(1) This condition is met if the processing— (a) is of a specified category of personal data, and (b) is necessary for the purposes of identifying or keeping under review the existence or absence of equality of opportunity or treatment between groups of people specified in relation to that category with a view to enabling such equality to be promoted or maintained, subject to the exceptions in sub-paragraphs (3) to (5). (2) In sub-paragraph (1), ‘specified’ means specified in the following table— Category of personal data

Groups of people (in relation to a category of personal data)

Personal data revealing racial or ethnic origin

People of different racial or ethnic origins

388

Schedule 1 Special categories of personal data and criminal convictions etc data Personal data revealing religious or philosophical beliefs

People holding different religious or philosophical beliefs

Data concerning health

People with different states of physical or mental health

Personal data concerning an individual’s sexual orientation

People of different sexual orientation

(3) Processing does not meet the condition in sub-paragraph (1) if it is carried out for the purposes of measures or decisions with respect to a particular data subject. (4) Processing does not meet the condition in sub-paragraph (1) if it is likely to cause substantial damage or substantial distress to an individual. (5) Processing does not meet the condition in sub-paragraph (1) if— (a) an individual who is the data subject (or one of the data subjects) has given notice in writing to the controller requiring the controller not to process personal data in respect of which the individual is the data subject (and has not given notice in writing withdrawing that requirement), (b) the notice gave the controller a reasonable period in which to stop processing such data, and (c) that period has ended. 9  Racial and ethnic diversity at senior levels of organisations

(1) This condition is met if the processing— (a) is of personal data revealing racial or ethnic origin, (b) is carried out as part of a process of identifying suitable individuals to hold senior positions in a particular organisation, a type of organisation or organisations generally, (c) is necessary for the purposes of promoting or maintaining diversity in the racial and ethnic origins of individuals who hold senior positions in the organisation or organisations, and (d) can reasonably be carried out without the consent of the data subject, subject to the exception in sub-paragraph (3). (2) For the purposes of sub-paragraph  (1)(d), processing can reasonably be carried out without the consent of the data subject only where— (a) the controller cannot reasonably be expected to obtain the consent of the data subject, and (b) the controller is not aware of the data subject withholding consent. (3) Processing does not meet the condition in sub-paragraph (1) if it is likely to cause substantial damage or substantial distress to an individual. 389

Statutes

(4) For the purposes of this paragraph, an individual holds a senior position in an organisation if the individual— (a) holds a position listed in sub-paragraph (5), or (b) does not hold such a position but is a senior manager of the organisation. (5) Those positions are— (a) a director, secretary or other similar officer of a body corporate; (b) a member of a limited liability partnership; (c) a partner in a partnership within the Partnership Act 1890, a limited partnership registered under the Limited Partnerships Act 1907 or an entity of a similar character formed under the law of a country or territory outside the United Kingdom. (6) In this paragraph, ‘senior manager’, in relation to an organisation, means a person who plays a significant role in— (a) the making of decisions about how the whole or a substantial part of the organisation’s activities are to be managed or organised, or (b) the actual managing or organising of the whole or a substantial part of those activities. (7) The reference in sub-paragraph (2)(b) to a data subject withholding consent does not include a data subject merely failing to respond to a request for consent. 10  Preventing or detecting unlawful acts

(1) This condition is met if the processing— (a) is necessary for the purposes of the prevention or detection of an unlawful act, (b) must be carried out without the consent of the data subject so as not to prejudice those purposes, and (c) is necessary for reasons of substantial public interest. (2) If the processing consists of the disclosure of personal data to a competent authority, or is carried out in preparation for such disclosure, the condition in sub-paragraph  (1) is met even if, when the processing is carried out, the controller does not have an appropriate policy document in place (see paragraph 5 of this Schedule). (3) In this paragraph— ‘act’ includes a failure to act; ‘competent authority’ has the same meaning as in Part 3 of this Act (see section 30). 390

Schedule 1 Special categories of personal data and criminal convictions etc data

11  Protecting the public against dishonesty etc

(1) This condition is met if the processing— (a) is necessary for the exercise of a protective function, (b) must be carried out without the consent of the data subject so as not to prejudice the exercise of that function, and (c) is necessary for reasons of substantial public interest. (2) In this paragraph, ‘protective function’ means a function which is intended to protect members of the public against— (a) dishonesty, malpractice or other seriously improper conduct, (b) unfitness or incompetence, (c) mismanagement in the administration of a body or association, or (d) failures in services provided by a body or association. 12  Regulatory requirements relating to unlawful acts and dishonesty etc

(1) This condition is met if— (a) the processing is necessary for the purposes of complying with, or assisting other persons to comply with, a regulatory requirement which involves a person taking steps to establish whether another person has— (i) committed an unlawful act, or (ii) been involved in dishonesty, malpractice or other seriously improper conduct, (b) in the circumstances, the controller cannot reasonably be expected to obtain the consent of the data subject to the processing, and (c) the processing is necessary for reasons of substantial public interest. (2) In this paragraph— ‘act’ includes a failure to act; ‘regulatory requirement’ means— (a) a requirement imposed by legislation or by a person in exercise of a function conferred by legislation, or (b) a requirement forming part of generally accepted principles of good practice relating to a type of body or an activity. 13  Journalism etc in connection with unlawful acts and dishonesty etc

(1) This condition is met if— (a) the processing consists of the disclosure of personal data for the special purposes, 391

Statutes

(b) it is carried out in connection with a matter described in subparagraph (2), (c) it is necessary for reasons of substantial public interest, (d) it is carried out with a view to the publication of the personal data by any person, and (e) the controller reasonably believes that publication of the personal data would be in the public interest. (2) The matters mentioned in sub-paragraph  (1)(b) are any of the following (whether alleged or established)— (a) the commission of an unlawful act by a person; (b) dishonesty, malpractice or other seriously improper conduct of a person; (c) unfitness or incompetence of a person; (d) mismanagement in the administration of a body or association; (e) a failure in services provided by a body or association. (3) The condition in sub-paragraph (1) is met even if, when the processing is carried out, the controller does not have an appropriate policy document in place (see paragraph 5 of this Schedule). (4) In this paragraph— ‘act’ includes a failure to act; ‘the special purposes’ means— (a) the purposes of journalism; (b) academic purposes; (c) artistic purposes; (d) literary purposes. 14  Preventing fraud

(1) This condition is met if the processing— (a) is necessary for the purposes of preventing fraud or a particular kind of fraud, and (b) consists of— (i) the disclosure of personal data by a person as a member of an antifraud organisation, (ii) the disclosure of personal data in accordance with arrangements made by an anti-fraud organisation, or (iii) the processing of personal data disclosed as described in subparagraph (i) or (ii). 392

Schedule 1 Special categories of personal data and criminal convictions etc data

(2) In this paragraph, ‘anti-fraud organisation’ has the same meaning as in section 68 of the Serious Crime Act 2007. 15  Suspicion of terrorist financing or money laundering

This condition is met if the processing is necessary for the purposes of making a disclosure in good faith under either of the following— (a) section 21CA of the Terrorism Act 2000 (disclosures between certain entities within regulated sector in relation to suspicion of commission of terrorist financing offence or for purposes of identifying terrorist property); (b) section 339ZB of the Proceeds of Crime Act 2002 (disclosures within regulated sector in relation to suspicion of money laundering). 16  Support for individuals with a particular disability or medical condition

(1) This condition is met if the processing— (a) is carried out by a not-for-profit body which provides support to individuals with a particular disability or medical condition, (b) is of a type of personal data falling within sub-paragraph  (2) which relates to an individual falling within sub-paragraph (3), (c) is necessary for the purposes of— (i) raising awareness of the disability or medical condition, or (ii) providing support to individuals falling within sub-paragraph (3) or enabling such individuals to provide support to each other, (d) can reasonably be carried out without the consent of the data subject, and (e) is necessary for reasons of substantial public interest. (2) The following types of personal data fall within this sub-paragraph— (a) personal data revealing racial or ethnic origin; (b) genetic data or biometric data; (c) data concerning health; (d) personal data concerning an individual’s sex life or sexual orientation. (3) An individual falls within this sub-paragraph if the individual is or has been a member of the body mentioned in sub-paragraph (1)(a) and— (a) has the disability or condition mentioned there, has had that disability or condition or has a significant risk of developing that disability or condition, or (b) is a relative or carer of an individual who satisfies paragraph (a) of this sub-paragraph. 393

Statutes

(4) For the purposes of sub-paragraph  (1)(d), processing can reasonably be carried out without the consent of the data subject only where— (a) the controller cannot reasonably be expected to obtain the consent of the data subject, and (b) the controller is not aware of the data subject withholding consent. (5) In this paragraph— ‘carer’ means an individual who provides or intends to provide care for another individual other than— (a) under or by virtue of a contract, or (b) as voluntary work; ‘disability’ has the same meaning as in the Equality Act 2010 (see section 6 of, and Schedule 1 to, that Act). (6) The reference in sub-paragraph (4)(b) to a data subject withholding consent does not include a data subject merely failing to respond to a request for consent. 17  Counselling etc

(1) This condition is met if the processing— (a) is necessary for the provision of confidential counselling, advice or support or of another similar service provided confidentially, (b) is carried out without the consent of the data subject for one of the reasons listed in sub-paragraph (2), and (c) is necessary for reasons of substantial public interest. (2) The reasons mentioned in sub-paragraph (1)(b) are— (a) in the circumstances, consent to the processing cannot be given by the data subject; (b) in the circumstances, the controller cannot reasonably be expected to obtain the consent of the data subject to the processing; (c) the processing must be carried out without the consent of the data subject because obtaining the consent of the data subject would prejudice the provision of the service mentioned in sub-paragraph (1)(a). 18  Safeguarding of children and of individuals at risk

(1) This condition is met if— (a) the processing is necessary for the purposes of— (i) protecting an individual from neglect or physical, mental or emotional harm, or 394

Schedule 1 Special categories of personal data and criminal convictions etc data

(ii) protecting the physical, mental or emotional well-being of an individual, (b) the individual is— (i) aged under 18, or (ii) aged 18 or over and at risk, (c) the processing is carried out without the consent of the data subject for one of the reasons listed in sub-paragraph (2), and (d) the processing is necessary for reasons of substantial public interest. (2) The reasons mentioned in sub-paragraph (1)(c) are— (a) in the circumstances, consent to the processing cannot be given by the data subject; (b) in the circumstances, the controller cannot reasonably be expected to obtain the consent of the data subject to the processing; (c) the processing must be carried out without the consent of the data subject because obtaining the consent of the data subject would prejudice the provision of the protection mentioned in sub-paragraph (1)(a). (3) For the purposes of this paragraph, an individual aged 18 or over is ‘at risk’ if the controller has reasonable cause to suspect that the individual— (a) has needs for care and support, (b) is experiencing, or at risk of, neglect or physical, mental or emotional harm, and (c) as a result of those needs is unable to protect himself or herself against the neglect or harm or the risk of it. (4) In sub-paragraph  (1)(a), the reference to the protection of an individual or of the well-being of an individual includes both protection relating to a particular individual and protection relating to a type of individual. 19  Safeguarding of economic well-being of certain individuals

(1) This condition is met if the processing— (a) is necessary for the purposes of protecting the economic well-being of an individual at economic risk who is aged 18 or over, (b) is of data concerning health, (c) is carried out without the consent of the data subject for one of the reasons listed in sub-paragraph (2), and (d) is necessary for reasons of substantial public interest. (2) The reasons mentioned in sub-paragraph (1)(c) are— 395

Statutes

(a) in the circumstances, consent to the processing cannot be given by the data subject; (b) in the circumstances, the controller cannot reasonably be expected to obtain the consent of the data subject to the processing; (c) the processing must be carried out without the consent of the data subject because obtaining the consent of the data subject would prejudice the provision of the protection mentioned in sub-paragraph (1)(a). (3) In this paragraph, ‘individual at economic risk’ means an individual who is less able to protect his or her economic well-being by reason of physical or mental injury, illness or disability. 20 Insurance

(1) This condition is met if the processing— (a) is necessary for an insurance purpose, (b) is of personal data revealing racial or ethnic origin, religious or philosophical beliefs or trade union membership, genetic data or data concerning health, and (c) is necessary for reasons of substantial public interest, subject to sub-paragraphs (2) and (3). (2) Sub-paragraph (3) applies where— (a) the processing is not carried out for the purposes of measures or decisions with respect to the data subject, and (b) the data subject does not have and is not expected to acquire— (i) rights against, or obligations in relation to, a person who is an insured person under an insurance contract to which the insurance purpose mentioned in sub-paragraph (1)(a) relates, or (ii) other rights or obligations in connection with such a contract. (3) Where this sub-paragraph applies, the processing does not meet the condition in sub-paragraph (1) unless, in addition to meeting the requirements in that sub-paragraph, it can reasonably be carried out without the consent of the data subject. (4) For the purposes of sub-paragraph (3), processing can reasonably be carried out without the consent of the data subject only where— (a) the controller cannot reasonably be expected to obtain the consent of the data subject, and (b) the controller is not aware of the data subject withholding consent. (5) In this paragraph— 396

Schedule 1 Special categories of personal data and criminal convictions etc data

‘insurance contract’ means a contract of general insurance or long-term insurance; ‘insurance purpose’ means— (a) advising on, arranging, underwriting or administering an insurance contract, (b) administering a claim under an insurance contract, or (c) exercising a right, or complying with an obligation, arising in connection with an insurance contract, including a right or obligation arising under an enactment or rule of law. (6) The reference in sub-paragraph (4)(b) to a data subject withholding consent does not include a data subject merely failing to respond to a request for consent. (7) Terms used in the definition of ‘insurance contract’ in sub-paragraph (5) and also in an order made under section 22 of the Financial Services and Markets Act 2000 (regulated activities) have the same meaning in that definition as they have in that order. 21  Occupational pensions

(1) This condition is met if the processing— (a) is necessary for the purpose of making a determination in connection with eligibility for, or benefits payable under, an occupational pension scheme, (b) is of data concerning health which relates to a data subject who is the parent, grandparent, great-grandparent or sibling of a member of the scheme, (c) is not carried out for the purposes of measures or decisions with respect to the data subject, and (d) can reasonably be carried out without the consent of the data subject. (2) For the purposes of sub-paragraph  (1)(d), processing can reasonably be carried out without the consent of the data subject only where— (a) the controller cannot reasonably be expected to obtain the consent of the data subject, and (b) the controller is not aware of the data subject withholding consent. (3) In this paragraph— ‘occupational pension scheme’ has the meaning given in section 1 of the Pension Schemes Act 1993; ‘member’, in relation to a scheme, includes an individual who is seeking to become a member of the scheme. 397

Statutes

(4) The reference in sub-paragraph (2)(b) to a data subject withholding consent does not include a data subject merely failing to respond to a request for consent. 22  Political parties

(1) This condition is met if the processing— (a) is of personal data revealing political opinions, (b) is carried out by a person or organisation included in the register maintained under section 23 of the Political Parties, Elections and Referendums Act 2000, and (c) is necessary for the purposes of the person’s or organisation’s political activities, subject to the exceptions in sub-paragraphs (2) and (3). (2) Processing does not meet the condition in sub-paragraph (1) if it is likely to cause substantial damage or substantial distress to a person. (3) Processing does not meet the condition in sub-paragraph (1) if— (a) an individual who is the data subject (or one of the data subjects) has given notice in writing to the controller requiring the controller not to process personal data in respect of which the individual is the data subject (and has not given notice in writing withdrawing that requirement), (b) the notice gave the controller a reasonable period in which to stop processing such data, and (c) that period has ended. (4) In this paragraph, ‘political activities’ include campaigning, fund-raising, political surveys and case-work. 23  Elected representatives responding to requests

(1) This condition is met if— (a) the processing is carried out— (i) by an elected representative or a person acting with the authority of such a representative, (ii) in connection with the discharge of the elected representative’s functions, and (iii) in response to a request by an individual that the elected representative take action on behalf of the individual, and (b) the processing is necessary for the purposes of, or in connection with, the action reasonably taken by the elected representative in response to that request, 398

Schedule 1 Special categories of personal data and criminal convictions etc data

subject to sub-paragraph (2). (2) Where the request is made by an individual other than the data subject, the condition in sub-paragraph (1) is met only if the processing must be carried out without the consent of the data subject for one of the following reasons— (a) in the circumstances, consent to the processing cannot be given by the data subject; (b) in the circumstances, the elected representative cannot reasonably be expected to obtain the consent of the data subject to the processing; (c) obtaining the consent of the data subject would prejudice the action taken by the elected representative; (d) the processing is necessary in the interests of another individual and the data subject has withheld consent unreasonably. (3) In this paragraph, ‘elected representative’ means— (a) a member of the House of Commons; (b) a member of the National Assembly for Wales; (c) a member of the Scottish Parliament; (d) a member of the Northern Ireland Assembly; (e) a member of the European Parliament elected in the United Kingdom; (f) an elected member of a local authority within the meaning of section 270(1) of the Local Government Act 1972, namely— (i) in England, a county council, a district council, a London borough council or a parish council; (ii) in Wales, a county council, a county borough council or a community council; (g) an elected mayor of a local authority within the meaning of Part 1A or 2 of the Local Government Act 2000; (h) a mayor for the area of a combined authority established under section 103 of the Local Democracy, Economic Development and Construction Act 2009; (i) the Mayor of London or an elected member of the London Assembly; (j) an elected member of— (i) the Common Council of the City of London, or (ii) the Council of the Isles of Scilly; (k) an elected member of a council constituted under section 2 of the Local Government etc (Scotland) Act 1994; (l) an elected member of a district council within the meaning of the Local Government Act (Northern Ireland) 1972 (c. 9 (N.I.)); 399

Statutes

(m) a police and crime commissioner. (4) For the purposes of sub-paragraph (3), a person who is— (a) a member of the House of Commons immediately before Parliament is dissolved, (b) a member of the National Assembly for Wales immediately before that Assembly is dissolved, (c) a member of the Scottish Parliament immediately before that Parliament is dissolved, or (d) a member of the Northern Ireland Assembly immediately before that Assembly is dissolved, is to be treated as if the person were such a member until the end of the fourth day after the day on which the subsequent general election in relation to that Parliament or Assembly is held. (5) For the purposes of sub-paragraph (3), a person who is an elected member of the Common Council of the City of London and whose term of office comes to an end at the end of the day preceding the annual Wardmotes is to be treated as if he or she were such a member until the end of the fourth day after the day on which those Wardmotes are held. 24  Disclosure to elected representatives

(1) This condition is met if— (a) the processing consists of the disclosure of personal data— (i) to an elected representative or a person acting with the authority of such a representative, and (ii) in response to a communication to the controller from that representative or person which was made in response to a request from an individual, (b) the personal data is relevant to the subject matter of that communication, and (c) the disclosure is necessary for the purpose of responding to that communication, subject to sub-paragraph (2). (2) Where the request to the elected representative came from an individual other than the data subject, the condition in sub-paragraph (1) is met only if the disclosure must be made without the consent of the data subject for one of the following reasons— (a) in the circumstances, consent to the processing cannot be given by the data subject; 400

Schedule 1 Special categories of personal data and criminal convictions etc data

(b) in the circumstances, the elected representative cannot reasonably be expected to obtain the consent of the data subject to the processing; (c) obtaining the consent of the data subject would prejudice the action taken by the elected representative; (d) the processing is necessary in the interests of another individual and the data subject has withheld consent unreasonably. (3) In this paragraph, ‘elected representative’ has the same meaning as in paragraph 23. 25  Informing elected representatives about prisoners

(1) This condition is met if— (a) the processing consists of the processing of personal data about a prisoner for the purpose of informing a member of the House of Commons, a member of the National Assembly for Wales or a member of the Scottish Parliament about the prisoner, and (b) the member is under an obligation not to further disclose the personal data. (2) The references in sub-paragraph (1) to personal data about, and to informing someone about, a prisoner include personal data about, and informing someone about, arrangements for the prisoner’s release. (3) In this paragraph— ‘prison’ includes a young offender institution, a remand centre, a secure training centre or a secure college; ‘prisoner’ means a person detained in a prison. 26  Publication of legal judgments

This condition is met if the processing— (a) consists of the publication of a judgment or other decision of a court or tribunal, or (b) is necessary for the purposes of publishing such a judgment or decision. 27  Anti-doping in sport

(1) This condition is met if the processing is necessary— (a) for the purposes of measures designed to eliminate doping which are undertaken by or under the responsibility of a body or association that is responsible for eliminating doping in a sport, at a sporting event or in sport generally, or (b) for the purposes of providing information about doping, or suspected doping, to such a body or association. 401

Statutes

(2) The reference in sub-paragraph  (1)(a) to measures designed to eliminate doping includes measures designed to identify or prevent doping. (3) If the processing consists of the disclosure of personal data to a body or association described in sub-paragraph (1)(a), or is carried out in preparation for such disclosure, the condition in sub-paragraph (1) is met even if, when the processing is carried out, the controller does not have an appropriate policy document in place (see paragraph 5 of this Schedule). 28  Standards of behaviour in sport

(1) This condition is met if the processing— (a) is necessary for the purposes of measures designed to protect the integrity of a sport or a sporting event, (b) must be carried out without the consent of the data subject so as not to prejudice those purposes, and (c) is necessary for reasons of substantial public interest. (2) In sub-paragraph (1)(a), the reference to measures designed to protect the integrity of a sport or a sporting event is a reference to measures designed to protect a sport or a sporting event against— (a) dishonesty, malpractice or other seriously improper conduct, or (b) failure by a person participating in the sport or event in any capacity to comply with standards of behaviour set by a body or association with responsibility for the sport or event.

Part 3 Additional conditions relating to criminal convictions etc 29 Consent

This condition is met if the data subject has given consent to the processing. 30  Protecting individual’s vital interests

This condition is met if— (a) the processing is necessary to protect the vital interests of an individual, and (b) the data subject is physically or legally incapable of giving consent. 31  Processing by not-for-profit bodies

This condition is met if the processing is carried out— (a) in the course of its legitimate activities with appropriate safeguards by a foundation, association or other not-for-profit body with a political, philosophical, religious or trade union aim, and (b) on condition that— 402

Schedule 1 Special categories of personal data and criminal convictions etc data

(i) the processing relates solely to the members or to former members of the body or to persons who have regular contact with it in connection with its purposes, and (ii) the personal data is not disclosed outside that body without the consent of the data subjects. 32  Personal data in the public domain

This condition is met if the processing relates to personal data which is manifestly made public by the data subject. 33  Legal claims

This condition is met if the processing— (a) is necessary for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings), (b) is necessary for the purpose of obtaining legal advice, or (c) is otherwise necessary for the purposes of establishing, exercising or defending legal rights. 34  Judicial acts

This condition is met if the processing is necessary when a court or tribunal is acting in its judicial capacity. 35  Administration of accounts used in commission of indecency offences involving children

(1) This condition is met if— (a) the processing is of personal data about a conviction or caution for an offence listed in sub-paragraph (2), (b) the processing is necessary for the purpose of administering an account relating to the payment card used in the commission of the offence or cancelling that payment card, and (c) when the processing is carried out, the controller has an appropriate policy document in place (see paragraph 39 in Part 4 of this Schedule). (2) Those offences are an offence under— (a) section 1 of the Protection of Children Act 1978 (indecent photographs of children), (b) Article 3 of the Protection of Children (Northern Ireland) Order 1978 (S.I. 1978/1047 (N.I. 17)) (indecent photographs of children), (c) section 52 of the Civic Government (Scotland) Act 1982 (indecent photographs etc of children), 403

Statutes

(d) section 160 of the Criminal Justice Act 1988 (possession of indecent photograph of child), (e) Article 15 of the Criminal Justice (Evidence etc) (Northern Ireland) Order 1988 (S.I. 1988/1847 (N.I. 17)) (possession of indecent photograph of child), or (f) section 62 of the Coroners and Justice Act 2009 (possession of prohibited images of children), or incitement to commit an offence under any of those provisions. (3) See also the additional safeguards in Part 4 of this Schedule. (4) In this paragraph— ‘caution’ means a caution given to a person in England and Wales or Northern Ireland in respect of an offence which, at the time when the caution is given, is admitted; ‘conviction’ has the same meaning as in the Rehabilitation of Offenders Act 1974 or the Rehabilitation of Offenders (Northern Ireland) Order 1978 (S.I. 1978/1908 (N.I. 27)); ‘payment card’ includes a credit card, a charge card and a debit card. 36  Extension of conditions in Part 2 of this Schedule referring to substantial public interest

This condition is met if the processing would meet a condition in Part 2 of this Schedule but for an express requirement for the processing to be necessary for reasons of substantial public interest. 37  Extension of insurance conditions

This condition is met if the processing— (a) would meet the condition in paragraph 20 in Part 2 of this Schedule (the ‘insurance condition’), or (b) would meet the condition in paragraph  36 by virtue of the insurance condition, but for the requirement for the processing to be processing of a category of personal data specified in paragraph 20(1)(b).

Part 4 Appropriate policy document and additional safeguards 38  Application of this Part of this Schedule

This Part of this Schedule makes provision about the processing of personal data carried out in reliance on a condition in Part 1, 2 or 3 of this Schedule which 404

Schedule 1 Special categories of personal data and criminal convictions etc data

requires the controller to have an appropriate policy document in place when the processing is carried out. 39  Requirement to have an appropriate policy document in place

The controller has an appropriate policy document in place in relation to the processing of personal data in reliance on a condition described in paragraph 38 if the controller has produced a document which— (a) explains the controller’s procedures for securing compliance with the principles in Article  5 of the [UK GDPR]1 (principles relating to processing of personal data) in connection with the processing of personal data in reliance on the condition in question, and (b) explains the controller’s policies as regards the retention and erasure of personal data processed in reliance on the condition, giving an indication of how long such personal data is likely to be retained. Amendments 1 Substituted by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 91(1), (4).

40  Additional safeguard: retention of appropriate policy document

(1) Where personal data is processed in reliance on a condition described in paragraph 38, the controller must during the relevant period— (a) retain the appropriate policy document, (b) review and (if appropriate) update it from time to time, and (c) make it available to the Commissioner, on request, without charge. (2) ‘Relevant period’, in relation to the processing of personal data in reliance on a condition described in paragraph 38, means a period which— (a) begins when the controller starts to carry out processing of personal data in reliance on that condition, and (b) ends at the end of the period of 6 months beginning when the controller ceases to carry out such processing. 41  Additional safeguard: record of processing

A record maintained by the controller, or the controller’s representative, under Article 30 of the [UK GDPR]1 in respect of the processing of personal data in reliance on a condition described in paragraph  38 must include the following information— (a) which condition is relied on, (b) how the processing satisfies Article 6 of the [UK GDPR]1 (lawfulness of processing), and 405

Statutes

(c) whether the personal data is retained and erased in accordance with the policies described in paragraph 39(b) and, if it is not, the reasons for not following those policies. Amendments 1 Substituted by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 91(1), (5).

SCHEDULE 2 EXEMPTIONS ETC FROM THE [UK GDPR]1 Section 15

Part 1 Adaptations and restrictions [as described in]1 Articles 6(3) and 23(1) 1  [UK GDPR]1 provisions to be adapted or restricted: ‘the listed GDPR provisions’

In this Part of this Schedule, ‘the listed GDPR provisions’ means— (a) the following provisions of the [UK GDPR]1 (the rights and obligations in which may be restricted by virtue of Article  23(1) of the [UK GDPR]1)— (i) Article  13(1) to (3) (personal data collected from data subject: information to be provided); (ii) Article  14(1) to (4) (personal data collected other than from data subject: information to be provided); (iii) Article 15(1) to (3) (confirmation of processing, access to data and safeguards for third country transfers); (iv) Article 16 (right to rectification); (v) Article 17(1) and (2) (right to erasure); (vi) Article 18(1) (restriction of processing); (vii)  Article 19 (notification obligation regarding rectification or erasure of personal data or restriction of processing); (viii)  Article 20(1) and (2) (right to data portability); (ix) Article 21(1) (objections to processing); (x) Article 5 (general principles) so far as its provisions correspond to the rights and obligations provided for in the provisions mentioned in sub-paragraphs (i) to (ix); and 406

Schedule 2 Exemptions etc from the [UK GDPR]1

(b) the following provisions of the [UK GDPR]1 (the application of which may be adapted by virtue of Article 6(3) of the [UK GDPR]1)— (i) Article 5(1)(a) (lawful, fair and transparent processing), other than the lawfulness requirements set out in Article 6; (ii) Article 5(1)(b) (purpose limitation). Amendments 1 Substituted by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 92(1)-(5).

2  Crime and taxation: general

(1) The listed GDPR provisions and Article 34(1) and (4) of the [UK GDPR]1 (communication of personal data breach to the data subject) do not apply to personal data processed for any of the following purposes— (a) the prevention or detection of crime, (b) the apprehension or prosecution of offenders, or (c) the assessment or collection of a tax or duty or an imposition of a similar nature, to the extent that the application of those provisions would be likely to prejudice any of the matters mentioned in paragraphs (a) to (c). (2) Sub-paragraph (3) applies where— (a) personal data is processed by a person (‘Controller 1’) for any of the purposes mentioned in sub-paragraph (1)(a) to (c), and (b) another person (‘Controller 2’) obtains the data from Controller 1 for the purpose of discharging statutory functions and processes it for the purpose of discharging statutory functions. (3) Controller 2 is exempt from the obligations in the following provisions of the [UK GDPR]1— (a) Article  13(1) to (3) (personal data collected from data subject: information to be provided), (b) Article 14(1) to (4) (personal data collected other than from data subject: information to be provided), (c) Article  15(1) to (3) (confirmation of processing, access to data and safeguards for third country transfers), and (d) Article  5 (general principles) so far as its provisions correspond to the rights and obligations provided for in the provisions mentioned in paragraphs (a) to (c), to the same extent that Controller 1 is exempt from those obligations by virtue of sub-paragraph (1). 407

Statutes

Amendments 1 Substituted by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 92(1), (6).

3  Crime and taxation: risk assessment systems

(1) The [UK GDPR]1 provisions listed in sub-paragraph  (3) do not apply to personal data which consists of a classification applied to the data subject as part of a risk assessment system falling within sub-paragraph (2) to the extent that the application of those provisions would prevent the system from operating effectively. (2) A risk assessment system falls within this sub-paragraph if— (a) it is operated by a government department, a local authority or another authority administering housing benefit, and (b) it is operated for the purposes of— (i) the assessment or collection of a tax or duty or an imposition of a similar nature, or (ii) the prevention or detection of crime or apprehension or prosecution of offenders, where the offence concerned involves the unlawful use of public money or an unlawful claim for payment out of public money. (3) The [UK GDPR]1 provisions referred to in sub-paragraph  (1) are the following provisions of the [UK GDPR]1 (the rights and obligations in which may be restricted by virtue of Article 23(1) of the [UK GDPR]1)— (a) Article  13(1) to (3) (personal data collected from data subject: information to be provided); (b) Article 14(1) to (4) (personal data collected other than from data subject: information to be provided); (c) Article  15(1) to (3) (confirmation of processing, access to data and safeguards for third country transfers); (d) Article  5 (general principles) so far as its provisions correspond to the rights and obligations provided for in the provisions mentioned in paragraphs (a) to (c). Amendments 1 Substituted by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 92(1), (7).

4 Immigration

(1) The [UK GDPR]1 provisions listed in sub-paragraph  (2) do not apply to personal data processed for any of the following purposes— 408

Schedule 2 Exemptions etc from the [UK GDPR]1

(a) the maintenance of effective immigration control, or (b) the investigation or detection of activities that would undermine the maintenance of effective immigration control, to the extent that the application of those provisions would be likely to prejudice any of the matters mentioned in paragraphs (a) and (b). (2) The [UK GDPR]1 provisions referred to in sub-paragraph  (1) are the following provisions of the [UK GDPR]1 (the rights and obligations in which may be restricted by virtue of Article 23(1) of the [UK GDPR]1)— (a) Article  13(1) to (3) (personal data collected from data subject: information to be provided); (b) Article 14(1) to (4) (personal data collected other than from data subject: information to be provided); (c) Article  15(1) to (3) (confirmation of processing, access to data and safeguards for third country transfers); (d) Article 17(1) and (2) (right to erasure); (e) Article 18(1) (restriction of processing); (f) Article 21(1) (objections to processing); (g) Article 5 (general principles) so far as its provisions correspond to the rights and obligations provided for in the provisions mentioned in subparagraphs (a) to (f). (That is, the listed GDPR provisions other than Article  16 (right to rectification), Article  19 (notification obligation regarding rectification or erasure of personal data or restriction of processing) and Article 20(1) and (2) (right to data portability) and, subject to sub-paragraph  (2)(g) of this paragraph, the provisions of Article 5 listed in paragraph 1(b).) (3) Sub-paragraph (4) applies where— (a) personal data is processed by a person (‘Controller 1’), and (b) another person (‘Controller 2’) obtains the data from Controller 1 for any of the purposes mentioned in sub-paragraph  (1)(a) and (b) and processes it for any of those purposes. (4) Controller 1 is exempt from the obligations in the following provisions of the [UK GDPR]1— (a) Article  13(1) to (3) (personal data collected from data subject: information to be provided), (b) Article 14(1) to (4) (personal data collected other than from data subject: information to be provided), (c) Article  15(1) to (3) (confirmation of processing, access to data and safeguards for third country transfers), and 409

Statutes

(d) Article  5 (general principles) so far as its provisions correspond to the rights and obligations provided for in the provisions mentioned in paragraphs (a) to (c), to the same extent that Controller 2 is exempt from those obligations by virtue of sub-paragraph (1). Amendments 1 Substituted by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 92(1), (8).

5 Information required to be disclosed by law etc or in connection with legal proceedings

(1) The listed GDPR provisions do not apply to personal data consisting of information that the controller is obliged by an enactment to make available to the public, to the extent that the application of those provisions would prevent the controller from complying with that obligation. (2) The listed GDPR provisions do not apply to personal data where disclosure of the data is required by an enactment, a rule of law or an order of a court or tribunal, to the extent that the application of those provisions would prevent the controller from making the disclosure. (3) The listed GDPR provisions do not apply to personal data where disclosure of the data— (a) is necessary for the purpose of, or in connection with, legal proceedings (including prospective legal proceedings), (b) is necessary for the purpose of obtaining legal advice, or (c) is otherwise necessary for the purposes of establishing, exercising or defending legal rights, to the extent that the application of those provisions would prevent the controller from making the disclosure.

Part 2 Restrictions [as described in]1 Article 23(1): restrictions of rules in Articles 13 to 21 and 34 6  [UK GDPR]1 provisions to be restricted: ‘the listed GDPR provisions’

In this Part of this Schedule, ‘the listed GDPR provisions’ means the following provisions of the [UK GDPR]1 (the rights and obligations in which may be restricted by virtue of Article 23(1) of the [UK GDPR]1)— (a) Article  13(1) to (3) (personal data collected from data subject: information to be provided); 410

Schedule 2 Exemptions etc from the [UK GDPR]1

(b) Article 14(1) to (4) (personal data collected other than from data subject: information to be provided); (c) Article  15(1) to (3) (confirmation of processing, access to data and safeguards for third country transfers); (d) Article 16 (right to rectification); (e) Article 17(1) and (2) (right to erasure); (f) Article 18(1) (restriction of processing); (g) Article 19 (notification obligation regarding rectification or erasure of personal data or restriction of processing); (h) Article 20(1) and (2) (right to data portability); (i) Article 21(1) (objections to processing); (j) Article 5 (general principles) so far as its provisions correspond to the rights and obligations provided for in the provisions mentioned in subparagraphs (a) to (i). Amendments 1 Substituted by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 92(1), (9)-(11).

7  Functions designed to protect the public etc

The listed GDPR provisions do not apply to personal data processed for the purposes of discharging a function that— (a) is designed as described in column 1 of the Table, and (b) meets the condition relating to the function specified in column 2 of the Table, to the extent that the application of those provisions would be likely to prejudice the proper discharge of the function. Description of function design

Condition

1. The function is designed to protect members of the public against— (a) financial loss due to dishonesty, malpractice or other seriously improper conduct by, or the unfitness or incompetence of, persons concerned in the provision of banking, insurance, investment or other financial services or in the management of bodies corporate, or (b) financial loss due to the conduct of discharged or undischarged bankrupts.

The function is— (a) conferred on a person by an enactment, (b) a function of the Crown, a Minister of the Crown or a government department, or (c) of a public nature, and is exercised in the public interest.

411

Statutes Description of function design

Condition

2. The function is designed to protect members of the public against— (a) dishonesty, malpractice or other seriously improper conduct, or (b) unfitness or incompetence.

The function is— (a) conferred on a person by an enactment, (b) a function of the Crown, a Minister of the Crown or a government department, or (c) of a public nature, and is exercised in the public interest.

3. The function is designed— (a) to protect charities or community interest companies against misconduct or mismanagement (whether by trustees, directors or other persons) in their administration, (b) to protect the property of charities or community interest companies from loss or misapplication, or (c) to recover the property of charities or community interest companies.

The function is— (a) conferred on a person by an enactment, (b) a function of the Crown, a Minister of the Crown or a government department, or (c) of a public nature, and is exercised in the public interest.

4. The function is designed— (a) to secure the health, safety and welfare of persons at work, or (b) to protect persons other than those at work against risk to health or safety arising out of or in connection with the action of persons at work.

The function is— (a) conferred on a person by an enactment, (b) a function of the Crown, a Minister of the Crown or a government department, or (c) of a public nature, and is exercised in the public interest.

5. The function is designed to protect members of the public against— (a) maladministration by public bodies, (b) failures in services provided by public bodies, or (c) a failure of a public body to provide a service which it is a function of the body to provide.

The function is conferred by any enactment on— (a) the Parliamentary Commissioner for Administration, (b) the Commissioner for Local Administration in England, (c) the Health Service Commissioner for England, (d) the Public Services Ombudsman for Wales, (e) the Northern Ireland Public Services Ombudsman, (f) the Prison Ombudsman for Northern Ireland, or (g) the Scottish Public Services Ombudsman.

412

Schedule 2 Exemptions etc from the [UK GDPR]1 Description of function design

Condition

6. The function is designed— (a) to protect members of the public against conduct which may adversely affect their interests by persons carrying on a business, (b) to regulate agreements or conduct which have as their object or effect the prevention, restriction or distortion of competition in connection with any commercial activity, or (c) to regulate conduct on the part of one or more undertakings which amounts to the abuse of a dominant position in a market.

The function is conferred on the Competition and Markets Authority by an enactment.

8  Audit functions

(1) The listed GDPR provisions do not apply to personal data processed for the purposes of discharging a function listed in sub-paragraph (2) to the extent that the application of those provisions would be likely to prejudice the proper discharge of the function. (2) The functions are any function that is conferred by an enactment on— (a) the Comptroller and Auditor General; (b) the Auditor General for Scotland; (c) the Auditor General for Wales; (d) the Comptroller and Auditor General for Northern Ireland. 9  Functions of the Bank of England

(1) The listed GDPR provisions do not apply to personal data processed for the purposes of discharging a relevant function of the Bank of England to the extent that the application of those provisions would be likely to prejudice the proper discharge of the function. (2) ‘Relevant function of the Bank of England’ means— (a) a function discharged by the Bank acting in its capacity as a monetary authority (as defined in section 244(2)(c) and (2A) of the Banking Act 2009); (b) a public function of the Bank within the meaning of section 349 of the Financial Services and Markets Act 2000; (c) a function conferred on the Prudential Regulation Authority by or under the Financial Services and Markets Act 2000 or by another enactment. 10 Regulatory functions relating to legal services, the health service and children’s services

(1) The listed GDPR provisions do not apply to personal data processed for the purposes of discharging a function listed in sub-paragraph (2) to the extent 413

Statutes

that the application of those provisions would be likely to prejudice the proper discharge of the function. (2) The functions are— (a) a function of the Legal Services Board; (b) the function of considering a complaint under the scheme established under Part 6 of the Legal Services Act 2007 (legal complaints); (c) the function of considering a complaint under— (i) section 14 of the NHS Redress Act 2006, (ii) section 113(1) or (2) or section 114(1) or (3) of the Health and Social Care (Community Health and Standards) Act 2003, (iii) section 24D or 26 of the Children Act 1989, or (iv) Part 2A of the Public Services Ombudsman (Wales) Act 2005 [or Part 5 of the Public Services Ombudsman (Wales) Act 2019]1; (d) the function of considering a complaint or representations under Chapter 1 of Part 10 of the Social Services and Well-being (Wales) Act 2014 (anaw 4). Amendments 1 Inserted by the Public Services Ombudsman (Wales) Act 2019, s  75(3), Sch  5, para 28.

11  Regulatory functions of certain other persons

The listed GDPR provisions do not apply to personal data processed for the purposes of discharging a function that— (a) is a function of a person described in column 1 of the Table, and (b) is conferred on that person as described in column 2 of the Table, to the extent that the application of those provisions would be likely to prejudice the proper discharge of the function.

414

Schedule 2 Exemptions etc from the [UK GDPR]1 Person on whom function is conferred

How function is conferred

1. The Commissioner.

By or under— (a) the data protection legislation; (b) the Freedom of Information Act 2000; (c) section 244 of the Investigatory Powers Act 2016; (d) the Privacy and Electronic Communications (EC Directive) Regulations 2003 (S.I. 2003/2426); (e) the Environmental Information Regulations 2004 (S.I. 2004/3391); (f) the INSPIRE Regulations 2009 (S.I. 2009/3157); (g) Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC; (h) the Re-use of Public Sector Information Regulations 2015 (S.I. 2015/1415); (i) the Electronic Identification and Trust Services for Electronic Transactions Regulations 2016 (S.I. 2016/696).

2. The Scottish Information Commissioner.

By or under— (a) the Freedom of Information (Scotland) Act 2002 (asp 13); (b) the Environmental Information (Scotland) Regulations 2004 (S.S.I. 2004/520); (c) the INSPIRE (Scotland) Regulations 2009 (S.S.I. 2009/440).

3. The Pensions Ombudsman.

By or under Part 10 of the Pension Schemes Act 1993 or any corresponding legislation having equivalent effect in Northern Ireland.

4. The Board of the Pension Protection Fund.

By or under sections 206 to 208 of the Pensions Act 2004 or any corresponding legislation having equivalent effect in Northern Ireland.

5. The Ombudsman for the Board of the Pension Protection Fund.

By or under any of sections 209 to 218 or 286(1) of the Pensions Act 2004 or any corresponding legislation having equivalent effect in Northern Ireland.

6. The Pensions Regulator.

By an enactment.

7. The Financial Conduct Authority.

By or under the Financial Services and Markets Act 2000 or by another enactment.

8. The Financial Ombudsman.

By or under Part 16 of the Financial Services and Markets Act 2000.

9. The investigator of complaints against the financial regulators.

By or under Part 6 of the Financial Services Act 2012.

10. A consumer protection enforcer, other than the Competition and Markets Authority.

By or under the CPC Regulation.

415

Statutes Person on whom function is conferred

How function is conferred

11. The monitoring officer of a relevant authority.

By or under the Local Government and Housing Act 1989.

12. The monitoring officer of a relevant Welsh authority.

By or under the Local Government Act 2000.

13. The Public Services Ombudsman for Wales.

By or under the Local Government Act 2000.

14. The Charity Commission.

By or under— (a) the Charities Act 1992; (b) the Charities Act 2006; (c) the Charities Act 2011.

12

In the Table in paragraph 11— ‘consumer protection enforcer’ has the same meaning as ‘CPC enforcer’ in section 213(5A) of the Enterprise Act 2002; the ‘CPC Regulation’ has the meaning given in section 235A of the Enterprise Act 2002; the ‘Financial Ombudsman’ means the scheme operator within the meaning of Part 16 of the Financial Services and Markets Act 2000 (see section 225 of that Act); the ‘investigator of complaints against the financial regulators’ means the person appointed under section 84(1)(b) of the Financial Services Act 2012; ‘relevant authority’ has the same meaning as in section 5 of the Local Government and Housing Act 1989, and ‘monitoring officer’, in relation to such an authority, means a person designated as such under that section; ‘relevant Welsh authority’ has the same meaning as ‘relevant authority’ in section 49(6) of the Local Government Act 2000, and ‘monitoring officer’, in relation to such an authority, has the same meaning as in Part 3 of that Act. 13  Parliamentary privilege

The listed GDPR provisions and Article  34(1) and (4) of the [UK GDPR]1 (communication of personal data breach to the data subject) do not apply to personal data where this is required for the purpose of avoiding an infringement of the privileges of either House of Parliament. Amendments 1 Substituted by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 92(1), (12).

416

Schedule 2 Exemptions etc from the [UK GDPR]1

14  Judicial appointments, judicial independence and judicial proceedings

(1) The listed GDPR provisions do not apply to personal data processed for the purposes of assessing a person’s suitability for judicial office or the office of Queen’s Counsel. (2) The listed GDPR provisions do not apply to personal data processed by— (a) an individual acting in a judicial capacity, or (b) a court or tribunal acting in its judicial capacity. (3) As regards personal data not falling within sub-paragraph (1) or (2), the listed GDPR provisions do not apply to the extent that the application of those provisions would be likely to prejudice judicial independence or judicial proceedings.

15  Crown honours, dignities and appointments

(1) The listed GDPR provisions do not apply to personal data processed for the purposes of the conferring by the Crown of any honour or dignity. (2) The listed GDPR provisions do not apply to personal data processed for the purposes of assessing a person’s suitability for any of the following offices— (a) archbishops and diocesan and suffragan bishops in the Church of England; (b) deans of cathedrals of the Church of England; (c) deans and canons of the two Royal Peculiars; (d) the First and Second Church Estates Commissioners; (e) lord-lieutenants; (f) Masters of Trinity College and Churchill College, Cambridge; (g) the Provost of Eton; (h) the Poet Laureate; (i) the Astronomer Royal. (3) The Secretary of State may by regulations amend the list in sub-paragraph (2) to— (a) remove an office, or (b) add an office to which appointments are made by Her Majesty. (4) Regulations under sub-paragraph (3) are subject to the affirmative resolution procedure. 417

Statutes

Part 3 Restriction [for the]1 protection of rights of others 16  Protection of the rights of others: general

(1) Article 15(1) to (3) of the [UK GDPR]1 (confirmation of processing, access to data and safeguards for third country transfers), and Article 5 of the [UK GDPR]1 so far as its provisions correspond to the rights and obligations provided for in Article  15(1) to (3), do not oblige a controller to disclose information to the data subject to the extent that doing so would involve disclosing information relating to another individual who can be identified from the information. (2) Sub-paragraph (1) does not remove the controller’s obligation where— (a) the other individual has consented to the disclosure of the information to the data subject, or (b) it is reasonable to disclose the information to the data subject without the consent of the other individual. (3) In determining whether it is reasonable to disclose the information without consent, the controller must have regard to all the relevant circumstances, including— (a) the type of information that would be disclosed, (b) any duty of confidentiality owed to the other individual, (c) any steps taken by the controller with a view to seeking the consent of the other individual, (d) whether the other individual is capable of giving consent, and (e) any express refusal of consent by the other individual. (4) For the purposes of this paragraph— (a) ‘information relating to another individual’ includes information identifying the other individual as the source of information; (b) an individual can be identified from information to be provided to a data subject by a controller if the individual can be identified from— (i) that information, or (ii) that information and any other information that the controller reasonably believes the data subject is likely to possess or obtain. Amendments 1 Substituted by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 92(1), (13), (14).

418

Schedule 2 Exemptions etc from the [UK GDPR]1

17 Assumption of reasonableness for health workers, social workers and education workers

(1) For the purposes of paragraph 16(2)(b), it is to be considered reasonable for a controller to disclose information to a data subject without the consent of the other individual where— (a) the health data test is met, (b) the social work data test is met, or (c) the education data test is met. (2) The health data test is met if— (a) the information in question is contained in a health record, and (b) the other individual is a health professional who has compiled or contributed to the health record or who, in his or her capacity as a health professional, has been involved in the diagnosis, care or treatment of the data subject. (3) The social work data test is met if— (a) the other individual is— (i) a children’s court officer, (ii) a person who is or has been employed by a person or body referred to in paragraph 8 of Schedule 3 in connection with functions exercised in relation to the information, or (iii) a person who has provided for reward a service that is similar to a service provided in the exercise of any relevant social services functions, and (b) the information relates to the other individual in an official capacity or the other individual supplied the information— (i) in an official capacity, or (ii) in a case within paragraph (a)(iii), in connection with providing the service mentioned in paragraph (a)(iii). (4) The education data test is met if— (a) the other individual is an education-related worker, or (b) the other individual is employed by an education authority (within the meaning of the Education (Scotland) Act 1980) in pursuance of its functions relating to education and— (i) the information relates to the other individual in his or her capacity as such an employee, or (ii) the other individual supplied the information in his or her capacity as such an employee. 419

Statutes

(5) In this paragraph— ‘children’s court officer’ means a person referred to in paragraph 8(1)(q), (r), (s), (t) or (u) of Schedule 3; ‘education-related worker’ means a person referred to in paragraph 14(4)(a) or (b) or 16(4)(a), (b) or (c) of Schedule 3 (educational records); ‘relevant social services functions’ means functions specified in paragraph 8(1)(a), (b), (c) or (d) of Schedule 3.

Part 4 Restrictions [as described in]1 Article 23(1): restrictions of rules in Articles 13 to 15 18  [UK GDPR]1 provisions to be restricted: ‘the listed GDPR provisions’

In this Part of this Schedule, ‘the listed GDPR provisions’ means the following provisions of the [UK GDPR]1 (the rights and obligations in which may be restricted by virtue of Article 23(1) of the [UK GDPR]1)— (a) Article  13(1) to (3) (personal data collected from data subject: information to be provided); (b) Article 14(1) to (4) (personal data collected other than from data subject: information to be provided); (c) Article  15(1) to (3) (confirmation of processing, access to data and safeguards for third country transfers); (d) Article 5 (general principles) so far as its provisions correspond to the rights and obligations provided for in the provisions mentioned in subparagraphs (a) to (c). Amendments 1 Substituted by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 92(1), (15)-(17).

19  Legal professional privilege

The listed GDPR provisions do not apply to personal data that consists of— (a) information in respect of which a claim to legal professional privilege or, in Scotland, confidentiality of communications, could be maintained in legal proceedings, or (b) information in respect of which a duty of confidentiality is owed by a professional legal adviser to a client of the adviser. 420

Schedule 2 Exemptions etc from the [UK GDPR]1

20  Self incrimination

(1) A person need not comply with the listed GDPR provisions to the extent that compliance would, by revealing evidence of the commission of an offence, expose the person to proceedings for that offence. (2) The reference to an offence in sub-paragraph (1) does not include an offence under— (a) this Act, (b) section 5 of the Perjury Act 1911 (false statements made otherwise than on oath), (c) section 44(2) of the Criminal Law (Consolidation) (Scotland) Act 1995 (false statements made otherwise than on oath), or (d) Article 10 of the Perjury (Northern Ireland) Order 1979 (S.I. 1979/1714 (N.I. 19)) (false statutory declarations and other false unsworn statements). (3) Information disclosed by any person in compliance with Article 15 of the [UK GDPR]1 is not admissible against the person in proceedings for an offence under this Act. Amendments 1 Substituted by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 92(1), (18).

