Case Review – Evidence is key

Royal Borough of Kingston Upon Thames v Khan & Anor (2023) EW Misc 7

Case facts: The Claimant was Royal Borough of Kingston Upon Thames (‘Kingston’) and the Defendant was Ms Khan (‘First Defendant’) who was granted a tenancy of a one bedroomed flat (‘the Property’) by Kingston on 12 April 2010. The tenancy at the Property started as an introductory tenancy before it came a secure tenancy. Under Section 81 of the Housing Act 1985, such security of tenure may be lost if the tenant ceases to occupy the property as her “only or principal home”.

Her adult son Mr Rashad Khan was a Second Defendant in the proceedings (‘Second Defendant’). The First Defendant is the person to whom the landlord granted the relevant tenancy. The Second Defendant was living at the premises. The Second Defendant has played no part in the proceedings and was debarred from defending them.

It is important to note that in 2001, prior to her applying for housing with Kingston, the First Defendant had been evicted from a property with Thames Valley Housing Association as she had not been using it as her primary address, which led to her benefits being stopped, arrears accumulating, and her tenancy being terminated.

In October 2019 Kingston received information that the Property was standing empty. Various investigations were undertaken by Kingston including an ‘under caution’ interview with the first Defendant. Additional evidence was obtained by Kingston including correspondence with the first Defendant whereby she requested that the tenancy be transferred to the Second Defendant, witness evidence of neighbours and housing officers.

The investigations concluded that the first Defendant was not occupying 14c but was in fact living with her former partner, Mr McNeill, in Ashford. Her housing benefit and council tax benefit were stopped, and arrears accumulated on the Property. In May 2021, the first Defendant was served with a Notice to Quit which expired four weeks later, on 13 June 2021.

A possession order was sought together with judgment for substantial arrears of rent. In the alternative, if the Notice to Quit was deemed to not have ended the tenancy, a possession was sought under statutory grounds for arrears of rent and breach of the conditions of the tenancy.

The claim was brought against both the First and Second Defendant, as the First Defendant and Kingston agreed the Second Defendant was living at the Property since a split from his partner in 2019.

The first Defendant put forward a Defence and Counterclaim under the Equality Act 2010.

Outcome: Kingston had an abundance of clear evidence and witnesses. Whilst some of the witnesses for Kingston were critiqued, the case for Kingston was clear. The First Defendant had no witness evidence other than her own and was not clear or consistent in her explanations.

HHJ Jan Luba KC made the following statement in relation to the First Defendants evidence:

“First, she was hopelessly unclear and contradictory about the circumstances in which she came to have bank accounts in her name with over £30,000 in them, during periods for which she was claiming means-tested benefits. On one account, this was money belonging to unnamed young men to whom she was related (one since deceased) which she was simply “holding” in the bank for them. On another account, it was money belonging to Mr McNeill, given to her to finance the building works. Neither account appeared plausible. Both were contradicted by Mr McNeill’s account that she was funding the building works from her own savings (see below). I was satisfied the money was and is hers. Not least because her explanation of frequent drawings of large sums from her accounts in 2019/2020 was hopelessly muddled and she tendered in oral evidence an account that, in the words of her counsel in closing, “doesn’t make sense”. It made no sense because it was, in my judgment, a botched attempt to disguise the truth.

Second, she was wholly vague and unclear about the employment Rashad did or didn’t have despite the fact that, on her account, they had lived together since 2019, through the pandemic, and were still living together, cheek-by-jowl, in a tiny flat.

Third, she plainly sought to mislead officers, who thought they recognised her at 76 (see below), by refusing to engage with them.

Fourth, her account that she had met Mr McNeill in early 1987, bought a house jointly with him only some months later, had a child raised by him from birth to adulthood, but yet had not been in a close, intimate, or romantic relationship with him was not credible.

I need only add that:

(1) Ms Khan is prone to making outlandish allegations against others. Her first witness statement is replete with them. Not least of which is an allegation that police officers “ransacked” the front and back garden at 14c when looking for her at the flat;

(2) she is prone to being untruthful, as demonstrated: (i) on her own account – by the fact that she deliberately gave potential credit providers the address at 76 as ‘her’ address rather than 14c because the latter might uncover her poor credit rating; and (ii) by her false evidence to a Valuation Tribunal that she was not resident at 76 “and never had been” (p770 at ); and

(3) her explanation for not calling any evidence or securing any statements from Mr McNeill or her own son was wholly unconvincing”.

The Equality Act discrimination defence and counterclaim were rejected, there was no discrimination, direct or indirect.

Possession was granted for 14 days and the First Defendant and her son, the second defendant, who had not participated, found jointly liable for costs. Only Ms Khan had legal aid costs protection.


Moving forward: This case highlights the important of Social Landlords ensuring they follow all the correct procedures both legally and with their own internal policies, seek appropriate advice as early as possible, and build as much evidence in support of their case. The defendant was woefully underprepared in this case, but the landlord did not neglect to build as much evidence as possible for proceedings.

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