Poplar Housing & Regeneration Community Association Ltd v Begum & Anor, Court of Appeal - Queen's Bench Division, August 04, 2017, [2017] EWHC 2040 (QB)

Issuing Organization:Queen's Bench Division
Actores:Poplar Housing & Regeneration Community Association Ltd v Begum & Anor
Resolution Date:August 04, 2017
 
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Case No: QB/2017/0113

Neutral Citation Number: [2017] EWHC 2040 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

IN THE MATTER OF AN APPEAL

FROM THE COUNTY COURT AT CENTRAL LONDON

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 04/08/2017

Before :

MR JUSTICE TURNER

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Between :

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Dean Underwood and Liam Wells (instructed by Capsticks LLP) for the Appellant

Martin Hodgson (instructed by Moss & Co Solicitors) for the Respondents

Hearing dates: 20th July 2017

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JudgmentMr Justice Turner :

INTRODUCTION

  1. The respondents live at 23 Maidstone House, Carmen Street, London, E14 (``the flat'') which they occupy as tenants under a lease granted by the appellant. On 4 February 2016, the appellant brought a claim against them seeking a possession order alleging that they had acted in breach of several terms of the lease. This claim was heard by Mr Recorder Wilson QC who, on 5 April 2017, granted a suspended order for possession. The appellant challenges this decision by way of appeal to this court on the ground that the Recorder ought to have made an order for outright possession. An issue also arises as to whether the Recorder was right to refuse to make an Unlawful Profit Order in the appellant's favour under section 5 of the Prevention of Social Housing Fraud Act 2013.

    THE BACKGROUND

  2. The appellant is a Registered Provider of Social Housing. It works with the local housing authority to provide affordable housing to those unable to obtain accommodation in the open market. I pause to note that there is a very long waiting list indeed for such accommodation and that those who secure it should be expected to be slow to abuse the benefits and advantages which it brings.

  3. The flat in question has two bedrooms and can be found on the fifth floor of a block of similar flats. The tenancy, which began on 27 October 2014 was an assured shorthold `starter' tenancy which, after a period of 12 months, became a fully assured tenancy within the meaning of Part I of the Housing Act 1988. At all material times, the respondents received Housing Benefit which covered the rent for the flat in full.

  4. The following were relevant terms of the lease:

    i) By clause 4.1: the respondents agreed that they would live at the flat as their only or principal home.

    ii) By clause 4.2: they were prohibited from sub-letting all of the flat.

    iii) By clause 4.3: they enjoyed the right to take in a lodger or sub-let part of the flat, albeit only with the appellant's prior written permission.

    iv) By clause 6.1: they covenanted to pay the rent every Monday in advance.

    v) By clause 9.1: they covenanted not to use the flat for any criminal, immoral or illegal purpose.

  5. On 21 August 2015, the appellant received an email from a local informant alleging that the respondents were sub-letting the flat. After carrying out a series of credit searches, the appellant discovered that the first respondent had financial links to another of the appellant's properties at 33 Farrance Street, London, E14, which, by no coincidence, turned out to be her mother's home.

  6. Shortly afterwards, on 6 November 2015, the appellant referred the case to the Council's fraud investigation team. Thereafter, the Council and the appellant planned, for obvious reasons, to conduct a joint and simultaneous inspection of the flat and of 33 Farrance Street to find out what was going on. These inspections duly took place on the morning of 12 November 2015. The officers were accompanied, as it happens, by a camera crew filming a documentary for the BBC. Viewers were not to be disappointed by what was revealed.

  7. As the informant's email had predicted, the respondents were not found at their own flat. They were, however, discovered to be at the first respondent's mother's home at 33 Farrance Street together with their two children. The respondents admitted at that stage, although they were to deny it later, that they were living at Farrance Street and had allowed others to occupy their own flat. This was a rare but ephemeral and uncharacteristic display of honesty on the part of the respondents which they were later quick to regret and to correct. The second respondent, however, soon reverted to his baser instincts and began to behave so aggressively towards the investigating officer that the police had to be called.

  8. At the same time, two officers of the appellant visited the respondent's flat. There they found one Ms Jannatul Rehana and one Mr Jahed Ahmed who, under caution, admitted occupying the flat from about August 2015 and paying a monthly rent of £400 to the respondents for the privilege. At the time of the visit, they were sleeping in the flat's first bedroom but did not have access to the second bedroom which was padlocked shut. They said that the room, which contained toys and a cot, was kept locked in order, if necessary, to give the misleading impression that the respondents and their children were occupying the flat in the event that the premises were ever inspected.

  9. Not long afterwards, the second respondent arrived at the flat. In an obvious and farcically clumsy attempt to cover his tracks he demanded that Ms Rehana and Mr Ahmed should leave. He promptly took the keys to the flat from them and purported to evict them. In a telephone conversation with Ms Rehana later the same day he threatened to burn their clothes.

  10. Later the same morning, the second respondent returned to 33 Farrance Street following upon his confected confrontation with Ms Rehana and Mr Ahmed. Upon his arrival, the police arrested both him and the first respondent for unlawfully sub-letting the flat and other related offences. In interview under caution, the first respondent lied stating that she had merely stayed at 33 Farrance Street over the night before to look after her brother who was suffering from a serious medical condition. The second respondent gave a `no comment' interview. When the tape stopped, however, he laughed, saying, ``We'll see who laughs last when the case goes to court'' and that, in common with other cases against him with which the police had not proceeded, he would ``get away with this too.''

  11. On 18 January 2016, the appellant served the respondents with notice of its intention to...

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