21  Corporate finance

(1) The listed GDPR provisions do not apply to personal data processed for the purposes of or in connection with a corporate finance service provided by a relevant person to the extent that either Condition A or Condition B is met. (2) Condition A is that the application of the listed GDPR provisions would be likely to affect the price of an instrument. (3) Condition B is that— (a) the relevant person reasonably believes that the application of the listed GDPR provisions to the personal data in question could affect a decision of a person— (i) whether to deal in, subscribe for or issue an instrument, or (ii) whether to act in a way likely to have an effect on a business activity (such as an effect on the industrial strategy of a person, the capital structure of an undertaking or the legal or beneficial ownership of a business or asset), and (b) the application of the listed GDPR provisions to that personal data would have a prejudicial effect on the orderly functioning of financial markets or the efficient allocation of capital within the economy. 421

Statutes

(4) In this paragraph— ‘corporate finance service’ means a service consisting in— (a) underwriting in respect of issues of, or the placing of issues of, any instrument, (b) services relating to such underwriting, or (c) advice to undertakings on capital structure, industrial strategy and related matters and advice and service relating to mergers and the purchase of undertakings; ‘instrument’ means an instrument listed in section C  of Annex 1 to Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments, and references to an instrument include an instrument not yet in existence but which is to be or may be created; ‘price’ includes value; ‘relevant person’ means— (a) a person who, by reason of a permission under Part 4A of the Financial Services and Markets Act 2000, is able to carry on a corporate finance service without contravening the general prohibition; (b) an EEA firm of the kind mentioned in paragraph  5(a) or (b) of Schedule 3 to that Act which has qualified for authorisation under paragraph 12 of that Schedule, and may lawfully carry on a corporate finance service; (c) a person who is exempt from the general prohibition in respect of any corporate finance service— (i) as a result of an exemption order made under section 38(1) of that Act, or (ii) by reason of section 39(1) of that Act (appointed representatives); (d) a person, not falling within paragraph (a), (b) or (c), who may lawfully carry on a corporate finance service without contravening the general prohibition; (e) a person who, in the course of employment, provides to their employer a service falling within paragraph (b) or (c) of the definition of ‘corporate finance service’; (f) a partner who provides to other partners in the partnership a service falling within either of those paragraphs. (5) In the definition of ‘relevant person’ in sub-paragraph (4), references to ‘the general prohibition’ are to the general prohibition within the meaning of section 19 of the Financial Services and Markets Act 2000. 422

Schedule 2 Exemptions etc from the [UK GDPR]1

22  Management forecasts

The listed GDPR provisions do not apply to personal data processed for the purposes of management forecasting or management planning in relation to a business or other activity to the extent that the application of those provisions would be likely to prejudice the conduct of the business or activity concerned. 23 Negotiations

The listed GDPR provisions do not apply to personal data that consists of records of the intentions of the controller in relation to any negotiations with the data subject to the extent that the application of those provisions would be likely to prejudice those negotiations. 24  Confidential references

The listed GDPR provisions do not apply to personal data consisting of a reference given (or to be given) in confidence for the purposes of— (a) the education, training or employment (or prospective education, training or employment) of the data subject, (b) the placement (or prospective placement) of the data subject as a volunteer, (c) the appointment (or prospective appointment) of the data subject to any office, or (d) the provision (or prospective provision) by the data subject of any service. 25  Exam scripts and exam marks

(1) The listed GDPR provisions do not apply to personal data consisting of information recorded by candidates during an exam. (2) Where personal data consists of marks or other information processed by a controller— (a) for the purposes of determining the results of an exam, or (b) in consequence of the determination of the results of an exam, the duty in Article 12(3) or (4) of the [UK GDPR]1 for the controller to provide information requested by the data subject within a certain time period, as it applies to Article 15 of the [UK GDPR]1 (confirmation of processing, access to data and safeguards for third country transfers), is modified as set out in sub-paragraph (3). (3) Where a question arises as to whether the controller is obliged by Article 15 of the [UK GDPR]1 to disclose personal data, and the question arises before the day on which the exam results are announced, the controller must provide the information mentioned in Article 12(3) or (4)— 423

Statutes

(a) before the end of the period of 5 months beginning when the question arises, or (b) if earlier, before the end of the period of 40 days beginning with the announcement of the results. (4) In this paragraph, ‘exam’ means an academic, professional or other examination used for determining the knowledge, intelligence, skill or ability of a candidate and may include an exam consisting of an assessment of the candidate’s performance while undertaking work or any other activity. (5) For the purposes of this paragraph, the results of an exam are treated as announced when they are first published or, if not published, first communicated to the candidate. Amendments 1 Substituted by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 92(1), (19).

Part 5 Exemptions etc …1 for reasons of freedom of expression and information 26  Journalistic, academic, artistic and literary purposes

(1) In this paragraph, ‘the special purposes’ means one or more of the following— (a) the purposes of journalism; (b) academic purposes; (c) artistic purposes; (d) literary purposes. (2) Sub-paragraph (3) applies to the processing of personal data carried out for the special purposes if— (a) the processing is being carried out with a view to the publication by a person of journalistic, academic, artistic or literary material, and (b) the controller reasonably believes that the publication of the material would be in the public interest. (3) The listed GDPR provisions do not apply to the extent that the controller reasonably believes that the application of those provisions would be incompatible with the special purposes. (4) In determining whether publication would be in the public interest the controller must take into account the special importance of the public interest in the freedom of expression and information. 424

Schedule 2 Exemptions etc from the [UK GDPR]1

(5) In determining whether it is reasonable to believe that publication would be in the public interest, the controller must have regard to any of the codes of practice or guidelines listed in sub-paragraph  (6) that is relevant to the publication in question. (6) The codes of practice and guidelines are— (a) BBC Editorial Guidelines; (b) Ofcom Broadcasting Code; (c) Editors’ Code of Practice. (7) The Secretary of State may by regulations amend the list in sub-paragraph (6). (8) Regulations under sub-paragraph (7) are subject to the affirmative resolution procedure. (9) For the purposes of this paragraph, the listed GDPR provisions are the following provisions of the [UK GDPR]2 (which may be exempted or derogated from by virtue of Article 85(2) of the [UK GDPR]2)— (a) in Chapter II of the [UK GDPR]2 (principles)— (i) Article 5(1)(a) to (e) (principles relating to processing); (ii) Article 6 (lawfulness); (iii) Article 7 (conditions for consent); (iv) Article 8(1) and (2) (child’s consent); (v) Article 9 (processing of special categories of data); (vi) Article 10 (data relating to criminal convictions etc); (vii) Article 11(2) (processing not requiring identification); (b) in Chapter III of the [UK GDPR]2 (rights of the data subject)— (i) Article  13(1) to (3) (personal data collected from data subject: information to be provided); (ii) Article  14(1) to (4) (personal data collected other than from data subject: information to be provided); (iii) Article 15(1) to (3) (confirmation of processing, access to data and safeguards for third country transfers); (iv) Article 16 (right to rectification); (v) Article 17(1) and (2) (right to erasure); (vi) Article 18(1)(a), (b) and (d) (restriction of processing); (vii) Article 19 (notification obligation regarding rectification or erasure of personal data or restriction of processing); (viii) Article 20(1) and (2) (right to data portability); 425

Statutes

(ix) Article 21(1) (objections to processing); (c) in Chapter IV of the [UK GDPR]2 (controller and processor)— (i) Article 34(1) and (4) (communication of personal data breach to the data subject); (ii) Article  36 (requirement for controller to consult Commissioner prior to high risk processing); (d) in Chapter V  of the [UK GDPR]2 (transfers of data to third countries etc), Article 44 (general principles for transfers); (e) …1 Amendments 1 Repealed by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 92(1), (20), (21)(c). 2 Substituted by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 92(1), (21)(a), (b).

Part 6 Derogations etc …1 for research, statistics and archiving 27  Research and statistics

(1) The listed GDPR provisions do not apply to personal data processed for— (a) scientific or historical research purposes, or (b) statistical purposes, to the extent that the application of those provisions would prevent or seriously impair the achievement of the purposes in question. This is subject to [sub-paragraphs (3) and (4)]2. (2) For the purposes of this paragraph, the listed GDPR provisions are the following provisions of the [UK GDPR]2— (a) Article  15(1) to (3) (confirmation of processing, access to data and safeguards for third country transfers); (b) Article 16 (right to rectification); (c) Article 18(1) (restriction of processing); (d) Article 21(1) (objections to processing). (3) The exemption in sub-paragraph (1) is available only where— (a) the personal data is processed in accordance with Article 89(1) of the [UK GDPR]2 (as supplemented by section 19), and 426

Schedule 2 Exemptions etc from the [UK GDPR]1

(b) as regards the disapplication of Article  15(1) to (3), the results of the research or any resulting statistics are not made available in a form which identifies a data subject. [(4) Where processing for a purpose described in sub-paragraph (1) serves at the same time another purpose, the exemption in sub-paragraph (1) is available only where the personal data is processed for a purpose referred to in that sub-paragraph.]3 Amendments 1 Repealed by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 92(1), (22). 2 Substituted by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 92(1), (23)(a)-(c). 3 Inserted by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 92(1), (23)(d).

28  Archiving in the public interest

(1) The listed GDPR provisions do not apply to personal data processed for archiving purposes in the public interest to the extent that the application of those provisions would prevent or seriously impair the achievement of those purposes. This is subject to [sub-paragraphs (3) and (4)]1. (2) For the purposes of this paragraph, the listed GDPR provisions are the following provisions of the [UK GDPR]1— (a) Article  15(1) to (3) (confirmation of processing, access to data and safeguards for third country transfers); (b) Article 16 (right to rectification); (c) Article 18(1) (restriction of processing); (d) Article 19 (notification obligation regarding rectification or erasure of personal data or restriction of processing); (e) Article 20(1) (right to data portability); (f) Article 21(1) (objections to processing). (3) The exemption in sub-paragraph  (1) is available only where the personal data is processed in accordance with Article 89(1) of the [UK GDPR]1 (as supplemented by section 19). [(4) Where processing for a purpose described in sub-paragraph (1) serves at the same time another purpose, the exemption in sub-paragraph (1) is available 427

Statutes

only where the personal data is processed for a purpose referred to in that sub-paragraph.]2 Amendments 1 Substituted by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 92(1), (24)(a)-(c). 2 Inserted by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, SI 2019/419, reg 4, Sch 2, paras 1, 92(1), (24)(d).

UK General Data Protection Regulation CHAPTER I GENERAL PROVISIONS Article 1 Subject-matter and objectives

1. This Regulation lays down rules relating to the protection of natural persons with regard to the processing of personal data and rules relating to the free movement of personal data. 2. This Regulation protects fundamental rights and freedoms of natural persons and in particular their right to the protection of personal data. 3. The free movement of personal data within the Union shall be neither restricted nor prohibited for reasons connected with the protection of natural persons with regard to the processing of personal data. Article 2 Material scope

1. This Regulation applies to the processing of personal data wholly or partly by automated means and to the processing other than by automated means of personal data which form part of a filing system or are intended to form part of a filing system. 2. This Regulation does not apply to the processing of personal data: (a) in the course of an activity which falls outside the scope of Union law; (b) by the Member States when carrying out activities which fall within the scope of Chapter 2 of Title V of the TEU; (c) by a natural person in the course of a purely personal or household activity; 428

Chapter I General provisions

(d) by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security. 3. For the processing of personal data by the Union institutions, bodies, offices and agencies, Regulation (EC) No 45/2001 applies. Regulation (EC) No  45/2001 and other Union legal acts applicable to such processing of personal data shall be adapted to the principles and rules of this Regulation in accordance with Article 98. 4. This Regulation shall be without prejudice to the application of Directive 2000/31/EC, in particular of the liability rules of intermediary service providers in Articles 12 to 15 of that Directive. Article 3 Territorial scope

1. This Regulation applies to the processing of personal data in the context of the activities of an establishment of a controller or a processor in the Union, regardless of whether the processing takes place in the Union or not. 2. This Regulation applies to the processing of personal data of data subjects who are in the Union by a controller or processor not established in the Union, where the processing activities are related to: (a) the offering of goods or services, irrespective of whether a payment of the data subject is required, to such data subjects in the Union; or (b) the monitoring of their behaviour as far as their behaviour takes place within the Union. 3. This Regulation applies to the processing of personal data by a controller not established in the Union, but in a place where Member State law applies by virtue of public international law. Article 4 Definitions

For the purposes of this Regulation: (1) ‘personal data’ means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person; (2) ‘processing’ means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, 429

Statutes

dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction; (3) ‘restriction of processing’ means the marking of stored personal data with the aim of limiting their processing in the future; (4) ‘profiling’ means any form of automated processing of personal data consisting of the use of personal data to evaluate certain personal aspects relating to a natural person, in particular to analyse or predict aspects concerning that natural person’s performance at work, economic situation, health, personal preferences, interests, reliability, behaviour, location or movements; (5) ‘pseudonymisation’ means the processing of personal data in such a manner that the personal data can no longer be attributed to a specific data subject without the use of additional information, provided that such additional information is kept separately and is subject to technical and organisational measures to ensure that the personal data are not attributed to an identified or identifiable natural person; (6) ‘filing system’ means any structured set of personal data which are accessible according to specific criteria, whether centralised, decentralised or dispersed on a functional or geographical basis; (7) ‘controller’ means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data; where the purposes and means of such processing are determined by Union or Member State law, the controller or the specific criteria for its nomination may be provided for by Union or Member State law; (8) ‘processor’ means a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller; (9) ‘recipient’ means a natural or legal person, public authority, agency or another body, to which the personal data are disclosed, whether a third party or not. However, public authorities which may receive personal data in the framework of a particular inquiry in accordance with Union or Member State law shall not be regarded as recipients; the processing of those data by those public authorities shall be in compliance with the applicable data protection rules according to the purposes of the processing; (10)  ‘third party’ means a natural or legal person, public authority, agency or body other than the data subject, controller, processor and persons who, under the direct authority of the controller or processor, are authorised to process personal data; (11)  ‘consent’ of the data subject means any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her; 430

Chapter I General provisions

(12)  ‘personal data breach’ means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed; (13) genetic data’ means personal data relating to the inherited or acquired genetic characteristics of a natural person which give unique information about the physiology or the health of that natural person and which result, in particular, from an analysis of a biological sample from the natural person in question; (14) ‘biometric data’ means personal data resulting from specific technical processing relating to the physical, physiological or behavioural characteristics of a natural person, which allow or confirm the unique identification of that natural person, such as facial images or dactyloscopic data; (15) ‘data concerning health’ means personal data related to the physical or mental health of a natural person, including the provision of health care services, which reveal information about his or her health status; (16)  ‘main establishment’ means: (a) as regards a controller with establishments in more than one Member State, the place of its central administration in the Union, unless the decisions on the purposes and means of the processing of personal data are taken in another establishment of the controller in the Union and the latter establishment has the power to have such decisions implemented, in which case the establishment having taken such decisions is to be considered to be the main establishment; (b) as regards a processor with establishments in more than one Member State, the place of its central administration in the Union, or, if the processor has no central administration in the Union, the establishment of the processor in the Union where the main processing activities in the context of the activities of an establishment of the processor take place to the extent that the processor is subject to specific obligations under this Regulation; (17)  ‘representative’ means a natural or legal person established in the Union who, designated by the controller or processor in writing pursuant to Article  27, represents the controller or processor with regard to their respective obligations under this Regulation; (18)  ‘enterprise’ means a natural or legal person engaged in an economic activity, irrespective of its legal form, including partnerships or associations regularly engaged in an economic activity; (19)  ‘group of undertakings’ means a controlling undertaking and its controlled undertakings; (20) ‘binding corporate rules’ means personal data protection policies which are adhered to by a controller or processor established on the territory of a Member State for transfers or a set of transfers of personal data to a controller 431

Statutes

or processor in one or more third countries within a group of undertakings, or group of enterprises engaged in a joint economic activity; (21) ‘supervisory authority’ means an independent public authority which is established by a Member State pursuant to Article 51; (22)  ‘supervisory authority concerned’ means a supervisory authority which is concerned by the processing of personal data because: (a) the controller or processor is established on the territory of the Member State of that supervisory authority; (b) data subjects residing in the Member State of that supervisory authority are substantially affected or likely to be substantially affected by the processing; or (c) a complaint has been lodged with that supervisory authority; (23)  ‘cross-border processing’ means either: (a) processing of personal data which takes place in the context of the activities of establishments in more than one Member  State of a controller or processor in the Union where the controller or processor is established in more than one Member State; or (b) processing of personal data which takes place in the context of the activities of a single establishment of a controller or processor in the Union but which substantially affects or is likely to substantially affect data subjects in more than one Member State. (24)  ‘relevant and reasoned objection’ means an objection to a draft decision as to whether there is an infringement of this Regulation, or whether envisaged action in relation to the controller or processor complies with this Regulation, which clearly demonstrates the significance of the risks posed by the draft decision as regards the fundamental rights and freedoms of data subjects and, where applicable, the free flow of personal data within the Union; (25) ‘information society service’ means a service as defined in point  (b) of Article 1(1) of Directive (EU) 2015/1535 of the European Parliament and of the Council (19); (26) ‘international organisation’ means an organisation and its subordinate bodies governed by public international law, or any other body which is set up by, or on the basis of, an agreement between two or more countries.

CHAPTER II PRINCIPLES Article 5 Principles relating to processing of personal data

1. Personal data shall be: 432

Chapter II Principles

(a) processed lawfully, fairly and in a transparent manner in relation to the data subject (‘lawfulness, fairness and transparency’); (b) collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes; further processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes shall, in accordance with Article 89(1), not be considered to be incompatible with the initial purposes (‘purpose limitation’); (c) adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed (‘data minimisation’); (d) accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that personal data that are inaccurate, having regard to the purposes for which they are processed, are erased or rectified without delay (‘accuracy’); (e) kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed; personal data may be stored for longer periods insofar as the personal data will be processed solely for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in accordance with Article 89(1) subject to implementation of the appropriate technical and organisational measures required by this Regulation in order to safeguard the rights and freedoms of the data subject (‘storage limitation’); (f) processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures (‘integrity and confidentiality’). 2. The controller shall be responsible for, and be able to demonstrate compliance with, paragraph 1 (‘accountability’). Article 6 Lawfulness of processing

1. Processing shall be lawful only if and to the extent that at least one of the following applies: (a) the data subject has given consent to the processing of his or her personal data for one or more specific purposes; (b) processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract; (c) processing is necessary for compliance with a legal obligation to which the controller is subject; 433

Statutes

(d) processing is necessary in order to protect the vital interests of the data subject or of another natural person; (e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller; (f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. Point (f) of the first subparagraph shall not apply to processing carried out by public authorities in the performance of their tasks. 2. Member States may maintain or introduce more specific provisions to adapt the application of the rules of this Regulation with regard to processing for compliance with points  (c) and  (e) of paragraph  1 by determining more precisely specific requirements for the processing and other measures to ensure lawful and fair processing including for other specific processing situations as provided for in Chapter IX. 3. The basis for the processing referred to in point (c) and (e) of paragraph 1 shall be laid down by: (a) Union law; or (b) Member State law to which the controller is subject. The purpose of the processing shall be determined in that legal basis or, as regards the processing referred to in point (e) of paragraph  1, shall be necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller. That legal basis may contain specific provisions to adapt the application of rules of this Regulation, inter alia: the general conditions governing the lawfulness of processing by the controller; the types of data which are subject to the processing; the data subjects concerned; the entities to, and the purposes for which, the personal data may be disclosed; the purpose limitation; storage periods; and processing operations and processing procedures, including measures to ensure lawful and fair processing such as those for other specific processing situations as provided for in Chapter IX. The Union or the Member State law shall meet an objective of public interest and be proportionate to the legitimate aim pursued. 4. Where the processing for a purpose other than that for which the personal data have been collected is not based on the data subject’s consent or on a Union or Member State law which constitutes a necessary and proportionate measure in a democratic society to safeguard the objectives referred to in Article 23(1), the controller shall, in order to ascertain whether processing for another purpose is compatible with the purpose for which the personal data are initially collected, take into account, inter alia: 434

Chapter II Principles

(a) any link between the purposes for which the personal data have been collected and the purposes of the intended further processing; (b) the context in which the personal data have been collected, in particular regarding the relationship between data subjects and the controller; (c) the nature of the personal data, in particular whether special categories of personal data are processed, pursuant to Article 9, or whether personal data related to criminal convictions and offences are processed, pursuant to Article 10; (d) the possible consequences of the intended further processing for data subjects; (e) the existence of appropriate safeguards, which may include encryption or pseudonymisation. Article 7 Conditions for consent

1. Where processing is based on consent, the controller shall be able to demonstrate that the data subject has consented to processing of his or her personal data. 2. If the data subject’s consent is given in the context of a written declaration which also concerns other matters, the request for consent shall be presented in a manner which is clearly distinguishable from the other matters, in an intelligible and easily accessible form, using clear and plain language. Any part of such a declaration which constitutes an infringement of this Regulation shall not be binding. 3. The data subject shall have the right to withdraw his or her consent at any time. The withdrawal of consent shall not affect the lawfulness of processing based on consent before its withdrawal. Prior to giving consent, the data subject shall be informed thereof. It shall be as easy to withdraw as to give consent. 4. When assessing whether consent is freely given, utmost account shall be taken of whether,  inter alia, the performance of a contract, including the provision of a service, is conditional on consent to the processing of personal data that is not necessary for the performance of that contract. Article 8 Conditions applicable to child’s consent in relation to information society services

1. Where point (a) of Article 6(1) applies, in relation to the offer of information society services directly to a child, the processing of the personal data of a child shall be lawful where the child is at least 16 years old. Where the child is below the age of 16 years, such processing shall be lawful only if and to the extent that consent is given or authorised by the holder of parental responsibility over the child. 435

Statutes

Member  States may provide by law for a lower age for those purposes provided that such lower age is not below 13 years. 2. The controller shall make reasonable efforts to verify in such cases that consent is given or authorised by the holder of parental responsibility over the child, taking into consideration available technology. 3. Paragraph 1 shall not affect the general contract law of Member States such as the rules on the validity, formation or effect of a contract in relation to a child. Article 9 Processing of special categories of personal data

1. Processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation shall be prohibited. 2. Paragraph 1 shall not apply if one of the following applies: (a) the data subject has given explicit consent to the processing of those personal data for one or more specified purposes, except where Union or Member State law provide that the prohibition referred to in paragraph 1 may not be lifted by the data subject; (b) processing is necessary for the purposes of carrying out the obligations and exercising specific rights of the controller or of the data subject in the field of employment and social security and social protection law in so far as it is authorised by Union or Member State law or a collective agreement pursuant to Member  State law providing for appropriate safeguards for the fundamental rights and the interests of the data subject; (c) processing is necessary to protect the vital interests of the data subject or of another natural person where the data subject is physically or legally incapable of giving consent; (d) processing is carried out in the course of its legitimate activities with appropriate safeguards by a foundation, association or any other not-forprofit body with a political, philosophical, religious or trade union aim and on condition that the processing relates solely to the members or to former members of the body or to persons who have regular contact with it in connection with its purposes and that the personal data are not disclosed outside that body without the consent of the data subjects; (e) processing relates to personal data which are manifestly made public by the data subject; (f) processing is necessary for the establishment, exercise or defence of legal claims or whenever courts are acting in their judicial capacity; 436

Chapter II Principles

(g) processing is necessary for reasons of substantial public interest, on the basis of Union or Member State law which shall be proportionate to the aim pursued, respect the essence of the right to data protection and provide for suitable and specific measures to safeguard the fundamental rights and the interests of the data subject; (h) processing is necessary for the purposes of preventive or occupational medicine, for the assessment of the working capacity of the employee, medical diagnosis, the provision of health or social care or treatment or the management of health or social care systems and services on the basis of Union or Member State law or pursuant to contract with a health professional and subject to the conditions and safeguards referred to in paragraph 3; (i) processing is necessary for reasons of public interest in the area of public health, such as protecting against serious cross-border threats to health or ensuring high standards of quality and safety of health care and of medicinal products or medical devices, on the basis of Union or Member  State law which provides for suitable and specific measures to safeguard the rights and freedoms of the data subject, in particular professional secrecy; (j) processing is necessary for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in accordance with Article  89(1) based on Union or Member State law which shall be proportionate to the aim pursued, respect the essence of the right to data protection and provide for suitable and specific measures to safeguard the fundamental rights and the interests of the data subject. 3. Personal data referred to in paragraph 1 may be processed for the purposes referred to in point  (h) of paragraph  2 when those data are processed by or under the responsibility of a professional subject to the obligation of professional secrecy under Union or Member State law or rules established by national competent bodies or by another person also subject to an obligation of secrecy under Union or Member State law or rules established by national competent bodies. 4. Member States may maintain or introduce further conditions, including limitations, with regard to the processing of genetic data, biometric data or data concerning health. Article 10 Processing of personal data relating to criminal convictions and offences

Processing of personal data relating to criminal convictions and offences or related security measures based on Article 6(1) shall be carried out only under the control of official authority or when the processing is authorised by Union or Member  State law providing for appropriate safeguards for the rights and freedoms of data subjects. Any comprehensive register of criminal convictions shall be kept only under the control of official authority. 437

Statutes

Article 11 Processing which does not require identification

1. If the purposes for which a controller processes personal data do not or do no longer require the identification of a data subject by the controller, the controller shall not be obliged to maintain, acquire or process additional information in order to identify the data subject for the sole purpose of complying with this Regulation. 2. Where, in cases referred to in paragraph 1 of this Article, the controller is able to demonstrate that it is not in a position to identify the data subject, the controller shall inform the data subject accordingly, if possible. In such cases, Articles 15 to 20 shall not apply except where the data subject, for the purpose of exercising his or her rights under those articles, provides additional information enabling his or her identification.

438

APPENDIX B

Secondary Legislation Notices to Quit etc. (Prescribed Information) Regulations 1988, SI 1998/2201 1. These Regulations may be cited as the Notices to Quit etc. (Prescribed Information) Regulations 1988 and shall come into force on 15th January 1989. 2. Where, on or after the date these Regulations come into force, a landlord gives a notice to quit any premises let as a dwelling, or a licensor gives a notice to determine a periodic licence to occupy premises as a dwelling (and the premises are not let or occupied as specified in section 5(1B) of the Protection from Eviction Act 1977), the information prescribed for the purposes of section 5 of the Protection from Eviction Act 1977 shall be that in the Schedule to these Regulations. 3. The Notices to Quit (Prescribed Information) Regulations 1980(2) are hereby revoked.

SCHEDULE PRESCRIBED INFORMATION 1. If the tenant or licensee does not leave the dwelling, the landlord or licensor must get an order for possession from the court before the tenant or licensee can lawfully be evicted. The landlord or licensor cannot apply for such an order before the notice to quit or notice to determine has run out. 2. A tenant or licensee who does not know if he has any right to remain in possession after a notice to quit or a to notice determine runs out can obtain advice from a solicitor. Help with all or part of the cost of legal advice and assistance may be available under the Legal Aid Scheme. He should also be able to obtain information from a Citizens’ Advice Bureau, a Housing Aid Centre or a rent officer.

439

Secondary Legislation

Prevention of Social Housing Fraud (Power to Require Information) (England) Regulations 2014, SI 2014/899 1  Citation, commencement and application

(1) These Regulations may be cited as the Prevention of Social Housing Fraud (Power to Require Information) (England) Regulations 2014 and come into force on the third day after the day on which they are made. (2) These Regulations apply in relation to England only. 2 Interpretation

(1) In these Regulations— ‘authorised officer’ means a person acting in accordance with any authorisation for the purposes of these Regulations which is for the time being in force in relation to that person. (2) For the purposes of these Regulations— (a) references to a document include references to anything in which information is recorded in electronic or any other form; (b) the requirement that notice be given by an authorised officer in writing shall be taken to be satisfied in any case where the contents of the notice— (i) are transmitted to the recipient of the notice by electronic means; and (ii) are received by that person in a form that is legible and capable of being recorded for future reference. 3  Authorisations by local authorities

(1) Subject to paragraphs (2) and (3), a local authority may grant an authorisation to an individual to exercise the powers conferred on an authorised officer under regulation 4. (2) A local authority may only grant authorisation to an individual if that person is— (a) an individual employed by that authority; (b) an individual employed by another local authority or joint committee that carries out functions relating to housing fraud investigation purposes on behalf of that authority. 440

Schedule Prescribed information

(3) An authorisation granted to an individual for the purposes of these Regulations— (a) must be in writing and provided to that individual as evidence of that individual’s entitlement to exercise powers conferred by these Regulations; (b) may contain provision as to the period for which the authorisation is to have effect; and, (c) may restrict the powers exercisable by virtue of the authorisation so as to prohibit their exercise except for particular purposes or in particular circumstances. (4) An authorisation may be withdrawn at any time in writing by the local authority that granted it. (5) The written authorisation or withdrawal of an authorisation by any local authority must be issued under the hand of either— (a) the officer designated under section 4 of the Local Government and Housing Act 1989 as the head of the authority’s paid service; or (b) the officer who is the authority’s chief finance officer (within the meaning of section 5 of that Act). (6) A local authority may grant an authorisation for housing fraud investigation purposes in relation to offences in the area of another local authority, as well as in relation to offences in the area of the authority granting the authorisation. 4  Power to require information

(1) An authorised officer may exercise the powers conferred by this regulation for any of the housing fraud investigation purposes (but not for any other purpose). (2) An authorised officer who has reasonable grounds for suspecting that a person— (a) is a person falling within paragraph (3) below, and (b) has or may have possession of or access to any information about any matter that is relevant to housing fraud investigation purposes, may, by written notice, require that person to provide all such information described in the notice of which that person has possession, or to which that person has access, and which it is reasonable for the authorised officer to require for the purpose so mentioned. (3) The persons who fall within this paragraph are— (a) any bank; 441

Secondary Legislation

(b) any person carrying on a business the whole or a significant part of which consists in the provision of credit (whether secured or unsecured) to members of the public; (c) any water undertaker or sewerage undertaker; (d) any person who— (i) is the holder of a licence under section 7 of the Gas Act 1986 to convey gas through pipes; or, (ii) is the holder of a licence under section 7A of that Act to supply gas through pipes; (e) any person who (within the meaning of the Electricity Act 1989) distributes or supplies electricity; (f) …1 (g) any servant or agent of any person mentioned in sub-paragraphs (a) to [(e)]2. (4) Subject to the following provisions of this regulation, the powers conferred by this regulation on an authorised officer to require information from any person by virtue of that person falling within paragraph (3) shall be exercisable for the purpose only of obtaining information relating to a particular person identified (by name or description) by the officer. (5) An authorised officer shall not, in exercise of those powers, require any information from any person by virtue of that person falling within paragraph (3) unless it appears to that officer that there are reasonable grounds for believing that the person to whom it relates is— (a) a person who has committed, is committing or intends to commit an offence listed in section 7(7) of the Prevention of Social Housing Fraud Act 2013; or (b) a person who is a member of the family of a person falling within subparagraph (a). (6) …1 (7) …1 (8) The obligation of a person to provide information in accordance with a notice under this regulation shall be discharged only by the provision of that information, at such reasonable time and in such form as may be specified in the notice, to the authorised officer who— (a) is identified by or in accordance with the terms of the notice; or (b) has been identified, since the giving of the notice, by a further written notice given by the authorised officer who imposed the original requirement or another authorised officer. 442

Schedule Prescribed information

(9) The power of an authorised officer under this regulation to require the provision of information shall include a power to require the production and delivery up and (if necessary) creation of any such documents containing the information as may be specified or described in the notice imposing the requirement, or the creation of copies of or extracts from any such documents. (10)  No person shall be required under this regulation to provide— (a) any information that tends to incriminate either that person or, in the case of a person who is married or is a civil partner, that person’s spouse or civil partner; or (b) any information in respect of which a claim to legal professional privilege would be successful in any proceedings; and for the purposes of this paragraph it is immaterial whether the information is in documentary form or not. [(10A)  Nothing in this regulation is to be read as enabling a person to secure the disclosure by a telecommunications operator or postal operator of communications data without the consent of the operator.]3 (11)  In this regulation— ‘bank’ means— (a) a person who has permission under Part 4A of the Financial Services and Markets Act 2000 to accept deposits; (b) an EEA firm of the kind mentioned in paragraph 5(b) of Schedule 3 to that Act which has permission under paragraph 15 of that Schedule (as a result of qualifying for authorisation under paragraph 12 of that Schedule) to accept deposits or other repayable funds from the public; or (c) a person who does not require permission under that Act to accept deposits in the course of that person’s business in the United Kingdom; [‘communications data’ has the same meaning as in the Investigatory Powers Act 2016 (see sections 261 and 262 of that Act);]3 ‘credit’ includes a cash loan or any form of financial accommodation, including the cashing of a cheque; ‘family’ is to be construed in accordance with section 113 of the Housing Act 1985; [‘postal operator’ has the same meaning as in the Investigatory Powers Act 2016 (see section 262 of that Act);]3 [‘telecommunications operator’ has the same meaning as in the Investigatory Powers Act 2016 (see section 261 of that Act).]1 443

Secondary Legislation

(12) The definition of ‘bank’ in paragraph (11) must be read in accordance with— (a) section 22 of the Financial Services and Marketing Act 2000; (b) any relevant order under that section; and (c) Schedule 2 to that Act. Amendments 1 Repealed by the Investigatory Powers Act 2016, s 12(1), Sch 2, para 11(a), (c), (e) (iii). 2 Substituted by the Investigatory Powers Act 2016, s 12(1), Sch 2, para 11(b). 3 Inserted by the Investigatory Powers Act 2016, s 12(1), Sch 2, para 11(d), (e)(i), (ii).

5

Delay, obstruction etc of an authorised officer

(1) If a person (P) — (a) intentionally delays or obstructs an authorised officer in the exercise of any power under regulation 4; or (b) refuses or fails, without reasonable excuse, to provide any information or to provide any document when required to do so under regulation 4, P shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale. (2) Where P is convicted of an offence under paragraph (1)(b) and the refusal or failure is continued by P after P’s conviction, P shall be guilty of a further offence and liable on summary conviction to a fine not exceeding £40 for each day on which it is continued. 6

Liability of directors etc.

(1) Where an offence under regulation 5 which has been committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, that person, as well as the body corporate, shall be guilty of that offence and be liable to be proceeded against accordingly. (2) Where the affairs of a body corporate are managed by its members, paragraph (1) applies in relation to the acts and defaults of a member in connection with that member’s functions of management as if that member were a director of the body corporate. 7

Legal proceedings

(1) Proceedings for an offence under regulation 5 may be brought within the period of 6 months beginning with the date on which evidence sufficient 444

Schedule Prescribed information

in the opinion of the prosecutor to warrant the proceedings came to the prosecutor’s knowledge. (2) But no such proceedings may be brought more than three years — (a) after the commission of the offence, or (b) in the case of a continuous contravention, after the last date on which the offence was committed. (3) A certificate signed by the prosecutor and stating the date on which such evidence came to the prosecutor’s knowledge is conclusive evidence of that fact; and a certificate to that effect and purporting to be signed is to be treated as being so signed unless the contrary is proved.

445

APPENDIX C

Civil Procedure Rule and Guidance Civil Procedure Rules 1998, SI 1998/3132 PART 3 THE COURT’S CASE MANAGEMENT POWERS I  Case management The court’s general powers of management 3.1

(1) The list of powers in this rule is in addition to any powers given to the court by any other rule or practice direction or by any other enactment or any powers it may otherwise have. (2) Except where these Rules provide otherwise, the court may – (a) extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired); (b) adjourn or bring forward a hearing; (bb) require that any proceedings in the High Court be heard by a Divisional Court of the High Court; (c) require a party or a party’s legal representative to attend the court; (d) hold a hearing and receive evidence by telephone or by using any other method of direct oral communication; (e) direct that part of any proceedings (such as a counterclaim) be dealt with as separate proceedings; (f) stay(GL)  the whole or part of any proceedings or judgment either generally or until a specified date or event; (g) consolidate proceedings; (h) try two or more claims on the same occasion; (i) direct a separate trial of any issue; (j) decide the order in which issues are to be tried; (k) exclude an issue from consideration;

447

Civil Procedure Rule and Guidance

(l) dismiss or give judgment on a claim after a decision on a preliminary issue; (ll) order any party to file and exchange a costs budget; (m) take any other step or make any other order for the purpose of managing the case and furthering the overriding objective, including hearing an Early Neutral Evaluation with the aim of helping the parties settle the case. (3) When the court makes an order, it may – (a) make it subject to conditions, including a condition to pay a sum of money into court; and (b) specify the consequence of failure to comply with the order or a condition. (3A)  Where the court has made a direction in accordance with paragraph (2)(bb) the proceedings shall be heard by a Divisional Court of the High Court and not by a single judge. (4) Where the court gives directions it will take into account whether or not a party has complied with the Practice Direction (Pre-Action Conduct) and any relevant pre-action protocol(GL). (5) The court may order a party to pay a sum of money into court if that party has, without good reason, failed to comply with a rule, practice direction or a relevant pre-action protocol. (6) When exercising its power under paragraph (5) the court must have regard to – (a) the amount in dispute; and (b) the costs which the parties have incurred or which they may incur. (6A)  Where a party pays money into court following an order under paragraph (3) or (5), the money shall be security for any sum payable by that party to any other party in the proceedings. (7) A power of the court under these Rules to make an order includes a power to vary or revoke the order. (8) The court may contact the parties from time to time in order to monitor compliance with directions. The parties must respond promptly to any such enquiries from the court. Case management – unrepresented parties 3.1A

(1) This rule applies in any proceedings where at least one party is unrepresented. (2) When the court is exercising any powers of case management, it must have regard to the fact that at least one party is unrepresented. 448



(3) Both the parties and the court must, when drafting case management directions in the multi-track and fast track, take as their starting point any relevant standard directions which can be found online at  www.justice. gov.uk/courts/procedure-rules/civil  and adapt them as appropriate to the circumstances of the case. (4) The court must adopt such procedure at any hearing as it considers appropriate to further the overriding objective. (5) At any hearing where the court is taking evidence this may include— (a) ascertaining from an unrepresented party the matters about which the witness may be able to give evidence or on which the witness ought to be cross-examined; and (b) putting, or causing to be put, to the witness such questions as may appear to the court to be proper. Court officer’s power to refer to a judge 3.2

Where a step is to be taken by a court officer– (a) the court officer may consult a judge before taking that step; (b) the step may be taken by a judge instead of the court officer. Court’s power to make order of its own initiative 3.3

(1) Except where a rule or some other enactment provides otherwise, the court may exercise its powers on an application or of its own initiative. (Part 23 sets out the procedure for making an application) (2) Where the court proposes to make an order of its own initiative – (a) it may give any person likely to be affected by the order an opportunity to make representations; and (b) where it does so it must specify the time by and the manner in which the representations must be made. (3) Where the court proposes – (a) to make an order of its own initiative; and (b) to hold a hearing to decide whether to make the order, it must give each party likely to be affected by the order at least 3 days’ notice of the hearing. (4) The court may make an order of its own initiative, without hearing the parties or giving them an opportunity to make representations. 449

Civil Procedure Rule and Guidance

(5) Where the court has made an order under paragraph (4) – (a) a party affected by the order may apply to have it set aside(GL), varied or stayed(GL); and (b) the order must contain a statement of the right to make such an application. (6) An application under paragraph (5)(a) must be made – (a) within such period as may be specified by the court; or (b) if the court does not specify a period, not more than 7 days after the date on which the order was served on the party making the application. (7) If the court of its own initiative strikes out a statement of case or dismisses an application, (including an application for permission to appeal or for permission to apply for judicial review) and it considers that the claim or application is totally without merit – (a) the court’s order must record that fact; and (b) the court must at the same time consider whether it is appropriate to make a civil restraint order. Power to strike out a statement of case 3.4

(1) In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case. (2) The court may strike out(GL) a statement of case if it appears to the court – (a) that the statement of case discloses no reasonable grounds for bringing or defending the claim; (b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or (c) that there has been a failure to comply with a rule, practice direction or court order. (3) When the court strikes out a statement of case it may make any consequential order it considers appropriate. (4) Where – (a) the court has struck out a claimant’s statement of case; (b) the claimant has been ordered to pay costs to the defendant; and (c) before the claimant pays those costs, the claimant starts another claim against the same defendant, arising out of facts which are the same or substantially the same as those relating to the claim in which the statement of case was struck out,the court may, on the application of 450



the defendant, stay(GL) that other claim until the costs of the first claim have been paid. (5) Paragraph (2) does not limit any other power of the court to strike out(GL) a statement of case. (6) If the court strikes out a claimant’s statement of case and it considers that the claim is totally without merit – (a) the court’s order must record that fact; and (b) the court must at the same time consider whether it is appropriate to make a civil restraint order. Judgment without trial after striking out 3.5

(1) This rule applies where – (a) the court makes an order which includes a term that the statement of case of a party shall be struck out if the party does not comply with the order; and (b) the party against whom the order was made does not comply with it. (2) A party may obtain judgment with costs by filing a request for judgment if – (a) the order referred to in paragraph (1)(a) relates to the whole of a statement of case; and (b) where the party wishing to obtain judgment is the claimant, the claim is for – (i) a specified amount of money; (ii) an amount of money to be decided by the court; (iii) delivery of goods where the claim form gives the defendant the alternative of paying their value; or (iv) any combination of these remedies. (3) Where judgment is obtained under this rule in a case to which paragraph (2) (b)(iii) applies, it will be judgment requiring the defendant to deliver goods, or (if the defendant does not do so) pay the value of the goods as decided by the court (less any payments made). (4) The request must state that the right to enter judgment has arisen because the court’s order has not been complied with. (5) A party must make an application in accordance with Part 23 if they wish to obtain judgment under this rule in a case to which paragraph (2) does not apply. 451

Civil Procedure Rule and Guidance

Judgment without trial after striking out a claim in the County Court Money Claims Centre 3.5A

(1) If a claimant files a request for judgment in the County Court Money Claims Centre in accordance with rule 3.5, in a claim which includes an amount of money to be decided by the court, the claim will be sent to the preferred hearing centre. (2) If a claim is sent to a preferred hearing centre pursuant to paragraph (1), any further correspondence should be sent to, and any further requests should be made at, the hearing centre to which the claim was sent. Setting aside judgment entered after striking out 3.6

(1) A party against whom the court has entered judgment under rule 3.5 may apply to the court to set the judgment aside. (2) An application under paragraph (1) must be made not more than 14 days after the judgment has been served on the party making the application. (3) If the right to enter judgment had not arisen at the time when judgment was entered, the court must set aside(GL) the judgment. (4) If the application to set aside(GL)  is made for any other reason, rule 3.9 (relief from sanctions) shall apply. 3.6A

If— (a) a party against whom judgment has been entered under rule 3.5 applies to set the judgment aside; (b) the claim is for a specified sum; (c) the claim was started in the County Court Money Claims Centre; and (d) the claim has not been sent to a County Court hearing centre, the claim will be sent to— (i) if the defendant is an individual, the defendant’s home court; and (ii) if the defendant is not an individual, the preferred hearing centre. Sanctions for non-payment of certain fees by the claimant 3.7

(1) Except where rule 3.7A1 applies, this rule applies to fees payable by the claimant where— 452



(a) omitted; (b) omitted; (c) omitted; (d) the court has made an order giving permission to proceed with a claim for judicial review; or (e) the fee payable for a hearing specified by the Civil Proceedings Fees Order 2008 (Fees Order 2008) is not paid. (Rule 54.12 provides for the service of the order giving permission to proceed with a claim for judicial review) (2) The court will serve a notice on the claimant requiring payment of the fee specified in the Fees Order 2008 if, at the time the fee is due, the claimant has not paid it or made an application for full or part remission. (3) The notice will specify the date by which the claimant must pay the fee. (4) If the claimant does not – (a) pay the fee; or (b) make an application for full or part remission of the fee, by the date specified in the notice – (i) the claim will automatically be struck out without further order of the court; and (ii) the claimant will be liable for the costs which the defendant has incurred unless the court orders otherwise. (Rule 44.9 provides for the basis of assessment where a right to costs arises under this rule and contains provisions about when a costs order is deemed to have been made and applying for an order under section 194(3) of the Legal Services Act 2007) (5) Where an application for – (a) full or part remission of a fee is refused, the court will serve notice on the claimant requiring payment of the full fee by the date specified in the notice; or (b) part remission of a fee is granted, the court will serve notice on the claimant requiring payment of the balance of the fee by the date specified in the notice.’; and (6) If the claimant does not pay the fee by the date specified in the notice – (a) the claim will automatically be struck out without further order of the court; and (b) the claimant will be liable for the costs which the defendant has incurred unless the court orders otherwise. (7) If – 453

Civil Procedure Rule and Guidance

(a) a claimant applies to have the claim reinstated; and (b) the court grants relief, the relief will be conditional on the claimant either paying the fee or filing evidence of full or part remission of the fee within the period specified in paragraph (8). (8) The period referred to in paragraph (7) is – (a) if the order granting relief is made at a hearing at which the claimant is present or represented, 2 days from the date of the order; (b) in any other case, 7 days from the date of service of the order on the claimant. Sanctions for non-payment of the trial fee by the claimant 3.7A1

(1) In this rule and in rule 3.7AA— (a) ‘Fees Order 2008’ means the Civil Proceedings Fees Order 2008; (b) ‘fee notice’ means a notice of— (i) the amount of a trial fee; (ii) the trial fee payment date; and (iii) the consequences of non-payment of the trial fee; (c) ‘trial date’ means the date of the trial in relation to which the trial fee is payable, and if the trial in relation to which the trial fee is payable is scheduled to commence during the course of a specified period, ‘trial date’ means the date of the Monday of the first week of that specified period; (d) ‘trial fee’ means fee 2.1 set out in the Table in Schedule 1 to the Fees Order 20083 and payable for the trial of a case on the multi-track, fast track or small claims track; (e) ‘trial fee payment date’ means the date by which the trial fee must be paid, calculated in accordance with the Fees Order 2008; (f) ‘revised trial fee payment date’ means, if an application for fee remission is denied in whole or part, the revised date by which the fee or part of it is to be paid, calculated in accordance with the Fees Order 2008. (2) This rule applies in relation to trial fees where that fee is to be paid by the claimant and the court notifies the parties in writing of the trial date. (3) When the court notifies the parties in writing of the trial date, the court must also send a fee notice to the claimant. (4) The fee notice may be contained in the same document as the notice of trial date, or may be a separate document. 454



(5) Where an application for full or part remission of a trial fee is refused, when the court sends written notice to the claimant of the refusal, the court must also notify the claimant in writing— (a) that the claimant is required to pay the full trial fee by the revised trial fee payment date; and (b) of the consequences of non-payment of the trial fee. (6) Where part remission of a fee is granted, when the court sends written notice to the claimant of the part remission, the court must also notify the claimant in writing— (a) that the claimant is required to pay the balance of the trial fee by the revised trial fee payment date; and (b) of the consequences of non-payment of the balance of the trial fee. (7) If— (a) the claimant has had notice in accordance with this rule to pay the trial fee; (b) the claimant has not applied to have the trial fee remitted in whole or part; and (c) the trial fee has not been paid on or before the trial fee payment date, the claim will automatically be struck out without further order of the court, and unless the court orders otherwise, the claimant will be liable for the costs which the defendant has incurred. (8) If— (a) the claimant has had notice in accordance with this rule to pay the trial fee; (b) the claimant has applied to have the trial fee remitted in whole or part; (c) remission is refused or only part remission of the trial fee is granted; (d) following the decision on remission, the claimant has had notice in accordance with this rule to pay the full trial fee or balance of it; and (e) the full trial fee or balance of it (as appropriate) has not been paid on or before the revised trial fee payment date, the claim will automatically be struck out without further order of the court, and, unless the court orders otherwise, the claimant will be liable for the costs which the defendant has incurred. (Rule 44.9 provides for the basis of assessment where a right to costs arises under this rule and contains provisions about when a costs order is deemed to have been made and applying for an order under section 194(3) of the Legal Services Act 20074.) (9) If— 455

Civil Procedure Rule and Guidance

(a) a claimant applies to have the claim reinstated; and (b) the court grants relief, the relief must be conditional on the claimant either paying the trial fee or filing evidence of full or part remission of that fee within the period specified in paragraph (10). (10)  The period referred to in paragraph (9) is— (a) if the order granting relief is made at a hearing at which the claimant is present or represented, 2 days from the date of the order; (b) in any other case, 7 days from the date of service of the order on the claimant. (11) If a fee is not paid for a claim where there is also a counterclaim, the counterclaim will still stand. Sanctions for non-payment of certain fees by the defendant 3.7A

(1) Except where rule 3.7AA applies, this rule applies to fees payable by the defendant where— (a) a defendant files a counterclaim without – (i) payment of the fee specified by the Civil Proceedings Fees Order 20085 (Fees Order 2008); or (ii) making an application for full or part remission of the fee; or (b) the proceedings continue on the counterclaim alone and – (i) omitted; (ii) omitted; (iii) omitted; (iv) the fee payable for a hearing specified by the Fees Order 2008 is not paid. (2) The court will serve a notice on the defendant requiring payment of the fee specified in the Fees Order 2008 if, at the time the fee is due, the defendant has not paid it or made an application for full or part remission. (3) The notice will specify the date by which the defendant must pay the fee. (4) If the defendant does not – (a) pay the fee; or (b) make an application for full or part remission of the fee, by the date specified in the notice, the counterclaim will automatically be struck out without further order of the court. 456



(5) Where an application for – (a) full or part remission of a fee is refused, the court will serve notice on the defendant requiring payment of the full fee by the date specified in the notice; or (b) part remission of a fee is granted, the court will serve notice on the defendant requiring payment of the balance of the fee by the date specified in the notice. (6) If the defendant does not pay the fee by the date specified in the notice, the counterclaim will automatically be struck out without further order of the court. (7) If – (a) the defendant applies to have the counterclaim reinstated; and (b) the court grants relief, the relief will be conditional on the defendant either paying the fee or filing evidence of full or part remission of the fee within the period specified in paragraph (8). (8) The period referred to in paragraph (7) is – (a) if the order granting relief is made at a hearing at which the defendant is present or represented, 2 days from the date of the order; (b) in any other case, 7 days from the date of service of the order on the defendant. Sanctions for non-payment of the trial fee by the defendant, where proceedings continue on the counterclaim alone 3.7AA

(1) This rule applies in relation to trial fees where that fee is to be paid by the defendant and the court notifies the defendant in writing of the trial date. (Definitions contained in rule 3.7A1(1) apply to this rule also.) (2) When the court notifies the parties in writing of the trial date, the court must also send a fee notice to the defendant. (3) The fee notice may be contained in the same document as the notice of trial date, or may be a separate document. (4) Where an application for full or part remission of a trial fee is refused, when the court sends written notice to the defendant of the refusal, the court must also notify the defendant in writing— (a) that the defendant is required to pay the full trial fee by the revised trial fee payment date; and (b) of the consequences of non-payment of the trial fee. 457

Civil Procedure Rule and Guidance

(5) Where part remission of a fee is granted, when the court sends written notice to the defendant of the part remission, the court must also notify the defendant in writing— (a) that the defendant is required to pay the balance of the trial fee by the revised trial fee payment date; and (b) of the consequences of non-payment of the balance. (6) If— (a) the defendant has had notice in accordance with this rule to pay the trial fee; (b) the defendant has not applied to have the trial fee remitted in whole or part; and (c) the trial fee has not been paid on or before the trial fee payment date, the counterclaim will automatically be struck out without further order of the court. (7) If— (a) the defendant has had notice in accordance with this rule to pay the trial fee; (b) the defendant has applied to have the trial fee remitted in whole or part; (c) remission is refused or only part remission of the trial fee is granted; (d) following the decision on remission, the defendant has had notice in accordance with this rule to pay the full trial fee or balance of it; and (e) the full trial fee or balance of it (as appropriate) has not been paid on or before the revised trial fee payment date, the counterclaim will automatically be struck out without further order of the court. (8) If— (a) a defendant applies to have the counterclaim reinstated; and (b) the court grants relief, the relief will be conditional on the defendant either paying the trial fee or filing evidence of full or part remission of the fee within the period specified in paragraph (9). (9) The period referred to in paragraph (8) is— (a) if the order granting relief is made at a hearing at which the defendant is present or represented, 2 days from the date of the order; (b) in any other case, 7 days from the date of service of the order on the defendant. 458



Sanctions for dishonouring cheque 3.7B

(1) This rule applies where any fee is paid by cheque and that cheque is subsequently dishonoured. (2) The court will serve a notice on the paying party requiring payment of the fee which will specify the date by which the fee must be paid. (3) If the fee is not paid by the date specified in the notice – (a) where the fee is payable by the claimant, the claim will automatically be struck out without further order of the court; (b) where the fee is payable by the defendant, the defence will automatically be struck out without further order of the court, and the paying party shall be liable for the costs which any other party has incurred unless the court orders otherwise. (Rule 44.9 provides for the basis of assessment where a right to costs arises under this rule) (4) If – (a) the paying party applies to have the claim or defence reinstated; and (b) the court grants relief, the relief shall be conditional on that party paying the fee within the period specified in paragraph (5). (5) The period referred to in paragraph (4) is – (a) if the order granting relief is made at a hearing at which the paying party is present or represented, 2 days from the date of the order; (b) in any other case, 7 days from the date of service of the order on the paying party. (6) For the purposes of this rule, ‘claimant’ includes a Part 20 claimant and ‘claim form’ includes a Part 20 claim. Sanctions have effect unless defaulting party obtains relief 3.8

(1) Where a party has failed to comply with a rule, practice direction or court order, any sanction for failure to comply imposed by the rule, practice direction or court order has effect unless the party in default applies for and obtains relief from the sanction. (Rule 3.9 sets out the circumstances which the court will consider on an application to grant relief from a sanction) 459

Civil Procedure Rule and Guidance

(2) Where the sanction is the payment of costs, the party in default may only obtain relief by appealing against the order for costs. (3) Where a rule, practice direction or court order – (a) requires a party to do something within a specified time, and (b) specifies the consequence of failure to comply, the time for doing the act in question may not be extended by agreement between the parties except as provided in paragraph (4). (4) In the circumstances referred to in paragraph (3) and unless the court orders otherwise, the time for doing the act in question may be extended by prior written agreement of the parties for up to a maximum of 28 days, provided always that any such extension does not put at risk any hearing date. Relief from sanctions 3.9

(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need – (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders. (2) An application for relief must be supported by evidence. General power of the court to rectify matters where there has been an error of procedure 3.10

Where there has been an error of procedure such as a failure to comply with a rule or practice direction – (a) the error does not invalidate any step taken in the proceedings unless the court so orders; and (b) the court may make an order to remedy the error. Power of the court to make civil restraint orders 3.11

A practice direction may set out – (a) the circumstances in which the court has the power to make a civil restraint order against a party to proceedings; 460



(b) the procedure where a party applies for a civil restraint order against another party; and (c) the consequences of the court making a civil restraint order.

