Anti – Social Behaviour
A Tenant’s Lawyer’s perspective
The Legislative Framework
1Public Sector (Possession)
(a)Tenancy Agreement Terms
(b)Ground 2 Housing Act 1985 Schedule 2:-
Ground 2
The tenant or a person residing in or visiting the dwelling-house-
(a)has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality, or
(b) has been convicted of-
(i)using the dwelling-house or allowing it to be used for immoral or illegal purposes, or
(ii)an arrestable offence committed in, or in the locality of, the dwelling-house.
(c)Introductory Tenancies (where local authority has elected)
S128 Housing Act 1996:-
(1)The court shall not entertain proceedings for the possession of a dwelling-house 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 dwelling-house 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.
(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.
- Private Sector (possession)
(a) The Tenancy Agreement terms
(b)Assured Shorthold Tenancies:-
Section 21 Housing Act 1988 (cf Introductory Tenancies)
Housing Associations/ Registered Social Landlords = Public Bodies?
TERESA DONOGHUE v POPLAR HOUSING & REGENERATION COMMUNITY ASSOCIATION LTD & SECRETARY OF STATE FOR THE ENVIRONMENT, TRANSPORT & THE REGIONS [2001]
(c)Ground 14 Housing Act 1988:-
Ground 14
The tenant or a person residing in or visiting the dwelling-house-
(a)has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality, or
(b) has been convicted of-
(i) using the dwelling-house or allowing it to be used for immoral or illegal purposes, or
(i) an arrestable offence committed in, or in the locality of, the dwelling-house
- Anti-Social Behaviour Injunctions
(a)County Court Injunctions
Section 152 Housing Act 1996:-
(1)The High Court or a county court may, on an application by a local authority, grant an injunction prohibiting a person from-
(a)engaging in or threatening to engage in conduct causing or likely to cause a nuisance or annoyance to a person residing in, visiting or otherwise engaging in a lawful activity in residential premises to which this section applies or in the locality of such premises,
(b)using or threatening to use residential premises to which this section applies for immoral or illegal purposes, or
(c)entering residential premises to which this section applies or being found in the locality of any such premises.
(2)This section applies to residential premises of the following descriptions-
(a)dwelling-houses held under secure or introductory tenancies from the local authority;
(b)accommodation provided by that authority under Part VII of this Act or Part III of the Housing Act 1985(homelessness).
(3)The court shall not grant an injunction under this section unless it is of the opinion that-
(a)the respondent has used or threatened to use violence against any person of a description mentioned in subsection(1)(a), and
(b)there is a significant risk of harm to that person or a person of a similar description if the injunction is not granted.
(4)An injunction under this section may-
(a)in the case of an injunction under subsection(1)(a) or(b), relate to particular acts or to conduct, or types of conduct, in general or to both, and
(b)in the case of an injunction under subsection(1)(c), relate to particular premises or a particular locality; and may be made for a specified period or until varied or discharged.
(5)An injunction under this section may be varied or discharged by the court on an application by-
(a)the respondent, or
(b)the local authority which made the original application.
(6)The court may attach a power of arrest to one or more of the provisions of an injunction which it intends to grant under this section.
(7)The court may, in any case where it considers that it is just and convenient to do so, grant an injunction under this section, or vary such an injunction, even though the respondent has not been given such notice of the proceedings as would otherwise be required by rules of court.
If the court does so, it must afford the respondent an opportunity to make representations relating to the injunction or variation as soon as just and convenient at a hearing of which notice has been given to all the parties in accordance with rules of court.
(8)In this section "local authority" has the same meaning as in the Housing Act 1985.
Current Concerns
- Introductory Tenancies utilised more to recover rent arrears than to combat Anti-social behaviour.
- Courts unsympathetic to medical conditions causing nuisance behaviour, though it is a factor to take into consideration.
Croydon LBC V Moody (1998)
- Reluctance of witnesses/neighbours to come forward (fear of eviction/getting involved).
- Hardening of Judicial decisions being upheld in the appellate courts. Though there are a few useful authorities:
(i)London Borough of Wandsworth v Hargreaves (1994)
Recent allegations/Breaches
(ii)Mayor and Burgesses of London Borough of Lambeth v Howard (2001)
“Reasonableness” is sufficiently wide to satisfy Art. 8 ECHR
(iii)Gallagher v Castle Vale Action Trust Ltd (2001)
Person responsible for nuisance having left by time of hearing
(iv)Portsmouth City Council v Bryant (2000)
“The loss of one’s home is after all not even something which a criminal court can impose by way of sentence, let alone on a basis of strict liability”
-Sedley LJ.
Areas of fruitful challenge
(i)Community Care challenges. The local authority’s failure to provide care, which in turn exacerbates a nuisance problem which could otherwise be abated.
(ii)Reasonableness (Section 9 Housing Act1988/ Section 84 Housing Act1985). Emphasise the consequences of eviction; School reports, GP records, reports from CPN, Social Workers, Probation etc.
(iii)Disability Discrimination Act 1995. Can the client be described as a person under a disability (eg due to mental heath problems) and if so, can an eviction order be considered to be discriminatory under Section 22(3) (c) of DDA 1995?
NORTH DEVON HOMES LTD v CHRISTINE BRAZIER (2003)
Difficulties in defending Injunctions
(i)No possibility of “cross undertakings” as complainant is not a party to the proceedings. Therefore, if at all possible, bring complainant into proceedings as Part 20 Defendant if counter- allegations can satisfy s1 Protection from Harassment Act
(ii)The Defendant is perceived as “perpetrator” even when giving an undertaking.
(iii)Section 155(3) Housing Act 1996:-
If the court has granted an injunction in circumstances such that a power of arrest could have been attached under section 152(6) or section 153 but-
(a)has not attached a power of arrest under the section in question to any provisions of the injunction, or
(b)has attached that power only to certain provisions of the injunction,
then, if at any time the applicant considers that the respondent has failed to comply with the injunction, he may apply to the relevant judge for the issue of a warrant for the arrest of the respondent.
Client can now be arrested without a power of arrest having been attached to the Injunction order.
(iv)Remand provisions (Section 155(5) Housing Act 1996) now in force. The client can now be remanded in custody if the court cannot deal with matter when client is produced.
Horgan v Horgan (2002)
(v)Public Funding difficulties. Decision Making Guidance now more helpful:
“Legal Representation to defend an application for an Anti-social injunction will generally only be granted where:
(a)There are very serious allegations;
(b)The allegations are denied wholly or substantially; and
(c)The matter cannot be dealt with by an undertaking.” –
LSC Manual Para 3c-212
Therefore always offer an undertaking.
Concerns for the future
Anti Social Behaviour- The New White Paper:
“Respect and responsibility- Taking a stand against Anti Social Behaviour”
- The extension of the scope of injunctions and the making available of them to other social landlords
- Social landlords will be required to publish their policies and procedures on Anti social behaviour (NB No proposal to impose a statutory duty for landlords to respond or act upon complaints, though)
- Housing Action Trusts will be able to apply for ASBO’s
- Demotion of security of tenure
- 12 month trial period for Introductory Tenancies may be extended by a further 6 months
“Although we have to ensure that swift and effective action can be taken against anti-social tenants, it is vital that where possible the behaviour is tackled, the tenancy is saved and the family is not moved……..”
Ben Taylor
Solicitor
and
Co-ordinator of North West Housing Law Practitioners Group
14.05.03
1
C:\WINDOWS\TEMP\ANTI SOCIAL NO23.DOC/5 Nov 02