Dear Mr Shapps

My word, what a fountain of press releases you have been lately. Quite takes me back to the heady days of John Healey. But it is this press release I want to talk about, the ‘Neighbours from Hell’ one.

You announce that you:

will introduce a new additional mandatory ground for possession, so those tenants with a track record of anti-social behaviour can be evicted from their council or housing association property much more quickly.

Ministers believe this will lead to a faster and fairer courts process – being found guilty of housing related anti-social behaviour in one court will provide automatic grounds for eviction in the county court, removing the need to prove the incidents of anti-social behaviour for a second time.

I’ve been trying to make sense of this, being a housing lawyer who will have to deal with whatever the legislative outcome is. It sounds as if it makes sense. There are words and sentences, arranged in a sense making order. There are impressive sounding phrases like ‘more quickly’ and ‘faster and fairer’ (haven’t we heard that somewhere before? Ah yes, the late Govt’s line on ‘summary justice’). But when I try to match it up against what actually happens now, let alone what the current legal position is, things go together as well as pairing lime green crocs with a nice navy pinstripe worsted suit (and that combo should never be seen in town after 1 May, really).

Not that I’m knocking the seriousness of the issue. I, and probably every housing solicitor, get many, many people approaching me desperate for something to be done about their nuisance neighbour/kids/gangs in the area or wanting a transfer because they  just can’t take it any more. Of course, we also get people accused of causing nuisance/perpetrating ASB, so we have a perspective from both sides to some extent. But I would in no way seek to minimize the seriousness of the problem and the blight it can have on people’s lives. All the more important for anything you propose to actually be worthwhile and effective rather than sitting at the glib sound bite end of things.

So. let’s try to break this down a bit…

Being found guilty of housing related anti-social behaviour in one court will mean that it won’t have to be ‘proved again’ in the county court on a possession claim.

Well, that would actually be true now. If someone had a finding of ‘housing related’ anti-social behaviour against them in the County Court, Magistrates or Crown Court, it then wouldn’t have to be ‘proved again’ in any other proceedings based on the same incidents. So, for instance, a criminal conviction would be incontestable as a fact in civil possession proceedings. In short, there is no need for something to be ‘proved again’ on a possession claim at all.

That bit may be nonsense, but never mind, let us move on:

There is to be a new mandatory ground for eviction for council and housing association tenants such that being found guilty of housing related anti-social behaviour in one court will provide automatic grounds for eviction in the county court.

Now the devil here is in the detail. Any kind of ‘housing related ASB’? That covers a lot of ground, from the minor but annoying to the very serious indeed. And ‘found guilty’ – does this mean a conviction in the Magistrates or Crown Court? Or the Magistrates making an ASBO or ASBI?

Then there is that word ‘Mandatory’. I realise you are a very busy housing minister – all these initiatives to come up with and residential property market tendencies to powerlessly bemoan – so you probably haven’t had time to read the blog lately. (You do subscribe to the twitter feed, but detail is everything). You may have had a bit of a briefing on a case called Pinnock, though. Suffice it to say that ‘mandatory’ is a bit more of tricky concept than it was in the recent past. Whether ‘proportionate’ under Article 8 is akin to the current test of ‘reasonable to make a possession order’ is an open question – none of us know yet, – but you either aren’t going to get ‘mandatory’ possession proceedings or you may well be looking at a declaration of incompatibility.

But annoying legal issues aside, what of practicality?

My view is entirely based on anecdotal experience, but that seems fair enough, as your press release refers to no statistical or survey evidence whatsoever for assuming that non-mandatory possession proceedings are what is getting in the way of dealing with the problem.

Your evidential justifications in the press release – the dreadful experiences of Ms Tomlinson and Ms Stenhouse – do not indicate that drawn-out possession proceedings were a problem. Possession was gained in one case and proceedings were underway in the other. In the Guardian story, the example – given by your press office – is of Ms Glover in Birmingham, again a dreadful story, in which there is no mention of possession proceedings having been brought against the perpetrator at all.

My experience is that the real problem people have is in getting their (Council/RSL) landlords (and/or police) to take any substantive action against the perpetrators at all, at least beyond a letter or two, visit and suggestion of ‘mediation’. Obviously social landlords (and police forces) vary greatly in this regard, but I gather from others and from Ombudsmen’s’ reports that a landlord’s failure to take action and implement their existing and quite extensive powers is very common, let alone acting in any joined up way with the police.