PRACTICE DIRECTION 3A STRIKING OUT A STATEMENT OF CASE This Practice Direction supplements CPR Rule 3.4 Introductory 1.1 Rule 1.4(2)(c) includes as an example of active case management the summary disposal of issues which do not need full investigation at trial. 1.2 The rules give the court two distinct powers which may be used to achieve this. Rule 3.4 enables the court to strike out the whole or part of a statement of case which discloses no reasonable grounds for bringing or defending a claim (rule 3.4(2)(a)), or which is an abuse of the process of the court or otherwise likely to obstruct the just disposal of the proceedings (rule 3.4(2)(b)) Rule 24.2 enables the court to give summary judgment against a claimant or defendant where that party has no real prospect of succeeding on his claim or defence. Both those powers may be exercised on an application by a party or on the court’s own initiative. 1.3 This practice direction sets out the procedure a party should follow if he wishes to make an application for an order under rule 3.4. 1.4 The following are examples of cases where the court may conclude that particulars of claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a): (1) those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’, (2) those which are incoherent and make no sense, (3) those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant. 1.5 A claim may fall within rule 3.4(2)(b) where it is vexatious, scurrilous or obviously ill-founded. 1.6 A defence may fall within rule 3.4(2)(a) where: (1) it consists of a bare denial or otherwise sets out no coherent statement of facts, or (2) the facts it sets out, while coherent, would not even if true amount in law to a defence to the claim. 1.7 A party may believe he can show without a trial that an opponent’s case has no real prospect of success on the facts, or that the case is bound to 461

Civil Procedure Rule and Guidance

succeed or fail, as the case may be, because of a point of law (including the construction of a document). In such a case the party concerned may make an application under rule 3.4 or Part 24 (or both) as he thinks appropriate. 1.8 The examples set out above are intended only as illustrations. 1.9 Where a rule, practice direction or order states ‘shall be struck out or dismissed’ or ‘will be struck out or dismissed’ this means that the striking out or dismissal will be automatic and that no further order of the court is required. Claims which appear to fall within rule 3.4(2)(a) or (b) 2.1 If a court officer is asked to issue a claim form which he believes may fall within rule 3.4(2)(a) or (b) he should issue it, but may then consult a judge (under rule 3.2) before returning the claim form to the claimant or taking any other step to serve the defendant. The judge may on his own initiative make an immediate order designed to ensure that the claim is disposed of or (as the case may be) proceeds in a way that accords with the rules. 2.3 The judge may allow the claimant a hearing before deciding whether to make such an order. 2.4 Orders the judge may make include: (1) an order that the claim be stayed until further order, (2) an order that the claim form be retained by the court and not served until the stay is lifted, (3) an order that no application by the claimant to lift the stay be heard unless he files such further documents (for example a witness statement or an amended claim form or particulars of claim) as may be specified in the order. 2.5 Where the judge makes any such order or, subsequently, an order lifting the stay he may give directions about the service on the defendant of the order and any other documents on the court file. 2.6 The fact that a judge allows a claim referred to him by a court officer to proceed does not prejudice the right of any party to apply for any order against the claimant. Defences which appear to fall within rule 3.4(2)(a) or (b) 3.1 A court officer may similarly consult a judge about any document filed which purports to be a defence and which he believes may fall within rule 3.4(2)(a) or (b). 3.2 If the judge decides that the document falls within rule 3.4(2)(a) or (b) he may on his own initiative make an order striking it out. Where he does so he may extend the time for the defendant to file a proper defence. 462



3.3 The judge may allow the defendant a hearing before deciding whether to make such an order. 3.4 Alternatively the judge may make an order under rule 18.1 requiring the defendant within a stated time to clarify his defence or to give additional information about it. The order may provide that the defence will be struck out if the defendant does not comply. 3.5 The fact that a judge does not strike out a defence on his own initiative does not prejudice the right of the claimant to apply for any order against the defendant. General provisions 4.1 The court may exercise its powers under rule 3.4(2)(a) or (b) on application or on its own initiative at any time. 4.2 Where a judge at a hearing strikes out all or part of a party’s statement of case he may enter such judgment for the other party as that party appears entitled to. Applications for orders under rule 3.4(2) 5.1 Attention is drawn to Part 23 (General Rules about Applications) and to Practice Direction 23A. The practice direction requires all applications to be made as soon as possible and before allocation if possible. 5.2 While many applications under rule 3.4(2) can be made without evidence in support, the applicant should consider whether facts need to be proved and, if so, whether evidence in support should be filed and served. Applications for summary judgment 6.1 Applications for summary judgment may be made under Part 24. Attention is drawn to that Part and to Practice Direction 24. Vexatious litigants 7.1 This Practice Direction applies where a ‘civil proceedings order’ or an ‘all proceedings order’ (as respectively defined under section 42(1A) of the Senior Courts Act 1981) is in force against a person (‘the litigant’). 7.2 An application by the litigant for permission to begin or continue, or to make any application in, any civil proceedings shall be made by application notice issued in the High Court and signed by the litigant. 7.3 The application notice must state: 463

Civil Procedure Rule and Guidance

(1) the title and reference number of the proceedings in which the civil proceedings order or the all proceedings order, as the case may be, was made, (2) the full name of the litigant and his address, (3) the order the applicant is seeking, and (4) briefly, why the applicant is seeking the order. 7.4 The application notice must be filed together with any written evidence on which the litigant relies in support of his application. 7.5 Either in the application notice or in written evidence filed in support of the application, the previous occasions on which the litigant made an application for permission under section 42(1A) of the said Act must be listed. 7.6 The application notice, together with any written evidence, will be placed before a High Court judge who may: (1) without the attendance of the applicant make an order giving the permission sought; (2) give directions for further written evidence to be supplied by the litigant before an order is made on the application; (3) make an order dismissing the application without a hearing; or (4) give directions for the hearing of the application. 7.7 Directions given under paragraph 7.6(4) may include an order that the application notice be served on the Attorney General and on any person against whom the litigant desires to bring the proceedings for which permission is being sought. 7.8 Any order made under paragraphs 6 or 7 will be served on the litigant at the address given in the application notice. CPR Part 6 will apply. 7.9 A person may apply to set aside the grant of permission if: (1) the permission allowed the litigant to bring or continue proceedings against that person or to make any application against him, and (2) the permission was granted other than at a hearing of which that person was given notice under paragraph 7. 7.10 Any application under paragraph 7.9 must be made in accordance with CPR Part 23.

PRACTICE DIRECTION 3B SANCTIONS FOR NON-PAYMENT OF FEES This Practice Direction supplements CPR rule 3.7, 3.7A1 and 3.7AA 464

Practice Direction 3C Civil restraint orders

1 If a claim is struck out under rule 3.7, the court will send notice that it has been struck out to the defendant. If a claim or counterclaim is struck out under rule 3.7A1 or 3.7AA, the court will send notice that it has been struck out to both the claimant and the defendant. 2 In relation to the notice sent out under rule 3.7 or 3.7A1, the notice will also explain the effect of rule 25.11. This provides that any interim injunction will cease to have effect 14 days after the date the claim is struck out under rule 3.7. Paragraph (2) provides that if the claimant applies to reinstate the claim before the interim injunction ceases to have effect, the injunction will continue until the hearing of the application unless the court orders otherwise. If the claimant makes such an application, the defendant will be given notice in the ordinary way under rule 23.4.

PRACTICE DIRECTION 3C CIVIL RESTRAINT ORDERS This practice direction supplements CPR rule 3.11

Introduction 1 This practice direction applies where the court is considering whether to make – (a) a limited civil restraint order; (b) an extended civil restraint order; or (c) a general civil restraint order, against a party who has issued claims or made applications which are totally without merit. Rules 3.3(7), 3.4(6) and 23.12 provide that where a statement of case or application is struck out or dismissed and is totally without merit, the court order must specify that fact and the court must consider whether to make a civil restraint order. Rule 52.20(6) makes similar provision where the appeal court refuses an application for permission to appeal, strikes out an appellant’s notice or dismisses an appeal.

Limited civil restraint orders 2.1 A limited civil restraint order may be made by a judge of any court where a party has made 2 or more applications which are totally without merit. 2.2 Where the court makes a limited civil restraint order, the party against whom the order is made – 465

Civil Procedure Rule and Guidance

(1) will be restrained from making any further applications in the proceedings in which the order is made without first obtaining the permission of a judge identified in the order; (2) may apply for amendment or discharge of the order provided he has first obtained the permission of a judge identified in the order; and (3) may apply for permission to appeal the order and if permission is granted, may appeal the order. 2.3 Where a party who is subject to a limited civil restraint order – (1) makes a further application in the proceedings in which the order is made without first obtaining the permission of a judge identified in the order, such application will automatically be dismissed – (a) without the judge having to make any further order; and (b) without the need for the other party to respond to it; (2) repeatedly makes applications for permission pursuant to that order which are totally without merit, the court may direct that if the party makes any further application for permission which is totally without merit, the decision to dismiss the application will be final and there will be no right of appeal, unless the judge who refused permission grants permission to appeal. 2.4 A party who is subject to a limited civil restraint order may not make an application for permission under paragraphs 2.2(1) or 2.2(2) without first serving notice of the application on the other party in accordance with paragraph 2.5. 2.5 A notice under paragraph 2.4 must – (1) set out the nature and grounds of the application; and (2) provide the other party with at least 7 days within which to respond. 2.6 An application for permission under paragraphs 2.2(1) or 2.2(2) – (1) must be made in writing; (2) must include the other party’s written response, if any, to the notice served under paragraph 2.4; and (3) will be determined without a hearing. 2.7 An order under paragraph 2.3(2) may only be made by – (1) a Court of Appeal judge; (2) a High Court judge or Master; or (3) a Designated Civil Judge or their appointed deputy. 2.8 Where a party makes an application for permission under paragraphs 2.2(1) or 2.2(2) and permission is refused, any application for permission to appeal – 466

Practice Direction 3C Civil restraint orders

(1) must be made in writing; and (2) will be determined without a hearing. 2.9 A limited civil restraint order – (1) is limited to the particular proceedings in which it is made; (2) will remain in effect for the duration of the proceedings in which it is made, unless the court otherwise orders; and (3) must identify the judge or judges to whom an application for permission under paragraphs 2.2(1), 2.2(2) or 2.8 should be made. Extended civil restraint orders 3.1 An extended civil restraint order may be made by – (1) a judge of the Court of Appeal; (2) a judge of the High Court; or (3) a Designated Civil Judge or their appointed deputy in the County Court, where a party has persistently issued claims or made applications which are totally without merit. 3.2 Unless the court otherwise orders, where the court makes an extended civil restraint order, the party against whom the order is made – (1) will be restrained from issuing claims or making applications in – (a) any court if the order has been made by a judge of the Court of Appeal; (b) the High Court or the County Court if the order has been made by a judge of the High Court; or (c) the County Court identified in the order if the order has been made by a designated civil judge or their appointed deputy, concerning any matter involving or relating to or touching upon or leading to the proceedings in which the order is made without first obtaining the permission of a judge identified in the order; (2) may apply for amendment or discharge of the order provided he has first obtained the permission of a judge identified in the order; and (3) may apply for permission to appeal the order and if permission is granted, may appeal the order. 3.3 Where a party who is subject to an extended civil restraint order – (1) issues a claim or makes an application in a court identified in the order concerning any matter involving or relating to or touching upon or leading to the proceedings in which the order is made without first obtaining the permission of a judge identified in the order, the claim or application will automatically be struck out or dismissed – 467

Civil Procedure Rule and Guidance

(a) without the judge having to make any further order; and (b) without the need for the other party to respond to it; (2) repeatedly makes applications for permission pursuant to that order which are totally without merit, the court may direct that if the party makes any further application for permission which is totally without merit, the decision to dismiss the application will be final and there will be no right of appeal, unless the judge who refused permission grants permission to appeal. 3.4 A party who is subject to an extended civil restraint order may not make an application for permission under paragraphs 3.2(1) or 3.2(2) without first serving notice of the application on the other party in accordance with paragraph 3.5. 3.5 A notice under paragraph 3.4 must – (1) set out the nature and grounds of the application; and (2) provide the other party with at least 7 days within which to respond. 3.6 An application for permission under paragraphs 3.2(1) or 3.2(2) – (1) must be made in writing; (2) must include the other party’s written response, if any, to the notice served under paragraph 3.4; and (3) will be determined without a hearing. 3.7 An order under paragraph 3.3(2) may only be made by – (1) a Court of Appeal judge; (2) a High Court judge; or (3) a Designated Civil Judge or their appointed deputy. 3.8 Where a party makes an application for permission under paragraphs 3.2(1) or 3.2(2) and permission is refused, any application for permission to appeal – (1) must be made in writing; and (2) will be determined without a hearing. 3.9 An extended civil restraint order – (1) will be made for a specified period not exceeding 2 years; (2) must identify the courts in which the party against whom the order is made is restrained from issuing claims or making applications; and (3) must identify the judge or judges to whom an application for permission under paragraphs 3.2(1), 3.2(2) or 3.8 should be made. 468

Practice Direction 3C Civil restraint orders

3.10  The court may extend the duration of an extended civil restraint order, if it considers it appropriate to do so, but it must not be extended for a period greater than 2 years on any given occasion. 3.11  If they consider that it would be appropriate to make an extended civil restraint order – (1) a Master or a District Judge in a district registry of the High Court must transfer the proceedings to a High Court judge; and (2) a Circuit Judge or a District Judge in the County Court must transfer the proceedings to the Designated Civil Judge. General civil restraint orders 4.1 A general civil restraint order may be made by – (1) a judge of the Court of Appeal; (2) a judge of the High Court; or (3) a Designated Civil Judge or their appointed deputy in the County Court, where the party against whom the order is made persists in issuing claims or making applications which are totally without merit, in circumstances where an extended civil restraint order would not be sufficient or appropriate. 4.2 Unless the court otherwise orders, where the court makes a general civil restraint order, the party against whom the order is made – (1) will be restrained from issuing any claim or making any application in – (a) any court if the order has been made by a judge of the Court of Appeal; (b) the High Court or the County Court if the order has been made by a judge of the High Court; or (c) the County Court identified in the order if the order has been made by a Designated Civil Judge or their appointed deputy, without first obtaining the permission of a judge identified in the order; (2) may apply for amendment or discharge of the order provided he has first obtained the permission of a judge identified in the order; and (3) may apply for permission to appeal the order and if permission is granted, may appeal the order. 4.3 Where a party who is subject to a general civil restraint order – (1) issues a claim or makes an application in a court identified in the order without first obtaining the permission of a judge identified in the order, the claim or application will automatically be struck out or dismissed – (a) without the judge having to make any further order; and 469

Civil Procedure Rule and Guidance

(b) without the need for the other party to respond to it; (2) repeatedly makes applications for permission pursuant to that order which are totally without merit, the court may direct that if the party makes any further application for permission which is totally without merit, the decision to dismiss that application will be final and there will be no right of appeal, unless the judge who refused permission grants permission to appeal. 4.4 A party who is subject to a general civil restraint order may not make an application for permission under paragraphs 4.2(1) or 4.2(2) without first serving notice of the application on the other party in accordance with paragraph 4.5. 4.5 A notice under paragraph 4.4 must – (1) set out the nature and grounds of the application; and (2) provide the other party with at least 7 days within which to respond. 4.6 An application for permission under paragraphs 4.2(1) or 4.2(2) – (1) must be made in writing; (2) must include the other party’s written response, if any, to the notice served under paragraph 4.4; and (3) will be determined without a hearing. 4.7 An order under paragraph 4.3(2) may only be made by – (1) a Court of Appeal judge; (2) a High Court judge; or (3) a Designated Civil Judge or their appointed deputy. 4.8 Where a party makes an application for permission under paragraphs 4.2(1) or 4.2(2) and permission is refused, any application for permission to appeal – (1) must be made in writing; and (2) will be determined without a hearing. 4.9 A general civil restraint order – (1) will be made for a specified period not exceeding 2 years; (2) must identify the courts in which the party against whom the order is made is restrained from issuing claims or making applications; and (3) must identify the judge or judges to whom an application for permission under paragraphs 4.2(1), 4.2(2) or 4.8 should be made. 4.10 The court may extend the duration of a general civil restraint order, if it considers it appropriate to do so, but it must not be extended for a period greater than 2 years on any given occasion. 470

Practice Direction 3F Costs capping

4.11 If they consider that it would be appropriate to make a general civil restraint order – (1) a Master or a District Judge in a district registry of the High Court must transfer the proceedings to a High Court judge; and (2) a Circuit Judge or a District Judge in the County Court must transfer the proceedings to the Designated Civil Judge. General 5.1 The other party or parties to the proceedings may apply for any civil restraint order. 5.2 An application under paragraph 5.1 must be made using the Part 23 procedure unless the court otherwise directs and the application must specify which type of civil restraint order is sought. 5.3 Examples of a limited civil restraint order, an extended civil restraint order and a general civil restraint order are annexed to this practice direction. These examples may be modified as appropriate in any particular case.

PRACTICE DIRECTION 3F COSTS CAPPING This Practice Direction supplements Section III of CPR Part 3

Section I – General rules about costs capping When to make an application 1.1 The court will make a costs capping order only in exceptional circumstances. 1.2 An application for a costs capping order must be made as soon as possible, preferably before or at the first case management hearing or shortly afterwards. The stage which the proceedings have reached at the time of the application will be one of the factors the court will consider when deciding whether to make a costs capping order. Costs budget 2

The budget required by rule 3.20 must be in the form of Precedent H annexed to this Practice Direction.

Schedule of costs 3 The schedule of costs referred to in rule 3.20(3) – (a) must set out – (i) each sub-heading as it appears in the applicant’s budget (column 1); 471

Civil Procedure Rule and Guidance

(ii) alongside each sub-heading, the amount claimed by the applicant in the applicant’s budget (column 2); and (iii) alongside the figures referred to in subparagraph (ii) the amount that the respondent proposes should be allowed under each sub-heading (column 3); and (b) must be supported by a statement of truth. Assessing the quantum of the costs cap 4.1 When assessing the quantum of a costs cap, the court will take into account the factors detailed in rule 44.5 and the relevant provisions supporting that rule in the Practice Direction supplementing Part 44. When considering a party’s budget of the costs they are likely to incur in the future conduct of the proceedings, the court may also take into account a reasonable allowance on costs for contingencies.

Section II – Costs capping in relation to trust funds Costs capping orders in relation to trust funds 5.1 In this Section, ‘trust fund’ means property which is the subject of a trust, and includes the estate of a deceased person. 5.2 This Section contains additional provisions to enable – (a) the parties to consider whether to apply for; and (b) the court to consider whether to make of its own initiative, a costs capping order in proceedings relating to trust funds. 5.3 This Section supplements rules 3.19 to 3.21 and Section I of this Practice Direction. 5.4 Any party to such proceedings who intends to apply for an order for the payment of costs out of the trust fund must file and serve on all other parties written notice of that intention together with a budget of the costs likely to be incurred by that party. 5.5 The documents mentioned in paragraph 5.4 must be filed and served – (a) in a Part 7 claim, with the first statement of case; and (b) in a Part 8 claim, with the evidence (or, if a defendant does not intend to serve and file evidence, with the acknowledgement of service). 5.6 When proceedings first come before the court for directions the court may make a costs capping order of its own initiative whether or not any party has applied for such an order. 472

Practice Direction 18Further information

PART 18 FURTHER INFORMATION Obtaining further information 18.1

(1) The court may at any time order a party to – (a) clarify any matter which is in dispute in the proceedings; or (b) give additional information in relation to any such matter, whether or not the matter is contained or referred to in a statement of case. (2) Paragraph (1) is subject to any rule of law to the contrary. (3) Where the court makes an order under paragraph (1), the party against whom it is made must – (a) file his response; and (b) serve it on the other parties, within the time specified by the court. (Part 22 requires a response to be verified by a statement of truth) (Part 53 (defamation) restricts requirements for providing further information about sources of information in defamation claims) Restriction on the use of further information 18.2

The court may direct that information provided by a party to another party (whether given voluntarily or following an order made under rule 18.1) must not be used for any purpose except for that of the proceedings in which it is given.

PRACTICE DIRECTION 18 FURTHER INFORMATION This Practice Direction supplements CPR Part 18 Attention is also drawn to Part 22 (Statements of Truth). Preliminary Request for further information or clarification 1.1 Before making an application to the court for an order under Part 18, the party seeking clarification or information (the first party) should first serve on the party from whom it is sought (the second party) a written request for that clarification or information (a Request) stating a date by which the 473

Civil Procedure Rule and Guidance

response to the Request should be served. The date must allow the second party a reasonable time to respond. 1.2 A Request should be concise and strictly confined to matters which are reasonably necessary and proportionate to enable the first party to prepare his own case or to understand the case he has to meet. 1.3 Requests must be made as far as possible in a single comprehensive document and not piecemeal. 1.4 A Request may be made by letter if the text of the Request is brief and the reply is likely to be brief; otherwise the Request should be made in a separate document. 1.5 If a Request is made in a letter, the letter should, in order to distinguish it from any other that might routinely be written in the course of a case, (1) state that it contains a Request made under Part 18, and (2) deal with no matters other than the Request. 1.6 (1) A Request (whether made by letter or in a separate document) must – (a) be headed with the name of the court and the title and number of the claim, (b) in its heading state that it is a Request made under Part 18, identify the first party and the second party and state the date on which it is made, (c) set out in a separate numbered paragraph each request for information or clarification, (d) where a Request relates to a document, identify that document and (if relevant) the paragraph or words to which it relates, (e) state the date by which the first party expects a response to the Request. (2) (a) A Request which is not in the form of a letter may, if convenient, be prepared in such a way that the response may be given on the same document. (b) To do this the numbered paragraphs of the Request should appear on the left hand half of each sheet so that the paragraphs of the response may then appear on the right. (c) Where a Request is prepared in this form an extra copy should be served for the use of the second party. 1.7 Subject to the provisions of rule 6.23(5) and (6) and paragraphs 4.1 to 4.3 of Practice Direction 6A, a request should be served by e-mail if reasonably practicable. 474

Practice Direction 18Further information

Responding to a Request 2.1 A response to a Request must be in writing, dated and signed by the second party or his legal representative. 2.2 (1) Where the Request is made in a letter the second party may give his response in a letter or in a formal reply. (2) Such a letter should identify itself as a response to the Request and deal with no other matters than the response. 2.3 (1) Unless the Request is in the format described in paragraph 1.6(2) and the second party uses the document supplied for the purpose, a response must: (a) be headed with the name of the court and the title and number of the claim, (b) in its heading identify itself as a response to that Request, (c) repeat the text of each separate paragraph of the Request and set out under each paragraph the response to it, (d) refer to and have attached to it a copy of any document not already in the possession of the first party which forms part of the response. (2) A second or supplementary response to a Request must identify itself as such in its heading. 2.4 The second party must when he serves his response on the first party serve on every other party and file with the court a copy of the Request and of his response. Statements of Truth 3 Attention is drawn to Part 22 and to the definition of a statement of case in Part 2 of the rules; a response should be verified by a statement of truth. General matters 4.1 (1) If the second party objects to complying with the Request or part of it or is unable to do so at all or within the time stated in the Request he must inform the first party promptly and in any event within that time. (2) He may do so in a letter or in a separate document (a formal response), but in either case he must give reasons and, where relevant, give a date by which he expects to be able to comply. 475

Civil Procedure Rule and Guidance

4.2 (1) There is no need for a second party to apply to the court if he objects to a Request or is unable to comply with it at all or within the stated time. He need only comply with paragraph 4.1(1) above. (2) Where a second party considers that a Request can only be complied with at disproportionate expense and objects to comply for that reason he should say so in his reply and explain briefly why he has taken that view. Applications for Orders under Part 18 5.1 Attention is drawn to Part 23 (Applications) and to Practice Direction 23A. 5.2 An application notice for an order under Part 18 should set out or have attached to it the text of the order sought and in particular should specify the matter or matters in respect of which the clarification or information is sought. 5.3 (1) If a Request under paragraph 1 for the information or clarification has not been made, the application notice should, in addition, explain why not. (2) If a Request for clarification or information has been made, the application notice or the evidence in support should describe the response, if any. 5.4 Both the first party and the second party should consider whether evidence in support of or in opposition to the application is required. 5.5 (1) Where the second party has made no response to a Request served on him, the first party need not serve the application notice on the second party, and the court may deal with the application without a hearing. (2) Sub-paragraph (1) above only applies if at least 14 days have passed since the Request was served and the time stated in it for a response has expired. 5.6 Unless paragraph 5.5 applies the application notice must be served on the second party and on all other parties to the claim. 5.7 An order made under Part 18 must be served on all parties to the claim. 5.8 Costs: (1) Attention is drawn to the Practice Directions 44 to 48 on costs and, in particular, Subsections 8 and 9 of Practice Direction 44, which relate to the court’s power to make a summary assessment of costs. 476

Part 31 Disclosure and inspection of documents

(2) Attention is also drawn to rule 44.10(1) which provides that the general rule is that if an order does not mention costs no party is entitled to costs relating to that order.

PART 31 DISCLOSURE AND INSPECTION OF DOCUMENTS Scope of this Part 31.1

(1) This Part sets out rules about the disclosure and inspection of documents. (2) This Part applies to all claims except a claim on the small claims track. Meaning of disclosure 31.2

A party discloses a document by stating that the document exists or has existed. Right of inspection of a disclosed document 31.3

(1) A party to whom a document has been disclosed has a right to inspect that document except where – (a) the document is no longer in the control of the party who disclosed it; (b) the party disclosing the document has a right or a duty to withhold inspection of it, or (c) paragraph (2) applies. (Rule 31.8 sets out when a document is in the control of a party) (Rule 31.19 sets out the procedure for claiming a right or duty to withhold inspection) (2) Where a party considers that it would be disproportionate to the issues in the case to permit inspection of documents within a category or class of document disclosed under rule 31.6(b) – (a) he is not required to permit inspection of documents within that category or class; but (b) he must state in his disclosure statement that inspection of those documents will not be permitted on the grounds that to do so would be disproportionate. (Rule 31.6 provides for standard disclosure) 477

Civil Procedure Rule and Guidance

(Rule 31.10 makes provision for a disclosure statement) (Rule 31.12 provides for a party to apply for an order for specific inspection of documents) Meaning of document 31.4

In this Part – ‘document’ means anything in which information of any description is recorded; and ‘copy’, in relation to a document, means anything onto which information recorded in the document has been copied, by whatever means and whether directly or indirectly. Disclosure 31.5

(1) In all claims to which rule 31.5(2) does not apply – (a) an order to give disclosure is an order to give standard disclosure unless the court directs otherwise; (b) the court may dispense with or limit standard disclosure; and (c) the parties may agree in writing to dispense with or to limit standard disclosure. (2) Unless the court otherwise orders, paragraphs (3) to (8) apply to all multitrack claims, other than those which include a claim for personal injuries. (3) Not less than 14 days before the first case management conference each party must file and serve a report verified by a statement of truth, which – (a) describes briefly what documents exist or may exist that are or may be relevant to the matters in issue in the case; (b) describes where and with whom those documents are or may be located; (c) in the case of electronic documents, describes how those documents are stored; (d) estimates the broad range of costs that could be involved in giving standard disclosure in the case, including the costs of searching for and disclosing any electronically stored documents; and (e) states which of the directions under paragraphs (7) or (8) are to be sought. (4) In cases where the Electronic Documents Questionnaire has been exchanged, the Questionnaire should be filed with the report required by paragraph (3). 478

Part 31 Disclosure and inspection of documents

(5) Not less than seven days before the first case management conference, and on any other occasion as the court may direct, the parties must, at a meeting or by telephone, discuss and seek to agree a proposal in relation to disclosure that meets the overriding objective. (6) If – (a) the parties agree proposals for the scope of disclosure; and (b) the court considers that the proposals are appropriate in all the circumstances, the court may approve them without a hearing and give directions in the terms proposed. (7) At the first or any subsequent case management conference, the court will decide, having regard to the overriding objective and the need to limit disclosure to that which is necessary to deal with the case justly, which of the following orders to make in relation to disclosure – (a) an order dispensing with disclosure; (b) an order that a party disclose the documents on which it relies, and at the same time request any specific disclosure it requires from any other party; (c) an order that directs, where practicable, the disclosure to be given by each party on an issue by issue basis; (d) an order that each party disclose any documents which it is reasonable to suppose may contain information which enables that party to advance its own case or to damage that of any other party, or which leads to an enquiry which has either of those consequences; (e) an order that a party give standard disclosure; (f) any other order in relation to disclosure that the court considers appropriate. (8) The court may at any point give directions as to how disclosure is to be given, and in particular – (a) what searches are to be undertaken, of where, for what, in respect of which time periods and by whom and the extent of any search for electronically stored documents; (b) whether lists of documents are required; (c) how and when the disclosure statement is to be given; (d) in what format documents are to be disclosed (and whether any identification is required); (e) what is required in relation to documents that once existed but no longer exist; and (f) whether disclosure shall take place in stages. 479

Civil Procedure Rule and Guidance

(9) To the extent that the documents to be disclosed are electronic, the provisions of Practice Direction 31B – Disclosure of Electronic Documents will apply in addition to paragraphs (3) to (8). Standard disclosure – what documents are to be disclosed 31.6

Standard disclosure requires a party to disclose only– (a) the documents on which he relies; and (b) the documents which – (i) adversely affect his own case; (ii) adversely affect another party’s case; or (iii) support another party’s case; and (c) the documents which he is required to disclose by a relevant practice direction. Duty of search 31.7

(1) When giving standard disclosure, a party is required to make a reasonable search for documents falling within rule 31.6(b) or (c). (2) The factors relevant in deciding the reasonableness of a search include the following – (a) the number of documents involved; (b) the nature and complexity of the proceedings; (c) the ease and expense of retrieval of any particular document; and (d) the significance of any document which is likely to be located during the search. (3) Where a party has not searched for a category or class of document on the grounds that to do so would be unreasonable, he must state this in his disclosure statement and identify the category or class of document. (Rule 31.10 makes provision for a disclosure statement) Duty of disclosure limited to documents which are or have been in a party’s control 31.8

(1) A party’s duty to disclose documents is limited to documents which are or have been in his control. 480

Part 31 Disclosure and inspection of documents

(2) For this purpose a party has or has had a document in his control if – (a) it is or was in his physical possession; (b) he has or has had a right to possession of it; or (c) he has or has had a right to inspect or take copies of it. Disclosure of copies 31.9

(1) A party need not disclose more than one copy of a document. (2) A copy of a document that contains a modification, obliteration or other marking or feature – (a) on which a party intends to rely; or (b) which adversely affects his own case or another party’s case or supports another party’s case; shall be treated as a separate document. (Rule 31.4 sets out the meaning of a copy of a document) Procedure for standard disclosure 31.10

(1) The procedure for standard disclosure is as follows. (2) Each party must make and serve on every other party, a list of documents in the relevant practice form. (3) The list must identify the documents in a convenient order and manner and as concisely as possible. (4) The list must indicate – (a) those documents in respect of which the party claims a right or duty to withhold inspection; and (b) (i) those documents which are no longer in the party’s control; and (ii) what has happened to those documents. (Rule 31.19 (3) and (4) require a statement in the list of documents relating to any documents inspection of which a person claims he has a right or duty to withhold) (5) The list must include a disclosure statement. (6) A disclosure statement is a statement made by the party disclosing the documents – 481

Civil Procedure Rule and Guidance

(a) setting out the extent of the search that has been made to locate documents which he is required to disclose; (b) certifying that he understands the duty to disclose documents; and (c) certifying that to the best of his knowledge he has carried out that duty. (7) Where the party making the disclosure statement is a company, firm, association or other organisation, the statement must also– (a) identify the person making the statement; and (b) explain why he is considered an appropriate person to make the statement. (8) The parties may agree in writing – (a) to disclose documents without making a list; and (b) to disclose documents without the disclosing party making a disclosure statement. (9) A disclosure statement may be made by a person who is not a party where this is permitted by a relevant practice direction. Duty of disclosure continues during proceedings 31.11

(1) Any duty of disclosure continues until the proceedings are concluded. (2) If documents to which that duty extends come to a party’s notice at any time during the proceedings, he must immediately notify every other party. Specific disclosure or inspection 31.12

(1) The court may make an order for specific disclosure or specific inspection. (2) An order for specific disclosure is an order that a party must do one or more of the following things – (a) disclose documents or classes of documents specified in the order; (b) carry out a search to the extent stated in the order; (c) disclose any documents located as a result of that search. (3) An order for specific inspection is an order that a party permit inspection of a document referred to in rule 31.3(2). (Rule 31.3(2) allows a party to state in his disclosure statement that he will not permit inspection of a document on the grounds that it would be disproportionate to do so) 482

Part 31 Disclosure and inspection of documents

Disclosure in stages 31.13

The parties may agree in writing, or the court may direct, that disclosure or inspection or both shall take place in stages. Documents referred to in statements of case etc. 31.14

(1) A party may inspect a document mentioned in – (a) a statement of case; (b) a witness statement; (c) a witness summary; or (d) an affidavit(GL). (e) Revoked. (2) Subject to rule 35.10(4), a party may apply for an order for inspection of any document mentioned in an expert’s report which has not already been disclosed in the proceedings. (Rule 35.10(4) makes provision in relation to instructions referred to in an expert’s report) Inspection and copying of documents 31.15

Where a party has a right to inspect a document– (a) that party must give the party who disclosed the document written notice of his wish to inspect it; (b) the party who disclosed the document must permit inspection not more than 7 days after the date on which he received the notice; and (c) that party may request a copy of the document and, if he also undertakes to pay reasonable copying costs, the party who disclosed the document must supply him with a copy not more than 7 days after the date on which he received the request. (Rule 31.3 and 31.14 deal with the right of a party to inspect a document) Disclosure before proceedings start 31.16

(1) This rule applies where an application is made to the court under any Act for disclosure before proceedings have started. 483

Civil Procedure Rule and Guidance

(2) The application must be supported by evidence. (3) The court may make an order under this rule only where– (a) the respondent is likely to be a party to subsequent proceedings; (b) the applicant is also likely to be a party to those proceedings; (c) if proceedings had started, the respondent’s duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and (d) disclosure before proceedings have started is desirable in order to – (i) dispose fairly of the anticipated proceedings; (ii) assist the dispute to be resolved without proceedings; or (iii) save costs. (4) An order under this rule must – (a) specify the documents or the classes of documents which the respondent must disclose; and (b) require him, when making disclosure, to specify any of those documents – (i) which are no longer in his control; or (ii) in respect of which he claims a right or duty to withhold inspection. (5) Such an order may – (a) require the respondent to indicate what has happened to any documents which are no longer in his control; and (b) specify the time and place for disclosure and inspection. Orders for disclosure against a person not a party 31.17

(1) This rule applies where an application is made to the court under any Act for disclosure by a person who is not a party to the proceedings. (2) The application must be supported by evidence. (3) The court may make an order under this rule only where– (a) the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and (b) disclosure is necessary in order to dispose fairly of the claim or to save costs. (4) An order under this rule must – 484

Part 31 Disclosure and inspection of documents

(a) specify the documents or the classes of documents which the respondent must disclose; and (b) require the respondent, when making disclosure, to specify any of those documents – (i) which are no longer in his control; or (ii) in respect of which he claims a right or duty to withhold inspection. (5) Such an order may – (a) require the respondent to indicate what has happened to any documents which are no longer in his control; and (b) specify the time and place for disclosure and inspection. Rules not to limit other powers of the court to order disclosure 31.18

Rules 31.16 and 31.17 do not limit any other power which the court may have to order – (a) disclosure before proceedings have started; and (b) disclosure against a person who is not a party to proceedings. Claim to withhold inspection or disclosure of a document 31.19

(1) A person may apply, without notice, for an order permitting him to withhold disclosure of a document on the ground that disclosure would damage the public interest. (2) Unless the court orders otherwise, an order of the court under paragraph (1) – (a) must not be served on any other person; and (b) must not be open to inspection by any person. (3) A person who wishes to claim that he has a right or a duty to withhold inspection of a document, or part of a document, must state in writing – (a) that he has such a right or duty; and (b) the grounds on which he claims that right or duty. (4) The statement referred to in paragraph (3) must be made– (a) in the list in which the document is disclosed; or (b) if there is no list, to the person wishing to inspect the document. 485

Civil Procedure Rule and Guidance

(5) A party may apply to the court to decide whether a claim made under paragraph (3) should be upheld. (6) For the purpose of deciding an application under paragraph (1) (application to withhold disclosure) or paragraph (3) (claim to withhold inspection) the court may – (a) require the person seeking to withhold disclosure or inspection of a document to produce that document to the court; and (b) invite any person, whether or not a party, to make representations. (7) An application under paragraph (1) or paragraph (5) must be supported by evidence. (8) This Part does not affect any rule of law which permits or requires a document to be withheld from disclosure or inspection on the ground that its disclosure or inspection would damage the public interest. Restriction on use of a privileged document inspection of which has been inadvertently allowed 31.20

Where a party inadvertently allows a privileged(GL) document to be inspected, the party who has inspected the document may use it or its contents only with the permission of the court. Consequence of failure to disclose documents or permit inspection 31.21

A party may not rely on any document which he fails to disclose or in respect of which he fails to permit inspection unless the court gives permission. Subsequent use of disclosed documents and completed Electronic Documents Questionnaires 31.22

(1) A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, except where – (a) the document has been read to or by the court, or referred to, at a hearing which has been held in public; (b) the court gives permission; or (c) the party who disclosed the document and the person to whom the document belongs agree. 486

Practice Direction 31A Disclosure and inspection

(2) The court may make an order restricting or prohibiting the use of a document which has been disclosed, even where the document has been read to or by the court, or referred to, at a hearing which has been held in public. (3) An application for such an order may be made – (a) by a party; or (b) by any person to whom the document belongs. (4) For the purpose of this rule, an Electronic Documents Questionnaire which has been completed and served by another party pursuant to Practice Direction 31B is to be treated as if it is a document which has been disclosed. False disclosure statements 31.23

(1) Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false disclosure statement, without an honest belief in its truth. (Part 81 deals with proceedings in relation to contempt of court.)

PRACTICE DIRECTION 31A DISCLOSURE AND INSPECTION This Practice Direction supplements CPR Part 31 General 1.1 The normal order for disclosure will be an order that the parties give standard disclosure. 1.2 In order to give standard disclosure the disclosing party must make a reasonable search for documents falling within the paragraphs of rule 31.6. 1.3 Having made the search the disclosing party must (unless rule 31.10(8) applies) make a list of the documents of whose existence the party is aware that fall within those paragraphs and which are or have been in the party’s control (see rule 31.8). 1.4 The obligations imposed by an order for standard disclosure may be dispensed with or limited either by the court or by written agreement between the parties. Any such written agreement should be lodged with the court. The search 2 The extent of the search which must be made will depend upon the circumstances of the case including, in particular, the factors referred to 487

Civil Procedure Rule and Guidance

in rule 31.7(2). The parties should bear in mind the overriding principle of proportionality (see rule 1.1(2)(c)). It may, for example, be reasonable to decide not to search for documents coming into existence before some particular date, or to limit the search to documents in some particular place or places, or to documents falling into particular categories. Electronic disclosure 2A.1 Rule 31.4 contains a broad definition of a document. This extends to electronic documents, including e-mail and other electronic communications, word processed documents and databases. In addition to documents that are readily accessible from computer systems and other electronic devices and media, the definition covers those documents that are stored on servers and back-up systems and electronic documents that have been‘deleted’. It also extends to additional information stored and associated with electronic documents known as metadata. 2A.2  Practice Direction 31B contains additional provisions in relation to the disclosure of electronic documents in cases that are likely to be allocated to the multi-track. The list 3.1 The list should be in Form N265. 3.2 In order to comply with rule 31.10(3) it will normally be necessary to list the documents in date order, to number them consecutively and to give each a concise description (e.g. letter, claimant to defendant). Where there is a large number of documents all falling into a particular category the disclosing party may list those documents as a category rather than individually e.g. 50 bank statements relating to account number _ at _ Bank, _20_ to _20_; or, 35 letters passing between _ and _ between _20_ and _20_. 3.3 The obligations imposed by an order for disclosure will continue until the proceedings come to an end. If, after a list of documents has been prepared and served, the existence of further documents to which the order applies comes to the attention of the disclosing party, the party must prepare and serve a supplemental list. Disclosure statement 4.1 A list of documents must (unless rule 31.10(8)(b) applies) contain a disclosure statement complying with rule 31.10. The form of disclosure statement is set out in the Annex to this practice direction. 4.2 The disclosure statement should: (1) expressly state that the disclosing party believes the extent of the search to have been reasonable in all the circumstances, and 488

Practice Direction 31A Disclosure and inspection

(2) in setting out the extent of the search (see rule 31.10(6)) draw attention to any particular limitations on the extent of the search which were adopted for proportionality reasons and give the reasons why the limitations were adopted, e.g. the difficulty or expense that a search not subject to those limitations would have entailed or the marginal relevance of categories of documents omitted from the search. 4.3 Where rule 31.10(7) applies, the details given in the disclosure statement about the person making the statement must include his name and address and the office or position he holds in the disclosing party or the basis upon which he makes the statement on behalf of the party. 4.4 If the disclosing party has a legal representative acting for him, the legal representative must endeavour to ensure that the person making the disclosure statement (whether the disclosing party or, in a case to which rule 31.10(7) applies, some other person) understands the duty of disclosure under Part 31. 4.5 If the disclosing party wishes to claim that he has a right or duty to withhold a document, or part of a document, in his list of documents from inspection (see rule 31.19(3)), he must state in writing: (1) that he has such a right or duty, and (2) the grounds on which he claims that right or duty. 4.6 The statement referred to in paragraph 4.5 above should normally be included in the disclosure statement and must indicate the document, or part of a document, to which the claim relates. 4.7 An insurer or the Motor Insurers’ Bureau may sign a disclosure statement on behalf of a party where the insurer or the Motor Insurers’ Bureau has a financial interest in the result of proceedings brought wholly or partially by or against that party. Rule 31.10(7) and paragraph 4.3 above shall apply to the insurer or the Motor Insurers’ Bureau making such a statement. Specific disclosure 5.1 If a party believes that the disclosure of documents given by a disclosing party is inadequate he may make an application for an order for specific disclosure (see rule 31.12). 5.2 The application notice must specify the order that the applicant intends to ask the court to make and must be supported by evidence (see rule 31.12(2) which describes the orders the court may make). 5.3 The grounds on which the order is sought may be set out in the application notice itself but if not there set out must be set out in the evidence filed in support of the application. 5.4 In deciding whether or not to make an order for specific disclosure the court will take into account all the circumstances of the case and, in particular, 489

Civil Procedure Rule and Guidance

the overriding objective described in Part 1. But if the court concludes that the party from whom specific disclosure is sought has failed adequately to comply with the obligations imposed by an order for disclosure (whether by failing to make a sufficient search for documents or otherwise) the court will usually make such order as is necessary to ensure that those obligations are properly complied with. 5.5 An order for specific disclosure may in an appropriate case direct a party to – (1) carry out a search for any documents which it is reasonable to suppose may contain information which may– (a) enable the party applying for disclosure either to advance his own case or to damage that of the party giving disclosure; or (b) lead to a train of enquiry which has either of those consequences; and (2) disclose any documents found as a result of that search. Claims to withhold disclosure or inspection of a document 6.1 A claim to withhold inspection of a document, or part of a document, disclosed in a list of documents does not require an application to the court. Where such a claim has been made, a party who wishes to challenge it must apply to the court (see rule 31.19(5)). 6.2 Rule 31.19(1) and (6) provide a procedure enabling a party to apply for an order permitting disclosure of the existence of a document to be withheld. Inspection of documents mentioned in expert’s report (Rule 31.14(2)) 7.1 If a party wishes to inspect documents referred to in the expert report of another party, before issuing an application he should request inspection of the documents informally, and inspection should be provided by agreement unless the request is unreasonable. 7.2 Where an expert report refers to a large number or volume of documents and it would be burdensome to copy or collate them, the court will only order inspection of such documents if it is satisfied that it is necessary for the just disposal of the proceedings and the party cannot reasonably obtain the documents from another source. False disclosure statement 8 Attention is drawn to rule 31.23 which sets out the consequences of making a false disclosure statement without an honest belief in its truth, and to the procedure set out in Part 81— Applications and proceedings in relation to contempt of court.. 490

Practice Direction 31B Disclosure of electronic documents

Annex Disclosure statement I, the above named claimant [or defendant] [if party making disclosure is a company, firm or other organisation identify here who the person making the disclosure statement is and why he is the appropriate person to make it] state that I have carried out a reasonable and proportionate search to locate all the documents which I am required to disclose under the order made by the court on ................. day of ................................... I did not search: (1) for documents predating .........., (2) for documents located elsewhere than .........., (3) for documents in categories other than ........... (4) for electronic documents I carried out a search for electronic documents contained on or created by the following: [list what was searched and extent of search] I did not search for the following: (1) documents created before.........., (2) documents contained on or created by the Claimant’s/Defendant’s PCs/portable data storage media/databases/servers/back-up tapes/offsite storage/mobile phones/laptops/notebooks/handheld devices/PDA devices (delete as appropriate), (3) documents contained on or created by the Claimant’s/Defendant’s mail files/document files/calendar files/spreadsheet files/graphic and presentation files/web-based applications (delete as appropriate), (4) documents other than by reference to the following keyword(s)/ concepts.......... (delete if your search was not confined to specific keywords or concepts). I certify that I understand the duty of disclosure and to the best of my knowledge I have carried out that duty. I certify that the list above is a complete list of all documents which are or have been in my control and which I am obliged under the said order to disclose.

