El Mehdi Zeroual v Regina

Whether occupation amounts to sub-letting rather than lodging depends on exclusive possession, not the parties’ description of their arrangement. Under the Housing Act 1985, a secure tenant may accommodate lodgers but may not, without consent, sublet or part with possession. Where the tenant remains living in the shared flat, other occupiers do not have exclusive possession. Where the tenant has left and permits occupation for monthly payment without genuinely retaining rights of entry or control, the occupiers have exclusive possession and are sub-tenants.

A summing up must be tailored to the issues actually raised. Where the factual issue is simply whether the tenant remained living at the premises, a direction identifying that issue may suffice, although an express explanation of exclusive possession would be helpful. Further directions on dishonesty and gain are unnecessary where those matters are not in issue.

The applicant was convicted at Isleworth Crown Court of two offences of fraud by failure to disclose, contrary to section 1 of the Fraud Act 2006. Count one concerned an alleged failure to disclose sub-letting of part of his council flat. Count three concerned his failure to disclose that his wife was living with him while he received a single-person council-tax discount.

He sought a substantial extension of time and permission to appeal against conviction. He contended that the jury should have been directed on the legal distinction between lodgers and sub-tenants. He also sought, at a late stage, to add grounds challenging count three. Renewed applications concerning sentence, confiscation and costs were before the court consequentially.

The central issue on count one was whether the directions adequately reflected the prosecution case that the applicant had left the flat and granted occupation to paying sub-tenants, and the defence case that he had continued to live there with lodgers.

1. Application refused. The court refused an extension of time and permission to appeal against the conviction on count one. It also refused permission to add the proposed grounds concerning count three, and refused the renewed applications relating to sentence, confiscation and costs.
2. Under section 93 of the Housing Act 1985, the distinction between a lodger and a sub-tenant depended on exclusive possession. The court applied the established principles reflected in Street v Mountford, [1985] AC 809: labels do not determine the legal character of occupation. In the shared-occupation circumstances alleged by the defence, occupiers could not have exclusive possession if the applicant was living in the flat. Conversely, if he had moved out and granted rooms for monthly payment without retaining genuine rights of entry or control, the occupiers had exclusive possession and were sub-tenants.
3. The summing up was sufficient on the facts of this trial. The prosecution case was that the applicant had moved out and sub-let the flat; the defence case was that he had always lived there and had lodgers. There was no intermediate case that he had remained in one room while granting the other room to an occupier. An express direction that a resident tenant could not sublet would have been helpful, but its absence did not render the conviction unsafe. Once the jury rejected the applicant’s evidence that he was resident, there was no evidential basis for a retained right of possession: the occupiers paid monthly sums and there was no evidence of services or retained rights of entry.
4. No fuller direction on dishonesty or intent to make a gain was required. On count one those matters were common ground if sub-letting was proved. On count three, the judge had adequately identified the evidence relevant to dishonesty.
5. The proposed challenge to count three lacked merit. The agreed facts, admitted under section 10 of the Criminal Justice Act 1967, established a duty to notify the authority of a change affecting the single-person discount. That duty also appeared to arise under regulation 16 of the Council Tax (Administration and Enforcement) Regulations 1992. Applying the procedural approach explained in R v James, [2018] EWCA Crim 285, late grounds should not bypass the single-judge filter without proper justification.

• Court of Appeal (Criminal Division) — refused the extension of time, permission to appeal against conviction, the application to vary grounds, and the renewed applications relating to sentence, confiscation and costs: [2022] EWCA Crim 288.
• Isleworth Crown Court — on 18 December 2018, convicted the applicant of fraud concerning sub-letting and a council-tax single-person discount; he was acquitted on a separate Right to Buy count. On 23 January 2019, imposed an 18-month sentence suspended for 18 months. Confiscation and compensation orders followed in July 2020.