In this article, Dr Dan Jacklin provides a short guide to the issues social housing fraud litigators must grapple with and how they apply in the context of short-term temporary accommodation for transient visitors paying for such use by way of commercial hire.
Such arrangements are often facilitated by websites such as Airbnb, Booking.com, Vrbo, etc. Data from Visit Britain, cited by a House of Commons Research Briefing in May 2024, estimated that there were around 370,000 available short-term rental properties on such platforms in England in February 2024 (HoC The growth in short-term lettings in England, 2024). Data from Expedia Group reported that 9.9 million nights were spent in short-term let accommodation in July-September 2023 (ONS, 2024).
Analysis by the Tenancy Fraud Forum estimates that 50,000 council houses in London Boroughs are being sublet by tenants at a cost to taxpayers of up to £244m (TFF Learning the Lessons, 2025; LGC, 2025). Alan Bryce, author of the report, suggests that tackling this type of fraud may be quicker and more cost effective than building new homes to accommodate those on the now very long waiting lists for social housing. It has been estimated that 1 in 30 social housing properties are though to be subject to some form of tenancy fraud (Trowers & Hamlins, 2025).
The offence
Under the Prevention of Social Housing Fraud Act 2013 (‘2013 Act’), it is an offence, under section 1(1) for a tenant under a secure tenancy in England to:
- sublet or part with possession of the whole or part of a dwelling-house;
- without the landlord’s consent;
- if doing so is in breach of an express or implied term of the tenancy;
- the tenant ceases to occupy the dwelling-house as their only or principal home, and;
- the tenant knows that the conduct is in breach of the tenancy.
A person convicted under section 1(1) of the 2013 Act is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
There is a further offence for doing the above ‘dishonestly’ (s.1(2), 2013 Act), which is an either-way offence. A person convicted under this section is liable on summary conviction to imprisonment up to 6 months or a fine not exceeding the statutory minimum, or, if convicted on indictment, to imprisonment not exceeding two years or a fine (or both).
Whilst there are other offences pertaining to assured tenancies and secure contracts, this article will focus on the bulk of social housing fraud cases which are brought under sections 1(1) and (2) of the 2013 Act.
The issues
(1) Is the tenancy a ‘secure tenancy’?
It is a term of every secure tenancy agreement that the tenant will not sublet or part with possession of part of the dwelling-house (s.93(1), Housing Act 1985 (‘1985 Act’)).
Where a tenant under a secure tenancy parts with possession of the dwelling-house or sublets the whole of it or, the tenancy ceases to be a secure tenancy and cannot subsequently become a secure tenancy (s.93(2), 1985 Act).
It is important for housing providers to confirm that they have not granted permission for the property to be sublet (s.94, 1985 Act) and that the subletting or parting with possession of the whole or part of the property has not occurred because of violence or threats against a person (s.1(3), 2013 Act), as both these conditions provide a defence to a sections 1(1) or (2) offence under the 2013 Act.
The 2013 Act is silent on the material time when the tenancy must have been, for the purpose of the section 1(1) and (2) offences, a “secure tenancy”. There is a difficulty with whether the act of subletting or parting with possession is completed sequentially or simultaneously alongside the effect of section 93(2) of the 1985 Act.
Cases under the 2013 Act appear to proceed on the basis that the act and effect described above occur sequentially, which makes the material time in assessing whether the tenancy is a “secure tenancy” for the purpose of the 2013 Act the moment at or before the completion of the act of subletting or parting with possession of the dwelling-house.
The effect of interpreting the act and effect as occurring simultaneously would make redundant the offences under sections 1(1) and (2) of the 2013 Act, as once the final element of the offence is met by establishing subletting or the parting of possession, the tenancy would no longer considered a secured tenancy.
(2) Has the property been “sublet” or the tenant “parted with possession of” it in breach of the tenancy agreement?