PRACTICE DIRECTION 31B DISCLOSURE OF ELECTRONIC DOCUMENTS This Practice Direction supplements CPR Part 31 Purpose, scope and interpretation 1 Rule 31.4 contains a broad definition of ‘document’. This extends to Electronic Documents. 491

Civil Procedure Rule and Guidance

2 The purpose of this Practice Direction is to encourage and assist the parties to reach agreement in relation to the disclosure of Electronic Documents in a proportionate and cost-effective manner. 3 Unless the court orders otherwise, this Practice Direction only applies to proceedings that are (or are likely to be) allocated to the multi-track. 4 Unless the court orders otherwise, this Practice Direction only applies to proceedings started on or after 1st October 2010. Paragraph 2A.2 to 2A.5 of Practice Direction 31A in force immediately before that date continues to apply to proceedings started before that date. 5 In this Practice Direction – (1) ‘Data Sampling’ means the process of checking data by identifying and checking representative individual documents; (2) ‘Disclosure Data’ means data relating to disclosed documents, including for example the type of document, the date of the document, the names of the author or sender and the recipient, and the party disclosing the document; (3) ‘Electronic Document’ means any document held in electronic form. It includes, for example, email and other electronic communications such as text messages and voicemail, word-processed documents and databases, and documents stored on portable devices such as memory sticks and mobile phones. In addition to documents that are readily accessible from computer systems and other electronic devices and media, it includes documents that are stored on servers and back-up systems and documents that have been deleted. It also includes metadata and other embedded data which is not typically visible on screen or a print out; (4) ‘Electronic Image’ means an electronic representation of a paper document; (5) ‘Electronic Documents Questionnaire’ means the questionnaire in the Schedule to this Practice Direction; (6) ‘Keyword Search’ means a software-aided search for words across the text of an Electronic Document; (7) ‘Metadata’ is data about data. In the case of an Electronic Document, metadata is typically embedded information about the document which is not readily accessible once the Native Electronic Document has been converted into an Electronic Image or paper document. It may include (for example) the date and time of creation or modification of a word-processing file, or the author and the date and time of sending an email. Metadata may be created automatically by a computer system or manually by a user; 492

Practice Direction 31B Disclosure of electronic documents

(8) ‘Native Electronic Document’ or ‘Native Format’ means an Electronic Document stored in the original form in which it was created by a computer software program; and (9) ‘Optical Character Recognition (OCR)’ means the computer-facilitated recognition of printed or written text characters in an Electronic Image in which the text-based contents cannot be searched electronically. General principles 6 When considering disclosure of Electronic Documents, the parties and their legal representatives should bear in mind the following general principles – (1) Electronic Documents should be managed efficiently in order to minimise the cost incurred; (2) technology should be used in order to ensure that document management activities are undertaken efficiently and effectively; (3) disclosure should be given in a manner which gives effect to the overriding objective; (4) Electronic Documents should generally be made available for inspection in a form which allows the party receiving the documents the same ability to access, search, review and display the documents as the party giving disclosure; and (5) disclosure of Electronic Documents which are of no relevance to the proceedings may place an excessive burden in time and cost on the party to whom disclosure is given. Preservation of documents 7 As soon as litigation is contemplated, the parties’ legal representatives must notify their clients of the need to preserve disclosable documents. The documents to be preserved include Electronic Documents which would otherwise be deleted in accordance with a document retention policy or otherwise deleted in the ordinary course of business. Discussions between the parties before the first Case Management Conference in relation to the use of technology and disclosure 8 The parties and their legal representatives must, before the first case management conference, discuss the use of technology in the management of Electronic Documents and the conduct of proceedings, in particular for the purpose of – (1) creating lists of documents to be disclosed; (2) giving disclosure by providing documents and information regarding documents in electronic format; and 493

Civil Procedure Rule and Guidance

(3) presenting documents and other material to the court at the trial. 9 The parties and their legal representatives must also, before the first case management conference, discuss the disclosure of Electronic Documents. In some cases (for example heavy and complex cases) it may be appropriate to begin discussions before proceedings are commenced. The discussions should include (where appropriate) the following matters – (1) the categories of Electronic Documents within the parties’ control, the computer systems, electronic devices and media on which any relevant documents may be held, storage systems and document retention policies; (2) the scope of the reasonable search for Electronic Documents required by rule 31.7; (3) the tools and techniques (if any) which should be considered to reduce the burden and cost of disclosure of Electronic Documents, including – (a) limiting disclosure of documents or certain categories of documents to particular date ranges, to particular custodians of documents, or to particular types of documents; (b) the use of agreed Keyword Searches; (c) the use of agreed software tools; (d) the methods to be used to identify duplicate documents; (e) the use of Data Sampling; (f) the methods to be used to identify privileged documents and other non-disclosable documents, to redact documents (where redaction is appropriate), and for dealing with privileged or other documents which have been inadvertently disclosed; and (g) the use of a staged approach to the disclosure of Electronic Documents; (4) the preservation of Electronic Documents, with a view to preventing loss of such documents before the trial; (5) the exchange of data relating to Electronic Documents in an agreed electronic format using agreed fields; (6) the formats in which Electronic Documents are to be provided on inspection and the methods to be used; (7) the basis of charging for or sharing the cost of the provision of Electronic Documents, and whether any arrangements for charging or sharing of costs are final or are subject to re-allocation in accordance with any order for costs subsequently made; and (8) whether it would be appropriate to use the services of a neutral electronic repository for storage of Electronic Documents. 494

Practice Direction 31B Disclosure of electronic documents

The Electronic Documents Questionnaire 10 In some cases the parties may find it helpful to exchange the Electronic Documents Questionnaire in order to provide information to each other in relation to the scope, extent and most suitable format for disclosure of Electronic Documents in the proceedings. 11 The answers to the Electronic Documents Questionnaire must be verified by a statement of truth. 12 Answers to the Electronic Documents Questionnaire will only be available for inspection by non-parties if permission is given under rule 5.4C(2). 13 Rule 31.22 makes provision regulating the use of answers to the Electronic Documents Questionnaire. Preparation for the first Case Management Conference 14 The documents submitted to the court in advance of the first case management conference should include a summary of the matters on which the parties agree in relation to the disclosure of Electronic Documents and a summary of the matters on which they disagree. 15 If the parties indicate that they have been unable to reach agreement in relation to the disclosure of Electronic Documents and that no agreement is likely, the court will give written directions in relation to disclosure or order a separate hearing in relation to disclosure. When doing so, the court will consider making an order that the parties must complete and exchange all or any part of the Electronic Documents Questionnaire within 14 days or such other period as the court may direct. 16 The person signing the Electronic Documents Questionnaire should attend the first case management conference, and any subsequent hearing at which disclosure is likely to be considered. Where the parties are unable to reach an appropriate agreement in relation to the disclosure of Electronic Documents 17 If at any time it becomes apparent that the parties are unable to reach agreement in relation to the disclosure of Electronic Documents, the parties should seek directions from the court at the earliest practical date. 18 If the court considers that the parties’ agreement in relation to the disclosure of Electronic Documents is inappropriate or insufficient, the court will give directions in relation to disclosure. When doing so, the court will consider making an order that the parties must complete and exchange all or any part of the Electronic Documents Questionnaire within 14 days or such other period as the court may direct. 19 If a party gives disclosure of Electronic Documents without first discussing with other parties how to plan and manage such disclosure, the court may 495

Civil Procedure Rule and Guidance

require that party to carry out further searches for documents or to repeat other steps which that party has already carried out. The reasonable search 20 The extent of the reasonable search required by rule 31.7 for the purposes of standard disclosure is affected by the existence of Electronic Documents. The extent of the search which must be made will depend on the circumstances of the case including, in particular, the factors referred to in rule 31.7(2). The parties should bear in mind that the overriding objective includes dealing with the case in ways which are proportionate. 21 The factors that may be relevant in deciding the reasonableness of a search for Electronic Documents include (but are not limited to) the following – (1) the number of documents involved; (2) the nature and complexity of the proceedings; (3) the ease and expense of retrieval of any particular document. This includes: (a) the accessibility of Electronic Documents including e-mail communications on computer systems, servers, back-up systems and other electronic devices or media that may contain such documents taking into account alterations or developments in hardware or software systems used by the disclosing party and/or available to enable access to such documents; (b) the location of relevant Electronic Documents, data, computer systems, servers, back-up systems and other electronic devices or media that may contain such documents; (c) the likelihood of locating relevant data; (d) the cost of recovering any Electronic Documents; (e) the cost of disclosing and providing inspection of any relevant Electronic Documents; and (f) the likelihood that Electronic Documents will be materially altered in the course of recovery, disclosure or inspection; (4) the availability of documents or contents of documents from other sources; and (5) the significance of any document which is likely to be located during the search. 22 Depending on the circumstances, it may be reasonable to search all of the parties’ electronic storage systems, or to search only some part of those systems. For example, it may be reasonable to decide not to search for documents coming into existence before a particular date, or to limit the 496

Practice Direction 31B Disclosure of electronic documents

search to documents in a particular place or places, or to documents falling into particular categories. 23 In some cases a staged approach may be appropriate, with disclosure initially being given of limited categories of documents. Those categories may subsequently be extended or limited depending on the results initially obtained. 24 The primary source of disclosure of Electronic Documents is normally reasonably accessible data. A party requesting under rule 31.12 specific disclosure of Electronic Documents which are not reasonably accessible must demonstrate that the relevance and materiality justify the cost and burden of retrieving and producing it. Keyword and other automated searches 25 It may be reasonable to search for Electronic Documents by means of Keyword Searches or other automated methods of searching if a full review of each and every document would be unreasonable. 26 However, it will often be insufficient to use simple Keyword Searches or other automated methods of searching alone. The injudicious use of Keyword Searches and other automated search techniques – (1) may result in failure to find important documents which ought to be disclosed, and/or (2) may find excessive quantities of irrelevant documents, which if disclosed would place an excessive burden in time and cost on the party to whom disclosure is given. 27 The parties should consider supplementing Keyword Searches and other automated searches with additional techniques such as individually reviewing certain documents or categories of documents (for example important documents generated by key personnel) and taking such other steps as may be required in order to justify the selection to the court. Disclosure of metadata 28 Where copies of disclosed documents are provided in Native Format in accordance with paragraph 33 below, some metadata will be disclosed with each document. A party requesting disclosure of additional metadata or forensic image copies of disclosed documents (for example in relation to a dispute concerning authenticity) must demonstrate that the relevance and materiality of the requested metadata justify the cost and burden of producing that metadata. 29 Parties using document management or litigation support systems should be alert to the possibility that Metadata or other useful information relating to documents may not be stored with the documents. 497

Civil Procedure Rule and Guidance

Lists of documents 30 If a party is giving disclosure of Electronic Documents, paragraph 3 of Practice Direction 31A is to be read subject to the following – (1) Form N265 may be amended to accommodate the sub-paragraphs which follow; (2) a list of documents may by agreement between the parties be an electronic file in .csv (comma-separated values) or other agreed format; (3) documents may be listed otherwise than in date order where a different order would be more convenient; (4) save where otherwise agreed or ordered, documents should be listed individually if a party already possesses data relating to the document (for example, type of document and date of creation) which make this possible (so that as far as possible each document may be given a unique reference number); (5) a party should be consistent in the way in which documents are listed; (6) consistent column headings should be repeated on each page of the list on which documents are listed, where the software used for preparing the list enables this to be carried out automatically; and (7) the disclosure list number used in any supplemental list of documents should be unique and should run sequentially from the last number used in the previous list. Provision of disclosure data in electronic form 31 Where a party provides another party with disclosure data in electronic form, the following provisions will apply unless the parties agree or the court directs otherwise – (1) Disclosure data should be set out in a single, continuous table or spreadsheet, each separate column containing exclusively one of the following types of disclosure data – (a) disclosure list number (sequential) (b) date (c) document type (d) author/sender (e) recipient (f) disclosure list number of any parent or covering document; (2) other than for disclosure list numbers, blank entries are permissible and preferred if there is no relevant disclosure data (that is, the field should be left blank rather than state ‘Undated’); 498

Practice Direction 31B Disclosure of electronic documents

(3) dates should be set out in the alphanumeric form ‘01 Jan 2010’; and (4) Disclosure data should be set out in a consistent manner.

Provision of electronic copies of disclosed documents 32 The parties should co-operate at an early stage about the format in which Electronic Documents are to be provided on inspection. In the case of difficulty or disagreement, the matter should be referred to the court for directions at the earliest practical date, if possible at the first case management conference. 33 Save where otherwise agreed or ordered, electronic copies of disclosed documents should be provided in their Native Format, in a manner which preserves Metadata relating to the date of creation of each document. 34 A party should provide any available searchable OCR versions of Electronic Documents with the original. A party may however choose not to provide OCR versions of documents which have been redacted. If OCR versions are provided, they are provided on an ‘as is’ basis, with no assurance to the other party that the OCR versions are complete or accurate. 35 (1) Subject to sub-paragraph (2) below, if a party is providing in electronic form copies of disclosed documents and wishes to redact or otherwise make alterations to a document or documents, then – (a) the party redacting or altering the document must inform the other party in accordance with rule 31.19 that redacted or altered versions are being supplied; and (b) the party redacting or altering the document must ensure that the original unredacted and unaltered version is preserved, so that it remains available to be inspected if required. (2) Sub-paragraph (1) above does not apply where the only alteration made to the document is an alteration to the Metadata as a result of the ordinary process of copying and/or accessing the document. Subparagraph (1) does apply to the alteration or suppression of Metadata in other situations. Specialised technology 36 If Electronic Documents are best accessed using technology which is not readily available to the party entitled to disclosure, and that party reasonably requires additional inspection facilities, the party making disclosure shall co-operate in making available to the other party such reasonable additional inspection facilities as may be appropriate in order to afford inspection in accordance with rule 31.3. 499

Civil Procedure Rule and Guidance

Footnotes Include names of all those who may have or have had custody of disclosable documents, including secretaries, personal assistants, former employees and/or former participants. It may be helpful to identify different dates for particular custodians. Back to text State the geographical location (if known). Consider (at least) servers, desktop PCs, laptops, notebooks, handheld devices, PDA devices, off-site storage, removable storage media (for example, CD-ROMs, DVDs, USB drives, memory sticks) and databases. Back to text Consider all types of e-mail system (for example, Outlook, Lotus Notes, webbased accounts), whether stored on personal computers, portable devices or in web-based accounts (for example, Yahoo, Hotmail, Gmail). Back to text For example, instant messaging, voicemail, VOIP (Voice Over Internet Protocol), recorded telephone lines, text messaging, audio files, video files. Back to text State the geographical location (if known). Consider (at least) servers, desktops and laptops. Back to text For example, .pdf. .tif, .jpg. Back to text For example, Powerpoint or equivalent, specialist documents (such as CAD Drawings). Back to text Where Keyword Searches are used in order to identify irrelevant documents which are to be excluded from disclosure (for example a confidential name of a client or customer), a general description of the type of search may be given. Back to text See Practice Direction 31B, which refers to the following matters which may be relevant: (a) the number of documents involved; (b) the nature and complexity of the proceedings; (c) the ease and expense of retrieval of any particular document; (d) the availability of documents or contents of documents from other sources; and (e) the significance of any document which is likely to be located during the search. Back to text For example, back-ups, archives, off-site or outsourced document storage, documents created by former employees, documents stored in other jurisdictions, documents in foreign languages. Back to text There is no requirement that you should obtain OCR versions of documents, and this question is directed only to OCR versions which you have available or expect to have available to you. If you do provide OCR versions to another party, they will be provided by you on an ‘as is’ basis, with no assurance to the other party that the OCR versions are complete or accurate. You may wish to exclude provision of OCR versions of documents which have been redacted. Back to text Include names of all those who may have or have had custody of disclosable documents, including secretaries, personal assistants, former employees and/or former participants. It may be helpful to identify different dates for particular custodians. Back to text 500

Part 32 Evidence

‘Metadata’ is information about the document or file which is recorded in the computer, such as the date and time of creation or modification of a wordprocessing file, or the author and the date and time of sending of an e-mail. The question is directed to the more extensive Metadata which may be relevant where for example authenticity is disputed. Back to text

PART 32 EVIDENCE Power of court to control evidence 32.1

(1) The court may control the evidence by giving directions as to – (a) the issues on which it requires evidence; (b) the nature of the evidence which it requires to decide those issues; and (c) the way in which the evidence is to be placed before the court. (2) The court may use its power under this rule to exclude evidence that would otherwise be admissible. (3) The court may limit cross-examination(GL). Evidence of witnesses – general rule 32.2

(1) The general rule is that any fact which needs to be proved by the evidence of witnesses is to be proved – (a) at trial, by their oral evidence given in public; and (b) at any other hearing, by their evidence in writing. (2) This is subject – (a) to any provision to the contrary contained in these Rules or elsewhere; or (b) to any order of the court. (3) The court may give directions – (a) identifying or limiting the issues to which factual evidence may be directed; (b) identifying the witnesses who may be called or whose evidence may be read; or (c) limiting the length or format of witness statements. 501

Civil Procedure Rule and Guidance

Evidence by video link or other means 32.3

The court may allow a witness to give evidence through a video link or by other means. Requirement to serve witness statements for use at trial 32.4

(1) A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally. (2) The court will order a party to serve on the other parties any witness statement of the oral evidence which the party serving the statement intends to rely on in relation to any issues of fact to be decided at the trial. (3) The court may give directions as to – (a) the order in which witness statements are to be served; and (b) whether or not the witness statements are to be filed. Use at trial of witness statements which have been served 32.5

(1) If – (a) a party has served a witness statement; and (b) he wishes to rely at trial on the evidence of the witness who made the statement, he must call the witness to give oral evidence unless the court orders otherwise or he puts the statement in as hearsay evidence. (Part 33 contains provisions about hearsay evidence) (2) Where a witness is called to give oral evidence under paragraph (1), his witness statement shall stand as his evidence in chief(GL) unless the court orders otherwise. (3) A witness giving oral evidence at trial may with the permission of the court – (a) amplify his witness statement; and (b) give evidence in relation to new matters which have arisen since the witness statement was served on the other parties. (4) The court will give permission under paragraph (3) only if it considers that there is good reason not to confine the evidence of the witness to the contents of his witness statement. (5) If a party who has served a witness statement does not– 502

Part 32 Evidence

(a) call the witness to give evidence at trial; or (b) put the witness statement in as hearsay evidence, any other party may put the witness statement in as hearsay evidence. Evidence in proceedings other than at trial 32.6

(1) Subject to paragraph (2), the general rule is that evidence at hearings other than the trial is to be by witness statement unless the court, a practice direction or any other enactment requires otherwise. (2) At hearings other than the trial, a party may, rely on the matters set out in – (a) his statement of case; or (b) his application notice, if the statement of case or application notice is verified by a statement of truth. Order for cross-examination 32.7

(1) Where, at a hearing other than the trial, evidence is given in writing, any party may apply to the court for permission to cross-examine the person giving the evidence. (2) If the court gives permission under paragraph (1) but the person in question does not attend as required by the order, his evidence may not be used unless the court gives permission. Form of witness statement 32.8 A witness statement must comply with the requirements set out in Practice Direction 32. (Part 22 requires a witness statement to be verified by a statement of truth) Witness summaries 32.9

(1) A party who – (a) is required to serve a witness statement for use at trial; but (b) is unable to obtain one, may apply, without notice, for permission to serve a witness summary instead. (2) A witness summary is a summary of – 503

Civil Procedure Rule and Guidance

(a) the evidence, if known, which would otherwise be included in a witness statement; or (b) if the evidence is not known, the matters about which the party serving the witness summary proposes to question the witness. (3) Unless the court orders otherwise, a witness summary must include the name and address of the intended witness. (4) Unless the court orders otherwise, a witness summary must be served within the period in which a witness statement would have had to be served. (5) Where a party serves a witness summary, so far as practicable rules 32.4 (requirement to serve witness statements for use at trial), 32.5(3) (amplifying witness statements), and 32.8 (form of witness statement) shall apply to the summary. Consequence of failure to serve witness statement or summary 32.10

If a witness statement or a witness summary for use at trial is not served in respect of an intended witness within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission. Cross-examination on a witness statement 32.11

Where a witness is called to give evidence at trial, he may be cross-examined on his witness statement whether or not the statement or any part of it was referred to during the witness’s evidence in chief(GL). Use of witness statements for other purposes 32.12

(1) Except as provided by this rule, a witness statement may be used only for the purpose of the proceedings in which it is served. (2) Paragraph (1) does not apply if and to the extent that– (a) the witness gives consent in writing to some other use of it; (b) the court gives permission for some other use; or (c) the witness statement has been put in evidence at a hearing held in public. (3) This rule applies to affidavits in the same way as it applies to witness statements. 504

Part 32 Evidence

Availability of witness statements for inspection 32.13

(1) A witness statement which stands as evidence in chief(GL)  is open to inspection during the course of the trial unless the court otherwise directs. (2) Any person may ask for a direction that a witness statement is not open to inspection. (3) The court will not make a direction under paragraph (2) unless it is satisfied that a witness statement should not be open to inspection because of – (a) the interests of justice; (b) the public interest; (c) the nature of any expert medical evidence in the statement; (d) the nature of any confidential information (including information relating to personal financial matters) in the statement; or (e) the need to protect the interests of any child or protected party. (4) The court may exclude from inspection words or passages in the statement. False statements 32.14

Proceedings for contempt of court may be brought against a person who makes or causes to be made a false statement in a document, prepared in anticipation of or during proceedings and verified by a statement of truth, without an honest belief in its truth. (Part 22 makes provision for statements of truth.) (Part 81 contains provisions in relation to proceedings for contempt of court.) Affidavit evidence 32.15

(1) Evidence must be given by affidavit(GL) instead of or in addition to a witness statement if this is required by the court, a provision contained in any other rule, a practice direction or any other enactment. (2) Nothing in these Rules prevents a witness giving evidence by affidavit at a hearing other than the trial if he chooses to do so in a case where paragraph (1) does not apply, but the party putting forward the affidavit may not recover the additional cost of making it from any other party unless the court orders otherwise. 505

Civil Procedure Rule and Guidance

(Rule 32.12 makes provision about the use of affidavits for purposes other than the proceedings in which they are served.) Form of affidavit 32.16

An affidavit(GL) must comply with the requirements set out in Practice Direction 32. Affidavit made outside the jurisdiction 32.17

A person may make an affidavit(GL) outside the jurisdiction in accordance with – (a) this Part; or (b) the law of the place where he makes the affidavit. Notice to admit facts 32.18

(1) A party may serve notice on another party requiring him to admit the facts, or the part of the case of the serving party, specified in the notice. (2) A notice to admit facts must be served no later than 21 days before the trial. (3) Where the other party makes any admission in response to the notice, the admission may be used against him only – (a) in the proceedings in which the notice to admit is served; and (b) by the party who served the notice. (4) The court may allow a party to amend or withdraw any admission made by him on such terms as it thinks just. Notice to admit or produce documents 32.19

(1) A party shall be deemed to admit the authenticity of a document disclosed to him under Part 31 (disclosure and inspection of documents) unless he serves notice that he wishes the document to be proved at trial. (2) A notice to prove a document must be served – (a) by the latest date for serving witness statements; or (b) within 7 days of disclosure of the document, whichever is later. 506

Practice Direction 32 Evidence

Notarial acts and instruments 32.20

A notarial act or instrument may be received in evidence without further proof as duly authenticated in accordance with the requirements of law unless the contrary is proved.

PRACTICE DIRECTION 32 EVIDENCE This Practice Direction supplements CPR Part 32 Evidence in general 1.1 Rule 32.2 sets out how evidence is to be given and facts are to be proved. 1.2 Evidence at a hearing other than the trial should normally be given by witness statement (see paragraph 17 onwards). However a witness may give evidence by affidavit if he wishes to do so (and see paragraph 1.4 below). 1.3 Statements of case (see paragraph 26 onwards) and application notices may also be used as evidence provided that their contents have been verified by a statement of truth. (For information regarding evidence by deposition see Part 34 and Practice Direction 34A.) 1.4 Affidavits must be used as evidence in the following instances: (1) where sworn evidence is required by an enactment, rule, order or practice direction, and (2) in any application for a search order, a freezing injunction, or an order requiring an occupier to permit another to enter his land. (By rule 81.4(1), unless and to the extent that the court directs otherwise every contempt application must be supported by written evidence given by affidavit or affirmation.). 1.5 If a party believes that sworn evidence is required by a court in another jurisdiction for any purpose connected with the proceedings, he may apply to the court for a direction that evidence shall be given only by affidavit on any pre-trial applications. 1.6 The court may give a direction under rule 32.15 that evidence shall be given by affidavit instead of or in addition to a witness statement or statement of case: (1) on its own initiative, or (2) after any party has applied to the court for such a direction. 507

Civil Procedure Rule and Guidance

1.7 An affidavit, where referred to in the Civil Procedure Rules or a practice direction, also means an affirmation unless the context requires otherwise. Affidavits Deponent 2 A deponent is a person who gives evidence by affidavit or affirmation. Heading 3.1 The affidavit should be headed with the title of the proceedings (see paragraph 4 of Practice Direction 7A and paragraph 7 of Practice Direction 20); where the proceedings are between several parties with the same status it is sufficient to identify the parties as follows:  

Number:

A.B. (and others)

Claimants/Applicants

C.D. (and others)

Defendants/Respondents

 

(as appropriate)

3.2 At the top right hand corner of the first page (and on the backsheet) there should be clearly written: (1) the party on whose behalf it is made, (2) the initials and surname of the deponent, (3) the number of the affidavit in relation to that deponent, (4) the identifying initials and number of each exhibit referred to, and (5) the date sworn. Body of affidavit 4.1 The affidavit must, if practicable, be in the deponent’s own words, the affidavit should be expressed in the first person and the deponent should: (1) commence ‘I (full name) of (address) state on oath ……’, (2) if giving evidence in his professional, business or other occupational capacity, give the address at which he works in (1) above, the position he holds and the name of his firm or employer, (3) give his occupation or, if he has none, his description, and (4) state if he is a party to the proceedings or employed by a party to the proceedings, if it be the case. 4.2 An affidavit must indicate: (1) which of the statements in it are made from the deponent’s own knowledge and which are matters of information or belief, and 508

Practice Direction 32 Evidence

(2) the source for any matters of information or belief. 4.3 Where a deponent: (1) refers to an exhibit or exhibits, he should state‘there is now shown to me marked ‘…’ the (description of exhibit)’, and (2) makes more than one affidavit (to which there are exhibits) in the same proceedings, the numbering of the exhibits should run consecutively throughout and not start again with each affidavit. Jurat 5.1 The jurat of an affidavit is a statement set out at the end of the document which authenticates the affidavit. 5.2 It must: (1) be signed by all deponents, (2) be completed and signed by the person before whom the affidavit was sworn whose name and qualification must be printed beneath his signature, (3) contain the full address of the person before whom the affidavit was sworn, and (4) follow immediately on from the text and not be put on a separate page. Format of affidavits 6.1 An affidavit should: (1) be produced on durable quality A4 paper with a 3.5cm margin, (2) be fully legible and should normally be typed on one side of the paper only, (3) where possible, be bound securely in a manner which would not hamper filing, or otherwise each page should be endorsed with the case number and should bear the initials of the deponent and of the person before whom it was sworn, (4) have the pages numbered consecutively as a separate document (or as one of several documents contained in a file), (5) be divided into numbered paragraphs, (6) have all numbers, including dates, expressed in figures, and (7) give the reference to any document or documents mentioned either in the margin or in bold text in the body of the affidavit. 6.2 It is usually convenient for an affidavit to follow the chronological sequence of events or matters dealt with; each paragraph of an affidavit should as far as possible be confined to a distinct portion of the subject. 509

Civil Procedure Rule and Guidance

Inability of Deponent to read or sign affidavit 7.1 Where an affidavit is sworn by a person who is unable to read or sign it, the person before whom the affidavit is sworn must certify in the jurat that: (1) he read the affidavit to the deponent, (2) the deponent appeared to understand it, and (3) the deponent signed or made his mark, in his presence. 7.2 If that certificate is not included in the jurat, the affidavit may not be used in evidence unless the court is satisfied that it was read to the deponent and that he appeared to understand it. Two versions of the form of jurat with the certificate are set out at Annex 1 to this practice direction. Alterations to affidavits 8.1 Any alteration to an affidavit must be initialled by both the deponent and the person before whom the affidavit was sworn. 8.2 An affidavit which contains an alteration that has not been initialled may be filed or used in evidence only with the permission of the court. Who may administer oaths and take affidavits 9.1 Only the following may administer oaths and take affidavits – (1) a commissioner for oaths; (2) omitted; (3) other persons specified by statute; (4) certain officials of the Senior Courts; (5) a circuit judge or district judge; (6) any justice of the peace; and (7) certain officials of any county court appointed by the judge of that court for the purpose. 9.2 An affidavit must be sworn before a person independent of the parties or their representatives. Filing of affidavits 10.1  If the court directs that an affidavit is to be filed, it must be filed in the court or Division, or Office or Registry of the court or Division where the action in which it was or is to be used, is proceeding or will proceed. 10.2  Where an affidavit is in a foreign language: (1) the party wishing to rely on it – (a) must have it translated, and 510

Practice Direction 32 Evidence

(b) must file the foreign language affidavit with the court, and (2) the translator must make and file with the court an affidavit verifying the translation and exhibiting both the translation and a copy of the foreign language affidavit.

Exhibits Manner of exhibiting documents 11.1  A document used in conjunction with an affidavit should be: (1) produced to and verified by the deponent, and remain separate from the affidavit, and (2) identified by a declaration of the person before whom the affidavit was sworn. 11.2  The declaration should be headed with the name of the proceedings in the same way as the affidavit. 11.3  The first page of each exhibit should be marked: (1) as in paragraph 3.2 above, and (2) with the exhibit mark referred to in the affidavit. Letters 12.1  Copies of individual letters should be collected together and exhibited in a bundle or bundles. They should be arranged in chronological order with the earliest at the top, and firmly secured. 12.2 When a bundle of correspondence is exhibited, the exhibit should have a front page attached stating that the bundle consists of original letters and copies. They should be arranged and secured as above and numbered consecutively. Other documents 13.1  Photocopies instead of original documents may be exhibited provided the originals are made available for inspection by the other parties before the hearing and by the judge at the hearing. 13.2  Court documents must not be exhibited (official copies of such documents prove themselves). 13.3  Where an exhibit contains more than one document, a front page should be attached setting out a list of the documents contained in the exhibit; the list should contain the dates of the documents. 511

Civil Procedure Rule and Guidance

Exhibits other than documents 14.1 Items other than documents should be clearly marked with an exhibit number or letter in such a manner that the mark cannot become detached from the exhibit. 14.2  Small items may be placed in a container and the container appropriately marked. General provisions 15.1  Where an exhibit contains more than one document: (1) the bundle should not be stapled but should be securely fastened in a way that does not hinder the reading of the documents, and (2) the pages should be numbered consecutively at bottom centre. 15.2  Every page of an exhibit should be clearly legible; typed copies of illegible documents should be included, paginated with ‘a’ numbers. 15.3  Where affidavits and exhibits have become numerous, they should be put into separate bundles and the pages numbered consecutively throughout. 15.4  Where on account of their bulk the service of exhibits or copies of exhibits on the other parties would be difficult or impracticable, the directions of the court should be sought as to arrangements for bringing the exhibits to the attention of the other parties and as to their custody pending trial. Affirmations 16 All provisions in this or any other practice direction relating to affidavits apply to affirmations with the following exceptions: (1) the deponent should commence ‘I (name) of (address) do solemnly and sincerely affirm ……’, and (2) in the jurat the word ‘sworn’ is replaced by the word ‘affirmed’. Witness statements Heading 17.1  The witness statement should be headed with the title of the proceedings (see paragraph 4 of Practice Direction 7A and paragraph 7 of Practice Direction 20); where the proceedings are between several parties with the same status it is sufficient to identify the parties as follows:  

Number:

A.B. (and others)

Claimants/Applicants

C.D. (and others)

Defendants/Respondents

 

(as appropriate)

512

Practice Direction 32 Evidence

17.2  At the top right hand corner of the first page there should be clearly written: (1) the party on whose behalf it is made, (2) the initials and surname of the witness, (3) the number of the statement in relation to that witness, (4) the identifying initials and number of each exhibit referred to, (5) the date the statement was made; and (6) the date of any translation. Body of witness statement 18.1  The witness statement must, if practicable, be in the intended witness’s own words and must in any event be drafted in their own language, the statement should be expressed in the first person and should also state: (1) the full name of the witness, (2) his place of residence or, if he is making the statement in his professional, business or other occupational capacity, the address at which he works, the position he holds and the name of his firm or employer, (3) his occupation, or if he has none, his description, (4) the fact that he is a party to the proceedings or is the employee of such a party if it be the case; and (5) the process by which it has been prepared, for example, face-to-face, over the telephone, and/or through an interpreter. 18.2  A witness statement must indicate: (1) which of the statements in it are made from the witness’s own knowledge and which are matters of information or belief, and (2) the source for any matters of information or belief. 18.3  An exhibit used in conjunction with a witness statement should be verified and identified by the witness and remain separate from the witness statement. 18.4  Where a witness refers to an exhibit or exhibits, he should state ‘I refer to the (description of exhibit) marked ‘…’’. 18.5 The provisions of paragraphs 11.3 to 15.4 (exhibits) apply similarly to witness statements as they do to affidavits. 18.6  Where a witness makes more than one witness statement to which there are exhibits, in the same proceedings, the numbering of the exhibits should run consecutively throughout and not start again with each witness statement. Format of witness statement 19.1  A witness statement should: 513

Civil Procedure Rule and Guidance

(1) be produced on durable quality A4 paper with a 3.5cm margin, (2) be fully legible and should normally be typed on one side of the paper only, (3) where possible, be bound securely in a manner which would not hamper filing, or otherwise each page should be endorsed with the case number and should bear the initials of the witness, (4) have the pages numbered consecutively as a separate statement (or as one of several statements contained in a file), (5) be divided into numbered paragraphs, (6) have all numbers, including dates, expressed in figures, (7) give the reference to any document or documents mentioned either in the margin or in bold text in the body of the statement; and (8) be drafted in the witness’s own language. 19.2  It is usually convenient for a witness statement to follow the chronological sequence of the events or matters dealt with, each paragraph of a witness statement should as far as possible be confined to a distinct portion of the subject. Statement of Truth 20.1  A witness statement is the equivalent of the oral evidence which that witness would, if called, give in evidence; it must include a statement by the intended witness in their own language that they believe the facts in it are true. 20.2  To verify a witness statement the statement of truth is as follows: ‘I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.’ 20.3 Attention is drawn to rule 32.14 which sets out the consequences of verifying a witness statement containing a false statement without an honest belief in its truth. (Paragraph 3A of Practice Direction 22 sets out the procedure to be followed where the person who should sign a document which is verified by a statement of truth is unable to read or sign the document other than by reason of language alone.) 21 Omitted Alterations to witness statements 22.1 Any alteration to a witness statement must be initialled by the person making the statement or by the authorised person where appropriate (see paragraph 21). 514

Practice Direction 32 Evidence

22.2  A witness statement which contains an alteration that has not been initialled may be used in evidence only with the permission of the court. Filing of witness statements 23.1  If the court directs that a witness statement is to be filed, it must be filed in the court or Division, or Office or Registry of the court or Division where the action in which it was or is to be used, is proceeding or will proceed. 23.2  Where a witness statement is in a foreign language— (a) the party wishing to rely on it must— (i) have it translated; and (ii) file the foreign language witness statement with the court; and (b) the translator must sign the original statement and must certify that the translation is accurate. Certificate of court officer 24.1  Where the court has ordered that a witness statement is not to be open to inspection by the public or that words or passages in the statement are not to be open to inspection the court officer will so certify on the statement and make any deletions directed by the court under rule 32.13(4). Defects in affidavits, witness statements and exhibits 25.1 Where: (1) an affidavit, (2) a witness statement, or (3) an exhibit to either an affidavit or a witness statement, does not comply with Part 32 or this practice direction in relation to its form, the court may refuse to admit it as evidence and may refuse to allow the costs arising from its preparation. 25.2 Permission to file a defective affidavit or witness statement or to use a defective exhibit may be obtained from a judge in the court where the case is proceeding. Statements of case 26.1 A statement of case may be used as evidence in an interim application provided it is verified by a statement of truth. 26.2  To verify a statement of case the statement of truth should be set out as follows: ‘[I believe][the  (party on whose behalf the statement of case is being signed) believes] that the facts stated in the statement of case are true’. 515

Civil Procedure Rule and Guidance

26.3 Attention is drawn to rule 32.14 which sets out the consequences of verifying a witness statement containing a false statement without an honest belief in its truth. (For information regarding statements of truth see Part 22 and Practice Direction 22.) (Practice Directions 7A and 17 provide further information concerning statements of case.) Agreed bundles for hearings 27.1 The court may give directions requiring the parties to use their best endeavours to agree a bundle or bundles of documents for use at any hearing. 27.2  All documents contained in bundles which have been agreed for use at a hearing shall be admissible at that hearing as evidence of their contents, unless – (1) the court orders otherwise; or (2) a party gives written notice of objection to the admissibility of particular documents. 27.3 Rule 39.5 provides that unless the court orders otherwise, the claimant must file a trial bundle containing documents required by— (a) a relevant practice direction; and (b) any court order. 27.4  Rule 39.5 provides that the claimant must file the trial bundle not more than 7 days and not less than 3 days before the start of the trial. 27.4A  If the trial is to take place in the Family Division, then Practice Direction 27A supplementing the Family Procedure Rules 2010 shall apply to provide what must happen in relation to the trial bundle in place of paragraphs 27.5 to 27.15 below. 27.5  Unless the court orders otherwise, the trial bundle should include a copy of— (a) the claim form and all statements of case; (b) a case summary and/or chronology where appropriate; (c) requests for further information and responses to the requests; (d) all witness statements to be relied on as evidence; (e) any witness summaries; (f) any notices of intention to rely on hearsay evidence under rule 32.2; (g) any notices of intention to rely on evidence (such as a plan, photograph etc.) under rule 33.6 which is not— 516

Practice Direction 32 Evidence

(i) contained in a witness statement, affidavit or experts’ report; (ii) being given orally at trial; and (iii) hearsay evidence under rule 33.2; (h) any medical reports and responses to them; (i) any experts’ reports and responses to them; (j) any order giving directions as to the conduct of the trial; and (k) any other necessary documents. 27.6  The originals of the documents contained in the trial bundle, together with copies of any other court orders should be available at the trial. 27.7 The preparation and production of the trial bundle, even where it is delegated to another person, is the responsibility of the legal representative who has conduct of the claim on behalf of the claimant. If the claimant is unrepresented, the court may direct that another party must prepare and produce the trial bundle. 27.8 The trial bundle should be paginated (continuously) throughout, and indexed with a description of each document and the page number. Where the total number of pages is more than 100, numbered dividers should be placed at intervals between groups of documents. 27.9  The bundle should normally be contained in a ring binder or lever arch file. Where more than one bundle is supplied, they should be clearly distinguishable, for example, by different colours or letters. If there are numerous bundles, a core bundle should be prepared containing the core documents essential to the proceedings, with references to the supplementary documents in the other bundles. 27.10  For convenience, experts’ reports may be contained in a separate bundle and cross referenced in the main bundle. 27.11  If a document to be included in the trial bundle is illegible, a typed copy should be included in the bundle next to it, suitably cross-referenced. 27.12 The contents of the trial bundle should be agreed where possible. The parties should also agree where possible— (a) that the documents contained in the bundle are authentic even if not disclosed under Part 31; and (b) that documents in the bundle may be treated as evidence of the facts stated in them even if a notice under the Civil Evidence Act 1995 has not been served. Where it is not possible to agree the contents of the bundle, a summary of the points on which the parties are unable to agree should be included. 27.13  The party filing the trial bundle should supply identical bundles to all the parties to the proceedings and for the use of the witnesses. 517

Civil Procedure Rule and Guidance

27.14  Unless the court otherwise directs, contemporaneous documents in the trial bundle relied on by the parties or either of them should be assembled as a single unit in chronological order of creation. 27.15  Unless the court otherwise directs, documents in the trial bundle should be copied double-sided.’. Video conferencing 29.1  Guidance on the use of video conferencing in the civil courts is set out at Annex 3 to this practice direction. A list of the sites which are available for video conferencing can be found on Her Majesty’s Courts and Tribunals Service website.

Annex 1 Certificate to be used where a deponent to an affidavit is unable to read or sign it Sworn at ……… this …… day of ……… Before me, I having first read over the contents of this affidavit to the deponent [if there are exhibits, add’and explained the nature and effect of the exhibits referred to in it’] who appeared to understand it and approved its content as accurate, and made his mark on the affidavit in my presence. Or; (after, Before me) the witness to the mark of the deponent having been first sworn that he had read over etc. (as above) and that he saw him make his mark on the affidavit. (Witness must sign). Certificate to be used where a deponent to an affirmation is unable to read or sign it Affirmed at ……… this …… day of ……… Before me, I having first read over the contents of this affirmation to the deponent [if there are exhibits,add’and explained the nature and effect of the exhibits referred to in it’] who appeared to understand it and approved its content as accurate, and made his mark on the affirmation in my presence. Or, (after, Before me) the witness to the mark of the deponent having been first sworn that he had read over etc. (as above) and that he saw him make his mark on the affirmation. (Witness must sign).

Annex 2 Omitted Annex 3 Video conferencing guidance This guidance is for the use of video conferencing (VCF) in civil proceedings. It is in part based, with permission, upon the protocol of the Federal Court of 518

Practice Direction 32 Evidence

Australia. It is intended to provide a guide to all persons involved in the use of VCF, although it does not attempt to cover all the practical questions which might arise.

Video conferencing generally 1. The guidance covers the use of VCF equipment both (a) in a courtroom, whether via equipment which is permanently placed there or via a mobile unit, and (b) in a separate studio or conference room. In either case, the location at which the judge sits is referred to as the ‘local site’. The other site or sites to and from which transmission is made are referred to as ‘the remote site’ and in any particular case any such site may be another courtroom. The guidance applies to cases where VCF is used for the taking of evidence and also to its use for other parts of any legal proceedings (for example, interim applications, case management conferences, pre-trial reviews). 2. VCF may be a convenient way of dealing with any part of proceedings: it can involve considerable savings in time and cost. Its use for the taking of evidence from overseas witnesses will, in particular, be likely to achieve a material saving of costs, and such savings may also be achieved by its use for taking domestic evidence. It is, however, inevitably not as ideal as having the witness physically present in court. Its convenience should not therefore be allowed to dictate its use. A judgment must be made in every case in which the use of VCF is being considered not only as to whether it will achieve an overall cost saving but as to whether its use will be likely to be beneficial to the efficient, fair and economic disposal of the litigation. In particular, it needs to be recognised that the degree of control a court can exercise over a witness at the remote site is or may be more limited than it can exercise over a witness physically before it. 3. When used for the taking of evidence, the objective should be to make the VCF session as close as possible to the usual practice in a trial court where evidence is taken in open court. To gain the maximum benefit, several differences have to be taken into account. Some matters, which are taken for granted when evidence is taken in the conventional way, take on a different dimension when it is taken by VCF: for example, the administration of the oath, ensuring that the witness understands who is at the local site and what their various roles are, the raising of any objections to the evidence and the use of documents. 4. It should not be presumed that all foreign governments are willing to allow their nationals or others within their jurisdiction to be examined before a court in England or Wales by means of VCF. If there is any doubt about this, enquiries should be directed to the Foreign and Commonwealth Office (Legalisation Office) [email protected] with a view to ensuring that the country from which the evidence is to be taken raises no objection to it at diplomatic level. The party who is directed to be responsible for arranging the VCF (see paragraph 8 below) will be required to make all necessary 519

Civil Procedure Rule and Guidance

inquiries about this well in advance of the VCF and must be able to inform the court what those inquiries were and of their outcome. 5. Time zone differences need to be considered when a witness abroad is to be examined in England or Wales by VCF. The convenience of the witness, the parties, their representatives and the court must all be taken into account. The cost of the use of a commercial studio is usually greater outside normal business hours. 6. Those involved with VCF need to be aware that, even with the most advanced systems currently available, there are the briefest of delays between the receipt of the picture and that of the accompanying sound. If due allowance is not made for this, there will be a tendency to ‘speak over’ the witness, whose voice will continue to be heard for a millisecond or so after he or she appears on the screen to have finished speaking. 7. With current technology, picture quality is good, but not as good as a television picture. The quality of the picture is enhanced if those appearing on VCF monitors keep their movements to a minimum.

Preliminary arrangements 8. The court’s permission is required for any part of any proceedings to be dealt with by means of VCF. Before seeking a direction, the applicant should notify the listing officer, diary manager or other appropriate court officer of the intention to seek it, and should enquire as to the availability of court VCF equipment for the day or days of the proposed VCF. The application for a direction should be made to the Master, District Judge or Judge, as may be appropriate. If all parties consent to a direction, permission can be sought by letter, fax or e-mail, although the court may still require an oral hearing. All parties are entitled to be heard on whether or not such a direction should be given and as to its terms. If a witness at a remote site is to give evidence by an interpreter, consideration should be given at this stage as to whether the interpreter should be at the local site or the remote site. If a VCF direction is given, arrangements for the transmission will then need tobe made. The court will ordinarily direct that the party seeking permission to use VCF is to be responsible for this. That party is hereafter referred to as ‘the VCF arranging party’. 9. Subject to any order to the contrary, all costs of the transmission, including the costs of hiring equipment and technical personnel to operate it, will initially be the responsibility of, and must be met by, the VCF arranging party. All reasonable efforts should be made to keep the transmission to a minimum and so keep the costs down. All such costs will be considered to be part of the costs of the proceedings and the court will determine at such subsequent time as is convenient or appropriate who, as between the parties, should be responsible for them and (if appropriate) in what proportions. 520

Practice Direction 32 Evidence

10. The local site will, if practicable, be a courtroom but it may instead be an appropriate studio or conference room. The VCF arranging party must contact the listing officer, diary manager or other appropriate officer of the court which made the VCF direction and make arrangements for the VCF transmission. Details of the remote site, and of the equipment to be used both at the local site (if not being supplied by the court) and the remote site (including the number of ISDN lines and connection speed), together with all necessary contact names and telephone numbers, will have to be provided to the listing officer, diary manager or other court officer. The court will need to be satisfied that any equipment provided by the parties for use at the local site and also that at the remote site is of sufficient quality for a satisfactory transmission. The VCF arranging party must ensure that an appropriate person will be present at the local site to supervise the operation of the VCF throughoutthe transmission in order to deal with any technical problems. That party must also arrange for a technical assistant to be similarly present at the remote site for like purposes. 11. It is recommended that the judge, practitioners and witness should arrive at their respective VCF sites about 20 minutes prior to the scheduled commencement of the transmission. 12. If the local site is not a courtroom, but a conference room or studio, the judge will need to determine who is to sit where. The VCF arranging party must take care to ensure that the number of microphones is adequate for the speakers and that the panning of the camera for the practitioners’ table encompasses all legal representatives so that the viewer can see everyone seated there. 13. The proceedings, wherever they may take place, form part of a trial to which the public is entitled to have access (unless the court has determined that they should be heard in private). If the local site is to be a studio or conference room, the VCF arranging party must ensure that it provides sufficient accommodation to enable a reasonable number of members of the public to attend. 14. In cases where the local site is a studio or conference room, the VCF arranging party should make arrangements, if practicable, for the royal coat of arms to be placed above the judge’s seat. 15. In cases in which the VCF is to be used for the taking of evidence, the VCF arranging party must arrange for recording equipment to be provided by the court which made the VCF direction so that the evidence can be recorded. An associate will normally be present to operate the recording equipment when the local site is a courtroom. The VCF arranging party should take steps to ensure that an associate is present to do likewise when it is a studio or conference room. The equipment should be set up and tested before the VCF transmission. It will often be a valuable safeguard for the VCF arranging party also to arrange for the provision of recording equipment at the remote site. This will provide a useful back-up if there is any reduction in sound quality during the transmission. A direction from the court for the making of 521

Civil Procedure Rule and Guidance

such a back-up recording must, however, be obtained first. This is because the proceedings are court proceedings and, save as directed by the court, no other recording of them must be made. The court will direct what is to happen to the back-up recording. 16. Some countries may require that any oath or affirmation to be taken by a witness accord with local custom rather than the usual form of oath or affirmation used in England and Wales. The VCF arranging party must make all appropriate prior inquiries and put in place all arrangements necessary to enable the oath or affirmation to be taken in accordance with any local custom. That party must be in a position to inform the court what those inquiries were, what their outcome was and what arrangements have been made. If the oath or affirmation can be administered in the manner normal in England and Wales, the VCF arranging party must arrange in advance to have the appropriate holy book at the remote site. The associate will normally administer the oath. 17. Consideration will need to be given in advance to the documents to which the witness is likely to be referred. The parties should endeavour to agree on this. It will usually be most convenient for a bundle of the copy documents to be prepared in advance, which the VCF arranging party should then send to the remote site. 18. Additional documents are sometimes quite properly introduced during the course of a witness’s evidence. To cater for this, the VCF arranging party should ensure that equipment is available to enable documents to be transmitted between sites during the course of the VCF transmission. Consideration should be given to whether to use a document camera. If it is decided to use one, arrangements for its use will need to be established in advance. The panel operator will need to know the number and size of documents or objects if their images are to be sent by document camera. In many cases, a simpler and sufficient alternative will be to ensure that there are fax transmission and reception facilities at the participating sites.

The hearing 19. The procedure for conducting the transmission will be determined by the judge. He will determine who is to control the cameras. In cases where the VCF is being used for an application in the course of the proceedings, the judge will ordinarily not enter the local site until both sites are on line. Similarly, at the conclusion of the hearing, he will ordinarily leave the local site while both sites are still on line. The following paragraphs apply primarily to cases where the VCF is being used for the taking of the evidence of a witness at a remote site. In all cases, the judge will need to decide whether court dress is appropriate when using VCF facilities. It might be appropriate when transmitting from courtroom to courtroom. It might not be when a commercial facility is being used. 522

Part 33 Miscellaneous rules about evidence

20. At the beginning of the transmission, the judge will probably wish to introduce himself and the advocates to the witness. He will probably want to know who is at the remote site and will invite the witness to introduce himself and anyone else who is with him. He may wish to give directions as to the seating arrangements at the remote site so that those present are visible at the local site during the taking of the evidence. He will probably wish to explain to the witness the method of taking the oath or of affirming, the manner in which the evidence will be taken, and who will be conducting the examination and cross-examination. He will probably also wish to inform the witness of the matters referred to in paragraphs 6 and 7 above (co-ordination of picture with sound, and picture quality). 21. The examination of the witness at the remote site should follow as closely as possible the practice adopted when a witness is in the courtroom. During examination, cross-examination and re-examination, the witness must be able to see the legal representative asking the question and also any other person (whether another legal representative or the judge) making any statements in regard to the witness’s evidence. It will in practice be most convenient if everyone remains seated throughout the transmission.

PART 33 MISCELLANEOUS RULES ABOUT EVIDENCE Introductory 33.1

In this Part – (a) ‘hearsay’ means a statement made, otherwise than by a person while giving oral evidence in proceedings, which is tendered as evidence of the matters stated; and (b) references to hearsay include hearsay of whatever degree. Notice of intention to rely on hearsay evidence 33.2

(1) Where a party intends to rely on hearsay evidence at trial and either – (a) that evidence is to be given by a witness giving oral evidence; or (b) that evidence is contained in a witness statement of a person who is not being called to give oral evidence; that party complies with section 2(1)(a) of the Civil Evidence Act 1995 serving a witness statement on the other parties in accordance with the court’s order. 523

Civil Procedure Rule and Guidance

(2) Where paragraph (1)(b) applies, the party intending to rely on the hearsay evidence must, when he serves the witness statement – (a) inform the other parties that the witness is not being called to give oral evidence; and (b) give the reason why the witness will not be called. (3) In all other cases where a party intends to rely on hearsay evidence at trial, that party complies with section 2(1)(a) of the Civil Evidence Act 1995 by serving a notice on the other parties which – (a) identifies the hearsay evidence; (b) states that the party serving the notice proposes to rely on the hearsay evidence at trial; and (c) gives the reason why the witness will not be called. (4) The party proposing to rely on the hearsay evidence must – (a) serve the notice no later than the latest date for serving witness statements; and (b) if the hearsay evidence is to be in a document, supply a copy to any party who requests him to do so. Circumstances in which notice of intention to rely on hearsay evidence is not required 33.3

Section 2(1) of the Civil Evidence Act 1995 (duty to give notice of intention to rely on hearsay evidence) does not apply – (a) to evidence at hearings other than trials; (aa) to an affidavit or witness statement which is to be used at trial but which does not contain hearsay evidence; (b) to a statement which a party to a probate action wishes to put in evidence and which is alleged to have been made by the person whose estate is the subject of the proceedings; or (c) where the requirement is excluded by a practice direction. Power to call witness for cross-examination on hearsay evidence 33.4

(1) Where a party – (a) proposes to rely on hearsay evidence; and (b) does not propose to call the person who made the original statement to give oral evidence, 524

Part 33 Miscellaneous rules about evidence

the court may, on the application of any other party, permit that party to call the maker of the statement to be cross-examined on the contents of the statement. (2) An application for permission to cross-examine under this rule must be made not more than 14 days after the day on which a notice of intention to rely on the hearsay evidence was served on the applicant. Credibility 33.5

(1) Where a party – (a) proposes to rely on hearsay evidence; but (b) does not propose to call the person who made the original statement to give oral evidence; and (c) another party wishes to call evidence to attack the credibility of the person who made the statement, the party who so wishes must give notice of his intention to the party who proposes to give the hearsay statement in evidence. (2) A party must give notice under paragraph (1) not more than 14 days after the day on which a hearsay notice relating to the hearsay evidence was served on him. Use of plans, photographs and models as evidence 33.6

(1) This rule applies to evidence (such as a plan, photograph or model) which is not – (a) contained in a witness statement, affidavit(GL) or expert’s report; (b) to be given orally at trial; or (c) evidence of which prior notice must be given under rule 33.2. (2) This rule includes documents which may be received in evidence without further proof under section 9 of the Civil Evidence Act 1995. (3) Unless the court orders otherwise the evidence shall not be receivable at a trial unless the party intending to put it in evidence has given notice to the other parties in accordance with this rule. (4) Where the party intends to use the evidence as evidence of any fact then, except where paragraph (6) applies, he must give notice not later than the latest date for serving witness statements. (5) He must give notice at least 21 days before the hearing at which he proposes to put in the evidence, if – 525

Civil Procedure Rule and Guidance

(a) there are not to be witness statements; or (b) he intends to put in the evidence solely in order to disprove an allegation made in a witness statement. (6) Where the evidence forms part of expert evidence, he must give notice when the expert’s report is served on the other party. (7) Where the evidence is being produced to the court for any reason other than as part of factual or expert evidence, he must give notice at least 21 days before the hearing at which he proposes to put in the evidence. (8) Where a party has given notice that he intends to put in the evidence, he must give every other party an opportunity to inspect it and to agree to its admission without further proof. Evidence of finding on question of foreign law 33.7

(1) This rule sets out the procedure which must be followed by a party who intends to put in evidence a finding on a question of foreign law by virtue of section 4(2) of the Civil Evidence Act 1972. (2) He must give any other party notice of his intention. (3) He must give the notice – (a) if there are to be witness statements, not later than the latest date for serving them; or (b) otherwise, not less than 21 days before the hearing at which he proposes to put the finding in evidence. (4) The notice must – (a) specify the question on which the finding was made; and (b) enclose a copy of a document where it is reported or recorded. Evidence of consent of trustee to act 33.8

A document purporting to contain the written consent of a person to act as trustee and to bear his signature verified by some other person is evidence of such consent. Human Rights 33.9

(1) This rule applies where a claim is – 526

Part 34 Witnesses, depositions and evidence for foreign courts

(a) for a remedy under section 7 of the Human Rights Act 1998 in respect of a judicial act which is alleged to have infringed the claimant’s Article 5 Convention rights; and (b) based on a finding by a court or tribunal that the claimant’s Convention rights have been infringed. (2) The court hearing the claim – (a) may proceed on the basis of the finding of that other court or tribunal that there has been an infringement but it is not required to do so, and (b) may reach its own conclusion in the light of that finding and of the evidence heard by that other court or tribunal.