How far Councils and police will support and staff anti-social behaviour action teams in the current funding situation is, to say the least, a bit of a question. I note that you do nothing more in this regard than ‘want’ landlords and/or police to use their powers. (I want an iPad and world peace, while we’re at it).  No dedicated funding. You can, of course, blame the councils when nothing actually changes as a result of this initiative, but that would just be cynical.

There we are. Unless existing powers are actually used (and the dedicated joined-up ASB teams funded), the fact that there may be a kind of mandatory possession proceeding – although see above – is going to make no practical difference to the situation at all, as there will be as few ‘housing related ASB’ prosecutions as there are now, or even fewer.

Oh yes, there is some money – “£300,000 of Government funding to a new central team to help tenants and landlords” tackle ASB. Yep. That is about 8 mid level civil servants for a year.

And housing associations can extend ‘probationary’ tenancies – typically Assured Shortholds – to be for a period of 18 months. I have to admit I wasn’t aware that they couldn’t (or that they didn’t realise that they could).

And also:

ownership of the Respect Standard setting out best practice on preventing and tackling ASB is being transferred from DCLG to the housing sector. The Chartered Institute of Housing, working closely with the Social Landlords Crime and Nuisance Group and other key partners will lead on an early review of the Standard’s content, name and any ‘sign-up’ arrangements.

How is that going to work for local authorities, out of interest?

That is it. Of course, I could be completely wrong about all of this, as there is no detail at all in the press release or attached to it. We will, I suppose, have to see what is put forward for consultation.

In the meantime, you appear to have presented us all with a chocolate teapot.

Yours etc.

NL

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Posted in ASB, FLW article, Housing law - All, Possession, Regulation and planning and tagged , , , , .

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +

18 Comments

  1. i would have thought their alternative method of killing access to free legal help would be far more effective in banishing these nasty asbo people from their homes, nay the entire country.

  2. Well done for an excellent post. I love the chocolate teapot!

    As always I think the main problem is lack of funding for local authorities to address these problems properly. Not, as you rightly point out, whether they have sufficient powers to do so.

  3. I dunno, he might be on to something here. What if, in cases of serious anti-social behaviour, courts had the power to place the tenant on a last chance, so that if there were any more complaints for a period of, say, a year, the local authority could obtain possession without having to show that it was reasonable to make the order. Oh hang on a minute…

    On second thoughts, simply is right, demolishing legal aid is clearly the only wayto address the problem.

  4. I think the biggest aspect of the proposals (which weren’t mentioned in your post) is that upon being summarily evicted from their council properties, the ASBO recipients/’neighbours-from-hell’ will be deemed ‘intentionally homeless’, and their Local Authority landlord will not be obliged to offer them any form of long term housing thereafter.

    This may well lead to the Council’s being more inclined to pursue possessions on ASB grounds, as they know that they won’t simply have to rehouse the tenants elsewhere in the Borough when they present as homeless after the eviction.

    Zing!

    • Simon, I didn’t mention that because, frankly, that is exactly what would happen now. On the basis that this would make no difference whatsoever, I didn’t flag it up as there seemed to be quite a lot of other things that would also make no difference to mention.

  5. A great piece and like Tessa, I like ‘the chocolate teapot’.
    In your experience you note that ‘the real problem people have is in getting their (Council/RSL) landlords (and/or police) to take any substantive action against the perpetrators at all, at least beyond a letter or two, visit and suggestion of ‘mediation’.

    What about private sector landlords?
    We took over management of our private block of flats in 2007. It’s a block where the majority of leaseholders rent their flats out but a number of these landlords who have anti-social tenants don’t think that dealing with them is their responsibility.

    We have asked our managing agent to send letters to them asking them to deal with their tenants which time and again have been ignored. Ultimately it has been myself and my partner who have had to deal with the various situations. It is us who have contacted the council and the police and it is us who have had face-to face confrontation with the tenants.

    One tenant regularly invites the homeless and the drug addicts onto the premises and into his flat and one night we found complete strangers in the garden who were considering breaking into one of the empty flats. It later transpired they were staying with this particular tenant. Again his landlord has been notified but two months later, these people are still here. Fortunately they are OK but this is not really the point.

    What gets overlooked in all this is the fact that if often seems to be that the only ones take responsibility for anti-social tenants on privat blocks of flats are the very people who shouldn’t have to.

    When it comes to leasehold management, the freeholder, resident management company or RTM company have a contract with leaseholders to ensure that they are not in breach of their lease terms.
    They do not have a contract with the tenants of these same leaseholders who are landlords.

    Apart from my own personal experience of the lack of action taken against anti-social tenants by their landlords, it also seems apparent that landlords in general don’t think they are responsible for their tenants behaviour. Why not?