The key issue in cases concerning the section 1(1) and (2) offences is whether the property has been “sublet” or the tenant has “parted with possession of” the whole or part of the property. It is not sufficient simply to prove that the tenant has breached one or more covenants within the tenancy agreement and a tenancy does not end simply because a covenant has been breached.
It is not sufficient to prove that the property is being used as “short-term temporary accommodation for transient visitors paying for such use by way of commercial hire” (as HHJ Luba QC described in the often cited case of Bermondsey Exchange Freeholders Ltd v Ninos Koumetto (2018) Central London County Court, 1 May 2018, as this case concerned whether a tenancy agreement had been breached, not whether there was a breach under section 1(1) or 1(2) of the 2013 Act).
To determine whether the property has been “sublet” or whether the tenant has “parted with possession of” the whole or part of the property, the starting point in such cases should be the specific arrangements between the tenant and the third party.
The terms and conditions of the letting website used to arrange the booking is a good place to start. For example, Airbnb’s terms and conditions dated 25 January 2024 stated as follows:
“1.3. Accommodation Reservations. An Accommodation Reservation is a limited license to enter, occupy and use the Accommodation. The Host retains the right to re-enter the Accommodation during your stay, to the extent: (i) it is reasonably necessary, (ii) permitted by your contract with the Host, and (iii) permitted by applicable law.”
The court must reach its own view on whether the arrangement of the parties constitutes a subletting arrangement (i.e. a lease arrangement rather than a licence). The properties of a lease/tenancy are set out by Lord Templeman in Street v Mountford [1985] A.C. 809 at page 818:
“There can be no tenancy unless the occupier enjoys exclusive possession; but an occupier who enjoys exclusive possession is not necessarily a tenant. He may be owner in fee simple, a trespasser, a mortgagee in possession, an object of charity or a service occupier. To constitute a tenancy the occupier must be granted exclusive possession for a fixed or periodic term certain in consideration of a premium or periodical payments. The grant may be express, or may be inferred where the owner accepts weekly or other periodical payments from the occupier.”
At page 826-827, Lord Templeman concluded as follows:
“My Lords, the only intention which is relevant is the intention demonstrated by the agreement to grant exclusive possession for a term at a rent.
Sometimes it may be difficult to discover whether, on the true construction of an agreement, exclusive possession is conferred. Sometimes it may appear from the surrounding circumstances that there was no intention to create legal relationships. Sometimes it may appear from the surrounding circumstances that the right to exclusive possession is referable to a legal relationship other than a tenancy. Legal relationships to which the grant of exclusive possession might be referable and which would or might negative the grant of an estate or interest in the land include occupancy under a contract for the sale of the land, occupancy pursuant to a contract of employment or occupancy referable to the holding of an office.
But where as in the present case the only circumstances are that residential accommodation is offered and accepted with exclusive possession for a term at a rent, the result is a tenancy.”
The courts have since said that “exclusive possession” is not defeated simply because some restricted rights to enter are retained (Bruton v London & Quadrant Housing Trust [1999] 3 All ER 481). Citing Lord Templeman in Street, Lord Jauncey said at page 411 that the express reservation of a right to enter for a limited purpose “fortified rather than detracted” from the notion that the occupier has exclusive possession, otherwise it would be unnecessary to spell out that right.
This sentiment was more recently reflected by HHJ Luba QC’s conclusion in Bermondsey, in which he said at paragraph [57]:
“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.”
In summary, the first issue is whether the property has been sublet or the tenant has parted with possession of it will depend largely on whether the tenant has granted another exclusive possession of the property for a fixed time in exchange for a fee. In many circumstances, an Airbnb or similar arrangement, will meet this requirement.
(3) Has the tenant ceased to occupy the property as their only or principal home?
This issue requires the prosecution to grapple with how “occupation” in sections 1(1) and 1(2) of the 2013 Act differs from use of the term “possession” used earlier in the same provisions. The terms “occupation” and “possession” are not defined in the 2013 Act, but are broadly used in the same way as in other cases concerning the housing acts, adverse possession, homelessness, and trespass.