PRACTICE DIRECTION 33 CIVIL EVIDENCE ACT 1995 This Practice Direction supplements CPR Part 33 1

Section 16(3A) of the Civil Evidence Act 1995 (c. 38.) (as amended) provides that transitional provisions for the application of the provisions of the Civil Evidence Act 1995 to proceedings begun before 31 January 1997 may be made by practice direction.

2 Except as provided for by paragraph 3, the provisions of the Civil Evidence Act 1995 apply to claims commenced before 31 January 1997. 3 The provisions of the Civil Evidence Act 1995 do not apply to claims commenced before 31 January 1997 if, before 26 April 1999: (a) directions were given, or orders were made, as to the evidence to be given at the trial or hearing; or (b) the trial or hearing had begun.

PART 34 WITNESSES, DEPOSITIONS AND EVIDENCE FOR FOREIGN COURTS I  Witnesses and depositions Scope of this Section 34.1

(1) This Section of this Part provides – (a) for the circumstances in which a person may be required to attend court to give evidence or to produce a document; and (b) for a party to obtain evidence before a hearing to be used at the hearing. (2) In this Section, reference to a hearing includes a reference to the trial. 527

Civil Procedure Rule and Guidance

Witness summonses 34.2

(1) A witness summons is a document issued by the court requiring a witness to – (a) attend court to give evidence; or (b) produce documents to the court. (2) A witness summons must be in the relevant practice form. (3) There must be a separate witness summons for each witness. (4) A witness summons may require a witness to produce documents to the court either – (a) on the date fixed for a hearing; or (b) on such date as the court may direct. (5) The only documents that a summons under this rule can require a person to produce before a hearing are documents which that person could be required to produce at the hearing. Issue of a witness summons 34.3

(1) A witness summons is issued on the date entered on the summons by the court. (2) A party must obtain permission from the court where he wishes to – (a) have a summons issued less than 7 days before the date of the trial; (b) have a summons issued for a witness to attend court to give evidence or to produce documents on any date except the date fixed for the trial; or (c) have a summons issued for a witness to attend court to give evidence or to produce documents at any hearing except the trial. (3) A witness summons must be issued by – (a) the court where the case is proceeding; or (b) the court where the hearing in question will be held. (4) The court may set aside(GL) or vary a witness summons issued under this rule. 528

Part 34 Witnesses, depositions and evidence for foreign courts

Witness summons in aid of inferior court or of tribunal 34.4

(1) The court may issue a witness summons in aid of an inferior court or of a tribunal. (2) The court which issued the witness summons under this rule may set it aside. (3) In this rule, ‘inferior court or tribunal’ means any court or tribunal that does not have power to issue a witness summons in relation to proceedings before it. Time for serving a witness summons 34.5

(1) The general rule is that a witness summons is binding if it is served at least 7 days before the date on which the witness is required to attend before the court or tribunal. (2) The court may direct that a witness summons shall be binding although it will be served less than 7 days before the date on which the witness is required to attend before the court or tribunal. (3) A witness summons which is – (a) served in accordance with this rule; and (b) requires the witness to attend court to give evidence, is binding until the conclusion of the hearing at which the attendance of the witness is required. Who is to serve a witness summons 34.6

(1) A witness summons is to be served by the court unless the party on whose behalf it is issued indicates in writing, when he asks the court to issue the summons, that he wishes to serve it himself. (2) Where the court is to serve the witness summons, the party on whose behalf it is issued must deposit, in the court office, the money to be paid or offered to the witness under rule 34.7. Right of witness to travelling expenses and compensation for loss of time 34.7

At the time of service of a witness summons the witness must be offered or paid – 529

Civil Procedure Rule and Guidance

(a) a sum reasonably sufficient to cover his expenses in travelling to and from the court; and (b) such sum by way of compensation for loss of time as may b Fines imposed under section 55 of the County Courts Act 1984 34.7A

If a person has failed to comply with an order under section 55 of the County Courts Act 1984 but can demonstrate any reason why they should not be (or should not have been) fined for failure to comply with the order, the court may direct that that person give evidence by witness statement, affidavit or otherwise. (Part 70 contains general rules about fines imposed under the County Courts Act 1984.) Evidence by deposition 34.8

(1) A party may apply for an order for a person to be examined before the hearing takes place. (2) A person from whom evidence is to be obtained following an order under this rule is referred to as a ‘deponent’ and the evidence is referred to as a ‘deposition’. (3) An order under this rule shall be for a deponent to be examined on oath before – (a) a judge; (b) an examiner of the court; or (c) such other person as the court appoints. (Rule 34.15 makes provision for the appointment of examiners of the court) (4) The order may require the production of any document which the court considers is necessary for the purposes of the examination. (5) The order must state the date, time and place of the examination. (6) At the time of service of the order the deponent must be offered or paid – (a) a sum reasonably sufficient to cover his expenses in travelling to and from the place of examination; and (b) such sum by way of compensation for loss of time as may be specified in Practice Direction 34A. (7) Where the court makes an order for a deposition to be taken, it may also order the party who obtained the order to serve a witness statement or 530

Part 34 Witnesses, depositions and evidence for foreign courts

witness summary in relation to the evidence to be given by the person to be examined. (Part 32 contains the general rules about witness statements and witness summaries) Conduct of examination 34.9

(1) Subject to any directions contained in the order for examination, the examination must be conducted in the same way as if the witness were giving evidence at a trial. (2) If all the parties are present, the examiner may conduct the examination of a person not named in the order for examination if all the parties and the person to be examined consent. (3) The examiner may conduct the examination in private if he considers it appropriate to do so. (4) The examiner must ensure that the evidence given by the witness is recorded in full. (5) The examiner must send a copy of the deposition – (a) to the person who obtained the order for the examination of the witness; and (b) to the court where the case is proceeding. (6) The party who obtained the order must send each of the other parties a copy of the deposition which he receives from the examiner. Enforcing attendance of witness 34.10

(1) If a person served with an order to attend before an examiner – (a) fails to attend; or (b) refuses to be sworn for the purpose of the examination or to answer any lawful question or produce any document at the examination, a certificate of his failure or refusal, signed by the examiner, must be filed by the party requiring the deposition. (2) On the certificate being filed, the party requiring the deposition may apply to the court for an order requiring that person to attend or to be sworn or to answer any question or produce any document, as the case may be. (3) An application for an order under this rule may be made without notice. 531

Civil Procedure Rule and Guidance

(4) The court may order the person against whom an order is made under this rule to pay any costs resulting from his failure or refusal. Use of deposition at a hearing 34.11

(1) A deposition ordered under rule 34.8 may be given in evidence at a hearing unless the court orders otherwise. (2) A party intending to put in evidence a deposition at a hearing must serve notice of his intention to do so on every other party. (3) He must serve the notice at least 21 days before the day fixed for the hearing. (4) The court may require a deponent to attend the hearing and give evidence orally. (5) Where a deposition is given in evidence at trial, it shall be treated as if it were a witness statement for the purposes of rule 32.13 (availability of witness statements for inspection). Restrictions on subsequent use of deposition taken for the purpose of any hearing except the trial 34.12

(1) Where the court orders a party to be examined about his or any other assets for the purpose of any hearing except the trial, the deposition may be used only for the purpose of the proceedings in which the order was made. (2) However, it may be used for some other purpose – (a) by the party who was examined; (b) if the party who was examined agrees; or (c) if the court gives permission. Where a person to be examined is out of the jurisdiction – letter of request 34.13

(1) This rule applies where a party wishes to take a deposition from a person who is – (a) out of the jurisdiction; (1A)  The High Court may order the issue of a letter of request to the judicial authorities of the country in which the proposed deponent is. (2) A letter of request is a request to a judicial authority to take the evidence of that person, or arrange for it to be taken. 532

Part 34 Witnesses, depositions and evidence for foreign courts

(3) The High Court may make an order under this rule in relation to county court proceedings. (4) If the government of a country allows a person appointed by the High Court to examine a person in that country, the High Court may make an order appointing a special examiner for that purpose. (5) A person may be examined under this rule on oath or affirmation or in accordance with any procedure permitted in the country in which the examination is to take place. (6) If the High Court makes an order for the issue of a letter of request, the party who sought the order must file – (a) the following documents and, except where paragraph (7) applies, a translation of them – (i) a draft letter of request; (ii) a statement of the issues relevant to the proceedings; (iii) a list of questions or the subject matter of questions to be put to the person to be examined; and (b) an undertaking to be responsible for the Secretary of State’s expenses. (7) There is no need to file a translation if – (a) English is one of the official languages of the country where the examination is to take place; or (b) a practice direction has specified that country as a country where no translation is necessary. Letter of request – Proceeds of Crime Act 2002 34.13A

(1) This rule applies where a party to existing or contemplated proceedings in – (a) the High Court; or (b) a magistrates’ court, under Part 5 of the Proceeds of Crime Act 2002 (civil recovery of the proceeds etc. of unlawful conduct) wishes to take a deposition from a person who is out of the jurisdiction. (2) The High Court may, on the application of such a party, order the issue of a letter of request to the judicial authorities of the country in which the proposed deponent is. (3) Paragraphs (4) to (7) of rule 34.13 shall apply irrespective of where the proposed deponent is. 533

Civil Procedure Rule and Guidance

Fees and expenses of examiner of the court 34.14

(1) An examiner of the court may charge a fee for the examination. (2) He need not send the deposition to the court unless the fee is paid. (3) The examiner’s fees and expenses must be paid by the party who obtained the order for examination. (4) If the fees and expenses due to an examiner are not paid within a reasonable time, he may report that fact to the court. (5) The court may order the party who obtained the order for examination to deposit in the court office a specified sum in respect of the examiner’s fees and, where it does so, the examiner will not be asked to act until the sum has been deposited. (6) An order under this rule does not affect any decision as to the party who is ultimately to bear the costs of the examination.

Examiners of the court 34.15

(1) The Lord Chancellor shall appoint persons to be examiners of the court. (2) The persons appointed shall be barristers or solicitor-advocates who have been practising for a period of not less than three years. (3) The Lord Chancellor may revoke an appointment at any time.

II  Evidence for foreign courts Scope and interpretation 34.16

(1) This Section applies to an application for an order under the 1975 Act for evidence to be obtained. (2) In this Section – (a) ‘the 1975 Act’ means the Evidence (Proceedings in Other Jurisdictions) Act 1975; the Hague Evidence Convention’ means the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters 534

Part 34 Witnesses, depositions and evidence for foreign courts

Application for order 34.17 

(1) An application for an order under the 1975 Act for evidence to be obtained must be made to the High Court and may be made without notice. (2) The application may be made either— (a) by an application notice under Part 23, which must be— (i) supported by written evidence; and (ii) accompanied by the request as a result of which the application is made, and where appropriate, a translation of the request into English; or (b) where— (i) the requesting state is a party to the Hague Evidence Convention, by a Letter of Request using the Model Form published by the Permanent Bureau of the Hague Conference on Private International Law (which is annexed to Practice Direction 34A); or (ii) the requesting state is not a party to the Hague Evidence Convention, by a Letter of Request submitted via the Foreign and Commonwealth Office. Examination 34.18

(1) The court may order an examination to be taken before – (a) any fit and proper person nominated by the person applying for the order; (b) an examiner of the court; or (c) any other person whom the court considers suitable. (2) Unless the court orders otherwise – (a) the examination will be taken as provided by rule 34.9; and (b) rule 34.10 applies. (3) The court may make an order under rule 34.14 for payment of the fees and expenses of the examination. Dealing with deposition 34.19

(1) The examiner must send the deposition of the witness to the Senior Master unless the court orders otherwise. 535

Civil Procedure Rule and Guidance

(2) The Senior Master will – (a) give a certificate sealed with the seal of the Senior Courts for use out of the jurisdiction identifying the following documents – (i) the request; (ii) the order of the court for examination; and (iii) the deposition of the witness; and (b) send the certificate and the documents referred to in paragraph (a) to – (i) the Secretary of State; or (ii) where the request was sent to the Senior Master by another person in accordance with a Civil Procedure Convention, to that other person, for transmission to the court or tribunal requesting the examination. Claim to privilege 34.20

(1) This rule applies where – (a) a witness claims to be exempt from giving evidence on the ground specified in section 3(1)(b) of the 1975 Act; and (b) That claim is not supported or conceded as referred to in section 3(2) of that Act. (2) The examiner may require the witness to give the evidence which he claims to be exempt from giving. (3) Where the examiner does not require the witness to give that evidence, the court may order the witness to do so. (4) An application for an order under paragraph (3) may be made by the person who obtained the order under section 2 of the 1975 Act. (5) Where such evidence is taken – (a) it must be contained in a document separate from the remainder of the deposition; (b) the examiner will send to the Senior Master – (i) the deposition; and (ii) a signed statement setting out the claim to be exempt and the ground on which it was made; (6) On receipt of the statement referred to in paragraph (5)(b)(ii), the Senior Master will – 536

Practice Direction 34A Depositions and court attendance by witnesses

(a) retain the document containing the part of the witness’s evidence to which the claim to be exempt relates; and (b) send the statement and a request to determine that claim to the foreign court or tribunal together with the documents referred to in rule 34.17. (7) The Senior Master will – (a) if the claim to be exempt is rejected by the foreign court or tribunal, send the document referred to in paragraph (5)(a) to that court or tribunal; (b) if the claim is upheld, send the document to the witness; and (c) in either case, notify the witness and person who obtained the order under section 2 of the foreign court or tribunal’s decision. Order under 1975 Act as applied by Patents Act 1977 34.21

Where an order is made for the examination of witnesses under section 1 of the 1975 Act as applied by section 92 of the Patents Act 1977 the court may permit an officer of the European Patent Office to – (a) attend the examination and examine the witnesses; or (b) request the court or the examiner before whom the examination takes place to put specified questions to them.

PRACTICE DIRECTION 34A DEPOSITIONS AND COURT ATTENDANCE BY WITNESSES Witness summonses Issue of witness summons 1.1

A witness summons may require a witness to: (1) attend court to give evidence, (2) produce documents to the court, or (3) both, on either a date fixed for the hearing or such date as the court may direct.

1.2 Two copies of the witness summons should be filed with the court for sealing, one of which will be retained on the court file. 1.3 A mistake in the name or address of a person named in a witness summons may be corrected if the summons has not been served. 1.4 The corrected summons must be re-sealed by the court and marked ‘Amended and Re-Sealed’. 537

Civil Procedure Rule and Guidance

Witness summons issued in aid of an inferior court or tribunal 2.1 A witness summons may be issued in the High Court or the County Court in aid of a court or tribunal which does not have the power to issue a witness summons in relation to the proceedings before it. 2.2 A witness summons referred to in paragraph 2.1 may be set aside by the court which issued it. 2.3 An application to set aside a witness summons referred to in paragraph 2.1 will be heard: (1) in the High Court by a Master at the Royal Courts of Justice or by a District Judge in a District Registry, and (2) in the County Court by a District Judge. 2.4 Unless the court otherwise directs, the applicant must give at least 2 days’ notice to the party who issued the witness summons of the application, which will normally be dealt with at a hearing. Travelling expenses and compensation for loss of time 3.1 When a witness is served with a witness summons he must be offered a sum to cover his travelling expenses to and from the court and compensation for his loss of time. 3.2 If the witness summons is to be served by the court, the party issuing the summons must deposit with the court: (1) a sum sufficient to pay for the witness’s expenses in travelling to the court and in returning to his home or place of work, and (2) a sum in respect of the period during which earnings or benefit are lost, or such lesser sum as it may be proved that the witness will lose as a result of his attendance at court in answer to the witness summons. 3.3 The sum referred to in 3.2(2) is to be based on the sums payable to witnesses attending the Crown Court. 3.4 Where the party issuing the witness summons wishes to serve it himself, he must: (1) notify the court in writing that he wishes to do so, and (2) at the time of service offer the witness the sums mentioned in paragraph 3.2 above.

Depositions To be taken in England and Wales for use as evidence in proceedings in courts in England and Wales 4.1 A party may apply for an order for a person to be examined on oath before: 538

Practice Direction 34A Depositions and court attendance by witnesses

(1) a judge, (2) an examiner of the court, or (3) such other person as the court may appoint. 4.2 The party who obtains an order for the examination of a deponent before an examiner of the court must: (1) apply to the Foreign Process Section of the Masters’ Secretary’s Department at the Royal Courts of Justice for the allocation of an examiner, (2) when allocated, provide the examiner with copies of all documents in the proceedings necessary to inform the examiner of the issues, and (3) pay the deponent a sum to cover his travelling expenses to and from the examination and compensation for his loss of time. 4.3 In ensuring that the deponent’s evidence is recorded in full, the court or the examiner may permit it to be recorded on audiotape or videotape, but the deposition must always be recorded in writing by him or by a competent shorthand writer or stenographer. 4.4 If the deposition is not recorded word for word, it must contain, as nearly as may be, the statement of the deponent; the examiner may record word for word any particular questions and answers which appear to him to have special importance. 4.5 If a deponent objects to answering any question or where any objection is taken to any question, the examiner must: (1) record in the deposition or a document attached to it – (a) the question, (b) the nature of and grounds for the objection, and (c) any answer given, and (2) give his opinion as to the validity of the objection and must record it in the deposition or a document attached to it. The court will decide as to the validity of the objection and any question of costs arising from it. 4.6 Documents and exhibits must: (1) have an identifying number or letter marked on them by the examiner, and (2) be preserved by the party or his legal representative who obtained the  order for the examination, or as the court or the examiner may direct. 4.7 The examiner may put any question to the deponent as to: (1) the meaning of any of his answers, or 539

Civil Procedure Rule and Guidance

(2) any matter arising in the course of the examination. 4.8 Where a deponent: (1) fails to attend the examination, or (2) refuses to: (a) be sworn, or (b) answer any lawful question, or (c) produce any document, the examiner will sign a certificate of such failure or refusal and may include in his certificate any comment as to the conduct of the deponent or of any person attending the examination. 4.9 The party who obtained the order for the examination must file the certificate with the court and may apply for an order that the deponent attend for examination or as may be. The application may be made without notice. 4.10  The court will make such order on the application as it thinks fit including an order for the deponent to pay any costs resulting from his failure or refusal. 4.11  A deponent who wilfully refuses to obey an order made against him under Part 34 may be proceeded against for contempt of court. 4.12  A deposition must: (1) be signed by the examiner, (2) have any amendments to it initialled by the examiner and the deponent, (3) be endorsed by the examiner with – (a) a statement of the time occupied by the examination, and (b) a record of any refusal by the deponent to sign the deposition and of his reasons for not doing so, and (4) be sent by the examiner to the court where the proceedings are taking place for filing on the court file. 4.13

Rule 34.14 deals with the fees and expenses of an examiner.

Depositions to be taken abroad for use as evidence in proceedings before courts in England and Wales (where the Taking of Evidence Regulation does not apply) 5.1 Where a party wishes to take a deposition from a person outside the jurisdiction, the High Court may order the issue of a letter of request to the judicial authorities of the country in which the proposed deponent is. 540

Practice Direction 34A Depositions and court attendance by witnesses

5.2 An application for an order referred to in paragraph 5.1 should be made by application notice in accordance with Part 23. 5.3 The documents which a party applying for an order for the issue of a letter of request must file with his application notice are set out in rule 34.13(6). They are as follows: (1) a draft letter of request in the form set out in Annex A to this practice direction, (2) a statement of the issues relevant to the proceedings, (3) a list of questions or the subject matter of questions to be put to the proposed deponent, (4) a translation of the documents in (1), (2) and (3) above, unless the proposed deponent is in a country of which English is an official language, and (5) an undertaking to be responsible for the expenses of the Secretary of State In addition to the documents listed above the party applying for the order must file a draft order. 5.4 The above documents should be filed with the Masters’ Secretary in Room E214, Royal Courts of Justice, Strand, London WC2A 2LL. 5.5 The application will be dealt with by the Senior Master of the Queen’s Bench Division of the High Court who will, if appropriate, sign the letter of request. 5.6 Attention is drawn to the provisions of rule 23.10 (application to vary or discharge an order made without notice). 5.7 If parties are in doubt as to whether a translation under paragraph 5.3(4) above is required, they should seek guidance from the Foreign Process Section of the Masters’ Secretary’s Department. 5.8 A special examiner appointed under rule 34.13(4) may be the British Consul or the Consul-General or his deputy in the country where the evidence is to be taken if: (1) there is in respect of that country a Civil Procedure Convention providing for the taking of evidence in that country for the assistance of proceedings in the High Court or other court in this country, or (2) with the consent of the Secretary of State. 5.9 The provisions of paragraphs 4.1 to 4.12 above apply to the depositions referred to in this paragraph. 541

Civil Procedure Rule and Guidance

Depositions to be taken in England and Wales for use as evidence in proceedings before courts abroad pursuant to letters of request (where the Taking of Evidence Regulation does not apply) 6.1 Section II of Part 34 relating to obtaining evidence for foreign courts applies to letters of request and should be read in conjunction with this part of the practice direction. 6.2 The Evidence (Proceedings in Other Jurisdictions) Act 1975 applies to these depositions. 6.3 An application under rule 34.17 must include or exhibit— (1) a statement of the issues relevant to the proceedings; (2) a list of questions or the subject matter of questions to be put to the proposed deponent; (3) a translation of the documents in (1) and (2) into English, if necessary; and (4) where the application is made by an application notice under Part 23 in accordance with rule 34.17(2)(a), a draft order.’ 6.4 (1) The Senior Master will send to the Treasury Solicitor any request – (a) forwarded by the Secretary of State with a recommendation that effect should be given to the request without requiring an application to be made; or (b) received by him in pursuance of a Civil Procedure Convention providing for the taking of evidence of any person in England and Wales to assist a court or tribunal in a foreign country where no person is named in the document as the applicant. (2) In relation to such a request, the Treasury Solicitor may, with the consent of the Treasury – (a) apply for an order under the 1975 Act; and (b) take such other steps as are necessary to give effect to the request. 6.5 The order for the deponent to attend and be examined together with the evidence upon which the order was made must be served on the deponent. 6.6 Attention is drawn to the provisions of rule 23.10 (application to vary or discharge an order made without notice). 6.7 Arrangements for the examination to take place at a specified time and place before an examiner of the court or such other person as the court may appoint shall be made by the applicant for the order and approved by the Senior Master. 542

Practice Direction 34A Depositions and court attendance by witnesses

6.8 The provisions of paragraph 4.2 to 4.12 apply to the depositions referred to in this paragraph, except that the examiner must send the deposition to the Senior Master. (For further information about evidence see Part 32 and Practice Direction 32.)

Taking of evidence between EU Member States Taking of Evidence Regulation 7.1 Where evidence is to be taken – (a) from a person in another Member State of the European Union for use as evidence in proceedings before courts in England and Wales; or (b) from a person in England and Wales for use as evidence in proceedings before a court in another Member State, Council Regulation (EC) No 1206/2001 of 28 May 2001 on co-operation between the courts of the Member States in the taking of evidence in civil or commercial matters (‘the Taking of Evidence Regulation’) applies. 7.2 The Taking of Evidence Regulation is annexed to this practice direction as Annex B. 7.3 The Taking of Evidence Regulation does not apply to Denmark. In relation to Denmark, therefore, rule 34.13 and Section II of Part 34 will continue to apply. (Article 21(1) of the Taking of Evidence Regulation provides that the Regulation prevails over other provisions contained in bilateral or multilateral agreements or arrangements concluded by the Member States and in particular the Hague Convention of 1 March 1954 on Civil Procedure and the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters) Originally published in the official languages of the European Community in the Official Journal of the European Communities by the Office for Official Publications of the European Communities. Meaning of ‘designated court’ 8.1 In accordance with the Taking of Evidence Regulation, each Regulation State has prepared a list of courts competent to take evidence in accordance with the Regulation indicating the territorial and, where appropriate, special jurisdiction of those courts. 8.2 Where Part 34, Section III refers to a ‘designated court’ in relation to another Regulation State, the reference is to the court, referred to in the list of competent courts of that State, which is appropriate to the application in hand. 543

Civil Procedure Rule and Guidance

8.3 Where the reference is to the ‘designated court’ in England and Wales, the reference is to the appropriate competent court in the jurisdiction. The designated courts for England and Wales are listed in Annex C to this practice direction. Central Body 9.1 The Taking of Evidence Regulation stipulates that each Regulation State must nominate a Central Body responsible for – (a) supplying information to courts; (b) seeking solutions to any difficulties which may arise in respect of a request; and (c) forwarding, in exceptional cases, at the request of a requesting court, a request to the competent court. 9.2 The United Kingdom has nominated the Senior Master, Queen’s Bench Division, to be the Central Body for England and Wales. 9.3 The Senior Master, as Central Body, has been designated responsible for taking decisions on requests pursuant to Article 17 of the Regulation. Article 17 allows a court to submit a request to the Central Body or a designated competent authority in another Regulation State to take evidence directly in that State. Evidence to be taken in another Regulation State for use in England and Wales 10.1 Where a person wishes to take a deposition from a person in another Regulation State, the court where the proceedings are taking place may order the issue of a request to the designated court in the Regulation State (Rule 34.23(2)). The form of request is prescribed as Form A in the Taking of Evidence Regulation. 10.2  An application to the court for an order under rule 34.23(2) should be made by application notice in accordance with Part 23. 10.3  Rule 34.23(3) provides that the party applying for the order must file a draft form of request in the prescribed form. Where completion of the form requires attachments or documents to accompany the form, these must also be filed. 10.4  If the court grants an order under rule 34.23 (2), it will send the form of request directly to the designated court. 10.5 Where the taking of evidence requires the use of an expert, the designated court may require a deposit in advance towards the costs of that expert. The party who obtained the order is responsible for the payment of any such deposit which should be deposited with the court for onward transmission. Under the provisions of the Taking of Evidence 544

Practice Direction 34A Depositions and court attendance by witnesses

Regulation, the designated court is not required to execute the request until such payment is received. 10.6 Article 17 permits the court where proceedings are taking place to take evidence directly from a deponent in another Regulation State if the conditions of the article are satisfied. Direct taking of evidence can only take place if evidence is given voluntarily without the need for coercive measures. Rule 34.23(5) provides for the court to make an order for the submission of a request to take evidence directly. The form of request is Form I annexed to the Taking of Evidence Regulation and rule 34.23(6) makes provision for a draft of this form to be filed by the party seeking the order. An application for an order under rule 34.23(5) should be by application notice in accordance with Part 23. 10.7  Attention is drawn to the provisions of rule 23.10 (application to vary or discharge an order made without notice). Evidence to be taken in England and Wales for use in another Regulation State 11.1  Where a designated court in England and Wales receives a request to take evidence from a court in a Regulation State, the court will send the request to the Treasury Solicitor. 11.2  On receipt of the request, the Treasury Solicitor may, with the consent of the Treasury, apply for an order under rule 34.24. 11.3  An application to the court for an order must be accompanied by the Form of request to take evidence and any accompanying documents, translated if required under paragraph 11.4. 11.4 The United Kingdom has indicated that, in addition to English, it will accept French as a language in which documents may be submitted. Where the form or request and any accompanying documents are received in French they will be translated into English by the Treasury Solicitor. 11.5  The order for the deponent to attend and be examined together with the evidence on which the order was made must be served on the deponent. 11.6 Arrangements for the examination to take place at a specified time and place shall be made by the Treasury Solicitor and approved by the court. 11.7 The court shall send details of the arrangements for the examination to such of (a) the parties and, if any, their representatives; or (b) the representatives of the foreign court, who have indicated, in accordance with the Taking of Evidence Regulation, that they wish to be present at the examination. 11.8  The provisions of paragraph 4.3 to 4.12 apply to the depositions referred to in this paragraph. 545

Civil Procedure Rule and Guidance

PRACTICE DIRECTION 34B FEES FOR EXAMINERS OF THE COURT Scope 1.1 This practice direction sets out – (1) how to calculate the fees an examiner of the court (‘an examiner’) may charge; and (2) the expenses he may recover. (CPR Rule 34.8 (3) (b) provides that the court may make an order for evidence to be obtained by the examination of a witness before an examiner of the court). 1.2 The party who obtained the order for the examination must pay the fees and expenses of the examiner. (CPR rule 34.14 permits an examiner to charge a fee for the examination and contains other provisions about his fees and expenses, and rule 34.15 provides who may be appointed as an examiner of the court). The examination fee 2.1 An examiner may charge an hourly rate for each hour (or part of an hour) that he is engaged in examining the witness. 2.2 The hourly rate is to be calculated by reference to the formula set out in paragraph 3. 2.3 The examination fee will be the hourly rate multiplied by the number of hours the examination has taken. For example – Examination fee = hourly rate x number of hours. How to calculate the hourly rate – the formula 3.1 Divide the amount of the minimum annual salary of a post within Group 7 of the judicial salary structure as designated by the Review Body on Senior Salaries, by 220 to give’x’; and then divide’x’by 6 to give the hourly rate. For example – minimum annual salary / 220 = x x / 6 = hourly rate Single fee chargeable on making the appointment for examination 4.1 An examiner of court is also entitled to charge a single fee of twice the hourly rate (calculated in accordance with paragraph 3 above) as ‘the appointment fee’ when the appointment for the examination is made. 546

Practice Direction 34BFees for examiners of the court

4.2 The examiner is entitled to retain the appointment fee where the witness fails to attend on the date and time arranged. 4.3 Where the examiner fails to attend on the date and time arranged he may not charge a further appointment fee for arranging a subsequent appointment. (The examiner need not send the deposition to the court until his fees are paid – see CPR rule 34.14 (2)). Examiner’s expenses 5.1 The examiner of court is also entitled to recover the following expenses – (1) all reasonable travelling expenses; (2) any other expenses reasonably incurred; and (3) subject to paragraph 5.2, any reasonable charge for the room where the examination takes place. 5.2 No expenses may be recovered under sub-paragraph (3) above if the examination takes place at the examiner’s usual business address. (If the examiner’s fees and expenses are not paid within a reasonable time he may report the fact to the court, see CPR Rule 34.14 (4) and (5)).

547

Civil Procedure Rule and Guidance

Data Sharing Code of Practice We are aware of the end of the UK’s transition out of the EU and will update the data sharing code and materials accordingly and in good time for the code being laid before Parliament.

INFORMATION COMMISSIONER’S FOREWORD In 2011 the ICO published its first Data Sharing Code; in the intervening period the type and amount of data collected by organisations has changed enormously, as has the technology used to store and share it, and even the purposes for which it is used. It is imperative that we keep up to date with these developments through this new code. As the UK Information Commissioner, I know that data is one of modern society’s greatest assets. Ready access to information and knowledge, including about individual citizens, can lead to many economic and social benefits, including greater growth, technological innovations and the delivery of more efficient and targeted services. We have written this Data Sharing Code to give individuals, businesses and organisations the confidence to share data in a fair, safe and transparent way in this changing landscape. This code will guide practitioners through the practical steps they need to take to share data while protecting people’s privacy. We hope to dispel many of the misunderstandings about data sharing along the way. I have seen first-hand how proportionate, targeted data sharing delivered at pace between organisations in the public, private and voluntary sectors has been crucial to supporting and protecting the most vulnerable during the response to the COVID-19 pandemic. Be it through the shielding programme for vulnerable people, or sharing of health data in the Test and Trace system. On a local and national level, data sharing has been pivotal to fast, efficient and effective delivery of pandemic responses. Utilising the data we collectively hold and allowing it to be maximised properly will have economic benefits. Data sharing that engenders trust in how personal data is being used is a driver of innovation, competition, economic growth and greater choice for consumers and citizens. This is also true in the sphere of public service delivery where efficient sharing of data can improve insights, outcomes and increase options for recipients. This code demonstrates that the legal framework is an enabler to responsible data sharing and busts some of the myths that currently exist. But we cannot pretend that a code of practice is a panacea to solve all the challenges for data sharing. Or that targeted ICO engagement and advice will solve everything. There are other barriers to data sharing, including cultural, technical and organisational factors. 548

Executive summary

Overcoming these will require more than just the ICO; it will require a collective effort from practitioners, government and the regulator. I see the publication of this code not as a conclusion but as a milestone in this ongoing work. The ICO will continue to provide clarity and advice in how data can be shared in line with the law. This code, and the products and toolkits published alongside it, provides a gateway to good data sharing practice and the benefits we can expect from the results. Elizabeth Denham CBE Information Commissioner

EXECUTIVE SUMMARY About this code • This is a statutory code of practice made under section 121 of the Data Protection Act 2018. •

It is a practical guide for organisations about how to share personal data in compliance with data protection law. It aims to give you confidence to share data fairly and proportionately.

Data protection law enables fair and proportionate data sharing •

Data protection law facilitates data sharing when you approach it in a fair and proportionate way.

• Data protection law is an enabler for fair and proportionate data sharing, rather than a blocker. It provides a framework to help you make decisions about sharing data. •

This code helps you to balance the benefits and risks and implement data sharing.

•

Data sharing has benefits for society as a whole.

•

Sometimes it can be more harmful not to share data.

•

When considering sharing data:

•

•

you must comply with data protection law;

•

we recommend that you assess the risks using a Data Protection Impact Assessment (DPIA); and

•

it is good practice to have a data sharing agreement.

When sharing data, you must follow the key principles in data protection legislation: • The accountability principle means that you are responsible for your compliance, and you must be able to demonstrate that compliance. 549

Civil Procedure Rule and Guidance

•

•

You must share personal data fairly and transparently.

•

You must identify at least one lawful basis for sharing data before you start any sharing.

•

You must process personal data securely, with appropriate organisational and technical measures in place.

In your data sharing arrangement, you should have policies and procedures that allow data subjects to exercise their individual rights easily.

• You can share data in an emergency, as is necessary and proportionate. Examples of an emergency situation are the risk of serious harm to human life, or the immediate need to protect national security. •

You may share children’s data if you can demonstrate a compelling reason to do so, taking account of the best interests of the child.

•

The government has devised a framework for the sharing of personal data, for defined purposes across the public sector, under the Digital Economy Act 2017 (DEA).

UK exit from the European Union •

Now the UK has left the EU, the GDPR (which we refer to in this code as the EU GDPR) has been written into UK law as the UK GDPR, to sit alongside the DPA 2018.

• For the latest information and guidance on data protection and the UK’s position in relation to data protection and the EU, see the ICO website.

ICO powers •

The ICO upholds information rights in the public interest. Our focus is to help you carry out data sharing in a compliant way. We will always use our powers in a targeted and proportionate manner, in line with our regulatory action policy.

NAVIGATING THE DATA SHARING CODE A quick reference guide to help you find the content you need on each topic. 550

Navigating the data sharing code What you need to do or consider

Where you can find it in the data sharing code

Identify your objective in sharing the data

Deciding to share data Data sharing agreements

Be clear as to what data you are sharing

Deciding to share data Data sharing agreements

Understand the position following UK exit from the EU

How is this code affected by the UK’s exit from the European Union?

Consider the benefits and risks of sharing and not sharing

What is the purpose of this code? The benefits of data sharing Deciding to share data

Carry out a Data Protection Impact Assessment (DPIA)

Deciding to share data

Put in place a data sharing agreement

Data sharing agreements Accountability

Ensure you follow the data protection principles

Data protection principles

Check your data sharing is fair and transparent

Fairness and transparency

Identify at least one lawful basis for sharing the data before you start sharing it

What is our lawful basis for sharing?

Put in place policies and procedures that allow data subjects to exercise their individual rights easily

What about access and individual rights?

Be clear about sharing data under the law enforcement processing provisions of Part 3 DPA 2018, and sharing between the UK GDPR/Part 2 DPA 2018 and Part 3 DPA 2018

Law enforcement processing: Part 3 DPA 2018; and sharing with competent authorities under the UK GDPR and Part 2 DPA 2018

Demonstrate a compelling reason if you are planning to share children’s data, taking account of the best interests of the child

Data sharing and children

Share data in an emergency as is necessary and proportionate. Plan ahead as far as possible

Data sharing in an urgent situation or in an emergency

Document your decisions about the data sharing, evidencing your compliance with data protection law

Accountability

Put in place quality checks on the data

What information governance arrangements should we have?

Arrange regular reviews of the data sharing arrangement

When should we review a data sharing arrangement?

Lawful basis for sharing personal data The rights of individuals Law enforcement processing

Data sharing agreements

Accountability Agree retention periods and make arrangements for secure deletion

Security Accountability

551

Civil Procedure Rule and Guidance

ABOUT THIS CODE At a glance This is a statutory code of practice prepared under section 121 of the Data Protection Act 2018. It is a practical guide for organisations about how to share personal data in a way that complies with data protection law. It aims to give you confidence to share data fairly and proportionately.

In more detail •

What is the status of this code?

•

How is this code affected by the UK’s exit from the European Union?

•

What happens if we don’t comply with the code?

•

What is the purpose of this code?

•

Who is this code for?

•

Common misconceptions about data sharing

•

How should we use the code?

What is the status of this code? This is a statutory code of practice prepared under section 121 of the Data Protection Act 2018 (DPA 2018): ‘The Commissioner must prepare a code of practice which contains— (a) practical guidance in relation to the sharing of personal data in accordance with the requirements of the data protection legislation, and (b) such other guidance as the Commissioner considers appropriate to promote good practice in the sharing of personal data.’ It was laid before Parliament on [date] and issued on [date], under section 125 of the DPA 2018. It comes into force on [date]. The code contains practical guidance on how to share data fairly and lawfully, and how to meet your accountability obligations. It does not impose any additional barriers to data sharing, but will help you comply with your legal obligations under the UK GDPR and the DPA 2018. It also contains some optional good practice recommendations, which do not have the status of legal requirements but aim to help you adopt an effective approach to data protection compliance. 552

About this code

In accordance with section 127 of the DPA 2018, the Commissioner must take the code into account when considering whether you have complied with your data protection obligations when sharing data. In particular, the Commissioner will take the code into account when considering questions of fairness, lawfulness, transparency and accountability under the UK GDPR or the DPA 2018 and in the use of her enforcement powers. The code can also be used in evidence in court proceedings, and the courts must take its provisions into account wherever relevant. Further Reading Relevant provisions in the legislation – see DPA 2018 sections 121 https://www. legislation.gov.uk/ukpga/2018/12/section/121/enacted Relevant provisions in the legislation – see DPA 2018 sections 125 https://www. legislation.gov.uk/ukpga/2018/12/section/125/enacted Relevant provisions in the legislation – see DPA 2018 sections 127 https://www. legislation.gov.uk/ukpga/2018/12/section/127/enacted How is the code affected by the UK’s exit from the European Union? Now the UK has left the EU, a UK version of the EU GDPR has been written into UK law as the UK GDPR to sit alongside the DPA 2018. The EU GDPR may still apply to you if you operate in the European Economic Area (EEA) or offer goods and services to individuals or monitor the behaviour of individuals there. Rules on international transfers now apply to the flow of data to and from the EEA. If there are any further changes to the details of the future UK regime, the Commissioner will publicise them, and will note the changes on the ICO website. For the latest information and guidance on data protection and the UK’s position regarding the EU, see the ICO website. Further Reading Relevant provisions in the legislation – see DPA 2018 section 207 https://www. legislation.gov.uk/ukpga/2018/12/section/207/enacted International transfers https://ico.org.uk/for-organisations/guide-to-dataprotection/guide-to-the-general-data-protection-regulation-gdpr/internationaltransfers-after-uk-exit/ Data protection at the end of the transition period https://ico.org.uk/fororganisations/dp-at-the-end-of-the-transition-period/ UK Government website: Brexit: new rules are here https://www.gov.uk/ transition 553

Civil Procedure Rule and Guidance

What happens if we don’t comply with the code? If you don’t comply with the guidance in this code, you may find it more difficult to demonstrate that your data sharing is fair, lawful and accountable and complies with the UK GDPR or the DPA 2018. If you process personal data in breach of this code and this results in a breach of the UK GDPR or the DPA 2018, we can take action against you. Tools at our disposal include assessment notices, warnings, reprimands, enforcement notices and penalty notices (administrative fines). For serious breaches of the data protection principles, we have the power to issue fines of up to £17.5 million or 4% of your annual worldwide turnover, whichever is higher. There is no penalty if you fail to adopt good practice recommendations, as long as you find another way to comply with the law. For more information, see the section on enforcement of this code. What is the purpose of this code? It provides practical guidance for organisations about sharing personal data in a way that complies with data protection law. It explains the law and promotes good practice. It dispels myths and misconceptions about data sharing. Many organisations using this code of practice will have already shared data under the former data protection regime. The code should give you the knowledge and the confidence you need to continue sharing data under the UK GDPR and the DPA 2018 and assess how to share personal data in new projects and programmes. You should use the code to help you review and, where necessary, update ongoing data sharing arrangements. The code of practice: •

updates and reflects key changes in data protection law since the last data sharing code was published (in particular from the UK GDPR and the DPA 2018);

•

explains new developments and their impact on data protection;

•

references new areas for you to consider; and

•

helps you to manage risks in sharing data, which are magnified if the quantity of data is large.

Who is this code for? The code is mainly aimed at organisations that are controllers sharing personal data. In particular, it is aimed at data protection officers (DPOs) and other individuals within organisations who are responsible for data sharing matters. Please see the sections below on joint controllers and processors. 554

About this code

In the code the reader is addressed by the term ‘you’ (and by the term ‘we’ in some headings that take the form of questions). It uses this terminology to refer to organisations that are sharing data or considering doing so. The code will also be helpful to controller organisations receiving shared data. Controllers are defined under Article 4 of the UK GDPR and section 32 of the DPA 2018 as having responsibility for deciding the ‘purposes and means of the processing of personal data’. The code is also aimed at controllers sharing data under the law enforcement processing regime (Part 3 DPA 2018), and between the UK GDPR/Part 2 DPA 2018 and Part 3 DPA 2018. There is a separate section about this, but the code includes references to some Part 3 provisions throughout to highlight significant differences. If you are one of these controllers, you should still read the whole of this code, which distinguishes between the regimes where appropriate. Much of the advice is applicable to public, private and social sector organisations. Some of the code is necessarily focused on sector-specific issues. However, the majority of the code applies to all data sharing, regardless of its scale and context. Reading and understanding this code and adopting its practical recommendations will give you confidence to collect and share personal data in a way that is fair, transparent and in line with the rights and expectations of the people whose information you are sharing. The code will help you identify what you need to consider before you share personal data and clarify when it is appropriate for you to do so. Common misconceptions about data sharing The code also clears up misconceptions about data sharing and barriers to sharing. It is true that data sharing can sometimes be a complex activity. But for some organisations the perceived risks of getting it wrong – in the shape of reputational damage or enforcement action by the regulator – outweigh the benefits that can be gained from data sharing, leading to missed opportunities for innovation and improved public services. However, data protection law is an enabler for fair and proportionate data sharing, rather than a blocker. It provides a framework to help you make decisions about sharing data. Many of the requirements of data protection law simply place on a statutory footing the good practice that you will already have followed, or plan to follow. The key question is often not whether you can share data, but how. For example: Misconception The UK GDPR and the DPA 2018 prevent us from sharing data. 555

Civil Procedure Rule and Guidance

Reality This is mistaken. Data protection law does not prevent data sharing, as long as you approach it in a fair and proportionate way. If you were able to share data lawfully under the former data protection regime, it is likely that you are able to continue to do so now. While there are some differences, the new legislation helps you to ensure you are sharing data in a way that promotes trust and transparency. Misconception There is little benefit to be gained from data sharing. Reality Data sharing brings significant benefits to your organisation, to individuals and to society at large. Done well, it helps government, public, social sector and commercial organisations to deliver modern, more efficient services which better meet people’s needs and make their lives easier. It can also identify people at risk, help protect them from harm and address problems before they have a significant adverse impact. Misconception We can only share data with people’s consent. Reality Most data sharing does not rely on consent as the lawful basis. If you cannot offer a genuine choice, consent is not appropriate. Public authorities, employers and other organisations in a position of power over individuals should avoid relying on consent unless they are confident they can demonstrate it is freely given. Misconception We can’t share data in an emergency. Reality You can share data in an emergency; you should do whatever is necessary and proportionate. Examples of an emergency situation are the risk of serious harm to human life, the protection of public health, or the protection of national security. Please see our section on this topic later in the code. Where possible you should plan ahead and put contingencies in place. The benefits of data sharing The code highlights the benefits that sharing personal data can bring to everyone: society, organisations, and individuals, whether as citizens or consumers. Data sharing can help public bodies and other organisations to fulfil their functions and deliver modern, efficient services that make everyone’s lives easier. 556

About this code

It can help keep the vulnerable safe at times of crisis, and help to produce official statistics, research and analysis for better decision-making for the public good. Conversely, not sharing data can mean that everyone fails to benefit from these opportunities; and in some instances the chance is missed to assist people in need, whether in urgent or longer-term situations. Example In the banking sector, Open Banking enables businesses to offer services to customers using their personal data. For example, a fintech company can offer a service helping a customer to save, by automatically transferring money from their account to savings every month based on an analysis of their spending. This use of their personal data benefits the customer by increasing their savings and reducing inconvenience for them. This all takes place within a framework that protects the customer’s privacy. It benefits the bank because it allows it to benchmark products against competitors and reach new customers more easily, and provides evidence for anti-fraud prevention checks and customer verification, which is also in the public interest. Example A local area set up an integrated care record to share patient records between health and social care staff. This sharing between public and social sectors resulted in: •

a more holistic picture about a patient’s health;

•

coordinated and safer care across the region;

•

better decision-making around a patient’s care; and

•

patients only having to tell their story once.

Example A private day nursery collected information about the behaviour of an adult towards a child in its care and found a concerning pattern. The nursery shared this information with local authority safeguarding leads to protect the child and others, and to investigate the adult’s behaviour. Example Several health professionals from different organisations and care businesses were involved in providing health and social care to a group of older adults. By exchanging information about recent changes in behaviour from one of the clients, they identified a pattern of evidence indicating the person might be a victim of abuse. To ensure the safeguarding of the person, they shared this information with the person’s social worker for further investigation. 557

Civil Procedure Rule and Guidance

How should we use this code? The code covers data sharing by controller organisations (organisations that determine how personal data is used) under two separate regimes: •

general processing under the UK GDPR, which has to be read together with Part 2 of the DPA 2018; and

•

law enforcement processing under the law enforcement provisions in Part 3 of the DPA 2018.

It also covers data sharing between the two regimes. Most data sharing is likely to be under the UK GDPR and Part 2 of the DPA 2018 because it involves sharing data that is not law enforcement or intelligence personal data, but where provisions differ we clarify this as far as possible. The main body of the code therefore applies to processing under the UK GDPR and Part 2 of the DPA 2018. There is a separate section in this code on law enforcement processing under Part 3 of the DPA 2018 that describes the differences in more detail, but controllers carrying out that type of processing should still read the whole of the code. While the code does not cover the details of data sharing under the intelligence services regime in Part 4 of the DPA 2018, it is relevant to that regime, subject to the specific provisions of Part 4. The code also discusses data sharing for defined purposes across the public sector under the Digital Economy Act 2017. The code is complementary to other ICO guidance and codes of practice about data protection. It assumes knowledge of key data protection terms and concepts. While the code stands as your guide to data sharing, it does not seek to reproduce other ICO guidance, and you might need at times to refer to guidance on the ICO website or contact our helpline. The code will highlight particular instances when it would be useful for you to refer to such guidance. In particular, you will find it helpful to use the data protection impact assessment (DPIA) process along with the code when considering sharing data. Some or all of the DPIA questions are likely to help you when you are assessing whether it is appropriate to share data, and whether it would be in compliance with the law. You can find more on DPIAs later in the code. Another area where you will find it helpful to refer to detailed ICO guidance is in checking whether an exception, exemption or restriction applies in your circumstances, under the UK GDPR or the DPA 2018. For instance, if an exemption applies under the DPA 2018, you may not have to comply with all the usual rights and obligations. There is a wide range of exemptions relating to matters such as crime and taxation, certain regulatory functions, journalism, research and statistics, and archiving in the public interest.

558

About this code

Using the code The code is divided into sections headed by each topic, and there are links to content in the guide to Navigating the data sharing code, and throughout the code to help you find your way around it. As stated above, you will find it helpful to refer to other information and guidance. Because the code is statutory and is not readily updatable, any hyperlinks to guidance, tools and further information from the ICO or other sources are contained in boxes headed ‘Further reading’. These links do not form part of the code. To clarify any unfamiliar terms and acronyms, you may also wish to refer to the Glossary towards the end of the code. We have used examples in the code to illustrate the law and good practice. You can find longer case studies in Annex C. In addition to linking to sources of information outside the code (for example, links to guidance, such as on conducting a DPIA) the code contains tools for you to use: •

The guide to Navigating the data sharing code directs you to the section of the code that you need.

•

Annex A is a checklist to help you decide whether or not to share data.

•

Annex B contains template data sharing request and decision forms.

Further reading Guide to data protection https://ico.org.uk/for-organisations/guide-to-dataprotection/ Guide to Law Enforcement Processing https://ico.org.uk/for-organisations/ guide-to-data-protection/guide-to-law-enforcement-processing/ Guidance on exemptions https://ico.org.uk/for-organisations/guide-to-dataprotection/guide-to-the-general-data-protection-regulation-gdpr/exemptions/ Further resources and support are available on the ICO data sharing information hub. https://ico.org.uk/for-organisations/data-sharing-information-hub/ Why should we use the data sharing code? The benefits for you in adopting the recommendations in the code may include: •

greater trust in you by the public and customers, whose data you may want to share;

•

an improved understanding of whether and when it is appropriate to share personal data;

• greater confidence within your organisation that you are sharing data appropriately and correctly; 559

Civil Procedure Rule and Guidance

•

the confidence to share data in a one-off situation or in an emergency;

•

a reduced reputational risk when sharing data;

•

more robust, demonstrable compliance with the law; and

•

better protection for individuals whose data you are sharing.

