What’s happened since my last update?
In my previous ebrief number 190 entitled, “So What’s New Already,” I summarised some important developments in housing management up to that time. There have been further developments which I will again endeavour to summarise here.
1. Firstly, whilst I will not spend too much time on it given that there has been much written already, the Localism Act (still a Bill in my previous ebrief) is now in force raising interesting issues of flexible tenancies “across the board” (or in some peoples view “inflexible” tenancies). There have also been changes introduced to succession rights. Prior to the Localism Act there was the introduction of Affordable Rent Tenancies.
Time will tell as to the full effect this legislation will have upon housing management (in particular potential extra work for housing officers and possible legal challenges particularly upon the expiry of the initial fixed term period when decisions will have to be made as to whether to extend the tenancy or ask the tenants to leave).
2. New ASB Powers - final detailed proposals (again touched on in my earlier ebrief)
The Secretary of State for the Home Department (Theresa May) said: “The mistake of the past was to think that the government could tackle anti-social behaviour itself. However, this is a fundamentally local problem that looks and feels different in every area and to every victim. Local agencies should respond to the priorities of the communities they serve, not to those imposed from Whitehall. From November this year, directly elected police and crime commissioners will be a powerful new voice for local people, able to push local priorities to prevent anti-social behaviour from being relegated to a 'second-tier' issue.”
Summary of Tools (in effect replacing 19 current tools with just 6):
a) The Crime Prevention Injunction (“CPI”) – an injunction available to a wide range of agencies, which can be used quickly to protect victims by dealing with anti-social behaviour by private tenants and owner occupiers, as well as social tenants.
It will replace Drinking Banning Orders, Individual Support Orders and Intervention Orders (in addition to Anti Social Behaviour Injunctions and ASBOs by application) and will be a purely civil order with a civil burden of proof and civil sanctions.
The CPIs will; be available in the County Court for adults and the Youth Court for 10 to 17 year olds. The following could apply - the Police (including the British Transport Police), Local Authorities, Private Registered Providers of Social Housing, NHS Protect, Transport for London and the Environment Agency. The only formal consultation requirement would be to consult with the Youth Offending Team (YOT) if the order is on someone under-18, though the applicant would need to take into account the views of other agencies if raised.
Interim orders will be available without notice and there will be no requirement to consult for an interim order. As for the substantive injunction the test will be that the person has engaged in conduct which is capable of causing nuisance or annoyance to any person and that it is just and convenient to grant the injunction (i.e. similar to the current s.153A Housing Act 1996 ASBIs). A power of arrest could be attached to the injunction if the individual had used or threatened violence, or if there is risk of significant harm to the victim.
The order should include any prohibitions or requirements that assist in the prevention of future anti-social behaviour and the latter should be designed to deal with the causes of the behaviour.
Breach by an adult will be dealt with as with ASBIs at present but for someone aged 10 to 17 the sanction could be a curfew, activity or supervision requirement, or as a very last resort, repeated breach causing serious harm could result in custody for up to three months for someone aged 14 to 17.
b) The Criminal Behaviour Order – an order available on conviction for any criminal offence which will allow courts to attach positive requirements to ensure perpetrators deal with the underlying issues that are driving their behaviour (addressing a criticism of the ASBO), as well as including prohibitions to immediately protect victims.
c) The Community Protection Notice – designed to deal with particular anti-social behaviour impacting on a community’s quality of life (for example to deal with noise, litter or graffiti).
d) The Community Protection Order (public space) – a locally determined order which could impose controls on behaviour in public places, for example controlling drinking in public as well as preventing other behaviour which has an impact on quality of life.
e) The Community Protection Order (closure) – simplifying the current complex number of powers available to close premises that are a magnet for trouble. This can be used to temporarily close premises, or for up to 6 months.
The power will be available to the Police (officers of the rank of Inspector and above) and the Local Authority (LA) (persons designated by the Chief Executive) and the Magistrates’ Courts will retain jurisdiction. Within 24 hours of the order being issued, it must, in order to continue to be valid, be signed off, in the case of a police order, by an officer of at least Superintendent rank and, in the case of a LA order, by either the Chief Executive or a person designated by them.
Before issuing the order, the Police or Local Authority must consult any person or agency they consider appropriate, as well as informing the owner, landlord, licensee and anyone who appears to be residing in the premises. The test for issuing an order will be that the Police or Local Authority reasonably believes: that there is a public nuisance or there is or is likely imminently to be disorder in the vicinity of and related to the premises; and that the order is necessary in the interest of preventing the occurrence or reoccurrence of such disorder or behaviour. The maximum period an order will be able to last is six months and breach of the order, without reasonable excuse, would be a criminal offence.
f) The Direction Power – a simpler and less bureaucratic power to enable the police to disperse situations to protect victims without needing to go through a long and slow process to designate an area in advance.
Mandatory anti social behaviour possession actions (consultation)
A new mandatory route to possession for anti-social behaviour for both private and social landlords, as a way of significantly reducing the length of the possession process and providing faster relief to victims and communities (see 4 triggers):
- A tenant, member of their household or visitor to the property had been convicted of a violent or sexual offence, an offence against property, supplying drugs, or production with intent to supply drugs, where the offence was indictable and committed in the locality of the property in the previous 12 months;
- A court had determined that a Crime Prevention Injunction obtained by or in consultation with the landlord had been breached by a tenant, member of their household or visitor to the property within the previous 12 months;
- The property had been closed as a result of a court granting a Community Protection Order (closure) for more than 48 hours;
- A tenant, member of their household or visitor had been convicted by a court for breach of a noise abatement notice, in respect of the tenant’s property, under the statutory nuisance regime.