The case of London Borough of Harrow v Qazi (FC) [2003] UKHL 43 is a useful example eliciting the distinction between occupation and possession. “Occupation” is consistently referred to throughout the judgment as meaning the person exercising control over the property, typically by being in physical occupation of it. This is consistent with more recent uses of the term such as in the case in other areas of law, such as Jij v John Lewis [2022] EWHC 2418, which was decided in the context of the Occupiers Liability Act 1957, but which is not binding on a criminal court. “Possession” it is suggested carries its ordinary legal meaning, and comprises the elements of legal and factual possession. A party may not be in occupation of premises, but remain in legal possession of them (as may be the case in some adverse possession cases).
Another helpful illustration of the difference between the terms can be found in the case of Lam Kee Ying v Lam Shes Tong [1975] A.C. 247, where Sir Harry Gibbs said at page 256C:
“A covenant which forbids a parting with possession is not broken by a lessee who in law retains the possession even though he allows another to use and occupy the premises.”
Further, in Hussey v London Borough of Camden [1994] 2 WLUK 315, Lord Leggatt said at page 11:
“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.”
Etherton LJ also provided useful comments in The Mayor and Burgesses of the London Borough of Islington v Boyle[2011] EWCA Civ 1450 at [55]:
“55. I would summarise as follows the relevant principles to be applied in determining whether a tenant continues to occupy a dwelling as his or her home, for the purposes of the 1985 Act, despite living elsewhere.
First, absence by the tenant from the dwelling may be sufficiently continuous or lengthy or combined with other circumstances as to compel the inference that, on the face of it, the tenant has ceased to occupy the dwelling as his or her home. In every case, the question is one of fact and degree.
Secondly, assuming the circumstances of absence are such as to give rise to that inference: (1) the onus is on the tenant to rebut the presumption that his or her occupation of the dwelling as a home has ceased; (2) in order to rebut the presumption the tenant must have an intention to return; (3) while there is no set limit to the length of absence and no requirement that the intention must be to return by a specific date or within a finite period, the tenant must be able to demonstrate a ‘practical possibility’ or ‘a real possibility’ of the fulfilment of the intention to return within a reasonable time; (4) the tenant must also show that his or her inward intention is accompanied by some formal, outward and visible sign of the intention to return, which sign must be sufficiently substantial and permanent and otherwise such that in all the circumstances it is adequate to rebut the presumption that the tenant, by being physically absent from the premises, has ceased to be in occupation of it.
Thirdly, two homes cases, that is to say where the tenant has another property in which he or she voluntarily takes up full-time residence, must be viewed with particular care in order to assess whether the tenant has ceased to occupy as a home the place where he or she formerly lived.
Fourthly, whether or not a tenant has ceased to occupy premises as his or her home is a question of fact. In the absence of an error of law, the trial Judge’s findings of primary fact cannot be overturned on appeal unless they were perverse, in the sense that they exceeded the generous ambit within which reasonable disagreement about the conclusions to be drawn from the evidence is possible; but the appeal court may in an appropriate case substitute its own inferences drawn from those primary facts.”
Where the tenant has removed all their belongings and lives at another address, establishing that they have ceased to occupy the property as their only or principal home will be straightforward. However, most cases arise in more nuanced circumstances.
Often, it will be the case that the tenant will live with a partner or relative when the property rented and used by others. The tenant will often own most of the furniture in the property, especially in cases concerning short-term letting for use by transient visitors paying by way of commercial hire. The more of the tenant’s belongings which remain at the property, the harder it will be to evidence that occupation as their only or main home has ceased.
Occasionally, the tenant will stay in a different room/part of the property during the third party’s stay. This is less common in social housing matters, as properties are typically smaller in size, but may present an obstacle in proving that the tenant has ceased to occupy the property as their only or principal home.