Further Reading Relevant provisions in the legislation – see UK GDPR Articles 4(7) and 4(8) https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1528874672298​&uri​ =CELEX:02016R0679-20160504 Relevant provisions in the legislation – see DPA 2018 section 3(9) https://www. legislation.gov.uk/ukpga/2018/12/section/3/enacted Data sharing hub For organisations https://ico.org.uk/for-organisations/datasharing-information-hub/ Controllers and processors https://ico.org.uk/for-organisations/guide-to-dataprotection/guide-to-the-general-data-protection-regulation-gdpr/controllersand-processors/

DATA SHARING COVERED BY THE CODE At a glance The code covers the sharing of personal data between organisations that are controllers. It includes when you give access to data to a third party, by whatever means. Data sharing can take place in a routine, scheduled way or on a one-off basis. When needed, you can share data in an urgent or emergency situation.

In more detail •

Data sharing between controllers

•

Sharing data with a processor is not covered by the code

•

‘Data sharing’ within an organisation is not covered by the code

•

Data sharing covered by the code

•

Routine data sharing

•

Ad hoc or one-off data sharing

•

Data pooling 560

Data sharing covered by the code

Data sharing between controllers The code focuses on the sharing of personal data between controllers, ie where separate or joint controllers determine the purposes and means of the processing of personal data, as defined in UK GDPR Article 4(7). Sharing data with a processor is not covered by the code If a controller asks another party to process personal data on its behalf, for the purposes of the UK GDPR the other party is a ‘processor’, as defined in Article 4(8) of the UK GDPR. The UK GDPR draws a distinction between a controller sharing personal data with another controller, and a processor processing personal data on behalf of a controller. Article 28 of the UK GDPR lays down requirements that must be in place between a controller and processor, in order to protect the rights of the data subject. These requirements include a written contract and guarantees about security. Under the UK GDPR a processor must only process personal data on documented instructions from the controller. A processor has its own liabilities and responsibilities both under the contract and the UK GDPR. This type of processing arrangement is outside the scope of this code, but further information is available on the ICO website. ‘Data sharing’ within an organisation is not covered by the code The code does not apply to the disclosure of data within the same organisation, where the controller is one and the same. The movement of data by one part of an organisation to another part – by the controller to itself – is not data sharing. The other obligations under data protection law obviously still apply, however. Data sharing covered by the code There is no formal definition of data sharing within the legislation, although the scope of this code is defined by section 121 of the DPA 2018 as ‘the disclosure of personal data by transmission, dissemination or otherwise making it available’. This includes: •

providing personal data to a third party, by whatever means;

•

receiving personal data as a joint participant in a data sharing arrangement;

•

the two-way transmission of personal data; and

•

providing a third party with access to personal data on or via your IT systems.

For the purposes of this code, data sharing does not include providing data access to employees or contractors, or with processors such as third-party IT processors. Please read the paragraphs later in this section on sharing data with processors. 561

Civil Procedure Rule and Guidance

The following examples illustrate a range of data sharing types within the scope of the code: •

a one-way or reciprocal exchange of data between organisations;

•

an organisation providing another organisation with access to personal data on its IT system for a specific research purpose;

•

several organisations pooling information and making it available to each other or to a third party or parties;

•

data sharing on a routine, systematic basis for an established purpose;

•

one-off, exceptional or ad hoc data sharing; and

•

one-off data sharing in an urgent or emergency situation.

Examples of real-life data sharing activities •

a bank disclosed personal data about its employees to an anti-fraud body;

•

a primary school passed details about a child showing signs of harm to the police and social services;

• the police and Border Force exchanged information about individuals thought to be involved in serious crime; •

a supermarket gave information about a customer’s purchases to the police following an allegation of shoplifting;

• a secondary school provided information about its pupils to a research company for research purposes; and • a multi-agency network group regularly exchanged information about individuals for safeguarding or social care purposes. The code only applies to sharing personal data. Neither the UK GDPR, the DPA 2018, nor this code, applies to sharing information that does not constitute personal data. Some sharing doesn’t involve personal data; for example, if an organisation is sharing information that cannot identify anyone (anonymous information; please refer to the ICO website for forthcoming guidance on anonymisation). Example These are two examples of data sharing, one of which is subject to the UK GDPR and the second which is not. A travel business collects data on individual travel movements. Prior to sharing with third parties, it removes directly identifiable information such as name or address from the data. In this case, it is still personal data as it is very likely that an individual could be identified by combining the data with other available information; for example, social media accounts. This will be considered personal data under the UK GDPR.

562

Data sharing covered by the code

However, if the travel business shares high-level aggregate statistics with third parties, for example: ‘on Fridays, for a particular journey there are 130% fewer passengers than on Tuesdays’, no individual can be identified. Therefore this would qualify as anonymous information and is not personal data under the UK GDPR. The position is different for pseudonymised data. Data which has undergone pseudonymisation is defined in the UK GDPR as data that can no longer be attributed to a data subject without the use of additional information. If you have pseudonymised the data according to the definition of the UK GDPR, such that the additional information could be used to re-identify a data subject within that data, then you must treat the pseudonymised data as personal data. It is common to consider data sharing as falling into two main types of scenario: • data sharing on a frequent and/or regular basis, also known as routine or ‘systematic’ data sharing, where the same data sets are regularly shared between the same organisations for an established purpose; and • exceptional, one-off decisions to share data for a purpose that is ad hoc, unexpected or due to an urgent situation or an emergency. Different approaches apply to these two scenarios, and the code reflects this. Most of the code concentrates on routine data sharing. Routine data sharing This is data sharing done on a regular basis in a routine, pre-planned way. It generally involves sharing data between organisations for an established purpose – perhaps with standardised data structures and values – at regular, scheduled intervals. For example, a group of organisations might make an arrangement to share or pool their data for specific purposes, again on a frequent and/or regular basis. If you are carrying out this type of data sharing, you should establish rules and agree procedures in advance. Ad hoc or one-off data sharing It is good practice to formalise your data sharing through a data sharing agreement. However in some instances you may decide, or be asked, to share data in ad hoc situations that are not covered by any routine arrangement or agreement. It is still possible to share data in this situation, but you should carefully assess the risks every time. We recommend that you make plans to cover such contingencies. Sometimes you may have to make a decision quickly about data sharing in conditions of real urgency, or even in an emergency situation. You should not be put off from data sharing in a scenario like this; in an urgent situation you should assess the risk and do what is necessary and proportionate. Please see the section later in this code on Data sharing in an urgent situation or in an emergency. 563

Civil Procedure Rule and Guidance

Data pooling Data pooling is a form of data sharing where organisations decide together to pool information they hold and make it available to each other, or to different organisations, for a specific purpose or purposes. The organisations should consider whether they are separate or joint controllers. If the organisations are joint controllers, under Article 26 of the UK GDPR they must enter into a formal, transparent arrangement setting out agreed roles and responsibilities for complying with the UK GDPR. For more details, you should refer to the guidance on controllers and processors on the ICO website. Further Reading Contracts and liabilities between controllers and processors https://ico.org.uk/ for-organisations/guide-to-data-protection/guide-to-the-general-data-protectionregulation-gdpr/contracts-and-liabilities-between-controllers-and-processorsmulti/ Key definitions: controllers and processors https://ico.org.uk/for-organisations/ guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/ key-definitions/controllers-and-processors/ Controllers and processors https://ico.org.uk/for-organisations/guide-to-dataprotection/guide-to-the-general-data-protection-regulation-gdpr/controllersand-processors/ What does it mean if you are joint controllers? https://ico.org.uk/for-organisations/ guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/ controllers-and-processors/what-does-it-mean-if-you-are-joint-controllers/ Relevant provisions in the legislation – see GDPR Articles 4, 26, 28, 82 and 83, https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=​1528874672298​&uri=​ CELEX:02016R0679-20160504 Relevant provisions in the legislation – see GDPR Recitals 26, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 79 81, 82 and 146 https://eur-lex.europa.eu/legal-content/EN/ TXT/?uri=celex:32016R0679 Relevant provisions in the legislation – see DPA 2018 section 121 https://www. legislation.gov.uk/ukpga/2018/12/section/121

DECIDING TO SHARE DATA At a glance In addition to considering whether the data sharing achieves a benefit and is necessary, you must consider your overall compliance with data protection law when sharing data. We recommend that as a first step you carry out a Data Protection Impact Assessment (DPIA), even if you are not legally obliged to carry one out. Carrying 564

Deciding to share data

out a DPIA is an example of best practice, allowing you to build in openness and transparency. A DPIA will help you assess the risks in your planned data sharing and determine whether you need to introduce any safeguards. It will help you assess those considerations, and document them. This will also help to provide reassurance to those whose data you plan to share.

In more detail •

What do we need to consider?

•

Do we need to do a DPIA?

What do we need to consider? We have described earlier the benefits of data sharing to society, to organisations, and to us all as citizens and consumers. When thinking about sharing data, as well as considering whether there is a benefit to the data sharing and whether it is necessary, you must consider your overall compliance with data protection legislation, including fairness and transparency. As a first step, we recommend that you carry out a Data Protection Impact Assessment (DPIA). A DPIA is an invaluable tool to help you assess any risks in your proposed data sharing, and work out how to mitigate these risks. It will help you to ensure you are sharing data fairly and transparently. It will help you to consider these matters, and to document them. In law you are required to consider doing a DPIA. However, even if you are not legally obliged to carry one out, it is very beneficial for you to follow the DPIA process. Do we need to do a DPIA? We recommend that you carry out a DPIA, as it can benefit both you and the public whose data you plan to share. It will help you to: •

assess any risks in your planned data sharing; and

•

promote public trust in your data sharing plans.

You are obliged to carry out a DPIA for data sharing that is likely to result in a high risk to individuals. This includes some specified types of processing. To help you determine whether you need to carry out a DPIA, you can: •

use our screening checklists on the ICO website; and

•

read the detailed guidance on DPIAs on the ICO website. 565

Civil Procedure Rule and Guidance

It is good practice to carry out a DPIA if you have a major project that involves disclosing personal data, or any plans for routine data sharing, even if there is no specific indicator of likely high risk. If you have taken into account the nature, scope, context and purposes of the sharing and you are confident that the type of data sharing you have in mind is unlikely to result in high risk, you are not legally required to carry out a DPIA. However, we recommend that you carry out a DPIA even where you are not legally obliged to do so. You can use the DPIA process as a flexible and scalable tool to suit your project. A DPIA is a practical tool that will help you assess the risks in any planned data sharing. A DPIA need not be a ‘bolt-on’ process – you can integrate the DPIA into any risk frameworks your organisation may already have in place. As already stated in this code, data sharing must be done in a fair and proportionate way. Using the DPIA to assess the risks in your proposed data sharing will help you achieve that proportionality, as the process will help you to fully understand: •

whether you can share the data at all; and

•

whether you can share the data, but with steps to mitigate the risks.

Therefore, the DPIA process will help not only to ensure the protection of the data, but will also help you to put additional safeguards in place to mitigate risk where needed. In turn, this will help to provide reassurance to the people whose data you are sharing. Further Reading Relevant provisions in the legislation – see UK GDPR Articles 35 and 36 https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1528874672298​ &uri=CELEX:02016R0679-20160504 Relevant provisions in the legislation – see UK GDPR Recitals 74-77, 84, 89-92, 94 and 95 https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32016R0679 Data protection impact assessments https://ico.org.uk/for-organisations/guideto-data-protection/guide-to-the-general-data-protection-regulation-gdpr/ accountability-and-governance/data-protection-impact-assessments/ Detailed guidance on DPIAs https://ico.org.uk/for-organisations/guide-todata-protection/guide-to-the-general-data-protection-regulation-gdpr/dataprotection-impact-assessments-dpias/ DPIA sample template https://ico.org.uk/for-organisations/guide-to-dataprotection/guide-to-the-general-data-protection-regulation-gdpr/dataprotection-impact-assessments-dpias/ DPIA checklists https://ico.org.uk/for-organisations/guide-to-data-protection/ guide-to-the-general-data-protection-regulation-gdpr/accountability-andgovernance/data-protection-impact-assessments/ 566

Data sharing agreements

The Article 29 Working Party (WP29) produced guidelines on data protection impact assessments, which have been endorsed by the European Data Protection Board (EDPB). The EDPB, which replaced WP29, includes representatives from the data protection authorities of each EU member state. It adopts guidelines for complying with the requirements of the EU GDPR. Whilst EDPB guidelines are no longer directly relevant to the UK regime and are not binding under the UK regime, they may still provide helpful guidance on certain issues. https:// ec.europa.eu/newsroom/article29/item-detail.cfm?item_id=611236

DATA SHARING AGREEMENTS At a glance It is good practice to have a data sharing agreement. Data sharing agreements set out the purpose of the data sharing, cover what happens to the data at each stage, set standards and help all the parties involved in sharing to be clear about their roles and responsibilities. Having a data sharing agreement in place helps you to demonstrate you are meeting your accountability obligations under the UK GDPR.

In more detail • Introduction •

What are the benefits of a data sharing agreement?

•

What should we include in a data sharing agreement?

•

When should we review a data sharing arrangement?

Introduction A data sharing agreement between the parties sending and receiving data can form a major part of your compliance with the accountability principle, although it is not mandatory. Your organisation might use a different title for a data sharing agreement, for example: •

an information sharing agreement;

•

a data or information sharing protocol or contract; or

•

a personal information sharing agreement.

Whatever the terminology, it is good practice to have a data sharing agreement in place. Government departments and certain other public bodies (for example, regulators, law enforcement bodies and executive agencies) may enter into a memorandum 567

Civil Procedure Rule and Guidance

of understanding with each other that includes data sharing provisions and fulfils the role of a data sharing agreement. However on their own, the following do not constitute a data sharing agreement: •

a memorandum of understanding (except between government departments and certain other public bodies);

•

a list of standards; or

•

an addendum to a purchase agreement or to a purchase order or proposal.

What are the benefits of a data sharing agreement? A data sharing agreement: •

helps all the parties be clear about their roles;

•

sets out the purpose of the data sharing;

•

covers what happens to the data at each stage; and

•

sets standards.

It should help you to justify your data sharing and demonstrate that you have been mindful of, and have documented, the relevant compliance issues. A data sharing agreement provides a framework to help you meet the requirements of the data protection principles. There is no set format for a data sharing agreement; it can take a variety of forms, depending on the scale and complexity of the data sharing. Since a data sharing agreement is a set of common rules that binds all the organisations involved, you should draft it in clear, concise language that is easy to understand. Drafting and adhering to a data sharing agreement should help you to comply with the law, but it does not provide immunity from breaching the law or from the consequences of doing so. However, the ICO will take into account the existence of any relevant data sharing agreement when assessing any complaint we receive about your data sharing. What should we include in a data sharing agreement? You should address a range of questions in a data sharing agreement. Who are the parties to the agreement? Your agreement should state who the controllers are at every stage, including after the sharing has taken place. What is the purpose of the data sharing initiative? Your agreement should explain: •

the specific aims you have; 568

Data sharing agreements

•

why the data sharing is necessary to achieve those aims; and

•

the benefits you hope to bring to individuals or to society more widely.

You should document this in precise terms so that all parties are absolutely clear about the purposes for which they may share or use the data. Which other organisations will be involved in the data sharing? Your agreement should clearly identify all the organisations that will be involved in the data sharing and should include contact details for their data protection officer (DPO) or another relevant employee who has responsibility for data sharing, and preferably for other key members of staff. It should also contain procedures for including additional organisations in the data sharing arrangement and for dealing with cases where an organisation needs to be excluded from the sharing. Are we sharing data along with another controller? If you are acting with another controller as joint controllers of personal data, there is a legal obligation to set out your responsibilities in a joint control arrangement, under both the UK GDPR/Part 2 of the DPA 2018 and under Part 3 of the DPA 2018. Although the code mainly focuses on data sharing between separate controllers, the provisions of a data sharing agreement could help you to put a joint control arrangement in place. What data items are we going to share? Your agreement should set out the types of data you are intending to share. This is sometimes known as a data specification. This may need to be detailed, because in some cases it will be appropriate to share only certain information held in a file about an individual, omitting other, more sensitive, material. In some cases it may be appropriate to attach ‘permissions’ to certain data items, so that only particular members of staff or staff in specific roles are allowed to access them; for example, staff who have received appropriate training. What is our lawful basis for sharing? You need to clearly explain your lawful basis for sharing data. The lawful basis for one organisation in a data sharing arrangement might not be the same as that for the other one. If you are using consent as a lawful basis for disclosure, then your agreement should provide a model consent form. You should also address issues surrounding the withholding or retraction of consent. You should also set out the legal power under which you are allowed to share the data. 569

Civil Procedure Rule and Guidance

Is there any special category data, sensitive data or criminal offence data? You must document the relevant conditions for processing, as appropriate under the UK GDPR or the DPA 2018, if the data you are sharing contains special category data or criminal offence data under the UK GDPR, or there is sensitive processing within the meaning of Part 3 of the DPA 2018. What about access and individual rights? You should set out procedures for compliance with individual rights. This includes the right of access to information as well as the right to object and requests for rectification and erasure. You must make it clear in the agreement that all controllers remain responsible for compliance, even if you have processes setting out who should carry out particular tasks. For example, the agreement should explain what to do when an organisation receives a request for access to shared data or other information, whether it is under the data protection legislation, or under freedom of information legislation. In particular, given data subjects can contact any controller involved in the sharing, it should make clear that one staff member (generally a DPO in the case of personal data) or organisation takes overall responsibility for ensuring that the individual can easily gain access to all their personal data that has been shared. For joint controllers, Article 26 of the UK GDPR and section 58 of the DPA 2018 for Part 3 processing require you to state in the agreement which controller is the contact point for data subjects. You will have to take decisions about access on a case-by-case basis. For public authorities, the agreement should also cover the need to include certain types of information in your freedom of information publication scheme. There are more details on individual rights under the UK GDPR/Part 2 of the DPA 2018 and under Part 3 of the DPA 2018 in the section of this code on the rights of individuals. There is also more information on Part 3 in the section in this code on law enforcement processing. What information governance arrangements should we have? Your agreement should also deal with the main practical problems that may arise when sharing personal data. This should ensure that all organisations involved in the sharing: •

have detailed advice about which datasets they can share, to prevent irrelevant or excessive information being disclosed;

•

make sure that the data they are sharing is accurate, for example by requiring a periodic sampling exercise and data quality analysis;

•

record data in the same format, abiding by open standards when applicable. The agreement could include examples showing how to record or convert particular data items, for example dates of birth; 570

Data sharing agreements

•

have common rules for the retention and deletion of shared data items, as appropriate to their nature and content, and procedures for dealing with cases where different organisations may have different statutory or professional retention or deletion rules;

•

have common technical and organisational security arrangements, including the transmission of the data and procedures for dealing with any breach of the agreement in a timely manner;

•

ensure their staff are properly trained and are aware of their responsibilities for any shared data they have access to;

•

have procedures for dealing with access requests, complaints or queries from members of the public;

•

have a timescale for assessing the ongoing effectiveness of the data sharing initiative and the agreement that governs it; and

•

have procedures for dealing with the termination of the data sharing initiative, including the deletion of shared data or its return to the organisation that supplied it originally.

What further details should we include? It is likely to be helpful for your agreement to have an appendix or annex, including: • a summary of the key legislative and other legal provisions, for example relevant sections of the DPA 2018, any law which provides your legal power for data sharing and links to any authoritative professional guidance; •

a model form for seeking individuals’ consent for data sharing, where that is the lawful basis; and

•

a diagram to show how to decide whether to share data.

You may also want to consider including: •

a data sharing request form; and

•

a data sharing decision form.

You can find examples of these in the Annex to this code.

When should we review a data sharing arrangement? You should review your data sharing arrangements on a regular basis; and particularly when a change in circumstances or in the rationale for the data sharing arises. You should update your data sharing agreement to reflect any changes. If there is a significant complaint, or a security breach, this should be a trigger for you to review the arrangement. 571

Civil Procedure Rule and Guidance

DATA PROTECTION PRINCIPLES When sharing data, you must follow the data protection principles. As previously stated, a data sharing agreement will provide a framework to help you to do this. There are some differences between the principles in the respective pieces of legislation: •

the UK GDPR and Part 2 of the DPA 2018 for general data processing; and

•

Part 3 of the DPA 2018 for law enforcement processing.

You should refer to the detailed guidance on the ICO website.

FURTHER READING Relevant provisions in the legislation – see UK GDPR Article 5 https:// eur-lex.europa.eu/legal-content/EN/TXT/?qid=1528874672298 ​ & uri=​ CELEX:02016R0679-20160504 Relevant provisions in the legislation – see UK GDPR Recital 39 https://eur-lex. europa.eu/legal-content/EN/TXT/?uri=celex:32016R0679 Relevant provisions in the legislation – for Law Enforcement Processing under Part 3 of the DPA 2018, see sections 34-40 https://www.legislation.gov.uk/ ukpga/2018/12/part/3/chapter/2/enacted The principles https://ico.org.uk/for-organisations/guide-to-data-protection/ guide-to-the-general-data-protection-regulation-gdpr/principles/ Guide to Law Enforcement Processing https://ico.org.uk/for-organisations/ guide-to-data-protection/guide-to-law-enforcement-processing/

ACCOUNTABILITY At a glance Accountability should form an important part of the culture and business of your organisation. The specific accountability requirements of the UK GDPR mean that you are responsible for your compliance with the UK GDPR or the DPA 2018. You must be able to demonstrate that compliance. You should review all your accountability measures regularly.

In more detail •

What is accountability? 572

Accountability

•

What documentation do we need to keep?

• What is the role of the data protection officer (DPO) in a data sharing arrangement? What is accountability? Accountability is a legal requirement for data sharing; it is one of the principles applicable to general data processing under the UK GDPR. The importance of accountability cannot be overstated. To be effective, you have to embed the message of accountability in the culture and business of your organisation, from board level through to all your employees and contractors. You must consider the risks data sharing may create, and take appropriate action. You need to ensure staff are adequately trained, assess your data processing and put data protection at the heart of your organisation. It is more than box ticking or bolt-on compliance. It is an opportunity to make data protection a part of the cultural and business fabric of your organisation. It means not only complying with the legislation, but showing it. Accountability obligations mean that if you are involved in a data sharing arrangement, you are responsible for your compliance with the UK GDPR or DPA 2018, and you must be able to demonstrate that compliance. As part of this, and where proportionate, you must put in place a data protection policy which adopts a ‘data protection by design and default’ approach. This will help you comply with data protection law and good practice whenever you process data. There is a general obligation to evidence your compliance and justify your approach, so you should maintain relevant documentation and adopt additional measures as necessary. A data sharing agreement is one example of good practice to demonstrate you are meeting your accountability obligations. If you are unable to justify your approach, it is likely you will fail to meet those obligations. Successfully embedding accountability will enhance your reputation as a business that can be trusted with personal data. The public are increasingly demanding to be shown how their data is being used and how it is being looked after. They want to know that their personal data is in safe hands, and that you have put in place mechanisms to protect their information. For law enforcement processing, similar provisions are set out in Chapter 2 of Part 3 of the DPA 2018. What documentation do we need to keep? Accountability should form part of a long-term programme of compliance and sound governance within your organisation. Documentation forms one of the requirements to ensure effective accountability, and the UK GDPR is specific on this point. Under Article 30 of the UK GDPR, larger organisations are required to maintain a record of their processing activities. Even if you are not a larger 573

Civil Procedure Rule and Guidance

organisation, you should document any data sharing you undertake, and review it regularly. Documenting this information is a practical way of taking stock of your data sharing. Knowing what information you have, where it is, and what you do with it makes it much easier for you to comply with other aspects of the UK GDPR, such as making sure that you hold accurate and secure information. You should follow good records management practice, and for this purpose you may find it helpful to refer to the codes of practice under section 46 of the Freedom of Information Act 2000 (FOIA) and section 61 of the Freedom of Information (Scotland) Act 2002 (FOISA). As well as any record of all aspects of the data sharing and other processing activities required under Article 30, you must keep sufficient documentation to demonstrate your compliance with the UK GDPR when sharing data, such as: •

your compliance with all data protection principles, obligations and rights;

•

your record of the lawful basis for processing and the privacy information you provide;

•

any records of consent; and

•

records of any personal data breaches.

For data sharing that constitutes law enforcement processing under Part 3 of the DPA 2018, section 61 of the DPA 2018 sets out the records to keep, including logs of processing operations in automated processing systems.

What is the role of the data protection officer (DPO) in a data sharing arrangement? If you have a DPO, they should be closely involved from the outset in any plans to enter into a data sharing arrangement. Some organisations may have multiple individuals with responsibility for data sharing matters, depending on the context of the data sharing and the arrangements within the organisation. Many of the references to the DPO in this code are applicable to them as well. In all cases, you should document the advice you receive from them. DPOs play an important role while a data sharing arrangement is under way. Since there will be a number of organisations involved, each of you will have your own responsibilities for the data you share or have received. Often a data sharing arrangement involves processing sensitive information. In each of the organisations, the DPO advises everyone on information governance, ensures compliance with the law, and provides advice to staff faced with decisions about data sharing. They may also be a contact point for individuals to exercise their rights. The ICO’s main contact point with an organisation is through the DPO and we are here to advise and address their concerns. 574

Accountability

Example An airline looked to develop its service by improving transport schedules, mitigating disruption for passengers and taking steps to improve its carbon footprint. To do this, the airline wanted to use the personal data that it held about its customers for a new purpose. It considered the requirements of Article 6.4 of the UK GDPR and undertook a DPIA, as the processing required the combination of different datasets. To implement some of the strategies proposed, the airline needed to provide some of the data to a partner company which had developed software to enhance customer engagement in this area. In sharing the data, the airline considered whether the partner company adhered to appropriate security measures and had a written contract covering the scope of the data sharing and processing. In this case, the airline had implemented a ‘data protection by design and default’ approach. It had: •

taken appropriate measures to establish if the new processing arrangements were lawful

•

been clear with the third party about the extent of the processing permitted; and

•

had kept clear evidence of the steps taken to comply with the requirements of the UK GDPR.

Example A police intelligence database on gangs in an area (the gangs database) had been shared by the police with the local authority. The council went on to share it inappropriately with a number of organisations. This constituted a data breach. Shortly afterwards there were incidents of gang violence in the area and some victims had featured in the gangs database. Although it was not possible to establish a causal connection to the data breach, it was obvious that there was a risk of distress and harm when this type of sensitive data was not kept secure. In this case, it was apparent that it was unfair and excessive for the council to have shared the unredacted database with a large number of people and other organisations. It should have realised that there was an obvious risk in doing so. There is a national concern about the need to tackle gang crime, and it is widely recognised that this is a challenge for public authorities. Data sharing has an important role to play in tackling this challenge; however, it has to be carried out in compliance with the law. Data must be processed lawfully, fairly, proportionately and securely. However, data protection law is not a barrier to data sharing. To help prevent such incidents happening, organisations processing sensitive data should have in place policies, processes and governance, as well as training for staff. Conducting a DPIA is one way an organisation can try to ensure it 575

Civil Procedure Rule and Guidance

is complying with the law. This data sharing code also provides practical information. Example A health care organisation provided an out-of-hours emergency telephone service. As calls could be received about clients’ welfare, it was essential that advisors had access to some personal data about the organisation’s clients to carry out their role and where appropriate to share data in the public interest. A call was taken by a new advisor late one evening from someone identifying themselves as a police officer and requesting the address of one of the organisation’s clients. The organisation had protocols to follow about sharing data to third parties, and it was mandatory that all new advisors had this training on appointment. The advisor therefore knew the procedure to follow to determine whether or not they could share this information. Further Reading Relevant provisions in the legislation – see UK GDPR Articles 5.1(b), 5.2, 6.4, 25, 28, 29, 30, 31, 32, 34, 35, 38, 39 https://eur-lex.europa.eu/legal-content/EN/ TXT/?qid=1528874672298&uri=CELEX:02016R0679-20160504 Relevant provisions in the legislation – see UK GDPR Recitals 39, 81-83 https:// eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32016R0679 Relevant provisions in the legislation – see DPA 2018 Part 3, Sections 61 and 62 https://www.legislation.gov.uk/ukpga/2018/12/part/3/chapter/4/crossheading/ general-obligations/enacted Guidance on DPIAs, DPOs, documentation and accountability https://ico.org.uk/ for-organisations/guide-to-data-protection/guide-to-the-general-data-protectionregulation-gdpr/accountability-and-governance/ ICO’s Accountability Framework accountability-framework/

https://ico.org.uk/for-organisations/

Data protection by design and default https://ico.org.uk/for-organisations/ guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/ accountability-and-governance/data-protection-by-design-and-default/ Guide to Law Enforcement Processing https://ico.org.uk/for-organisations/ guide-to-data-protection/guide-to-law-enforcement-processing/ Sharing personal data with law enforcement authorities https://ico.org.uk/fororganisations/data-sharing-information-hub/sharing-personal-data-with-lawenforcement-authorities/ Data sharing and re-use of data by competent authorities for non-law enforcement purposes https://ico.org.uk/for-organisations/data-sharing-information-hub/ data-sharing-and-reuse-of-data-by-competent-authorities/ 576

Fairness and transparency in data sharing

The Lord Chancellor’s code of practice on records management under section 46 FOIA https://ico.org.uk/media/for-organisations/research-and-reports/1432475/foisection-46-code-of-practice-1.pdf Scottish government code of practice on records management under section 61 FOISA https://www.gov.scot/binaries/content/documents/govscot/ publications/advice-and-guidance/2011/12/code-of-practice-on-recordsmanagement/documents/section-61-code-practice-records-management-pdf/ section-61-code-practice-records-management-pdf/govscot%3A​ d ocument/ Section%2B61%2Bcode%2Bof%2Bpractice%2Bon%2Brecords%2B​management. pdf What happens if we have a new purpose? https://ico.org.uk/for-organisations/guideto-data-protection/guide-to-the-general-data-protection-regulation-gdpr/lawful-basisfor-processing/#purpose Purpose limitation https://ico.org.uk/for-organisations/guide-to-data-protection/guideto-the-general-data-protection-regulation-gdpr/principles/purpose-limitation/#other_ purposes

FAIRNESS AND TRANSPARENCY IN DATA SHARING At a glance The gateway to getting data sharing right is always to share personal data fairly and in a transparent manner. •

You must treat individuals fairly and not use their data in ways that would have unjustified adverse effects on them.

•

When you share personal data, you must ensure it is reasonable and proportionate.

•

You must ensure that individuals know what is happening to their data.

•

Before sharing data, you must tell individuals about what you propose to do with their personal data in a way that is accessible and easy to understand.

Fairness and transparency are fundamental to your approach to sharing data under the UK GDPR, and they are closely linked. Understanding that you are responsible for ensuring fairness and transparency will help you to ensure your general compliance with data protection law. Fairness also forms a key part of the principles under the law enforcement provisions of Part 3 of the DPA 2018. However, the principles in Part 3 do not include transparency; this is due to the potential to prejudice an ongoing law enforcement investigation in certain circumstances. It is essential that the law enforcement agencies have the powers that they need to investigate crimes and bring offenders to justice. However, section 44 of the DPA 2018 sets out the information a controller should make available to data subjects for law enforcement processing purposes. 577

Civil Procedure Rule and Guidance

As part of fairness and transparency considerations, you should also bear in mind ethical factors when deciding whether to share personal data; ask yourself whether it is right to share it. Example Two county councils and 19 relevant partner organisations (both public and private sector) decided to share personal information in order to prevent social exclusion amongst young people who had been, or were at high risk of, disengaging from education, employment or training. By sharing information, the partner organisations aimed to co-ordinate their approach to identifying and contacting each young person to support and encourage them back into education, or into work or training. While the partner organisations took the view that the data sharing would benefit the young people, data protection law required them to consider whether it was fundamentally fair to the young people. The organisations had to pause and consider certain questions before deciding they could go ahead with the sharing: • Would they only be sharing data in a way that would be in line with the reasonable expectations of the individuals concerned? •

How sure were they that they would not be sharing data in a way that would adversely affect the individuals?

•

Did they mislead the individuals when they collected their personal data?

The organisations also had to consider whether they had met their transparency obligations: •

Were they open and honest with the individuals as to how they would use their personal data?

•

Did they tell the individuals about the proposed use of their personal data in a clear, accessible way?

The councils were not prevented by data protection law from sharing data, but had to be sure they had done so fairly and transparently by answering these questions. Further Reading Relevant provisions in the legislation – see UK GDPR Articles 5.1(a), 13, 14 https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1528874672298​&uri=​ CELEX:02016R0679-20160504 Relevant provisions in the legislation – see UK GDPR Recitals 39, 58, 60-62 https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32016R0679 Relevant provisions in the legislation – see DPA 2018 Part 3 section 44 https:// www.legislation.gov.uk/ukpga/2018/12/section/44/enacted 578

Lawfulness

Guidance on the right to be informed https://ico.org.uk/for-organisations/ guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/ individual-rights/right-to-be-informed/ Guidance on the first principle https://ico.org.uk/for-organisations/guide-todata-protection/guide-to-the-general-data-protection-regulation-gdpr/principles/ lawfulness-fairness-and-transparency/ Guide to Law Enforcement Processing: principles https://ico.org.uk/fororganisations/guide-to-data-protection/guide-to-law-enforcement-processing/ principles/ Guidance on exemptions https://ico.org.uk/for-organisations/guide-to-dataprotection/guide-to-the-general-data-protection-regulation-gdpr/exemptions/

LAWFULNESS At a glance In order to comply with the lawfulness principle, you must ensure that your data sharing is lawful in a general sense. This includes checking that you have a legal power to share data. The legal power to share data is separate from the lawful basis provisions.

In more detail • Introduction •

Do we have a legal power to share data?

•

What are the legal powers in the public sector?

•

What are the legal powers for private and social sector organisations?

•

What is the impact of human rights law?

•

Have we checked whether there are any additional legal requirements that need to be met when sharing data?

Introduction This section looks at the principle of lawfulness and discusses the legal constraints on you, outside data protection legislation, and the legal powers you have to share data. Before sharing any personal data, you must consider all the legal implications. You must ensure that your data sharing is lawful in a general sense in order to comply with the lawfulness principle. For public sector bodies, this includes identifying whether you have a legal power to share data. 579

Civil Procedure Rule and Guidance

Compliance with the lawfulness principle is in addition to identifying a lawful basis for your data sharing. Do not confuse lawful basis with general lawfulness or legal powers that are beyond the UK GDPR/DPA 2018. However, there is a link with the lawful bases – if you do not have a lawful basis to share data, you will be in breach of the lawfulness principle. This might sound complex, so this section will break down the different elements you should consider. Do we have a legal power to share data? If you wish to share personal data with another organisation, either by a oneoff disclosure or as part of a routine data sharing arrangement, you need to consider: •

what type of organisation you are, because your legal status also affects your ability to share information. In particular, it depends on whether you are within the public, private or social sector; and

•

whether you have a general legal power to share information, for instance, under the law setting you up, or under your constitution. This is likely to be more relevant to public sector organisations.

What are the legal powers in the public sector? Public sector organisations must check that they have the legal power to share data. When deciding whether you may proceed with any data sharing initiative, you should identify and document the law that is relevant to you. Even if this does not mention data sharing explicitly (and usually it doesn’t) it is likely to lead you to a clearer understanding of your legal position. Public sector organisations mostly derive their powers from sources such as the Act of Parliament or Royal Charter which set them up, or from case law, or duties under common law, or other laws regulating their activities. Government departments headed by a Minister of the Crown have common law powers to share information. The relevant legislation probably defines your functions in terms of your purposes, the things that you must do and the powers you may exercise in order to achieve those purposes. So you should identify where the data sharing would fit, if at all, into the range of things that you are able to do. Broadly speaking, there are three ways in which you may do so: •

Express statutory obligations Occasionally, a public body is legally obliged to share particular information with a named organisation. This is only the case in highly specific circumstances.

•

Express statutory powers 580

Lawfulness

Sometimes, a public body has an express power to share information. An express power is often designed to permit disclosure of information for certain purposes. Express statutory obligations and powers to share information are often referred to as ‘gateways’. For example, specific gateways exist under the Digital Economy Act 2017 (DEA). Under the DEA there is a framework providing a legal gateway for data sharing for defined purposes between specified public authorities, for the public benefit. There is a separate section in this code on the DEA. •

Implied statutory powers Often, the law regulating a public body’s activities is silent on the issue of data sharing. In these circumstances, it may be possible to rely on an implied power to share information derived from the express provisions of legislation. This is because express statutory powers may be taken to authorise the organisation to do other things that are reasonably incidental to those which are expressly permitted. Public authorities are likely to rely on the public task lawful basis in Article 6.3 of the UK GDPR. This requires the legal power to be laid down by law; however it does not need to be contained in an explicit piece of legislation, but could be a common law task, function or power. You can rely on this power to share data so long as it is sufficiently foreseeable and transparent. Whatever the source of your power to share information, you must check that the power covers that specific disclosure or data sharing arrangement. If it does not, you must not share the information unless, in the particular circumstances, there is an overriding public interest in a disclosure taking place.

What are the legal powers for private and social sector organisations? The legal framework that applies to private and social sector organisations differs from that for public sector organisations. Most private and social sector organisations do not need to identify a specific power to share data. They have a general ability to share information, provided this does not breach the data protection legislation or any other law. If you are a private or social sector organisation you should check your constitutional documents, legal agreements or any other legal or regulatory requirements (such as the common law duty of confidentiality, or the Scottish law of privacy) to make sure you are complying with those requirements and that there are no restrictions that would prevent you from sharing personal data in a particular context. Big organisations with complex, larger scale processing should consider obtaining legal advice. Private and social sector organisations should pay attention to any industryspecific regulation, guidance or UK GDPR code of conduct about handling personal data, as this might affect your ability to share information. 581

Civil Procedure Rule and Guidance

What is the impact of human rights law? Public authorities must comply with the Human Rights Act 1998 (HRA) in the performance of their functions. The HRA also applies to organisations in the private sector insofar as they carry out functions of a public nature. Where the HRA applies, organisations must not act in a way that would be incompatible with rights under the European Convention on Human Rights. Article 8 of the Convention, which gives everyone the right to respect for their private and family life, home and correspondence, is especially relevant to sharing personal data. If you disclose or share personal data only in ways that comply with the data protection legislation, the sharing or disclosure of that information is also likely to comply with the HRA. You should seek specialist advice if you have any concerns about human rights issues (other than the data protection elements of Article 8) regarding the disclosure or data sharing arrangement you are proposing. Have we checked whether there are any additional legal requirements that need to be met when sharing data? Your ability to share information may be subject to a number of legal constraints outside data protection law. There might be other considerations such as specific legal requirements that need to be met, for example: •

prohibitions on sharing;

•

copyright restrictions; or

•

a duty of confidence that might affect your ability to share personal data.

A duty of confidence might be stated explicitly, or it might be implied, either by the content of the information or because it was collected in circumstances where confidentiality is expected (eg medical or banking information). If you are a big organisation planning to carry out complex, larger scale processing, you should consider obtaining legal advice on your data sharing plans. In some private sector contexts, there are legal constraints on the disclosure of personal data, other than data protection law. Further Reading Relevant provisions in the legislation – European Convention on Human Rights: Article 8 https://www.echr.coe.int/Documents/Convention_ENG.pdf Lawfulness principle https://ico.org.uk/for-organisations/guide-to-dataprotection/guide-to-the-general-data-protection-regulation-gdpr/principles/ Lawful basis for processing https://ico.org.uk/for-organisations/guide-to-dataprotection/guide-to-the-general-data-protection-regulation-gdpr/lawful-basisfor-processing/ 582

Lawful basis for sharing personal data

Guide to Law Enforcement Processing https://ico.org.uk/for-organisations/ guide-to-data-protection/guide-to-law-enforcement-processing/ Sharing personal data with law enforcement authorities https://ico.org.uk/fororganisations/data-sharing-information-hub/sharing-personal-data-with-lawenforcement-authorities/ Data sharing and re-use of data by competent authorities for non-law enforcement purposes https://ico.org.uk/for-organisations/data-sharing-information-hub/ data-sharing-and-reuse-of-data-by-competent-authorities/

LAWFUL BASIS FOR SHARING PERSONAL DATA At a glance You must identify at least one lawful basis for sharing data before you start. You must be able to show that you considered this before sharing any data, in order to satisfy the accountability principle. What are the provisions on lawful basis? You must identify at least one lawful basis for sharing data. The lawful bases are different for: •

general processing under the UK GDPR and Part 2 of the DPA 2018; and

•

law enforcement processing under Part 3 of the DPA 2018.

At least one lawful basis must apply before you start. You must be able to show that you considered this before sharing any data, in order to satisfy the accountability principle in the UK GDPR and in Part 3 of the DPA 2018. And without at least one lawful basis for processing, any data sharing you do will be in breach of the first principle in each piece of legislation. Example A water company and an electricity network operator conducted a data sharing trial to share priority service data with one another. The two companies worked together to jointly identify and safeguard customers who might have found themselves in vulnerable circumstances if their services were disrupted. Both companies previously held their own registers. The trial allowed the organisations to work together to simplify their processes and introduce a ‘tell us once’ style registration system. The organisations gained explicit consent from relevant customers before undertaking the trial, sharing the data manually and securely on Excel spreadsheets. Due to the success of the trial, the two companies decided to continue the data sharing as part of their business as usual operations. 583

Civil Procedure Rule and Guidance

Example A government office responsible for overseeing business competition required information about the practices of a supermarket chain and its performance in the online retail sector. To understand how the supermarket chain operated, the office gathered evidence about customers’ online shopping habits. The data assisted the office in understanding the range and quality of online services provided by the supermarket chain, as well as its overall value. As the review formed part of a statutory function, the office was able to demonstrate that the processing was necessary in the public interest and relied on this as its lawful basis for obtaining the customer data from the supermarket chain. Example A fintech company launched a paid-for digital tool to assist consumers in handling their finances. The tool could be viewed online and via a mobile phone application. It allowed individuals to access and consider their current accounts, savings accounts, credit cards, investments and pension information in one place. The tool also analysed spending habits and assisted the consumer in developing and managing their budgets. The analysis and planning could be addressed month by month and by different categories, such as grocery shopping, utilities and eating out. For the service to function correctly, personal data needed to be shared with thirdparty providers. This was so the customer’s experience could be personalised with third-party services and materials accessible via the tool. The fintech company relied on ‘performance of a contract’ as its basis for processing under Article 6 of the UK GDPR. As some of the services required the provision of sensitive personal data, explicit consent was also relied on as a condition for processing under Article 9. Further Reading Relevant provisions in the legislation – see UK GDPR Articles 6.1(c), 6.1(e), 6.1(f), 6.3, 9.2, 13.1(c), 14.1(c) https://eur-lex.europa.eu/legal-content/EN/ TXT/?qid=1528874672298&uri=CELEX:02016R0679-20160504 Relevant provisions in the legislation – see UK GDPR Recitals 39, 41, 45, 47-49, 50, 51 https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32016R0679 Relevant provisions in the legislation – see DPA 2018 section 7 https://www. legislation.gov.uk/ukpga/2018/12/section/7/enacted Relevant provisions in the legislation – see DPA 2018 section 8 https://www. legislation.gov.uk/ukpga/2018/12/section/8/enacted Relevant provisions in the legislation – see DPA 2018 section 10 https://www. legislation.gov.uk/ukpga/2018/12/section/10/enacted 584

Security

Relevant provisions in the legislation – see DPA 2018 section 11 https://www. legislation.gov.uk/ukpga/2018/12/section/11/enacted Relevant provisions in the legislation – see DPA 2018 section 35 https://www. legislation.gov.uk/ukpga/2018/12/section/35/enacted Relevant provisions in the legislation – see DPA 2018 section 42 https://www. legislation.gov.uk/ukpga/2018/12/section/42/enacted Relevant provisions in the legislation – see DPA 2018 Schedule 1 (paras 6 and 7) https://www.legislation.gov.uk/ukpga/2018/12/schedule/1/enacted Relevant provisions in the legislation – see DPA 2018 Schedule 8 https://www. legislation.gov.uk/ukpga/2018/12/schedule/8/enacted Lawful basis for processing https://ico.org.uk/for-organisations/guide-to-dataprotection/guide-to-the-general-data-protection-regulation-gdpr/lawful-basisfor-processing/ Lawful basis interactive guidance tool https://ico.org.uk/for-organisations/gdprresources/lawful-basis-interactive-guidance-tool/ Legitimate interests https://ico.org.uk/for-organisations/guide-to-data-protection/​ guide-to-the-general-data-protection-regulation-gdpr/lawful-basis-forprocessing/legitimate-interests/ Legitimate interests assessment https://ico.org.uk/for-organisations/guideto-data-protection/guide-to-the-general-data-protection-regulation-gdpr/ legitimate-interests/how-do-we-apply-legitimate-interests-in-practice/ Guide to Law Enforcement Processing https://ico.org.uk/for-organisations/ guide-to-data-protection/guide-to-law-enforcement-processing/ Sharing personal data with law enforcement authorities https://ico.org.uk/fororganisations/data-sharing-information-hub/sharing-personal-data-with-lawenforcement-authorities/ Data sharing and re-use of data by competent authorities for non-law enforcement purposes https://ico.org.uk/for-organisations/data-sharing-information-hub/ data-sharing-and-reuse-of-data-by-competent-authorities/

SECURITY At a glance Data protection law requires you to process personal data securely, with appropriate organisational and technical measures in place. The security measures must be ‘appropriate’ to the nature, scope, context and purpose of the processing and the risks posed to the rights and freedoms of individuals. 585

Civil Procedure Rule and Guidance

You must also take into account the various security measures available and the costs of implementation when determining what measures are appropriate for your circumstances.

In more detail •

What does data protection law say about security?

•

Are we still responsible after we’ve shared the data?

What does data protection law say about security? Data protection law requires you to process personal data securely, with appropriate organisational and technical measures in place. The security measures must be ‘appropriate’ to the nature, scope, context and purpose of the processing and the risks posed to the rights and freedoms of individuals. This section applies to processing both under the UK GDPR/Part 2 of the DPA 2018 and Part 3 of the DPA 2018. You must also take into account the various security measures available and the costs of implementation when deciding what measures are appropriate for your circumstances. The ‘data protection by design and default’ approach described in the section on accountability will help you to consider the security measures to put in place. As stated earlier, you should aim to build a culture of compliance and good practice throughout your organisation to help you to share data securely. This must apply from board level, through to all employees and contractors. For more details, please see the guidance on security on the ICO website. Are we still responsible after we’ve shared the data? Organisations that you share data with take on their own legal responsibilities for the data, including its security. However you should still take reasonable steps to ensure that the data you share will continue to be protected with adequate security by the recipient organisation. You should: • ensure that the recipient understands the nature and sensitivity of the information; • take reasonable steps to be certain that security measures are in place, particularly to ensure that you have incorporated an agreed set of security standards into your data sharing agreement, where you have one; and •

resolve any difficulties before you share the personal data in cases where you and the recipient organisation have different standards of security, different IT systems and procedures, different protective marking systems etc. 586

The rights of individuals

Undertaking a DPIA for any data sharing operation can be an effective means of considering these issues and implementing appropriate mitigating measures. You should also note that in certain circumstances you are required to do a DPIA when sharing data, and we recommend that you always do so when planning to share data. Please refer to the section in this code on Deciding to share data. Further Reading Relevant provisions in the legislation – see UK GDPR Articles 5.1(f), 32, 35 https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1528874672298&uri​ =CELEX:02016R0679-20160504 Relevant provisions in the legislation – see UK GDPR Recitals 39, 83 https:// eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32016R0679 Relevant provisions in the legislation – see DPA 2018 section 40 (law enforcement processing) https://www.legislation.gov.uk/ukpga/2018/12/section/40/enacted Guidance on security https://ico.org.uk/for-organisations/guide-to-dataprotection/guide-to-the-general-data-protection-regulation-gdpr/security/ Guidance on data protection by design and default https://ico.org.uk/ for-organisations/guide-to-data-protection/guide-to-the-general-dataprotection-regulation-gdpr/accountability-and-governance/data-protection-bydesign-and-default/ The ICO has also worked closely with the National Cyber Security Centre (NCSC) to develop a set of security outcomes that you can use to help determine what’s appropriate for you. The security outcomes can also help you when considering any data sharing arrangements. https://ico.org.uk/for-organisations/ security-outcomes/

THE RIGHTS OF INDIVIDUALS At a glance In a data sharing arrangement, you must have policies and procedures that allow data subjects to exercise their individual rights easily. There are additional requirements if your data sharing involves automated decision-making. The position on individual rights is slightly different for law enforcement processing.

In more detail •

What is the impact of the rights of individuals on data sharing?

•

How do we allow individuals to exercise their information rights in a data sharing scenario under the UK GDPR? 587

Civil Procedure Rule and Guidance

•

What is the impact on a data sharing arrangement of requests for erasure, rectification or the restriction of processing?

•

How do we deal with complaints and queries from individuals about sharing their data?

• What do we need to do if the data sharing involves solely automated processing? • What do we need to do if the data sharing involves automated decisionmaking or profiling that does not fall within Article 22 UK GDPR? • What individual rights are provided by Part 3 of the DPA 2018: law enforcement processing?

What is the impact of the rights of individuals on data sharing? In a data sharing arrangement, you must have policies and procedures that allow data subjects to exercise their individual rights. The rights available to an individual data subject under the UK GDPR and under Part 3 of the DPA 2018 (law enforcement processing) differ in some respects. Please see the paragraph below on individual rights under Part 3 for law enforcement processing. The UK GDPR gives individuals specific rights over their personal data. For general data processing under the UK GDPR, in summary these are: •

the right to access personal data held about them (the right of subject access);

•

the right to be informed about how and why their data is used – and you must give them privacy information;

•

the rights to have their data rectified, erased or restricted;

•

the right to object;

•

the right to portability of their data; and

•

the right not to be subject to a decision based solely on automated processing.

There are exemptions and restrictions that can, in some circumstances, be legitimately applied to exempt or qualify the right of individuals to exercise their rights. This section of the code does not seek to replicate existing ICO guidance on individual rights, but rather focuses on how the rights impact on data sharing. You should refer to guidance on the ICO website for more details. 588

The rights of individuals

How do we allow individuals to exercise their information rights in a data sharing scenario under the UK GDPR? • You must have policies and procedures that allow individuals to exercise their rights easily, and you must set these out in your data sharing agreement. •

If you are a joint controller, these should be set out clearly in the transparent arrangement you and your other joint controller or controllers are required to enter into under Article 26 of the UK GDPR (for law enforcement processing, it is set out in section 58 in Part 3 of the DPA 2018).

• You must provide details of how to exercise these rights in the privacy information you issue to individuals. • You must make the exercise of individual rights as straightforward as possible. Be aware that although your DPO may be the first point of contact, individuals may contact any part of your organisation. • Where several organisations are sharing data, it may be difficult for an individual to decide which organisation they should contact. You should make that clear in the privacy information you provide to them at the time you collect their data, as well as in any transparent arrangement made under Article 26. •

In a data sharing arrangement it is good practice to provide a single point of contact for individuals, which allows them to exercise their rights over the data that has been shared without making multiple requests to several organisations. However, they are permitted to choose to exercise their rights against any controller they wish.