    After all it is the landlord that enters into the contract with the tenant, not us!

    • Surely the answer in your situation is for the freeholder to commence forfeiture proceedings? You’ll need to look at the long lease in question, but, presuming that it’s reasonbly well written with the usual covenants in there (including making the leaseholder liable for the acts of their tenants, guests, etc), why would forfeiture not be an option? The threat of forfeiture usually works wonders in focusing the mind.

  6. Any form of “housing-related” ASB?

    The Supporting People programme originated in 1999 to pay for “housing-related” support. Yet in that time there is and remains no actual or even workable definition of “housing related!”

    Every council in the Uk has tried a definition of what “housing-related” means without success.

    A few cases have come before the High Court and Court of Appeal and whilst the definition was not their primary intended purpose, they could and did not find any definition of “housing related” at all. So how are they County Courts going to decide what is “housing-related” ASB?

    Some hot air for that chocolate teapot methinks!

  7. The press release begs so many questions it’s a wonder where to begin but the bit that really amuses is the inference that it’ll be quicker, once Mr Shapps has his way, to wait for the police and CPS to get a conviction and then go from there, from the landlord’s side. Round my way, and presumably round most people’s ways, the police wait for RSLs/RPs to take action, on the grounds that “the civil route is easier/quicker”. One client has already been informed by its local police service that the dedicated ASB officer role is going due to cuts. And even the poor old police despair at times of the CPSs pusillanimous approach to ASB offences/proceedings. If we sit and wait for criminal convictions then lauch civil proceedings Mr Shapps’ “year” is going to turn into a plural very quickly…

  8. I wonder whether this is a ploy for Mr Shapps to be able to foam at the mouth about the HRA surely someone at the DCLG has read and understood Pinnock.

    The main problem I see is caused by the MOJ long delays before trials when the directions are complied with and the parties are ready – in one court that shall remain nameless up north an ASB case ready for trial now has been listed for 3 days in June .

    • It did cross my mind to point out that Mr Shapps main complaint – duration of court proceedings, was largely due to court capacity (and funding). Bringing in a mandatory ground to avoid problems caused by underfunded courts is hardly just. Having seen the DCLG letter to Councils/RSLs, it does say the frustration is the duration of the court process and, with a mandatory ground, ‘hearings should on average be much shorter and court time more readily available’.

      So the solution to underfunded courts is simply to remove defences.

  9. Wendy Glover’s story was awful (I had a walk on part in relation to those proceedings), but I can confirm that the instigator of the ASB got a evicted after a judge decided it wasn’t within his discretion to suspend a possession order and then decided it was appropriate to make an ASBI excluding him from the neighbourhood.

    It is therefore an odd one to bring up as an example. While not the sole reason (there were others), but one of the reasons it wasn’t dealt with as speedily as some was because the former tenant sacked his legal team(s) on a few occasions and ended up being a litigant in person.

    • Thanks S. None of this was mentioned in the DCLG press release account. So apparently this was also not a poster case for unreasonable delay in contested possession proceedings.

  10. I think another aspect missing from Mr Shapp’s (wasn’t that a Blue Peter dog btw?) announcement is that any proceedings against neighbours from hell require those affected to come forward and provide witness statements and (possibly) be cross examined in court. I have great admiration for those that are willing to speak out but there are a great many who will not but will still expect something to be done.
    Unless the DCLG are considering eviction by mob rule based on hearsay and flamin torches I can’t see them getting round cases where there is an anti-social tenant but where no one is willing to provide witness statements or evidence. My experience is that it is these cases that will generally take the longest to come before a court and the delay is often down to lack of evidence rather than any problems with Councils (with some exceptions) or Courts.

  11. …. and another thing – possession proceedings don’t always do the trick anyway. I had client whose family had caused untold nuisance and was evicted from a social landlord’s property only to move over the road into a private house – problem not solved. The estate was no different after the case finished (other than the fact that the RSL was £20,000 out of pocket in legal fees)

  12. Mr Shapps was asked about Pinnock on Radio Merseyside – he plainly did not have a clue . He said that would be taken into account how they framed the legislation .

    What does that mean ? A provision like S 3 NIAA 2002 or a derogation ? Or a brazen defiance which will end up in Strasbourg in ten minutes .

  13. My experience means that this press release offers some hope [Edited by J - your comment is about an ongoing case and has been deleted, partly in your own interest. It's not a good idea to comment about the alleged facts of ongoing litigation in a public forum like this]

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