In summary, whether the tenant has ceased to occupy the property as their only or principal home is fact dependent and will depend on all the circumstances.
(4) Proving the tenant knew the conduct was a breach of the tenancy agreement
The position in contract law is that where tenancy agreement is signed, it is presumed to be enforceable unless the tenant proves otherwise (L’Estrange v F Graucoub Ltd [1934] 2 KB 394). The criminal courts are, however, not bound by the position of a signed agreement in contract law, but are likely to lean-in to this principle.
In most cases, there will be a tenancy agreement signed by the tenant which brought to their attention that the action subsequently taken would have been in breach of the tenancy agreement. It is likely to take an unusual case for a tenant to prove that despite the warning in the tenancy agreement, they were nevertheless unaware of the requirement.
Such situations may arise where English is not the tenant’s first language and may not have understood the tenancy agreement. Alternatively, there may have been some technological/operational issue which meant that the tenant never received a copy of their tenancy agreement containing the index term, and so had no knowledge of it. It is important to note that this is the reason many housing providers put the terms and conditions of their social housing tenancies on their website, although this does not always mean those terms displayed are the correct terms which apply to the tenant.
(5) Dishonesty
Proving the section 1(2) offence under the 2013 Act also requires the prosecution to prove the tenant breached the agreement “dishonestly”. The relevant test for dishonesty is set out in Ivey v Genting Casinos (UK) Ltd t/a Crockfords[2017] UKSC 67 as approved by the Court of Appeal in criminal law context in Barton and Booth v R [2020] EWCA Crim 575.
Charges brought under section 1(2) of the 2013 Act may also be accompanied by charges under sections 2, 3, and 11 of the Fraud Act 2006.
Cases involving dishonesty may concern those where a tenant has made a false representation about subletting or parting with possession of the property. Dishonesty is sometimes demonstrated by reference to false declarations on right-to-buy application forms (s.2, 2006 Act).
Where there is a duty under the tenancy agreement to inform the housing authority of a change in use, failing to inform the housing authority of this may constitute dishonesty (s.3, 2006 Act).
Applying for and obtaining social housing may well meet the definition of acquiring services dishonestly (s.11. 2006 Act).
Final thoughts
Providing they have reasonable grounds for suspecting social housing fraud has occurred, an authorised housing officer has a range of powers available to require persons who have access to information connected to the fraud to provide information in response to a notice served on them (The Prevention of Social Housing Fraud (Power to Require Information) (England) Regulations 2014).
Housing authorities reporting budgetary pressures are at greater risk of restricting resources to enforce the 2013 Act provisions. Being able to rely on cost recovery mechanisms, such as unlawful profit orders (s.4 and 5, 2013 Act) and confiscation proceedings (s.6 of the Proceeds of Crime Act 2002), to recover enforcement costs will be key to funding the growth in enforcement activities needed to further reduce social housing fraud.
It remains to be seen what effect entry into force of the failure to prevent fraud offence will have on the liability of the platforms through which social housing properties are privately let (s.199, Economic Crime and Corporate Transparency Act 2023). Whether a social housing tenant is deemed to be an “agent” or performing a service “for or on behalf of” the platform provider, remains a matter for the courts to grapple with, the offence having entered into force on 1 September 2025.
New legislation is likely needed to tackle the problem of social housing fraud in short-term let accommodation. The Short-term Let Accommodation Bill is currently in its second reading in the House of Commons (UK Parliament, 2025). It remains to be seen whether there remains sufficient political support to pass the Bill.
Avid readers of the St Philip’s website will also have noted the major victory against Airbnb social housing fraud secured by John Randall KC and Ali Tabari in 2022 (see the full article here).
Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational and/or informational purposes. It is not intended to be a substitute for specific legal advice and should not be relied upon for this purpose.
This article represents the opinion of the author and does not necessarily reflect the view of any other member of St Philips Chambers.
