And what kind of chocolate would you like your teapot?

The DCLG has put out a consultation, announced by Grant Shapps (again), on proposals to bring in a mandatory ground for possession for Anti Social Behaviour. The closing date is 27 October 2011.

I had a look at Shapps’ initial announcement back in January. This time there is a bit more detail. Has it got any better or indeed more sensible?

Briefly, the proposal is to bring in a whole new process rather than to amended or add to existing grounds for possession in Housing Act 1985 or Housing Act 1988. The model is the Introductory Tenancy possession procedure.

The trigger is “serious housing-related behaviour which has already been proven by another court”.

The landlord is then to serve a “notice of proceedings on the tenant, setting out the reasons why they are seeking possession, and advise the tenant of the date after which possession proceedings may be begun.”

There is then a right to request a review of the decision to seek possession. For local authority tenants this would be “by a more senior officer not involved in the original decision”. For housing association tenants it would be “through their landlord’s established complaints procedure.”

Hang on – you have just been served a notice of mandatory possession proceedings, but it is OK because you can make a complaint? I think that might need a little more working out, having dealt with housing association complaints procedures.

Assuming the review is negative, the landlord issues proceedings and “The court would have to grant an order for possession on application by the landlord provided the correct procedure had been followed.” Except that, as I and many others pointed out, Pinnock would apply. The consultation acknowledges this:

The recent Supreme Court judgments in Pinnock and Powell, Hall & Frisby confirm that a human rights defence, based on the proportionality of the landlord’s decision, is available in proceedings brought by a public authority under the current statutory provisions on which we propose to model the mandatory power

and then later

we need to ensure that where that test is met, it can be simply established that the anti-social behaviour is serious and housing related. Unless the court is in a position to dismiss quickly arguments that the landlord’s action is not proportionate, a full facts based review is likely to be required and the practical advantages of seeking possession through a mandatory power rather than on discretionary grounds are likely to be lost.

Well yes.

Once a possession order is made, it is to be suspended for no longer than 14 days, or 6 weeks in cases of exceptional hardship.

So, what are the triggers? What would enable this mandatory ground to be brought into play?

We are proposing therefore that landlords will be able to apply for possession for anti-social behaviour under a mandatory power where antisocial behaviour or criminal behaviour has already been proven by another court. We will further define the ‘triggers’ for seeking possession under a mandatory power in the light of final Home Office proposals on new tools and powers to be published in due course. Broadly however we propose these are as follows:

• Conviction for a serious housing related offence – to apply to offences committed by tenants, members of their household or regular visitors which take place in the locality of the property or between neighbours away from it. The type of offences we propose to capture include violence against neighbours; serious criminal damage with violence; drug dealing or cultivation in the property; murder; and rape. We think that ‘indictable only’ offences should broadly capture these.
• Breach of an injunction for anti-social behaviour – given the persistent and/or serious nature of anti-social behaviour which is likely to lead to a court granting an injunction we think it is appropriate that a breach by a tenant, member of their household or regular visitor should provide a trigger for a mandatory power of possession. We propose, to ensure that the anti-social behaviour is housing related, that the mandatory power should only be available where a social landlord has either obtained or is party to the injunction.
• Closure of premises under a closure order – we think that where a court has determined that activity taking place within a property is so serious to merit its closure, it is appropriate that a landlord can seek possession against the tenant using a mandatory power.

As a definition of ‘Housing related’, that is going to be pretty unworkable, I suspect. Certainly, it will be up for challenge in individual cases. If I happened to assault someone some miles away from my home, but it turned out that they lived on the same estate – not to my knowledge – would that be housing related because they were a neighbour? Or, to play the extremes, I kill someone in my mother’s flat, where I regularly visited – she had nothing to do with it – I’m convicted of murder, sentenced to life. Should my mother face mandatory possession proceedings?

And on the breach of injunction, while the landlord may be a party to the injunction, does that make the breach housing related? Not necessarily, depending on the terms of the injunction and the nature of the breach, surely.

In summary, it appears we have a proposed mandatory possession proceeding that isn’t actually mandatory. This is based on a decision to seek possession to which a tenant’s factual challenges must be made via the landlord’s complaints procedure. The offences giving rise to the decision must be ‘housing related’, where there is no clear or functional definition of what ‘housing related’ actually means.

What, I ask you, could possibly go wrong?

And what is the reason for this proposal – the justification, if you will? The consultation document is a bit light on specifics. This is about as clear as it gets:

Survey data from 61 landlords in England covering over 500 recent antisocial behaviour possession cases indicates that on average it took over seven months from the date of application to the court for a possession order to an outcome (the award of a possession order or the claim being dismissed). Multiple adjournments, for example because defendants don’t turn up or turn up unrepresented, or because further evidence is required, or there are difficulties in finding court time for a trial which may last over a day, emerge as key drivers of delay. This is particularly frustrating in cases where housing related anti-social behaviour has been previously proved in another court but a full review of the facts is again undertaken.

Indeed, the courts are very busy. I’m surprised it was only about 7 months, to be honest. But I’m not sure that the courts being overloaded is actually a sound reason to introduce mandatory grounds for possession to save time.