Example A social sector organisation providing childcare services held information shared from a local authority and the NHS. The Article 26 transparency arrangement set out a clear procedure that whichever organisation received a request for personal data should take a lead on providing the data and notify the other parties if necessary. The arrangement also set out procedures for how to deal with the exercising of other individual rights. The procedures were also provided in privacy information given to service users and contained in a data sharing agreement published on the respective organisations’ websites. What is the impact on a data sharing arrangement of requests for erasure, rectification or the restriction of processing? Under Articles 16, 17 and 18 of the UK GDPR, data subjects have a right to request erasure, rectification of their data, or the restriction of processing of their data. As with other individual rights, it will be easier for you and for the 589

Civil Procedure Rule and Guidance

other organisations in a data sharing arrangement if you have clear policies and procedures about how to handle such requests. Under Article 19 of the UK GDPR, if you have shared information with other organisations you must inform them of the rectification, erasure or restriction of the personal data, unless this proves impossible or involves disproportionate effort. If asked, you must also inform the individual about those organisations that you have shared their data with. How do we deal with complaints and queries from individuals about sharing their data? Individual data subjects may have queries or complaints about the sharing of their personal data, particularly if they think the data is wrong or that the sharing is having an adverse effect on them. The way you handle these queries and complaints makes a difference both to the individuals and to your organisation. It is not always a case of simply providing a response. The comments you receive might be an invaluable resource for you when you are reviewing your data sharing arrangement. It is good practice to: • have procedures to deal with any complaints and queries in a quick and helpful way; •

provide a single point of contact for complainants or enquirers;

•

review the comments (good and bad) you receive in order to obtain a clearer understanding of public attitudes to the data sharing you carry out;

• take the opportunity to provide individuals with information about your data sharing, further to that contained in your privacy information, when answering their specific queries; •

use any significant objections, negative comments or other expressions of concern you receive when you inform people about your data sharing, to help you review your data sharing: the amount of data you share, or which organisations you share it with. You may need to decide whether the sharing can go ahead in the face of public opposition. For example, you might decide to go ahead because you are under a legal obligation to share the data; and

•

consider setting up focus groups to explore individuals’ concerns, if you are carrying out large-scale data sharing operations.

What do we need to do if the data sharing involves solely automated processing? Article 22 of the UK GDPR gives data subjects additional protective rights if your data sharing arrangement involves solely automated processing: ‘The data subject shall have the right not to be subject to a decision based solely on automated processing, including profiling, which produces legal 590

The rights of individuals

effects concerning him or her or similarly significantly affects him or her.’ ‘Solely’ here means that there is no human influence on the outcome. Example of solely automated decision-making A bank made a decision not to grant a loan to an individual: •

based on personal data obtained about the individual from a range of sources; and

•

using algorithms, rather than the decision-making input of a member of bank staff.

If your data sharing arrangement involves any automated decision-making, including profiling, you must document the specific lawful basis for that in your data protection policy. Documenting your processing activities will help you to decide whether they constitute profiling and solely automated decision-making. Processing involving automated processing and profiling has a high level of risk. The UK GDPR requires you to carry out a DPIA in respect of processing that meets the Article 22 definition, to show you have considered the risks and how you will deal with them. The UK GDPR allows you to carry out processing falling within Article 22, so long as you can rely on one of three exceptions: •

When the decision is necessary for a contract.

•

When the decision is authorised by domestic law.

•

When the decision is based on the individual’s specific consent.

In respect of any processing that falls within Article 22 you must also: •

give individuals specific information about the processing;

• explain to them their rights to challenge a decision and request human intervention; and •

ensure you have measures in place to prevent errors, bias and discrimination in your systems.

Where the processing includes profiling, you must tell individuals that they have a right under Article 21 of the UK GDPR to object to it in certain circumstances.

What do we need to do if the data sharing involves automated decision-making or profiling that does not fall within Article 22 of the UK GDPR? If your data sharing arrangement features automated decision-making or profiling, but does not fall within Article 22, it is still good practice to tell individuals about it; this will help you to meet your transparency obligation. Think carefully about what they would expect you to do with their data. 591

Civil Procedure Rule and Guidance

You must still comply with UK GDPR principles, document your lawful basis and allow individuals to exercise their rights easily. You must also tell individuals that they have a right under Article 21 of the UK GDPR to object to profiling in certain circumstances. All automated decision-making or profiling of special category data and of children’s personal data has additional protections.

What individual rights are provided by Part 3 of the DPA 2018: law enforcement processing? The individual rights are: •

the right to be informed;

•

the right of access;

•

the right to rectification;

•

the right to erasure or restrict processing; and

•

the right not to be subject to automated decision-making.

Certain rights under the UK GDPR, such as the right to object and the right to data portability, do not exist in Part 3 of the DPA 2018. As with the UK GDPR, there are also exemptions and restrictions that can, in some circumstances, be legitimately applied to exempt or qualify the exercise of individuals’ rights. Further Reading Relevant provisions in the legislation – see UK GDPR Articles 16-19 and 22 https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1528874672298&uri=​ CELEX:02016R0679-20160504 Relevant provisions in the legislation – see DPA 2018 Part 3 https://www. legislation.gov.uk/ukpga/2018/12/part/3/enacted Guidance on the rights of individuals https://ico.org.uk/for-organisations/ guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/ individual-rights/ Individual rights under the law enforcement processing provisions https://ico. org.uk/for-organisations/guide-to-data-protection/guide-to-law-enforcementprocessing/individual-rights/ Guidance on exemptions https://ico.org.uk/for-organisations/guide-to-dataprotection/guide-to-the-general-data-protection-regulation-gdpr/exemptions/

LAW ENFORCEMENT PROCESSING At a glance 592

Law enforcement processing

Most data sharing, and the bulk of this code, is covered by the general processing provisions under the UK GDPR and Part 2 of the DPA 2018. However, data sharing by a ‘competent authority’ for specific law enforcement purposes is subject to a different regime under Part 3 of the DPA 2018 for law enforcement processing. If you are a competent authority, it is very likely that you will also be processing personal data for general purposes under the UK GDPR/Part 2 of the DPA 2018, eg for Human Resources matters or other non-law enforcement purposes. In that instance, you should follow the general sections of the code on UK GDPR/Part 2 data sharing.

In more detail • Introduction •

What is a competent authority?

•

What are the law enforcement purposes?

•

We are a competent authority: how do we share data under Part 3 of the DPA 2018?

•

We are a competent authority: how do we share data with a controller that is not a competent authority?

•

We are not a competent authority: how do we share data with a competent authority?

•

How do we allow individuals to exercise their information rights under Part 3?

•

How do we comply with the accountability requirement under Part 3?

Introduction There are compelling reasons why data sharing is needed for law enforcement purposes. We are aware that sometimes organisations are hesitant about data sharing in this context. However, we emphasise that data protection law does not prevent appropriate data sharing when it is necessary to protect the public, to support ongoing policing activities, or in an emergency for example. Adhering to the provisions of the legislation and following the good practice set out in this code will help you to share data in a compliant and proportionate way. Most data sharing, and hence the bulk of the code, is covered by the general processing provisions under Part 2 of the DPA 2018; in practice, this means referring to the UK GDPR. Data sharing by a competent authority for specific law enforcement purposes is subject to a different regime under Part 3 of the DPA 2018, which provides a separate but complementary framework. However, there are common elements to both regimes which means that data sharing processes under either Part 2 or Part 3 can be adapted, rather than having to start a new process. 593

Civil Procedure Rule and Guidance

Example Requests for information made by competent authorities must be reasonable in the context of their law enforcement purpose, and the necessity for the request should be clearly explained to the organisation. For example, the police might ask a social worker to pass on case files to them containing details of young teenagers who may be at risk of exploitation. The social worker might feel reluctant to voluntarily disclose information to the police if the request appears excessive, or the necessity or urgency appears unjustified. The police should provide as much clarity as they can about their lines of enquiry, without prejudicing their investigation. What is a competent authority? A competent authority is: •

a person specified in Schedule 7 of the DPA 2018; or

•

any other person if, and to the extent that, they have statutory functions to exercise public authority or public powers for the law enforcement purposes (section 30(1)(b) of the DPA 2018).

You need to check whether you are listed as a competent authority in Schedule 7 of the DPA 2018. The list includes most government departments, police chief constables, the Commissioners of HMRC, the Parole Boards and HM Land Registry. If you are not listed in Schedule 7, you may still be a competent authority if you have a legal power to process personal data for law enforcement purposes. For example, local authorities who prosecute trading standards offences, or the Environment Agency when prosecuting environmental offences. What are the law enforcement purposes? This term is defined in section 31 of the DPA 2018 as: ‘the purposes of the prevention, investigation, detection, or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security’ Criminal law enforcement must be the primary purpose of the processing. Even if you are a competent authority, it is very likely that you will also be processing personal data for general purposes under the UK GDPR/Part 2 of the DPA 2018, rather than for law enforcement purposes. An example might be for Human Resources matters. In that instance, you should follow the general data sharing guidance contained elsewhere in this code; we also refer to this below.

594

Law enforcement processing

We are a competent authority. How do we share data under Part 3 of the DPA 2018? If you are a competent authority, and the sharing is to another competent authority for law enforcement purposes, then Part 3 should provide a framework allowing you to share data. This differs in some ways from the general processing provisions in the UK GDPR and Part 2 of the DPA 2018. The differences, including lawful basis, are primarily because of the purpose for which you are processing the data. In particular, there are some differences in the principles in Part 3, and processing of data described in Part 3 as ‘sensitive’ is subject to additional safeguards, such as conditions in Schedule 8 of the DPA 2018. You can find out more about the requirements on the ICO website.

We are a competent authority. How do we share data with a controller that is not a competent authority? Part 3 to Part 2 DPA 2018 data sharing A common scenario here is data sharing by a competent authority (that is processing for law enforcement purposes) to a recipient where the disclosure is not for law enforcement purposes, or the recipient is not a competent authority. In practice, Part 3 DPA 2018 information may be shared with a third party or repurposed internally, and then be used for general processing purposes under the UK GDPR and Part 2 of the DPA 2018. • Section 36(4) of the DPA 2018 allows you to do this, provided that ‘the processing is authorised by law’. •

As a competent authority, you must determine whether any processing of such data for non-law enforcement purposes is ‘authorised by law’. This might be, for example, statute, common law, royal prerogative or statutory code.

•

The question of ‘authorised by law’ will, in part, depend on the specific laws to which the relevant competent authority is subject. For some authorities (such as the police), you may be able to rely more heavily on common law than other organisations that are more constrained by the nature of their constitution and legal framework. These would include local authorities, which may only do those things that they are empowered to do by statute, or those that are reasonably ancillary or incidental to those powers.

•

You should start by identifying the reason and the lawful basis for the sharing.

•

If you are the police you should also take into account the relevant policing purposes. In the absence of a clear policing purpose, it may be that the Part 3 DPA 2018 personal data/police information should not be disclosed. See more on this below. You should then identify a relevant processing condition under the UK GDPR/Part 2 of the DPA 2018. 595

Civil Procedure Rule and Guidance

For the police, in the absence of an obvious statute or code of practice to provide authorisation, common law may be the natural basis to rely upon. However, as recognised by the College of Policing, common law does not provide the police with an unconditional power to engage in any activity that is not otherwise provided for by statute. It cannot be used in a way that contravenes or conflicts with any legislation, and actions based on common law must be still be compliant with the Human Rights Act 1998 and the DPA 2018. Example The police may provide information to the civil courts about child protection proceedings. Both the police and the court are competent authorities, but since the court proceedings are civil rather than criminal, the disclosure by the police is not in the context of law enforcement purposes. This is the case even though the reason for the police disclosing the information is to protect life, which is a policing purpose. We are not a competent authority. How do we share data with a competent authority? Part 2 to Part 3 DPA 2018 data sharing If you are an organisation that does not fall within the DPA 2018 definition of a competent authority, then you can share data for law enforcement purposes with a competent authority, such as the police, in compliance with the UK GDPR and Part 2 of the DPA 2018. However, you must still have a lawful basis under Article 6 for the sharing; for example, legitimate interests. Where a request has come from a law enforcement agency under the Investigatory Powers Act 2016, the lawful basis might be legal obligation. You are also likely to need a condition for disclosing the data under Schedule 1 of the DPA 2018. Requests for information made to you by competent authorities must be reasonable in the context of their law enforcement purpose, and they should clearly explain the necessity for the request to you. Where necessary in the circumstances, you can also rely on the ‘crime and taxation’ exemption from some UK GDPR provisions that is set out in DPA 2018 schedule 2, paragraph 2(1). This includes exemption from transparency obligations and most individual rights, to the extent that the application of those provisions is likely to prejudice the prevention or detection of crime. If you are not a competent authority and are disclosing data about an individual’s criminal offences and convictions (including allegations that an individual has committed an offence) you must comply with Article 10 of the UK GDPR. In practice, this means you need to meet a relevant condition in Schedule 1 of the DPA 2018. In this scenario, the most likely condition is in Schedule 1 paragraph 10, as modified by paragraph 36: disclosures of ‘criminal offence’ data which are necessary for the purposes of the prevention or detection of unlawful acts; and where asking for the individual’s consent would prejudice those purposes. 596

Law enforcement processing

The personal data of witnesses, victims, bystanders and other persons who are not the offender or alleged offender is not ‘criminal offence’ data and a Schedule 1 DPA condition is not required to allow the processing and sharing of their data. However, if the data you are sharing includes special category data, a condition under Article 9 of the UK GDPR needs to apply, together with a linked condition in Schedule 1 of the DPA 2018 in most cases (most likely Article 9.2(g) together with Schedule 1 paragraph 10 of the DPA 2018). You must be able to demonstrate that sharing the special category data is necessary for reasons of substantial public interest. The DPA 2018 usually requires organisations to have an appropriate policy document to cover their general data processing under this condition. However, an organisation disclosing data to a competent authority in reliance on the condition in Schedule 1 paragraph 10 of the DPA 2018 does not need to have a policy document to cover that disclosure. Example A shopkeeper used CCTV, and routinely captured footage of customers in the premises. A copy of some CCTV footage was requested by a police force for an ongoing criminal investigation. The police force told the shopkeeper why they wanted it (some competent authorities may use a standard form for this). The shopkeeper was processing data under the UK GDPR and Part 2 of the DPA 2018. Assuming the shopkeeper had a lawful basis for the processing, they could give the police a copy of the footage to help with the investigation. If the footage included images of an alleged offender they could rely on Schedule 1, paragraph 10 to process the CCTV data, and enable the sharing of the relevant footage with the police to help with the investigation. The receiving police force (competent authority) was processing the information under Part 3 of the DPA 2018. This enabled them to fulfil their statutory functions.

How do we allow individuals to exercise their information rights under Part 3? There are differences in the availability of individual rights for law enforcement processing. Certain individual rights under the UK GDPR, such as the right to object and the right to data portability, do not exist in Part 3 of the DPA 2018. There are exemptions and restrictions that can, in some circumstances, be legitimately applied to prevent individuals from exercising rights if there is a likely prejudice to the law enforcement purposes. For further details on this, please refer to the section in this code on the rights of individuals, and to the ICO website guidance on law enforcement processing. 597

Civil Procedure Rule and Guidance

How do we comply with the accountability requirement under Part 3? Section 34(2) in Part 3 of the DPA 2018 states that you are responsible for compliance. It requires you, as controller, to demonstrate that you comply with the principles. You must put in place appropriate technical and organisational measures that ensure and demonstrate that you comply. This may include policies and procedures, including data protection by design and default. You must also maintain relevant documentation of data processing activities. Please also see the earlier section in this code on accountability. For more specific details on Part 3 DPA 2018, please refer to the ICO guidance on law enforcement processing. Further Reading Relevant provisions in the legislation – see UK GDPR Articles 6, 9, 10 https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1528874672298&​ uri=CELEX:02016R0679-20160504 Relevant provisions in the legislation – see UK GDPR Recitals 40, 41, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56 https://eur-lex.europa.eu/legal-content/EN/ TXT/?uri=celex:32016R0679 Relevant provisions in the legislation – see DPA 2018 section 10 https://www. legislation.gov.uk/ukpga/2018/12/section/10/enacted Relevant provisions in the legislation – see DPA 2018 section 11(2) https://www. legislation.gov.uk/ukpga/2018/12/section/11/enacted Relevant provisions in the legislation – see DPA 2018 section 15 https://www. legislation.gov.uk/ukpga/2018/12/section/15/enacted Relevant provisions in the legislation – see DPA 2018 section 30(1)(b) https:// www.legislation.gov.uk/ukpga/2018/12/section/30/enacted Relevant provisions in the legislation – see DPA 2018 section 31 https://www. legislation.gov.uk/ukpga/2018/12/section/31/enacted Relevant provisions in the legislation – see DPA 2018 schedule 1 (paragraphs 10 and 36) https://www.legislation.gov.uk/ukpga/2018/12/schedule/1/enacted Relevant provisions in the legislation – see DPA 2018 schedule 2 (paragraph 2) https://www.legislation.gov.uk/ukpga/2018/12/schedule/2/enacted Relevant provisions in the legislation – see DPA 2018 schedule 7 https://www. legislation.gov.uk/ukpga/2018/12/schedule/7/enacted Guide to Law Enforcement Processing https://ico.org.uk/for-organisations/ guide-to-data-protection/guide-to-law-enforcement-processing/ Sharing personal data with law enforcement authorities https://ico.org.uk/fororganisations/data-sharing-information-hub/sharing-personal-data-with-lawenforcement-authorities/ 598

Due diligence

Data sharing and re-use of data by competent authorities for non-law enforcement purposes https://ico.org.uk/for-organisations/data-sharing-information-hub/ data-sharing-and-reuse-of-data-by-competent-authorities/ Guide to data protection https://ico.org.uk/for-organisations/guide-to-dataprotection/ Guidance on exemptions https://ico.org.uk/for-organisations/guide-to-dataprotection/guide-to-the-general-data-protection-regulation-gdpr/exemptions/ Guidance on the appropriate policy document https://ico.org.uk/for-organisations/ guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/ special-category-data/what-are-the-substantial-public-interest-conditions/ Further resources and support are available on the ICO data sharing information hub. https://ico.org.uk/for-organisations/data-sharing-information-hub/

DUE DILIGENCE At a glance If a merger or acquisition or other change in organisational structure means that you have to transfer data to a different or additional controller, you must consider data sharing as part of the due diligence you carry out when taking on the organisation and its obligations. This includes establishing the purposes for which the data was originally obtained, your lawful basis for sharing it, and whether these have changed following the merger or acquisition. You must comply with the data protection principles, and document your data sharing. Consider when and how you will inform individual data subjects about what’s happening to their data. You must also ensure sound governance, accountability and security.

In more detail • Introduction •

How does data sharing apply to mergers and acquisitions?

•

How do we manage shared data following a merger or restructure or other change of controller?

Introduction This section is of particular relevance to the private sector. It highlights situations such as mergers and acquisitions, or other changes in organisational structure, where you need to make good data sharing practice a priority. 599

Civil Procedure Rule and Guidance

How does data sharing apply to mergers and acquisitions? Data sharing considerations may become a priority when a merger or acquisition or other change in organisational structure means that you have to transfer data to a different organisation. For example, as part of a takeover; or on insolvency, data might be sold as an asset to a different legal personality. You must take care if, as a result of the changes, there is a change in the controller of the data, or if the data is being shared with an additional controller. This is the case whether you are the sharing or recipient controller. You might be an insolvency practitioner or other adviser taking the role of controller for the time being, or advising a different controller. You need to: •

ensure that you consider the data sharing as part of the due diligence you carry out;

•

follow this data sharing code;

•

establish what data you are transferring;

•

identify the purposes for which the data was originally obtained;

•

establish your lawful basis for sharing the data;

• ensure you comply with the data processing principles – especially lawfulness, fairness and transparency to start with; •

document the data sharing;

• seek technical advice before sharing data where different systems are involved: there is a potential security risk that could result in the loss, corruption or degradation of the data; and • consider when and how you will inform data subjects about what is happening. Under the UK GDPR you are required to keep individual data subjects informed about certain changes relating to the processing of their data, and they may have a right to object. Please see the guidance on individual rights on the ICO website. The same considerations may apply in reverse to the controller receiving the data. How do we manage shared data following a merger or restructure or other change of controller? On a practical level, it can be difficult to manage shared data immediately after a change of this kind, especially if you are using different databases, or you are trying to integrate different systems. It is particularly important in this period to consider the governance and accountability requirements of the UK GDPR. You must: •

check that the data records are accurate and up to date;

•

ensure you document what you do with the data;

•

adhere to a consistent retention policy for all records; and 600

Sharing personal data in databases and lists

•

ensure appropriate security is in place.

Further Reading Relevant provisions in the legislation – see UK GDPR Articles 5, 6, 7 and 21 https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1528874672298​&uri=​ CELEX:02016R0679-20160504 Relevant provisions in the legislation – see UK GDPR Recitals 39, 40, 42, 43, 50, 69, 70 https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32016R0679 Guidance on individual rights under the UK GDPR https://ico.org.uk/fororganisations/guide-to-data-protection/guide-to-the-general-data-protectionregulation-gdpr/individual-rights/

SHARING PERSONAL DATA IN DATABASES AND LISTS At a glance The transfer of databases or lists of individuals is a form of data sharing, whether for money or other consideration, and whether for profit or not. It is your responsibility to satisfy yourself about the integrity of the data supplied to you. You are responsible for compliance with the law for the data you receive, and you have to respond to any complaints about it.

In more detail •

How does data sharing apply to the acquisition or transfer of databases and lists?

•

What must we do to ensure the database or list we are receiving is being shared in compliance with the law?

•

What else do we need to do?

•

How does data sharing interact with direct marketing?

•

How does data sharing interact with political campaigning?

How does data sharing apply to the acquisition or transfer of databases and lists? The transfer of databases or lists of individuals is a form of data sharing, whether for money or other consideration, and whether for profit or not. This section considers data sharing which has not resulted from organisational changes. Examples of organisations involved in this type of data sharing may include: •

data brokers;

•

credit reference agencies;

•

marketing agencies; 601

Civil Procedure Rule and Guidance

•

franchised businesses;

•

separate parts of a business that operate independently from their head office;

•

clubs and societies;

•

charities and voluntary groups; and

•

political parties.

Please note that some of these examples may involve transfers between controllers and processors and are therefore outside the scope of this code. You will find it beneficial to follow the good practice set out in this code. The due diligence carried out by both the sharing and recipient controllers is crucial to compliance. We will look at this from the viewpoint of the organisation receiving the database or list. The organisation sharing the data should follow a similar process. What must we do to ensure the database or list we are receiving is being shared in compliance with the law? It is your responsibility to satisfy yourself about the integrity of the data supplied to you. You are responsible for compliance with the law for the data you receive, and you have to respond to any complaints about it. You should make appropriate enquiries and checks, including the following: •

confirm the source of the data;

•

identify the lawful basis on which it was obtained and that any conditions about that lawful basis were complied with;

•

check what individuals were told at the time of handing over their data;

•

verify details of how and when the data was initially collected;

•

check the records of consent, if you are relying on consent;

•

review a copy of the privacy information given at the time of collection of the data;

•

check what information was given to individuals in accordance with Article 14 of the UK GDPR – ie privacy information that must be given when data is obtained from a source other than the data subject;

•

check that the data is accurate and up to date; and

•

ensure that the data you receive is not excessive or irrelevant for your needs.

It is good practice to have a written contract with the organisation supplying you with the data. 602

Sharing personal data in databases and lists

What else do we need to do? You must tell data subjects who you are sharing their data with, and for what purposes. Under Article 13 of the UK GDPR you must give privacy information to data subjects at the same time as collecting the data from them. Under Article 14 of the UK GDPR you must give privacy information to individuals whose data has been shared with you indirectly ‘…within a reasonable period after obtaining the personal data, but at the latest within one month…’. There are some exceptions to these requirements; for example, you do not need to provide individuals with information they already have. It is your responsibility on receiving the data to be satisfied that this has been done. How does data sharing interact with direct marketing? If this form of data sharing is relevant to your data sharing arrangement you should read the ICO’s detailed guidance on direct marketing. How does data sharing interact with political campaigning? Political parties, referendum campaigners and candidates use information about voters to help them target their campaign materials more effectively and to raise funds. They may: •

buy lists and databases from organisations such as data brokers; and

•

use third parties to send out campaign materials.

This may involve data sharing. Communicating with voters, such as via social media platforms and targeting political messages, may also amount to direct marketing. You should carry out the checks described earlier in this section in order to satisfy yourself about the integrity of the data supplied to you. If you use a third-party organisation to send out campaign materials on your behalf using your database, you may be sharing data with that external organisation, which is either a controller or a processor. For the purposes of this code, if you are both controllers you should still be careful to check and monitor what the third party is doing. You are responsible as controller(s) for that data and for compliance with the law. You should read and follow the ICO guidance on the law about both political campaigning and direct marketing. Further Reading Relevant provisions in the legislation – see UK GDPR Articles 13 and 14 https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1528874672298​ &uri=CELEX:02016R0679-20160504 See the Direct marketing code and guidance on the ICO website https://ico.org. uk/ See the Political campaigning guidance on the ICO website https://ico.org.uk/ 603

Civil Procedure Rule and Guidance

See the Guide to Privacy and Electronic Communications Regulations (PECR) https://ico.org.uk/for-organisations/guide-to-pecr/

DATA SHARING AND CHILDREN At a glance If you are considering sharing children’s personal data, you must take extra care. You may share children’s personal data as long as you can demonstrate a compelling reason to do so, taking account of the best interests of the child. The best interests of the child should be a primary consideration. You should build all this into the systems and processes in your data sharing arrangement. A high level of privacy should be your default. Sharing children’s data with third parties can expose them to unintended risks if not done properly. You should carry out a DPIA to assess and mitigate risks to the rights and freedoms of children, which arise from your data sharing. What do we need to bear in mind when sharing children’s data? The best interests of the child should be a primary consideration. This concept comes from the United Nations Convention on the Rights of the Child (UNCRC), which declares that ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’ In essence, the best interests of the child are whatever is best for that individual child. Things you should consider: •

You may share children’s personal data as long as you have a compelling reason to do so, taking account of the best interests of the child. One clear example of a compelling reason is data sharing for safeguarding purposes; another is the importance for official national statistics of good quality information about children. However, selling on children’s personal data for commercial re-use is unlikely to amount to a compelling reason for data sharing. Even if you have a compelling reason for sharing children’s personal data, you must still carry out a DPIA, because children are a vulnerable group.

• Use a DPIA to assess and mitigate risks to the rights and freedoms of children, which arise from your data sharing. •

You have to balance the best interests of the child against the rights of others. For example, it is unlikely that the commercial interests of an organisation will outweigh a child’s right to privacy. 604

Data sharing and children

• Considering the best interests of the child should form part of your compliance with the lawfulness, fairness and transparency requirements. Is it fair to share the child’s data? What is the purpose of the sharing? •

Children are less aware than adults of the risks involved in having their data collected and processed, so you have a responsibility to assess the risks and put appropriate measures in place. Where appropriate, consider children’s views when designing your data sharing arrangement.

•

Children’s vulnerability means that the risks in sharing their data may be higher than in the similar processing of adults’ data.

•

The privacy information you provide must be clear and presented in plain, age-appropriate language.

•

You should carry out due diligence checks on the organisations with which you are planning to share data. You should consider what the organisation you are sharing the data with plans to do with it. If you can reasonably foresee that the data will be used in a way that is detrimental to the child, or otherwise unfair, then you shouldn’t share.

•

You should ensure that any default settings relating to data sharing specify the purpose of the sharing and who the data will be shared with. Settings which allow general or unlimited sharing are not compliant.

•

Consent is not the only lawful basis to use. Other lawful bases might be more appropriate. •

If you are relying on consent, you must consider the competence of the child to give their own consent, and whether that consent is freely given (eg where there is an imbalance of power).

•

You should also consider the child’s competence if you are relying on the lawful basis that the sharing is necessary for the performance of a contract.

• If you (or another data controller in the data sharing arrangement) are a provider of an online service likely to be used by children then you also need to conform to the Age Appropriate Design Code. Further Reading Relevant provisions in the legislation – see UK GDPR Articles 6.1, 8, 12.1 and Recitals 38, 58, 65, 71, 75 https://eur-lex.europa.eu/legal-content/EN/ TXT/?qid=1528874672298&uri=CELEX:02016R0679-20160504 Guide to data protection: children https://ico.org.uk/for-organisations/guide-todata-protection/key-data-protection-themes/children/ Children and the UK GDPR https://ico.org.uk/for-organisations/guide-to-dataprotection/guide-to-the-general-data-protection-regulation-gdpr/children-andthe-uk-gdpr/ 605

Civil Procedure Rule and Guidance

Age Appropriate Design Code https://ico.org.uk/for-organisations/guide-todata-protection/key-data-protection-themes/age-appropriate-design-a-code-ofpractice-for-online-services/ Children’s code hub https://ico.org.uk/for-organisations/childrens-code-hub/ United Nations Convention on the Rights of the Child https://www.ohchr.org/en/ professionalinterest/pages/crc.aspx

DATA SHARING IN AN URGENT SITUATION OR IN AN EMERGENCY At a glance In an emergency you should go ahead and share data as is necessary and proportionate. An example of an emergency situation is the risk of serious harm to human life. You should plan ahead for urgent or emergency situations as far as possible.

In more detail •

What should we do in an urgent or emergency situation?

•

How can we plan ahead for data sharing in urgent or emergency situations?

Much of this code envisages that you are carrying out data sharing on a routine basis and that you have the opportunity and time to plan carefully ahead. However this might not always be the case. What should we do in an urgent or emergency situation? Urgent or emergency situations can arise that you may not have envisaged, and you have to deal with them on the spot. In an emergency, you should go ahead and share data as is necessary and proportionate. Not every urgent situation is an emergency. An emergency includes: •

preventing serious physical harm to a person;

•

preventing loss of human life;

•

protection of public health;

•

safeguarding vulnerable adults or children;

•

responding to an emergency; or

•

an immediate need to protect national security.

Tragedies over recent years such as the Grenfell Tower fire, individual instances of self-harm, major terrorist attacks in London and Manchester, and the crisis 606

Data sharing in an urgent situation or in an emergency

arising from the coronavirus pandemic have illustrated the need for joined-up public services responses where urgent or rapid data sharing can make a real difference to public health and safety. In these situations, it might be more harmful not to share data than to share it. You should factor in the risks involved in not sharing data to your service. How can we plan ahead for data sharing in urgent or emergency situations? In an urgent or emergency situation, you have to take decisions rapidly. Often, forward planning helps. In the same way as emergency services plan for various scenarios, you should plan ahead for your organisation and train your staff accordingly. In urgent or emergency situations, when there is less time to consider issues in detail, it can be particularly difficult to make sound judgements about whether to share information. Likewise, there can be reasons why organisations and agencies are hesitant about the concept of sharing information when carrying out emergency planning, or about sharing it in the recovery phase of an incident, where the need to share information may appear less urgent. The key point is that the UK GDPR and the DPA 2018 do not prevent you from sharing personal data where it is appropriate to do so. It is particularly relevant to factor into your considerations, training and procedures for this type of situation the risks involved in not sharing data. Where possible, if you are likely to be involved in responding to emergency or critical situations, you should consider the types of data you are likely to need to share in advance. As part of this it would be useful to consider any pre-existing DPIA, and also refer to your business continuity and disaster recovery plans. As part of your planning, you should bear in mind that criminals might use a major incident or crisis as an opportunity to try to obtain personal data unlawfully. Therefore, the security measures outlined earlier in this code still remain relevant and necessary in times of urgent sharing. All this should help you to establish what relevant data you hold, and help to prevent any delays in an emergency or crisis situation. All types of organisations might have to face an urgent but foreseeable situation, so you should have procedures about the personal data you hold and whether, and how, you should share any of this information. As part of your accountability duty, you should document the action you took after the event, if you can’t do it at the time. Example The police, the fire service and local councils met to plan for identifying and assisting vulnerable people in their area in an emergency situation such as a flood or major fire. As part of the process, they determined what type of personal data they each held and had a data sharing agreement to set out what they would share and how they would share it in an emergency. 607

Civil Procedure Rule and Guidance

They reviewed this plan at regular scheduled intervals. Further information The ICO’s Data protection and coronavirus information hub https://ico.org.uk/ global/data-protection-and-coronavirus-information-hub/

DATA SHARING ACROSS THE PUBLIC SECTOR: THE DIGITAL ECONOMY ACT CODES At a glance The government has devised a framework for sharing personal data, for defined purposes across specific parts of the public sector, under the Digital Economy Act 2017 (DEA). The aim is to improve public services through the better use of data, while ensuring privacy, clarity and consistency in how the public sector shares data.

In more detail •

Data sharing under the Digital Economy Act 2017

•

The Framework for data processing by government

Data sharing under the Digital Economy Act 2017 The government introduced a framework for sharing personal data for defined purposes across specific parts of the public sector, under the Digital Economy Act 2017 (DEA): the DEA framework. Its aims are to: •

ensure clarity and consistency in how the public sector shares personal data;

•

improve public services through the better use of data; and

•

ensure data privacy.

The government has also made it clear that you should only share data when there is a clear public benefit. Part 5 of the DEA focuses on digital government, providing gateways that allow specified public authorities to share data with each other. Some of these gateways enable the sharing of personal data, while others allow the sharing of non-identifying data. The objectives and purposes for data sharing under the DEA powers are tightly defined. Under the DEA you must still comply with the data protection legislation. Part 5 of the DEA explicitly: 608

Data sharing across the public sector: the Digital Economy Act codes

•

states that all processing of information under the DEA powers must comply with data protection legislation; and

• prohibits the disclosure of information where it would contravene data protection legislation. Note that although the DEA pre-dates the coming into force of the EU GDPR and of the UK GDPR, it was drafted with a view to being consistent with EU GDPR provisions, as these were already known following agreement of the EU GDPR text in 2016. The powers to share information under Part 5 of the DEA are supplemented by statutory codes of practice (the DEA codes) which must be consistent with the Information Commissioner’s data sharing code of practice ‘as altered or replaced from time’. The DEA codes must follow the data protection principles, ensuring that sharing personal data under the DEA powers is proportionate. For example, there is a DEA code for public authorities sharing personal data about aspects of public service delivery. Its purpose is to achieve specified public service delivery objectives: •

to assist people experiencing multiple social or economic disadvantages, or living in fuel or water poverty;

•

to reduce and manage debt owed to the public sector; and

•

to combat fraud against the public sector.

There are also provisions in the DEA facilitating data sharing by and with the Statistics Board to allow the production of statistics, disclosure of information by civil registration officials, disclosure of information by Revenue Authorities, and data sharing for research purposes. The DEA does not currently cover data sharing relating to the provision of health and social care. The DEA codes contain guidance about what data you can share and for which purpose. They include safeguards to make sure that the privacy of citizens’ data is protected. The two DEA codes that cover public service delivery, debt and fraud powers, and civil registration powers, require public authorities to put in place a data sharing or information sharing agreement, and specify what the agreement must cover. Anyone who discloses information under the DEA Part 5 powers must also ‘have regard’ to other codes of practice issued by the Information Commissioner. This is in ‘so far as they apply to the information in question’: •

on the identification and reduction of risks to privacy of a proposal to disclose information; and

• on the information to be provided to individuals about how information collected from them will be used. 609

Civil Procedure Rule and Guidance

The Framework for data processing by government Section 191 of the DPA 2018 confers a discretionary power on the Secretary of State to publish a Framework for Data Processing by Government. The DEA framework is separate from this, but the expectation is that any government Framework will be consistent with the data sharing code and any future guidance published by government. Further Reading Relevant provisions in the legislation – Digital Economy Act 2017 https://www. legislation.gov.uk/ukpga/2017/30/contents Digital Economy Act Part 5 Codes of practice https://www.gov.uk/government/ publications/digital-economy-act-2017-part-5-codes-of-practice

ENFORCEMENT OF THIS CODE At a glance The ICO upholds information rights in the public interest. In the context of data sharing, our focus is to help you carry out data sharing in a compliant way. We have various powers to take action for a breach of the GDPR or DPA 2018. We will always use our powers in a targeted and proportionate manner, in line with our regulatory action policy.

In more detail •

What is the role of the ICO?

•

How does the ICO monitor compliance?

•

How does the ICO deal with complaints?

•

What are the ICO’s enforcement powers?

What is the role of the ICO? The ICO is the independent supervisory authority for data protection in the UK. Our mission is to uphold information rights for the public in the digital age. Our vision for data protection is to increase the confidence that the public have in organisations that process personal data. We offer advice and guidance, promote good practice, monitor and investigate breach reports, monitor compliance, conduct audits and advisory visits, consider complaints and take enforcement action where appropriate. Our enforcement powers are set out in Part 6 of the DPA 2018. We have also introduced initiatives such as the Sandbox to support organisations using personal data to develop innovative products and services. 610

Enforcement of this code

Where the provisions of this code overlap with other regulators, we will work with them to ensure a consistent and co-ordinated response. How does the ICO monitor compliance? We use this code in our work to assess the compliance of controllers through our audit programme and other activities. Our approach is to encourage compliance. Where we do find issues, we take fair, proportionate and timely regulatory action to guarantee that individuals’ information rights are properly protected. How does the ICO deal with complaints? If someone raises a concern with us about your data sharing, we will record and consider their complaint. We will take this code into account when considering whether you have complied with the UK GDPR or DPA 2018, particularly when considering questions of fairness, lawfulness, transparency and accountability. We will assess your initial response to the complaint, and we may contact you to ask some questions and give you a further opportunity to explain your position. We may also ask for details of your policies and procedures, your DPIA, and other relevant documentation. We expect you to be accountable for how you meet your obligations under the legislation, so you should make sure that when you initially respond to complaints from data subjects you do so with a full and detailed explanation about how you use their personal data and how you comply. If we consider that you have failed (or are failing) to comply with the GDPR or the DPA 2018, we have the power to take enforcement action. We may require you to take steps to bring your operations into compliance or we may decide to fine you, or both. However, it should be noted that the ICO prefers to work with organisations to find a resolution. Organisations that recognise and take ownership for the correction of shortcomings through the development of a performance improvement plan can avoid formal enforcement action. What are the ICO’s enforcement powers? We have various powers to take action for a breach of the UK GDPR or DPA 2018. Tools at our disposal include assessment notices, warnings, reprimands, enforcement notices and penalty notices (administrative fines). For serious breaches of the data protection principles, we have the power to issue fines of up to £17.5 million or 4% of your annual worldwide turnover, whichever is higher. 611

Civil Procedure Rule and Guidance

In line with our regulatory action policy, we take a risk-based approach to enforcement. Our aim is to create an environment within which, on the one hand, data subjects are protected, while ensuring that organisations are able to operate and innovate efficiently in the digital age. We will be as robust as we need to be in upholding the law, while ensuring that enterprise is not constrained by red tape, or by concern that sanctions will be used disproportionately. The ICO focuses the use of its enforcement powers on cases involving reckless or deliberate harms, and is therefore unlikely to take enforcement action against any organisation genuinely seeking to comply with the provisions of the legislation. Nor does it seek to penalise organisations where a member of staff has made a genuine mistake when acting in good faith and in the public interest; for example in an emergency situation, or to protect someone’s safety. In an emergency situation, as previously explained, our approach will be proportionate. These powers are set out in detail on the ICO website. Further Reading Relevant provisions in the legislation – see UK GDPR Articles 12-22 https:// eur-lex.europa.eu/legal-content/EN/TXT/?qid=1528874672298&uri=​ CELEX:02016R0679-20160504 Relevant provisions in the legislation – see UK GDPR Recitals 58-72 https://eurlex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32016R0679 Relevant provisions in the legislation – see DPA 2018 sections 129-165 https:// www.legislation.gov.uk/ukpga/2018/12/contents/enacted Relevant provisions in the legislation – see DPA 2018 schedule 12 https://www. legislation.gov.uk/ukpga/2018/12/schedule/12/enacted What we do https://ico.org.uk/about-the-ico/what-we-do/ Make a complaint information-concerns/

https://ico.org.uk/make-a-complaint/your-personal-

Regulatory Action Policy https://ico.org.uk/media/about-the-ico/documents/​ 2259467/regulatory-action-policy.pdf The Guide to the Sandbox https://ico.org.uk/for-organisations/regulatorysandbox/the-guide-to-the-sandbox/

GLOSSARY This glossary is a quick reference for key terms and abbreviations. It includes links to further reading and other resources which may provide useful context and more detailed information. Please note, this glossary is not a substitute for reading the data sharing code, the ICO’s guidance, and associated legislation. 612

Glossary

Accountability principle This requires organisations to be responsible for their own compliance with the UK GDPR or DPA 2018, as appropriate, and to demonstrate that compliance. Anonymisation The UK GDPR refers to ‘Anonymous information’; information that does not relate to an individual, and is therefore is no longer ‘personal data’ and is not subject to the obligations of the UK GDPR. In order to determine whether data is anonymised you should take into account all the means reasonably likely to be used by a third party to directly or indirectly identify an individual. Please check the ICO website for the most up to date guidance. Appropriate policy document An appropriate policy document is a short document outlining your compliance measures and retention policies for special category data. The DPA 2018 says you must have one in place for almost all of the substantial public interest conditions (and also for the employment, social security and social protection condition), as a specific accountability and documentation measure. Competent authority A public authority to which Part 3 of the DPA 2018 applies. Competent authorities are defined as those listed in schedule 7 of the DPA 2018, and any other organisation or person with statutory law enforcement functions. For more information, see our Guide to Law Enforcement Processing. Consent A freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by clear affirmative action, signifies agreement to the processing of personal data. For more information, see our guidance on consent. Controller The person (usually an organisation) who decides how and why to process data. For more information, see our guidance on controllers and processors. Data protection by design and default A legal obligation requiring organisations to put in place appropriate technical and organisational measures to implement the data protection principles in an effective manner and safeguard individual rights. 613

Civil Procedure Rule and Guidance

Data sharing Although there is no formal definition of data sharing, the scope of the data sharing code is defined by section 121 of the DPA 2018 as ‘the disclosure of personal data by transmission, dissemination or otherwise making it available’. Data sharing agreements / protocols These may be known by different names, but all set out the arrangements and a common set of rules to be adopted by the organisations involved in data sharing. Data subject The identified or identifiable living individual to whom personal data relates. DEA The Digital Economy Act 2017. DPA; the DPA 2018 The Data Protection Act 2018, which sits alongside the UK GDPR and sets out the framework for data protection in the UK. For more information, see our guidance: About the DPA 2018. DPIA Data Protection Impact Assessment. This is a process to help you identify and minimise the data protection risks of a project. You must do a DPIA for processing that is likely to result in a high risk to individuals. For more information, see our guidance on DPIAs. DPO Data protection officer. EDPB European Data Protection Board (formerly the Article 29 Working Party). This is the independent body established by the EU GDPR to ensure consistency within the EU on interpreting the law and taking regulatory action. EDPB guidelines are no longer directly relevant to the UK regime and are not binding under the UK regime. However, they may still provide helpful guidance on certain issues. Exemptions The UK GDPR and the DPA 2018 set out exemptions and qualifications to some rights and obligations in some circumstances. For more details, please see our guidance on exemptions and the Guide to Law Enforcement Processing. 614

Glossary

Freedom of information legislation In the UK the main legislation is: Freedom of Information Act 2000 (FOIA), Freedom of Information (Scotland) Act 2002 (FOISA), Environmental Information Regulations 2004 (EIR) and the Environmental Information (Scotland) Regulations 2004. GDPR The General Data Protection Regulation (EU) 2016/679 (EU GDPR). Since the UK left the EU, this has been incorporated into UK data protection law as the UK GDPR, which sits alongside the DPA 2018. The EU GDPR may still apply to you if you operate in the European Economic Area (EEA), or monitor the behaviour of individuals in the EEA. For more information, see our guidance Data protection after the end of the transition period and the Guide to Data Protection. Information Sharing Agreement (ISA) Another name for a data sharing agreement. Joint controllers Where two or more controllers jointly determine the purposes and means of processing. For more information, see our guidance on controllers and processors. Law enforcement purposes For Part 3 of the DPA 2018, the purposes of the prevention, investigation, detection, or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security. For more information, see our Guide to Law Enforcement Processing. Part 2 DPA 2018 This supplements and tailors the UK GDPR for general data processing. For more information, see our guidance About the DPA 2018. Part 3 DPA 2018 This sets out a separate regime for law enforcement authorities with law enforcement functions (competent authorities) when they are processing data for law enforcement purposes. For more information, see our guidance About the DPA 2018. Part 4 DPA 2018 This sets out a separate regime for processing, as specified in Part 4, by an intelligence service or by processors acting on their behalf. An intelligence service for the purpose of Part 4 means the Security Service (MI5), the Secret Intelligence Service (commonly known as MI6), and GCHQ. 615

Civil Procedure Rule and Guidance

Personal data Any information relating to an identified or identifiable natural person (‘data subject’). For more information, see our guidance on What is personal data? Privacy information The information that organisations need to provide to individual data subjects about the collection and use of their data. For general data processing, this is specified in Articles 13 and 14 of the UK GDPR. For more details, see our guidance on the Right to be informed. For Law Enforcement Processing under Part 3 of the DPA 2018, the provisions are contained in section 44 of the DPA 2018. For more information on that, see the Guide to Law Enforcement Processing: The right to be informed. Processing In relation to personal data, this means any operation or set of operations which is performed on it. This includes collecting, storing, recording, using, amending, analysing, disclosing or deleting it. Processor A person (usually an organisation) who processes personal data on behalf of a controller. For more information, see the our guidance on controllers and processors. Pseudonymisation Data which has undergone pseudonymisation is defined in the UK GDPR as data that can no longer be attributed to a data subject without the use of additional information. You must ensure that the additional information is kept separately, and that appropriate technical and organisational controls are in place to ensure that re-identification of an individual is not possible. Please check the ICO website for the most up to date guidance. Publication scheme For public authorities covered by FOIA and FOISA, you must publish certain information proactively in a publication scheme. Guidance is available on the websites of the Information Commissioner and the Scottish Information Commissioner, respectively. Sensitive processing This term is used in Part 3 of the DPA 2018 in relation to law enforcement processing. It is defined in section 35(8) of the DPA 2018 as: (a) the processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs or trade union membership; 616

Annex A: data sharing checklist

(b) the processing of genetic data, or of biometric data, for the purpose of uniquely identifying an individual; (c) the processing of data concerning health; or (d) the processing of data concerning an individual’s sex life or sexual orientation. This type of data processing needs greater protection. For more information, see the Guide to Law Enforcement Processing. Special category data This term is used about general data processing under the UK GDPR and Part 2 of the DPA 2018. It is defined in Article 9.1 of the UK GDPR as personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation. The processing of this type of data needs greater protection. For more information, see our guidance on Special category data. UK GDPR The UK version of the EU GDPR, as amended and incorporated into UK law from the end of the transition period by the European Union (Withdrawal) Act 2018 and associated Exit Regulations. The government has published a Keeling Schedule for the UK GDPR which shows the planned amendments. WP29 Article 29 Working Party (now the European Data Protection Board).

ANNEX A: DATA SHARING CHECKLIST This checklist provides a step-by-step guide to deciding whether to share personal data. You should use it alongside the data sharing code and guidance on the ICO website ico.org.uk. It highlights what you should consider in order to ensure that your sharing complies with the law and meets individuals’ expectations. Check whether the sharing is justified Key points to consider: ☐ What is the sharing meant to achieve? ☐ Have you assessed the potential benefits and risks to individuals and/or society of sharing or not sharing? 617

Civil Procedure Rule and Guidance

☐ Is it fair to share data in this way? ☐ Is the sharing necessary and proportionate to the issue you are addressing? ☐ What is the minimum data you can share to achieve the aim? ☐ Could the objective be achieved without sharing personal data, or by sharing less personal data? ☐ What safeguards can you put in place to minimise the risks or potential adverse effects of the sharing? ☐ Is there an applicable exemption in the DPA 2018? Consider doing a Data Protection Impact Assessment Decide whether you need to carry out a DPIA: ☐ You must do a DPIA for data sharing that is likely to result in a high risk to individuals. This will depend on the nature, scope, context and purposes of the sharing. For more details on this, see the relevant section of this code and guidance on the ICO website ico.org.uk. ☐ For any data sharing plans, you may find it useful to follow the DPIA process as a flexible and scalable tool to suit your project. If you decide to share It is good practice to have a data sharing agreement. As well as considering the key points above, your data sharing agreement should cover the following issues. You should ensure you cover these matters in any event, whether or not you have a formal agreement in place: ☐ What information will you share? ☐ Is any of it special category data (or does it involve sensitive processing under Part 3 of the DPA 2018)? What additional safeguards will you have in place? ☐ How should you share the information? •

You must share information securely.

•

You must ensure you are giving the information to the right recipient.

☐ What is to happen to the data at every stage? ☐ Who in each organisation can access the shared data? Ensure it is restricted to authorised personnel in each organisation. ☐ What organisation(s) will be involved? You all need to be clear about your respective roles. ☐ How will you comply with your transparency obligations? 618

Annex A: data sharing checklist

• Consider what you need to tell people about sharing their data and how you will communicate that information in a way that is concise, transparent, easily accessible and uses clear and plain language. • Consider whether you have obtained the personal data from a source other than the individual. •

Decide what arrangements need to be in place to comply with individuals’ information rights. Bear in mind the differences under Part 3 of the DPA 2018, if applicable.