N.B In England there will also potentially be an extension of the existing discretionary ground for possession to cover convictions of tenants or members of their household for offences committed at the scene of a riot wherever that took place in the United Kingdom. Those offences would include violent disorder and affray and provocation of violence and include violence against property as well as people and theft.
See also The “Community Trigger” which will give victims and communities (including carers and businesses) the right to demand that agencies who had ignored repeated complaints about anti-social behaviour (ASB) take action. Police and local authorities will be compelled to act upon reasonable requests by the communities they serve, though they will be able to reject those complaints deemed vexatious or malicious. Relevant authorities (at district council level or above) will be required to decide and publish the thresholds, criteria, process (including a single point of contact) and reporting mechanism they intend to use locally. Private Registered Providers of Social Housing will also have a duty to cooperate with the Police and Local Authorities.
Community Harm Statements have been developed by the Chartered Institute of Housing working with key partners for use in the County Court. The guidance on these can be found on the Chartered Institute of Housing website (www.cih.org) and the statement provides a recognised template to present evidence of harm on communities to court in a consistent way.
Finally, the impact of the ‘Police and Crime Commissioners’ (PCCs)
PCCs will not be expected to run the police. The role of the PCC is to be the voice of the people and hold the police to account.
The PCC will hold the budget for policing and release appropriate funds to the Chief Constable based on an agreed Police and Crime Plan.
Although the PCC is an elected individual their decisions will be scrutinised by a Police and Crime Panel. More scrutiny seems to be the order of the day! (see also Tenant Scrutiny Panels).
There has also been developments in regards to surveillance with the the Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) (Amendment) Order 2012 which was laid before Parliament on the 14 June 2012 and imposes a new restriction on individuals holding a prescribed office for the purposes of the Act (RIPA).
The Order provides that such an individual may not now grant an authorisation for the carrying out of directed surveillance unless it is for the purpose of preventing or detecting a criminal offence and it meets certain conditions:
(i) that the criminal offence which is sought to be prevented or detected is punishable, whether on summary conviction or on indictment, by a maximum term of at least 6 months of imprisonment, or
(ii) it would constitute an offence under sections 146, 147 or 147A of the Licensing Act 2003 or section 7 of the Children and Young Persons Act 1933 [offences associated with sales of alcohol and tobacco to children].
The amended Order comes into force on 01 November 2012 and can be downloaded in full at http://www.legislation.gov.uk/uksi/2012/1500/contents/made
Finally, I think it is also important to conclude by setting out a list of recent human rights/public law challenges based on mandatory possession. Following Pinnock, there has been much debate and concern by landlords as to the ability to seek possession on a mandatory basis.
Whist it is important that your actions are proportionate and that policies and procedures are adhered to and the relevant legislation considered (such as the Equality Act) the case law so far very strongly supports the ability for landlords to seek possession based on mandatory grounds.
Some of the cases to consider are:
Chesterfield BC~v~Bailey (2011) EW Misc 18 (CC)
West Kent Housing Association Ltd~v~Haycroft (2012) EWCA Civ 276
Riverside Group Ltd~v~Thomas (2012) EWHC 169 (QB)
Viridian Housing Group~v~O’Connell (2012) EWHC 1389
Birmingham City Council~v~Lloyd (ECHA 2012)
In Chesterfield BC~v~Bailey Ms Bailey moved to alternative accommodation, later to be joined by her husband who was added to the tenancy. Her husband then left and Ms Bailey sought a restraining order against him from returning. He then served Notice to Quit ending the tenancy but it was held that possession was not necessary or proportionate and therefore was a breach of Article 8 (ECHR)
Save for this case, the other cases listed were found in favour of the landlord. In Corby BC~v~Scott and West Kent~v~Haycroft the court held that only in very highly exceptional cases would it be appropriate for the court to consider the proportionately argument (following Pinnock). In the Riverside case, again it was found that there was no real substance to the incompatibility claim brought by the Defendant.
In Viridian the Claimant sought possession on Grounds 8, 10 and 11. An adjournment was applied for based on a possible defence raising issues of disability discrimination, public law and Article 8. The Judge refused the adjournment and made an outright possession order. An appeal to the High Court was dismissed.
Finally in Birmingham~v~Lloyd, the Court of Appeal held that a trespasser will be unable to defeat a claim for possession by invoking Article 8, ECHR, save for in the most exceptional circumstances.
Please note however, that (save for perhaps the potential costs implications involved) a challenge to the “McGrady” principle of one joint tenant being able to end a tenancy is likely to be brought soon. There was a case being “leap frogged” to the Court of Appeal but this is no longer proceeding (but as stated I believe it will only be a matter of time).
As always, this is a selective summary of what I see as some of the major developments in housing management since my last ebrief but please do not hesitate to contact myself or any of the team if you have any specific queries on this article or if there are any other housing management topics I have not covered but which you would like to discuss.