And here again is this bit about having to prove facts that have already been proven in another court. I’m beginning to wonder if I have really missed something. Am I being a total idiot or is this not nonsense? What civil court would or could demand that findings of fact by a criminal or civil court at the same or higher level be proved again? But this is what the DCLG seeks to imply in the case cited in the press release (any information about that case gratefully received).

The consultation adds:

Instead of a potentially lengthy trial, perhaps, following adjournments, many months after an initial directions hearing, a mandatory power should significantly increase the chance that the case can be determined quickly in a single hearing. The court will only need to establish that the criteria for awarding possession are met rather than needing to reconsider all the facts of the case.

Whoah. Hold your horses – this is after a criminal trial, or after injunction and then breach of injunction proceedings. As a commentor on my previous post pointed out:

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.

So to any putative cut in the ’7 months’ for ASB possession proceedings, one must add the months or possibly years, of the criminal proceedings.

What, apart from giving the few housing lawyers left working a field day in the appeal courts for the first year or two of the scheme, is the point? What would actually be achieved?

In my previous post, I said:

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 [...] 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.

I see nothing in this proposal to change that. It is still a chocolate teapot, and I’d say a vegetable oil based milk chocolate rather than 80% cocoa at that.

Posted in ASB, assured-tenancy, FLW article, Housing law - All, Introductory and Demoted tenancies, Possession, secure-tenancy. RSS feed for this post and comments.

About

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 +

7 Comments

  1. Chris
    Posted 05/08/2011 at 9:30 am | link to comment

    Is it me or has the thought put into legislation and government policy over the last few year decreased segnificantly?

    I have been known to tell client’s that the government has legaslative Diarrhea and that the law is so poorly drafted it is actually meaningless (thinking deposit scheme here).

    I wonder just what experience the minister and civil servants have that are making these decisions

  2. Landlord's Boy
    Posted 05/08/2011 at 10:02 am | link to comment

    Setting aside the Pinnock/A8 issues, if this new mandatory ground does come into force I can see less blind eyes being turned to what were previously regarded as relatively minor breaches of ASBI’s (on the grounds that the court wouldn’t commit for them) as any finding on a breach will be worthwhile in the forthcoming possession proceedings. And, of course, more applications for ASBI’s (or the proposed CPI’s) will be made partly to take advantage of the county courts usual willingless to grant them (on decent evidence) and the likelihood of misbehaving tenant’s breaching them. But then maybe tenant-friendly judges or DDJ’s would, if this all comes to pass, be less likely to grant ASBI’s/CPI’s knowing precisely that RSL’s will see them as a neat precursor/shortcut to possession, once a breach is found? Ho hum.

    • Chris
      Posted 05/08/2011 at 10:13 am | link to comment

      Ah the doctrine of unintended consequences

      • Landlord's Boy
        Posted 05/08/2011 at 10:28 am | link to comment

        Exactly! The time `saved’ on possession proceedings could just be diverted into more complex/costly Injunction/Committal proceedings (for which tenant’s will still be able to get LSC funding event after Ken Clarke’s blunt axe has fallen). And to go back to Pinnock/A8, the appellate courts are going to love the idea that my client RSL’s complaints procedure is an adequate/independent review of the decision to puruse possession proceedings.

  3. S
    Posted 05/08/2011 at 11:54 am | link to comment

    I could also see the courts deference to social landlords (as expressed in Frisby by Hope) being eroded by these measures.

    If this is abused (as is reasonably likely) by landlords, one could see the courts deciding that actually maybe social landlords aren’t always best placed to make housing management decisions and the court might need to step in.

    • Landlord's Boy
      Posted 05/08/2011 at 1:32 pm | link to comment

      Mmmmm….speaking for my own RSL clients, they do see themselves as being in the business of actually housing tenants rather than trying to de-house them, and they do only go for possession having tried GNC’s/ABC’s, restorative justice, then serving NRPs/NOSPs, then serving proceedings (and then seriously listening to offers of SPO’s) before finally pushing for a final order. They don’t risk Croydon v Barber-type beatings for coming to court too early/on too little evidence, so I don’t (personally) fear “abuse” if the mandatory ground comes in (and isn’t an utter mess). And I can’t see the courts seeing it being any part of their role to make housing management decisions. Round my way we’ve got some very tenant-friendly DJs who have made it publicly clear that they’ll do anything they can to keep tenants in homes, but in the end the law (and case law) is the law – if there’s sufficient evidence, grounds have been made out, paperwork is in order, and precedent doesn’t dictate they shouldn’t make a final order in this new accelerated world, then they’ll do it.

  4. joeh
    Posted 05/08/2011 at 2:49 pm | link to comment

    What legal routes exist to challenge being denied a tenancy as you have a previous conviction? That could be a conviction from 20 years previously?

    I can see all social landlords becoming very risk averse in admission policies as giving a tenancy to someone with an offence history, however long ago, who then goes on to commit ‘asb.’ Aside from tenant ire, customer satisfaction ratings and reputational risk are increasingly higher prioritised by social loandlords.

    Practise follows policy and today we see reports of PSLs increasingly not taking under 35s due to the extension of the shared room rate from under 25s. How long will it be before landlords increasingly refuse anyone with an offence history? How long before supported accommodation for ex-offenders becomes silted up as no move-on provision can be found? How many schemes set up with probation to accommodate prisoners on release will fail with the higher re-offending consequences?

    How far can allocation policies by challenged under reasonable preference?

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