☐ What quality checks are appropriate to ensure the shared data is accurate and up-to-date? ☐ What technical and organisational measures are appropriate to ensure the security of the data? ☐ What common retention periods for data do you all agree to? ☐ What processes do you need to ensure secure deletion takes place? ☐ When should regularly scheduled reviews of the data sharing arrangement take place? Accountability principle You must comply with the principles; this point focuses on the accountability principle: ☐ The accountability principle means that you are responsible for your compliance with the UK GDPR or DPA 2018 as appropriate and you must be able to demonstrate that compliance. ☐ You must maintain documentation for all your data sharing operations. ☐ This obligation encompasses the requirement to carry out a DPIA when appropriate. ☐ You must implement a ‘data protection by design and default’ approach, putting in appropriate technical and organisational measures to implement data protection principles and safeguard individual rights. ☐ You must ensure that staff in your organisation who are likely to make decisions about sharing data have received the right training to do so appropriately. Decide what your lawful basis is for sharing the data Key points to consider: ☐ What is the nature of the data and the purpose for sharing it, as well as the scope and context? ☐ Are you relying on legitimate interests as a lawful basis? If so, you must carry out a legitimate interests assessment (LIA). 619

Civil Procedure Rule and Guidance

☐ Is any of the data either special category data or criminal offence data? If so, you need to identify additional conditions. ☐ For law enforcement processing under Part 3 of the DPA 2018, please refer to the references throughout the code and in particular to the Part 3 section. Check whether you have the power to share Key points to consider: ☐ What type of organisation you work for. The position is different for the public and private sectors. Please refer to the data sharing code for more details. ☐ Any relevant functions or powers of your organisation. ☐ The nature of the information you have been asked to share. ☐ Whether there are any legal requirements that need to be met when sharing the data – such as copyright or a duty of confidence, or any prohibitions. ☐ Whether there is a legal obligation or other legal requirement about sharing information – such as a statutory requirement, a court order or common law. Document your decision Document your data sharing decision and your reasoning – whether or not you share the information. If you shared information you should document: ☐ your justification for sharing; ☐ what information was shared and for what purpose; ☐ who it was shared with; ☐ when and how it was shared; ☐ whether the information was shared with or without consent, and how that was recorded; ☐ the lawful basis for processing and any additional conditions applicable; ☐ individuals’ rights; ☐ Data protection impact assessment reports; ☐ compliance with any DPO advice given (where applicable); ☐ evidence of the steps you have taken to comply with the UK GDPR and the DPA 2018 as appropriate; and ☐ where you have reviewed and updated your accountability measures at appropriate intervals. 620

Data sharing decision form template

ANNEX B: DATA SHARING REQUEST FORM TEMPLATE For use by the organisation making the request for data sharing Name of organisation Name and position of person requesting data If requester is not the data protection officer (DPO) or equivalent, have they been consulted and their views considered? Date of request Description of data requested Data controller relationship: ☐ Joint ☐ Separate Will we have a data sharing agreement in place? ☐ Yes ☐ No Purpose of sharing Does processing involve any special category data (or sensitive processing under part 3 DPA 2018)? ☐ Yes ☐ No Are there any specific arrangements for retention / deletion of data? Are there any circumstances in the proposed sharing that might result in a risk to individuals? Date(s) provision of data is required

DATA SHARING DECISION FORM TEMPLATE For use by the organisation taking the decision to share data Name of organisation receiving request to share data Name of organisation requesting data Name and position of person requesting data Date request received Description of data requested Data controller relationship: ☐ Joint ☐ Separate Will we have a data sharing agreement in place? ☐ Yes ☐ No Purpose of sharing 621

Civil Procedure Rule and Guidance

Lawful basis for sharing – please state which Why is sharing ‘necessary’? Are additional conditions met for special category data or criminal offence data sharing (where applicable)? Are additional provisions met in the case of Part 3 DPA 2018 data sharing? Which legal power for sharing applies (if relevant)? Have you considered a DPIA? DPIA undertaken and outcome (if applicable) Were views of DPO (or equivalent) considered? (if DPIA not done) Are there any specific arrangements for retention/deletion of data? What are the security considerations? What arrangements are there for complying with individuals’ information rights? Date(s) of requested sharing (or intervals if data is to be shared on a regular basis) Decision on request Reason(s) for sharing or not sharing Decision taken by (name and position) Signed: Dated:

ANNEX C: CASE STUDIES Fairness and transparency Supermarket providing privacy information to customers A supermarket held information about its customers through its loyalty card scheme, in-store CCTV and records of payments. The company did not normally disclose any information to third parties, such as for marketing purposes. However, it would do so if the information it held was relevant to a police investigation or in response to a court order, for example. The supermarket or the loyalty card scheme operator had to give customers privacy information that provided an explanation, in general terms, of the sorts of circumstances in which it would share information about scheme members with a third party, such as the police. If the supermarket were to disclose information about a particular scheme member to the police, it would not need to inform the individual of the disclosure if this would prejudice crime prevention. 622

Annex C: case studies

Sharing customer details with a credit reference agency A mobile phone company decided to share details of customer accounts with a credit reference agency. It had to inform customers when they opened an account that it would share information with credit reference agencies. Credit reference agencies need to be able to link records to the correct individual, so the mobile phone company had to ensure it was collecting adequate information to distinguish between individuals; for example dates of birth. The organisations involved had to put procedures in place to deal with complaints about the accuracy of the information they shared. Duty to process data fairly when carrying out research using shared data A university wanted to conduct research into the academic performance of children from deprived family backgrounds in the local area. The university wanted to identify the relevant children by finding out which ones were eligible for Pupil Premium. Therefore it decided to ask all local primary and secondary schools to share this personal data, as well as the relevant children’s test results for the previous three years. The DPA 2018 contains various provisions that are intended to facilitate the processing of personal data for research purposes. However, there is no exemption from the general duty to process the data fairly. Data about families’ income levels, or eligibility for benefits, could be inferred from the Pupil Premium status of a child. In this example, parents and their children might well have objected to the disclosure of this data because they considered it sensitive and potentially stigmatising. Data about a child’s academic performance could be considered equally sensitive. Instead the school could have identified eligible children on the researchers’ behalf and contacted their parents, explaining what the research was about and what data the researchers wanted. The school might have wished to obtain parents’ consent for sharing the data, but other lawful bases could have been available to it. Alternatively, the school could have disclosed an anonymous data set, or statistical information, to the researchers.

Data sharing agreement: accountability Information sharing framework in healthcare Healthcare partners in one county decided to develop an information sharing framework to standardise their sharing processes and encourage agencies to share personal data safely. The framework helped their staff to comply with data protection law by sharing information lawfully, securely and confidentially. 623

Civil Procedure Rule and Guidance

As a result, they were able to integrate service provision across the county and deliver better care outcomes for their residents. In a key step, partners brought together information governance leads to oversee the changes needed to develop the framework. Main purposes of the framework were to ensure that: • people only had to tell their story once and could expect a better service delivery; •

local people had clear guidance about how their information was shared (and in what circumstances their consent might need to be sought to share it);

•

professionals had access to the information they needed, when they needed it, to support better outcomes for local people;

•

good decision making was supported by an information sharing framework, providing staff with clear direction; and

•

unnecessary appointments and admissions could be avoided.

The principles of the framework were to: a) identify the appropriate lawful basis for information sharing; b) provide the basis for security of information and the legal requirements associated with information sharing; c) address the need to develop and manage the use of Information Sharing Agreements (ISAs); d) encourage flows of personal data and develop good practice across integrated teams; e) provide the basis for county-wide processes which would monitor and review data flows, and information sharing between partner services; f) protect partner organisations from unlawful use of personal data; and g) reduce the need for individuals to repeat their story when receiving an integrated service. Key learning from the introduction of the framework •

Staff needed to be empowered to feel confident about sharing information between partners. Senior leaders needed to be visible to give staff the confidence to share patient information.

• Internal culture needed to be supportive. The culture needed to be underpinned by strong values and ethos. It was essential for a learning culture to be developed so that mistakes could be shared and learnt from, rather than brushed aside. This learning included developing formal training for all staff who were using an integrated care record, supported by the framework. • Transparency needed to be established so that there was a collective understanding of how the data would be shared and by whom. Staff needed 624

Annex C: case studies

to have clarity around their roles and responsibilities and the benefits of sharing information. •

A need to develop a culture of appropriate sharing in plain English. Messages needed to be simplified to avoid confusion, and jargon needed to be reduced.

Lawful basis; legal obligation; fairness and transparency; individual rights Data sharing required by law A local authority was required by law to participate in a nationwide anti-fraud exercise that involved disclosing personal data about its employees to an anti– fraud body. The exercise was intended to detect local authority employees who were illegally claiming benefits that they were not entitled to. Even though the sharing was required by law, the local authority still had to inform any employees affected that data about them was going to be shared and still had to explain why this was taking place, unless this would have prejudiced proceedings. The local authority had to say what data items were going to be shared – names, addresses and National Insurance numbers – and to provide the identity of the organisation they would be shared with. There was no need for the local authority to seek employees’ consent for the sharing because the law says the sharing could take place without consent. The local authority also had to be clear with its employees that even if they objected to the sharing, it would still take place. The local authority had to be prepared to investigate complaints from any employees who believed they had been treated unfairly because, for example, their records had been mixed up with those of an employee with the same name. Considerations for a healthcare data sharing agreement Relevant parts of the NHS and social services in a region shared personal information with the region’s police force to ensure that mental health service users who were in contact with the police were safeguarded and had access to appropriate specialist support. The partner organisations had developed a data sharing agreement to support their joint mental health policy. Depending on the circumstances of each case, the lawful basis might have been consent or a task carried out in the public interest. The data sharing agreement clearly identified the various pieces of law that each partner relied on to specify their public functions and the provisions they needed to meet if relying on consent. As special category data was likely to be necessary for referrals, they also identified Article 9 conditions. The data sharing agreement reminded all parties to maintain the rights and dignity of patients, their carers and families, involving them in risk assessments wherever possible while also ensuring their safety and that of others. 625

Civil Procedure Rule and Guidance

Fairness and transparency; individual rights A data sharing arrangement in the private sector relating to the use of new software A company specialising in both business-to-business and business-to-consumer transactions used a software-as-a-service (‘SaaS’) provider to manage client contact information and integrate communications into its operations. The SaaS provider automated the processes and kept all information up to date. To comply with the requirements of the UK GDPR, the company entered into a data sharing agreement with the SaaS provider. The agreement outlined a number of obligations for the SaaS provider, such as the nature and scope of information that was to be processed and how the parties intended to implement appropriate security measures. The company ensured its privacy information was up to date and accurately reflected the data sharing arrangement entered into with the SaaS provider. The fair processing information explained who the data was being shared with and for what purposes. The company also made use of a preference management tool, ensuring individuals were able to control non-essential elements of data sharing between the parties.

Data sharing agreement; accountability; individual rights Public sector bodies sharing data to provide a co-ordinated approach Personal information was shared between two councils, their local schools and colleges, housing providers, relevant community organisations, the local job centres and careers service in order to identify young people who already had been or were currently at high risk of disengaging from education, employment or training. By sharing the information, the partner organisations were able to ensure a co-ordinated approach to providing the most appropriate support to the young person to encourage them back into education, work or training. The partners used a data sharing agreement to set out their purpose, lawful bases and the information to be shared. The agreement included a section on how to handle data subjects’ rights, and agreed shared security standards; the partners also updated their privacy notices. To quality-assure their agreement, they shared it with a regional group of data protection practitioners for feedback. A timescale was also set for the partners to regularly review the agreement to ensure it stayed up to date and fit for purpose.

Data sharing under the Digital Economy Act 2017 powers Both Companies House (CH) and Her Majesty’s Revenue and Customs (HMRC) collect annual accounts from businesses. The accounts contain key corporate and financial information about the company, such as the names of company directors or financial reporting figures showing their profit and loss. There is the opportunity, however, for the same company to file a different set of accounts to 626

Annex C: case studies

each of the two organisations. By filing inflated accounts at CH and lower figures at HMRC, they would simultaneously increase their creditworthiness with financial institutions and wider government while also reducing tax liabilities. Until 2018, restrictions on data sharing had prevented HMRC and CH from sharing company accounts for comparison. With the introduction of the Digital Economy Act 2017, however, a permissive legal gateway was provided to share information to combat fraud. Prior to sharing information, CH and HMRC met to draw up the governance and processes: •

They would share information as a pilot.

•

Both parties designed and agreed a data specification.

•

They completed a data protection impact assessment (DPIA) to ensure they considered proportionality and fair processing.

•

Both parties signed an information sharing agreement.

HMRC disclosed the first set of company accounts information to CH in October 2018 – the very first transfer of data under the Digital Economy Act powers. The pilot sought to address the fraud problem through 10 defined data analytics and compliance work streams, each one relating to a mode of behaviour indicating false account filing and fraudulent activity. For the first time, the pilot utilised qualitative analysis to access and compare key words and phrases. Further to this, the pilot also utilised CH back-office data to uncover previously hidden links between companies, combined for the first time with HMRC intelligence. The data sharing pilot identified around £10m of savings, with upwards of £50m potential annual savings projected if the data share was embedded as business as usual. In addition, they identified over 3,500 sets of accounts as incorrect at Companies House, thereby improving the integrity of the data held on the register.

Data sharing for official statistics and analysis: measuring the pay progression and geographical mobility of young workers Understanding how young people enter the labour market and progress through their early careers helps to highlight disparities in opportunities and shine a light on differing experiences of being in work, incomes and social mobility. The factors that influence labour market and earnings progression, as well as the geographic mobility of workers, had been a long-standing evidence gap in official statistics and analysis. In 2018, the Office for National Statistics (ONS) brought together data from the 2011 Census with data on earnings and benefits from the Department for Work and Pensions (DWP) and HM Revenue and Customs (HMRC), for the period 2012 to 2016. This new longitudinal study created a dataset of 28 million individual records, allowing for new analysis of how earnings had changed 627

Civil Procedure Rule and Guidance

over this period, not previously possible using the traditional survey sources. Only anonymised data was used in the analysis and results were published at an aggregated level, so that individuals could never be identified by ONS analysts undertaking the research or in the published research outputs. Alongside 2011 Census data on individual and household characteristics, the new dataset drew on local geography information contained in the DWP administrative dataset to produce analysis of the impact of moving home on pay and earnings progression, especially patterns of movement of young people between local authorities and how earnings growth varied depending on the geographical place of origin and different city or regional destinations. While this showed that four in five young people did not move between local authority areas over the period of the study, for those that did move, on average, young people experienced higher earnings growth. Those moving to London experienced the highest average annual growth in earnings (+22%) while those that either did not move local authority or moved elsewhere had much lower earnings growth (+7%). Further analysis was published as experimental research on the ONS website in Young People’s Earnings Progression and Geographic Mobility.

Data sharing arrangement between sectors to support families Sharing data between a local authority and local NHS trust to provide better early help and support to families Families sometimes have hidden needs so don’t receive the support they require from public services – or may be receiving support through one organisation for a specific issue, but have other needs too. A council worked with an NHS trust to establish a data sharing arrangement between the council and health services to help identify children and families who would benefit from receiving co-ordinated and targeted early help for a range of issues they might be facing. The data sharing arrangement cross-referenced NHS trust and council caseload data and identified children and families who were being supported by the trust, but not by the council’s early help services. These families would then be engaged in wider support to address their needs through the Troubled Families Programme. The data would also be used to understand whether families had in fact benefitted from the support they received and to inform future commissioning of services. Before sharing data, the two organisations worked together to put measures in place to ensure that the data would be protected and shared responsibly: • A data protection impact assessment, led by the Head of Information Governance and data protection officer (DPO) at the NHS trust, which identified the potential risks to privacy and how those risks would be mitigated. 628

Annex C: case studies

•

An operational agreement setting out the arrangements for the exchange of data, under the overarching information sharing framework signed by the trust and the council.

•

A methodology to make sure the minimum amount of data was shared.

•

Privacy information.

Organisations involved: Children’s public health, Health Visiting, and Child and Adolescent Mental Health Services (CAMHS); the council and local NHS trust.

629

APPENDIX D

Landlord checklist  Prepare/update social housing fraud policy.  Establish data sharing agreements with other relevant organisations/ departments: consider the Information Commissioner’s Data Sharing Code of Practice.  Undertake regular tenancy audits: seek documentary evidence of residence and identity.  Obtain credit reference reports and electoral information where misuse of premises suspected.  Speak to neighbours and contractors visiting subject premises.  Obtain statements from any sub-tenants, and collate relevant documentary evidence (eg tenancy agreement with sub-tenant).  Seek local authority assistance in obtaining bank, utility, etc. information: refer to Prevention of Social Housing Fraud (Power to Require Information) (England) Regulations 2013.  Where appropriate seek information from the police on criminal behaviour and incidents concerning the tenant(s) and household, and addresses used by them.  Interview prospective defendant(s) – request information and consider caution process.  Check utility usage in only or principal home cases.  After issuing civil proceedings consider use of Part 18 Request for Information, witness summonses and/or applications for specific (and/or third-party) disclosure.

631

Index

[All references are to paragraph numbers] A Abandonment prevalence of fraud 1.16 Abuse of position dishonesty 7.54 generally 7.64–7.67 introduction 7.53 sentencing 7.68–7.70 Airbnb misuse of premises 3.43 Allocation of housing allocation fraud elements 7.8 false statement 7.9–7.11 generally 7.6–7.8 sentencing 7.13–7.15 requirements 7.7 withholding information 7.12 Annual tenancy audits detection of fraud 1.21 investigations 6.3 Anti-social behaviour investigations 6.2 possession claims 2.92 Application forms detection of fraud 1.21 Assignment prevalence of fraud 1.16 tenancy procured by false statement 2.102 Assured tenancies criminal sanctions, and 7.19 misuse of premises generally 3.22 introduction 3.3 only or principal home 3.23–3.25 part of premises 3.31–3.42 possession claims 3.52–3.59 whole of premises 3.28 only or principal home 4.4 parting with possession criminal sanctions, and 7.19 generally 3.22–3.59 Prevention of Social Housing Fraud Act 2013 offence, and 7.19 procurement of tenancy by false statements 2.6 succession carers 4.27

Assured tenancies – contd succession – contd civil partners 4.26–4.27 family members 4.27 general right 4.25–4.28 only or principal home 4.26–4.27 sole tenants 4.27 spouses 4.26–4.27 unlawful profit orders, and 5.8 Audit Commission Protecting the Public Purse reports 1.12– 1.13 Authorised officers investigations 6.53–6.63 B Bank statements investigations 6.56 Booking.com misuse of premises 3.43–3.51 Breach of tenancy only or principal home 4.2 Break clauses procurement of tenancy by false statements 2.66, 2.73, 2.76 Burden of proof criminal offences 7.4–7.5 only or principal home 4.11–4.12 C Carers succession assured tenancies 4.27 secure tenancies 4.20 Caretaker arrangements misuse of premises 3.16 Change of circumstances procurement of tenancy by false statements 2.27 Civil financial remedies compensation orders 5.2 conclusion 5.56–5.57 confiscation orders 5.2 deceit elements 5.41 generally 5.40–5.55 interaction with fraudulent misrepresentation 5.26

633

Index Civil financial remedies – contd deceit – contd introduction 5.2 rescission, and 5.33, 5.37 fraudulent misrepresentation coverage 5.24 damages 5.39 introduction 5.2 obtaining tenancy agreements, and 5.23 overview 5.23–5.26 rescission 5.33–5.38 right to acquire/buy sales, and 5.27– 5.32 shared ownership leases, and 5.23 introduction 5.1–5.2 powers of criminal courts 5.2 relevant circumstances 5.2 unlawful profit orders all possession proceedings 5.7 amount 5.15–5.22 applications 5.11–5.14 assured tenancy proceedings 5.8 conditions 5.6–5.10 coverage 5.4 discretion 5.10 housing benefit, and 5.21–5.22 interest 5.20 introduction 5.3–5.5 overview 5.2 particulars of claim 5.11 purpose 5.5 scope 5.7 Civil partners only or principal home 4.4–4.6 succession assured tenancies 4.26–4.27 secure tenancies 4.20–4.22 Civil recovery orders generally 7.87–7.90 Compensation orders generally 7.81–7.86 introduction 5.2 Confiscation orders generally 7.71–7.80 introduction 5.2 Conspiracy to defraud generally 7.2 Coronavirus pandemic generally 1.28 Council tax generally 1.9 investigations 6.5 Council tax reduction schemes generally 1.26 Court processes disclosure 6.65–6.78 further information 6.69–6.71

Court processes – contd introduction 6.64 post-issue 6.68–6.78 pre-action disclosure 6.65–6.67 request for further information 6.69– 6.71 specific disclosure 6.72–6.75 third party disclosure 6.76–6.78 witness summons 6.79–6.83 Covert surveillance investigations 6.44–6.52 Covid-19 pandemic generally 1.28 Credit applications investigations 6.5 Crime prevention or detection data protection 6.33–6.35 Criminal convictions data protection 6.27–6.29 Criminal sanctions abuse of position dishonesty 7.54 generally 7.64–7.67 introduction 7.53 sentencing 7.68–7.70 allocation fraud elements 7.8 false statement 7.9–7.11 generally 7.6–7.8 sentencing 7.13–7.15 requirements 7.7 withholding information 7.12 burden of proof 7.4–7.5 civil recovery orders 7.87–7.90 compensation orders generally 7.81–7.86 introduction 5.2 conclusion 7.101–7.103 confiscation orders generally 7.71–7.80 introduction 5.2 dishonestly sub-letting or parting with possession consent 7.24–7.25 dishonesty 7.26 generally 7.22 information 7.34–7.35 introduction 7.19 lodgers 7.23 only or principal home 7.27 procedure 7.34–7.46 trial 7.36–7.46 failure to disclose information dishonesty 7.54 generally 7.60–7.63 introduction 7.53 sentencing 7.68–7.70

634

Index Criminal sanctions – contd false representation dishonesty 7.54 generally 7.55–7.59 introduction 7.53 sentencing 7.68–7.70 Fraud Act 2006 offences abuse of position 7.64–7.67 dishonesty 7.54 employees of landlord 7.52 failure to disclose information 7.60–7.63 false representation 7.55–7.59 generally 7.52–7.54 introduction 7.3 ‘right to buy fraud’ 7.52 sentencing 7.68–7.70 types 7.53 fraud by false representation dishonesty 7.54 generally 7.55–7.59 introduction 7.53 sentencing 7.68–7.70 homelessness fraud generally 7.16–7.17 sentencing 7.18 Housing Act 1996 offences allocation fraud 7.6–7.15 homelessness fraud 7.16–7.18 introduction 7.1–7.5 knowingly sub-letting or parting with possession defences 7.30–7.32 generally 7.28–7.29 information 7.34–7.35 persons entitled to transfer of tenancy, and 7.32 procedure 7.34–7.46 trial 7.36–7.46 violence or threats of violence, and 7.31 Powers of Criminal Courts (Sentencing) Act 2000 civil recovery orders 7.87–7.90 compensation orders 7.81–7.86 Prevention of Social Housing Fraud Act 2013 offences defence statements 7.39 direction to acquit 7.44 dishonestly sub-letting or parting with possession 7.22–7.27 final representations 7.46 generally 7.19–7.21 hearsay evidence 7.40–7.43 information 7.34–7.35 initial details 7.38 knowingly sub-letting or parting with possession 7.28–7.33

Criminal sanctions – contd Prevention of Social Housing Fraud Act 2013 offences – contd overview 7.3 private prosecutions 7.91 procedure 7.34–7.46 sentence 7.47–7.51 standard of proof 7.37 trial 7.36–7.46 unlawful profit orders 7.49–7.51 private prosecutions costs 7.94–7.100 generally 7.91–7.93 Proceeds of Crime Act 2002 confiscation orders 7.71–7.80 sentencing allocation fraud 7.13–7.15 civil recovery orders 7.87–7.90 compensation orders 7.81–7.86 confiscation orders 7.71–7.80 generally 7.47 homelessness fraud 7.18 unlawful profit orders 7.49–7.51 standard of proof 7.4 sub-letting or parting with possession dishonestly 7.22–7.27 introduction 7.19–7.21 knowingly 7.28–7.33 theft 7.2 unlawful profit orders 7.49–7.51 D Damages deceit introduction 5.40 measure 5.47 fraudulent misrepresentation generally 5.39 introduction 5.26 overview 5.2 Data Protection Act 1998 coverage 6.11 crime exemption 6.33–6.35 criminal convictions 6.27–6.29 disclosure required by law 6.36–6.39 effect 6.10 exemptions 6.31–6.39 ICO 6.9 introduction 6.7–6.11 lawful, fair and transparent 6.23 obtaining information 6.18–6.30 personal data 6.12–6.15 principles 6.23–6.24 processing 6.22–6.30 purpose 6.8 retention of information 6.16–6.17

635

Index Data Protection Act 1998 – contd special categories of personal data 6.25– 6.26 taxation exemption 6.33–6.35 UK GDRP 6.7 Data sharing investigations 6.40–6.43 Day count only or principal home 4.8 Deceit elements 5.41 generally 5.40–5.55 interaction with fraudulent misrepresentation 5.26 introduction 5.2 rescission, and 5.33, 5.37 Demotion orders procurement of tenancy by false statements 2.66 Detection of fraud generally 1.19–1.22 Disclosure pre-action 6.65–6.67 specific 6.72–6.75 third party 6.76–6.78 Discretion procurement of tenancy by false statements 2.4 unlawful profit orders 5.10 Discrimination procurement of tenancy by false statements 2.88–2.90 Dishonesty parting with possession or sub-letting consent 7.24–7.25 dishonesty 7.26 generally 7.22 information 7.34–7.35 introduction 7.19 lodgers 7.23 only or principal home 7.27 procedure 7.34–7.46 trial 7.36–7.46 representation for obtaining benefit 1.26 Due diligence detection of fraud 1.21 E Electoral roll investigations 6.5 European Institute for Combating Corruption and Fraud reports 1.15–1.16 Evidence see also Investigations court processes disclosure 6.65–6.78

Evidence – contd court processes – contd further information 6.69–6.71 introduction 6.64 post-issue 6.68–6.78 pre-action disclosure 6.65–6.67 request for further information 6.69– 6.71 specific disclosure 6.72–6.75 third party disclosure 6.76–6.78 witness summons 6.79–6.83 disclosure pre-action 6.65–6.67 specific 6.72–6.75 third party 6.76–6.78 fishing expeditions 6.62 further information 6.69–6.71 misuse of premises generally 3.67–3.77 introduction 3.2 only or principal home 4.19 pre-action disclosure 6.65–6.67 Prevention of Social Housing Fraud Act 2013 offences defence statements 7.39 direction to acquit 7.44 final representations 7.46 generally 7.36 hearsay evidence 7.40–7.43 initial details 7.38 standard of proof 7.37 request for further information 6.69–6.71 specific disclosure 6.72–6.75 third party disclosure 6.76–6.78 witness summons 6.79–6.83 Exclusive possession misuse of premises parting with possession 3.17 sub-letting 3.7 F Failure to disclose information dishonesty 7.54 generally 7.60–7.63 introduction 7.53 sentencing 7.68–7.70 False accounting generally 7.2 False representation dishonesty 7.54 generally 7.55–7.59 introduction 7.53 sentencing 7.68–7.70 False statements to procure tenancy See also Fraudulent misrepresentation assured tenancies 2.6 conclusion 2.101–2.105

636

Index False statements to procure tenancy – contd criminal sanctions, and 7.6 discretionary ground of possession 2.4 falsity of statement 2.27–2.37 ground of possession, as elements 2.21–2.26 falsity 2.27–2.37 inducement 2.49–2.58 introduction 2.20 knowledge 2.46–2.48 materiality 2.38–2.40 matters to prove 2.21–2.26 person making statement 2.41–2.45 pre-tenancy statement 2.35 reasonableness 2.82–2.100 recklessness 2.46–2.48 induce landlord to grant tenancy 2.49– 2.58 instigation by tenant or third party 2.41– 2.45 introduction 2.1–2.7 knowledge of falsity 2.46–2.48 maker of statement 2.41–2.45 materiality of statement 2.38–2.40 matters to prove 2.21–2.26 notice procedure fixed term tenancy 2.63–2.77 flexible tenancy 2.63–2.77 periodic tenancy 2.59–2.62 shared ownership agreements 2.63 person making statement 2.41–2.45 pleadings in the alternative 2.18 possession claims ground 2.20–2.58 introduction 2.4 notice procedure 2.59–2.77 reasonableness 2.82–2.100 standard of proof 2.78–2.81 pre-action protocol 2.60–2.61 pre-tenancy statement 2.35 reasonableness 2.82–2.100 recklessness as to accuracy 2.46–2.48 rescission, and 2.8–2.19 secure tenancies 2.6 standard of proof 2.78–2.81 trespass, and 2.18 Family members succession assured tenancies 4.27 secure tenancies 4.20 Financial remedies compensation orders 5.2 conclusion 5.56–5.57 confiscation orders 5.2 deceit elements 5.41 generally 5.40–5.55

Financial remedies – contd deceit – contd interaction with fraudulent misrepresentation 5.26 introduction 5.2 rescission, and 5.33, 5.37 fraudulent misrepresentation coverage 5.24 damages 5.39 introduction 5.2 obtaining tenancy agreements, and 5.23 overview 5.23–5.26 rescission 5.33–5.38 right to acquire/buy sales, and 5.27–5.32 shared ownership leases, and 5.23 introduction 5.1–5.2 powers of criminal courts 5.2 relevant circumstances 5.2 unlawful profit orders all possession proceedings 5.7 amount 5.15–5.22 applications 5.11–5.14 assured tenancy proceedings 5.8 conditions 5.6–5.10 coverage 5.4 discretion 5.10 housing benefit, and 5.21–5.22 interest 5.20 introduction 5.3–5.5 overview 5.2 particulars of claim 5.11 purpose 5.5 scope 5.7 Fishing expedition investigations 6.62 Fixed term tenancies misuse of premises 3.60–3.66 procurement of tenancy by false statements 2.63–2.77 succession 4.27 Flexible tenancies misuse of premises, and 3.60–3.66 procurement of tenancy by false statements 2.63–2.77 Forfeiture proceedings misuse of premises 3.60 procurement of tenancy by false statements 2.64–2.76 Fraud see also Fraudulent misrepresentation allocation fraud elements 7.8 false statement 7.9–7.11 generally 7.6–7.8 sentencing 7.13–7.15 requirements 7.7 withholding information 7.12

637

Index Fraud – contd conclusion 1.29–1.31 conspiracy to defraud 7.2 council tax 1.9 Covid-19 pandemic 1.28 detection 1.19–1.22 false accounting 7.2 Fraud Act 2006 offences abuse of position 7.64–7.67 dishonesty 7.54 employees of landlord 7.52 failure to disclose information 7.60– 7.63 false representation 7.55–7.59 generally 7.52–7.54 introduction 7.3 ‘right to buy fraud’ 7.52 sentencing 7.68–7.70 types 7.53 generally 1.1–1.10 homelessness fraud generally 7.16–7.17 sentencing 7.18 impact 1.11–1.18 introduction 1.1–1.9 legislation 1.23–1.27 representations, and coverage 5.24 damages 5.39 introduction 5.2 obtaining tenancy agreements, and 5.23 overview 5.23–5.26 rescission 5.33–5.38 right to acquire/buy sales, and 5.27–5.32 shared ownership leases, and 5.23 social security benefits, and 1.9 statistics 1.11–1.18 succession 4.29–4.33 types 1.16 Fraud Act 2006 offences abuse of position dishonesty 7.54 generally 7.64–7.67 introduction 7.53 sentencing 7.68–7.70 dishonesty 7.54 employees of landlord 7.52 failure to disclose information dishonesty 7.54 generally 7.60–7.63 introduction 7.53 sentencing 7.68–7.70 false representation dishonesty 7.54 generally 7.55–7.59 introduction 7.53 sentencing 7.68–7.70

Fraud Act 2006 offences – contd generally 7.52–7.54 introduction 7.3 ‘right to buy fraud’ 7.52 sentencing 7.68–7.70 types 7.53 Fraud Advisory Panel ‘Tackling Fraud in the Social Housing Sector’ report 1.21 Fraud by false representation dishonesty 7.54 generally 7.55–7.59 introduction 7.53 sentencing 7.68–7.70 Fraudulent misrepresentation See also False statements to procure tenancy allocation fraud elements 7.8 false statement 7.9–7.11 generally 7.6–7.8 sentencing 7.13–7.15 requirements 7.7 withholding information 7.12 coverage 5.24 damages 5.39 financial remedies coverage 5.24 damages 5.39 introduction 5.2 obtaining tenancy agreements, and 5.23 overview 5.23–5.26 rescission 5.33–5.38 right to acquire/buy sales, and 5.27– 5.32 shared ownership leases, and 5.23 homelessness fraud generally 7.16–7.17 sentencing 7.18 obtaining tenancy agreements, and 5.23 rescission 5.33–5.38 right to acquire/buy sales, and 5.27–5.32 shared ownership leases, and 5.23 Further information investigations 6.69–6.71 G Ground of possession procurement of tenancy by false statements elements 2.21–2.26 falsity 2.27–2.37 inducement 2.49–2.58 introduction 2.20 knowledge 2.46–2.48 materiality 2.38–2.40 matters to prove 2.21–2.26

638

Index Housing officers – contd procurement of tenancy by false statements 2.43–2.45

Ground of possession – contd procurement of tenancy by false statements – contd person making statement 2.41–2.45 pre-tenancy statement 2.35 reasonableness 2.82–2.100 recklessness 2.46–2.48 H Homelessness fraud generally 7.16–7.17 sentencing 7.18 Housing Act 1985 see also Secure tenancies generally 1.23 procurement of tenancy by false statements 2.4 Housing Act 1988 see also Assured tenancies generally 1.23 procurement of tenancy by false statements 2.4 Housing Act 1996 allocation fraud elements 7.8 false statement 7.9–7.11 generally 7.6–7.8 sentencing 7.13–7.15 requirements 7.7 withholding information 7.12 generally 1.23 homelessness fraud generally 7.16–7.17 sentencing 7.18 offences allocation fraud 7.6–7.15 homelessness fraud 7.16–7.18 procurement of tenancy by false statements falsity of statement 2.33–2.34 maker of statement 2.41 matters to prove 2.26 rescission 2.15 withholding information allocation fraud 7.12 homelessness fraud 7.17 Housing benefit dishonest representations 1.26 false representation 1.26 generally 1.9 Housing benefit support records investigations 6.5 Housing officers abuse of position dishonesty 7.54 generally 7.64–7.67 introduction 7.53 sentencing 7.68–7.70

I Inducement procurement of tenancy by false statements 2.49–2.58 Instigation of tenant procurement of tenancy by false statements 2.41–2.45 Introductory tenancies misuse of premises only or principal home 3.23–3.25 whole of premises 3.27 procurement of tenancy by false statements 2.12 Investigations annual tenancy audits 6.3 authorised officers, by 6.53–6.63 bank statements 6.56 conclusion 6.90–6.92 court processes disclosure 6.65–6.78 further information 6.69–6.71 introduction 6.64 post-issue 6.68–6.78 pre-action disclosure 6.65–6.67 request for further information 6.69– 6.71 specific disclosure 6.72–6.75 third party disclosure 6.76–6.78 witness summons 6.79–6.83 covert surveillance 6.44–6.52 crime prevention or detection 6.33–6.35 criminal convictions 6.27–6.29 data protection coverage 6.11 crime exemption 6.33–6.35 criminal convictions 6.27–6.29 disclosure required by law 6.36–6.39 effect 6.10 exemptions 6.31–6.39 ICO 6.9 introduction 6.7–6.11 lawful, fair and transparent 6.23 obtaining information 6.18–6.30 personal data 6.12–6.15 principles 6.23–6.24 processing 6.22–6.30 purpose 6.8 retention of information 6.16–6.17 special categories of personal data 6.25–6.26 taxation exemption 6.33–6.35 UK GDRP 6.7 data sharing 6.40–6.43

639

Index Investigations – contd disclosure pre-action 6.65–6.67 specific 6.72–6.75 third party 6.76–6.78 evidence, and 6.4–6.5 fishing expeditions 6.62 further information 6.69–6.71 generally 6.1–6.6 introduction 6.1–6.6 missing witnesses 6.84–6.89 Part 18 Requests 6.69–6.71 pre-action disclosure 6.65–6.67 Prevention of Social Housing Fraud Regulations 2014, under 6.53–6.63 request for further information 6.69– 6.71 specific disclosure 6.72–6.75 surveillance 6.44–6.52 tax data 6.33–6.35 telecommunications information 6.60 third party disclosure 6.76–6.78 under caution interviews conclusion 6.92 introduction 6.18 utility accounts 6.56 witness summons 6.79–6.83 J Joint tenancies only or principal home 4.4 procurement of tenancy by false statements 2.46 succession 4.21 K Knowingly sub-letting or parting with possession defences 7.30–7.32 generally 7.28–7.29 information 7.34–7.35 persons entitled to transfer of tenancy, and 7.32 procedure 7.34–7.46 trial 7.36–7.46 violence or threats of violence, and 7.31 Knowledge knowingly sub-letting or parting with possession 7.29 procurement of tenancy by false statements 2.46–2.48 L Lodgers dishonestly sub-letting or parting with possession 7.23 misuse of premises 3.31

M Missing witnesses investigations 6.84–6.89 Misuse of premises See also Sub-letting; Parting with possession AirBnB lets 3.43 assured tenancies generally 3.22 introduction 3.3 only or principal home 3.23–3.25 part of premises 3.31–3.42 possession claims 3.52–3.59 whole of premises 3.28 Booking.com lets 3.43–3.51 ‘caretaker’ arrangements 3.16 conclusion 3.78–3.82 evidence generally 3.67–3.77 introduction 3.2 exclusive possession parting with possession 3.17 sub-letting 3.7 fixed-term tenancies 3.60–3.66 flexible tenancies 3.60–3.66 for a term at a rent 3.7 intention to create legal relations 3.7 introduction 3.1–3.6 introductory tenancies only or principal home 3.23–3.25 whole of premises 3.27 notices to quit 3.30 only or principal home generally 3.23–3.25 introduction 3.4 overview 4.2 part of premises 3.31–3.42 parting with possession introduction 3.2 meaning 3.14–3.18 security of tenure 3.19–3.25 whole of premises 3.26–3.30 periodic tenancies generally 3.22 introduction 3.3–3.4 only or principal home 3.23–3.25 part of premises 3.31–3.42 possession claims 3.52–3.59 whole of premises 3.28 possession claims fixed-term tenancies 3.60–3.66 periodic tenancies 3.52–3.59 pre-action protocol 3.5–3.6 possession claims (periodic tenancies) forms and documents 3.52–3.53 order for possession 3.57 particulars of claim 3.55

640

Index Misuse of premises – contd possession claims (periodic tenancies) – contd pleading 3.55–3.56 Practice Direction 3.54 statements of truth 3.56 pre-action protocol for possession claims 3.5–3.6 ‘primarily concerned’ 3.4 secure tenancies generally 3.20–3.21 introduction 3.3 only or principal home 3.23–3.25 part of premises 3.31–3.42 possession claims 3.52–3.59 whole of premises 3.26 security of tenure assured tenancies 3.22 generally 3.19 introduction 3.3 notices to quit 3.30 only or principal home 3.23–3.25 part of premises 3.31–3.42 secure tenancies 3.20–3.21 whole of premises 3.26–3.30 shared ownership agreements whole of premises 3.29 short-term lets 3.43–3.51 sub-letting introduction 3.2 meaning 3.7–3.13 security of tenure 3.19–3.25 whole of premises 3.26–3.30 ‘swap’ of properties 3.15 ‘take over’ of premises 3.1 whole of premises 3.26–3.30 N National Fraud Initiative detection of fraud 1.22 Notices to quit misuse of premises 3.30 only or principal home 4.19 procurement of tenancy by false statements fixed term tenancy 2.63–2.77 flexible tenancy 2.63–2.77 periodic tenancy 2.59–2.62 shared ownership agreements 2.63 O Only or principal home absence of tenant 4.10–4.11 assured tenancies 4.4 breach of tenancy 4.2 burden of proof 4.11–4.12 civil partners 4.4–4.6

Only or principal home – contd ‘day count’ 4.8 definition 4.8–4.19 dishonestly sub-letting or parting with possession, and 7.27 evidence 4.19 family visits 4.13 hospital care 4.14 intention to return 4.9–4.18 introduction 4.1–4.3 joint tenancies 4.4 misuse of premises 4.2 notice to quit 4.19 overview 4.4–4.7 parting with possession, and 4.3 periodic tenancies, and 4.4 placement abroad 4.13 second homes 4.12 secure tenancies 4.4 security of tenure, and 4.4 spouses 4.4–4.6 sub-letting, and 4.3 unlawful profit orders, and 4.2 work placement 4.13 Overcrowded accommodation procurement of tenancy by false statements 2.3 P Part 18 Requests investigations 6.69–6.71 Parting with possession assured tenancies 3.22 definition 3.14–3.18 dishonestly offence consent 7.24–7.25 dishonesty 7.26 generally 7.22 information 7.34–7.35 introduction 7.19 lodgers 7.23 only or principal home 7.27 procedure 7.34–7.46 trial 7.36–7.46 introduction 3.2 meaning 3.14–3.18 knowingly offence defences 7.30–7.32 generally 7.28–7.29 information 7.34–7.35 persons entitled to transfer of tenancy, and 7.32 procedure 7.34–7.46 trial 7.36–7.46 violence or threats of violence, and 7.31 notices to quit 3.30

641

Index Parting with possession – contd only or principal home 3.23–3.25 part of premises 3.31–3.42 Prevention of Social Housing Fraud Act 2013 offences dishonestly 7.22–7.27 introduction 7.19–7.21 knowingly 7.28–7.33 secure tenancies 3.20–3.21 security of tenure assured tenancies 3.22 generally 3.19 introduction 3.3 notices to quit 3.30 only or principal home 3.23–3.25 part of premises 3.31–3.42 secure tenancies 3.20–3.21 whole of premises 3.26–3.30 unlawful profit orders all possession proceedings 5.7 amount 5.15–5.22 applications 5.11–5.14 assured tenancy proceedings 5.8 conditions 5.6–5.10 coverage 5.4 discretion 5.10 housing benefit, and 5.21–5.22 interest 5.20 introduction 5.3–5.5 particulars of claim 5.11 purpose 5.5 scope 5.7 whole of premises 3.26–3.30 Periodic tenancies misuse of premises generally 3.22 introduction 3.3–3.4 only or principal home 3.23– 3.25 part of premises 3.31–3.42 possession claims 3.52–3.59 whole of premises 3.28 only or principal home generally 3.23–3.25 introduction 4.4 part of premises 3.31–3.42 possession claims false statements 2.59–2.62 misuse of premises 3.52–3.59 procurement of tenancy by false statements 2.59–2.62 succession 4.25–4.28 whole of premises 3.28 Photographic identification detection of fraud 1.21 Police records investigations 6.5

Possession claims introduction 1.23 misuse of premises fixed-term tenancies 3.60–3.66 periodic tenancies 3.52–3.59 pre-action protocol 3.5–3.6 misuse of premises (periodic tenancies) forms and documents 3.52–3.53 order for possession 3.57 particulars of claim 3.55 pleading 3.55–3.56 Practice Direction 3.54 statements of truth 3.56 procurement of tenancy by false statements ground 2.20–2.58 introduction 2.4 notice procedure 2.59–2.77 reasonableness 2.82–2.100 standard of proof 2.78–2.81 Powers of Criminal Courts (Sentencing) Act 2000 civil recovery orders 7.87–7.90 compensation orders 7.81–7.86 Pre-action disclosure investigations 6.65–6.67 Prevention of Social Housing Fraud Act 2013 offences defence statements 7.39 direction to acquit 7.44 dishonestly sub-letting or parting with possession consent 7.24–7.25 dishonesty 7.26 generally 7.22 information 7.34–7.35 introduction 7.19 lodgers 7.23 only or principal home 7.27 procedure 7.34–7.46 trial 7.36–7.46 final representations 7.46 generally 7.19–7.21 hearsay evidence 7.40–7.43 information 7.34–7.35 initial details 7.38 introduction 7.3 investigations 6.53–6.63 knowingly sub-letting or parting with possession defences 7.30–7.32 generally 7.28–7.29 information 7.34–7.35 persons entitled to transfer of tenancy, and 7.32 procedure 7.34–7.46 trial 7.36–7.46

642

Index Prevention of Social Housing Fraud Act 2013 offences – contd knowingly sub-letting or parting with possession – contd violence or threats of violence, and 7.31 overview 7.3 private prosecutions 7.91 procedure 7.34–7.46 sentence 7.47–7.51 standard of proof 7.37 trial 7.36–7.46 unlawful profit orders 7.49–7.51 Prevention of Social Housing Fraud Regulations 2014 investigations 6.53–6.63 Principal home absence of tenant 4.10–4.11 assured tenancies 4.4 breach of tenancy 4.2 burden of proof 4.11–4.12 civil partners 4.4–4.6 ‘day count’ 4.8 definition 4.8–4.19 dishonestly sub-letting or parting with possession, and 7.27 evidence 4.19 family visits 4.13 hospital care 4.14 intention to return 4.9–4.18 introduction 4.1–4.3 joint tenancies 4.4 misuse of premises generally 3.23–3.25 introduction 3.4 overview 4.2 notice to quit 4.19 overview 4.4–4.7 parting with possession, and 4.3 periodic tenancies, and 4.4 placement abroad 4.13 second homes 4.12 secure tenancies 4.4 security of tenure, and 4.4 spouses 4.4–4.6 sub-letting, and 4.3 unlawful profit orders, and 4.2 work placement 4.13 Private prosecutions costs 7.94–7.100 generally 7.91–7.93 Proceeds of Crime Act 2002 confiscation orders 7.71–7.80 generally 1.24 Procurement of tenancy by false statements See also Fraudulent misrepresentation

Procurement of tenancy by false statements – contd assured tenancies 2.6 conclusion 2.101–2.105 criminal sanctions, and 7.6 discretionary ground of possession 2.4 falsity of statement 2.27–2.37 ground of possession, as elements 2.21–2.26 falsity 2.27–2.37 inducement 2.49–2.58 introduction 2.20 knowledge 2.46–2.48 materiality 2.38–2.40 matters to prove 2.21–2.26 person making statement 2.41– 2.45 pre-tenancy statement 2.35 reasonableness 2.82–2.100 recklessness 2.46–2.48 induce landlord to grant tenancy 2.49– 2.58 instigation by tenant or third party 2.41– 2.45 introduction 2.1–2.7 knowledge of falsity 2.46–2.48 maker of statement 2.41–2.45 materiality of statement 2.38–2.40 matters to prove 2.21–2.26 notice procedure fixed term tenancy 2.63–2.77 flexible tenancy 2.63–2.77 periodic tenancy 2.59–2.62 shared ownership agreements 2.63 person making statement 2.41–2.45 pleadings in the alternative 2.18 possession claims ground 2.20–2.58 introduction 2.4 notice procedure 2.59–2.77 reasonableness 2.82–2.100 standard of proof 2.78–2.81 pre-action protocol 2.60–2.61 pre-tenancy statement 2.35 reasonableness 2.82–2.100 recklessness as to accuracy 2.46– 2.48 rescission, and 2.8–2.19 secure tenancies 2.6 standard of proof 2.78–2.81 trespass, and 2.18 Protection from Eviction Act 1977 only or principal home 4.7 Public interest procurement of tenancy by false statements 2.93

643

Index R Reasonableness misuse of premises 3.58 procurement of tenancy by false statements 2.82–2.100 Recklessness procurement of tenancy by false statements 2.46–2.48 Regulator of Social Housing reporting losses by providers 1.11 Request for further information investigations 6.69–6.71 Rescission fraudulent succession 4.33 procurement of tenancy by false statements 2.8–2.19 Right to buy/acquire abuse of position 7.64 detection of fraud 1.19 Fraud Act 2006 offences, and abuse of position 7.64 generally 7.52 fraudulent misrepresentation 5.27–5.32 prevalence of fraud 1.16 S Second homes only or principal home 4.12 Secure tenancies criminal sanctions, and 7.19 misuse of premises generally 3.20–3.21 introduction 3.3 only or principal home 3.23–3.25 part of premises 3.31–3.42 possession claims 3.52–3.59 whole of premises 3.26 notices to quit 3.30 only or principal home introduction 4.4 misuse of premises 3.23–3.25 part of premises 3.31–3.42 parting with possession criminal sanctions, and 7.19 introduction 3.2 meaning 3.14–3.18 security of tenure 3.19–3.25 whole of premises 3.26–3.30 possession claims misuse of premises 3.52–3.59 procurement of tenancy by false statements 2.6 possession claims (misuse of premises) forms and documents 3.52–3.53 order for possession 3.57 particulars of claim 3.55 pleading 3.55–3.56

Secure tenancies – contd possession claims (misuse of premises) – contd Practice Direction 3.54 statements of truth 3.56 Prevention of Social Housing Fraud Act 2013 offence, and 7.19 procurement of tenancy by false statements 2.6 security of tenure assured tenancies 3.22 generally 3.19 introduction 3.3 notices to quit 3.30 only or principal home  3.23–3.25 part of premises 3.31–3.42 secure tenancies 3.20–3.21 whole of premises 3.26–3.30 succession 4.20–4.24 whole of premises 3.26 Sentencing see also Criminal sanctions allocation fraud 7.13–7.15 civil recovery orders 7.87–7.90 compensation orders 7.81–7.86 confiscation orders 7.71–7.80 generally 7.47 homelessness fraud 7.18 unlawful profit orders 7.49–7.51 Shared ownership abuse of position 7.64 fraud 7.52 fraudulent misrepresentation 5.23 procurement of tenancy by false statements 2.63 Sign-up detection of fraud 1.21 Specific disclosure investigations 6.72–6.75 Spouses only or principal home 4.4–4.6 succession assured tenancies 4.26–4.27 secure tenancies 4.20–4.22 Sub-letting assured tenancies 3.22 dishonestly offence consent 7.24–7.25 dishonesty 7.26 generally 7.22 information 7.34–7.35 introduction 7.19 lodgers 7.23 only or principal home 7.27 procedure 7.34–7.46 trial 7.36–7.46

644

Index Sub-letting – contd knowingly offence defences 7.30–7.32 generally 7.28–7.29 information 7.34–7.35 persons entitled to transfer of tenancy, and 7.32 procedure 7.34–7.46 trial 7.36–7.46 violence or threats of violence, and 7.31 misuse of premises introduction 3.2 meaning 3.7–3.13 security of tenure 3.19–3.25 whole of premises 3.26–3.30 notices to quit 3.30 only or principal home generally 3.23–3.25 introduction 4.3 part of premises 3.31–3.42 Prevention of Social Housing Fraud Act 2013 offences dishonestly sub-letting or parting with possession 7.22–7.27 introduction 7.19–7.21 knowingly sub-letting or parting with possession 7.28–7.33 secure tenancies misuse of premises 3.20–3.21 procurement of tenancy by false statements 2.6 security of tenure assured tenancies 3.22 generally 3.19 introduction 3.3 notices to quit 3.30 only or principal home 3.23– 3.25 part of premises 3.31–3.42 secure tenancies 3.20–3.21 whole of premises 3.26–3.30 unlawful profit orders all possession proceedings 5.7 amount 5.15–5.22 applications 5.11–5.14 assured tenancy proceedings 5.8 conditions 5.6–5.10 coverage 5.4 discretion 5.10 housing benefit, and 5.21–5.22 interest 5.20 introduction 5.3–5.5 particulars of claim 5.11 purpose 5.5 scope 5.7 whole property 3.26–3.30

Succession appeals 4.35 assured tenancies 4.25–4.28 carers assured tenancies 4.27 secure tenancies 4.20 civil partners assured tenancies 4.26–4.27 secure tenancies 4.20–4.22 conclusion 4.43–4.46 family members assured tenancies 4.27 secure tenancies 4.20 fixed term tenancies 4.27 fraudulent 4.29–4.33 general right assured tenancies 4.25–4.28 secure tenancies 4.20–4.24 introduction 4.1–4.3 joint tenancies 4.21 late appeals 4.34 only or principal home assured tenancies 4.26–4.27 secure tenancies 4.20–4.22 periodic tenancies 4.25–4.28 prevalence of fraud 1.16 rescission 4.33 second successions 4.20 secure tenancies 4.20–4.24 setting aside actions 4.35–4.41 sole tenants assured tenancies 4.27 secure tenancies 4.20 spouses assured tenancies 4.26–4.27 secure tenancies 4.20–4.22 trespasser actions 4.33 Surveillance investigations 6.44–6.52 Survivorship assured tenancies 4.27 secure tenancies 4.20 Swap of properties misuse of premises 3.15 T Tax data investigations 6.33–6.35 Telecommunications information investigations 6.60 Telephone accounts investigations 6.60 Tenancy agreements fraudulent misrepresentation  5.23 Tenancy Fraud Forum generally 1.30

645

Index Third party disclosure generally 6.76–6.78 U Under caution interviews conclusion 6.92 introduction 6.18 Universal credit housing element 1.9 Unjust enrichment rescission, and 5.37 Unlawful profit orders (UPO) all possession proceedings 5.7 amount 5.15–5.22 applications 5.11–5.14 assured tenancy proceedings 5.8 conditions 5.6–5.10 coverage 5.4 criminal sanctions, and 7.49–7.51

Unlawful profit orders (UPO) – contd discretion 5.10 housing benefit, and 5.21–5.22 interest 5.20 introduction 5.3–5.5 only or principal home, and 4.2 particulars of claim 5.11 possession claims, and 3.56 purpose 5.5 scope 5.7 Utility accounts/bills investigations 6.56 W Withholding information allocation fraud 7.12 homelessness fraud 7.17 Witness summons investigations 6.79–6.83

646