The background was that a long standing secure tenant had lived in her flat with her three children. Her youngest son aged 19 had been involved in some offending including use and possession of cannabis and had some connection with firearms and ammunition found near the premises. B&D sought possession for both rent arrears and antisocial behaviour. On the first consideration, the court granted an ASBO against the younger son and adjourned the possession claim. Then when the matter came back on, the younger son had been involved in further offending and had breached the ASBO. However, just before the returned hearing, the Tenant had arranged for him to reside elsewhere and while she conceded that the grounds for possession were made out, she asserted that her son would continue to live elsewhere thereby ceasing the nuisance and sought a suspended order. The Judge appears to have had none of this, finding that the Tenant’s actions were too little too late and that he had no confidence that she could do anything to control her son’s escalating conduct. He duly made an outright possession order. She appealed on the basis that the Judge had failed to properly consider either the measures she had put in place to deal with the problems and her own personal circumstances.

The appeal was dismissed. There had been no error of law and the appeal was an attack on the exercise of discretion by the Judge. The Court of Appeal commented that while the judgment did not expressly state that the Judge had taken account of the measures put in place by the Tenant, it was clear from the judgment overall that he had  a very clear grasp of the case and it was material that he had adjourned the first hearing having impressed upon the Tenant how serious he found the antisocial behaviour to be. There were no grounds to interfere with the judgment.

This is a good example of the ever shortening judicial fuse on antisocial behaviour and may signal that advisers need to be giving much starker warnings much earlier to clients in this position.

(*And yes, I am aware that the preceding line is ‘A tale told by an idiot’.)

The much trumpeted Wandsworth riot related eviction has stalled even before possession proceedings were issued. According to a press release from Liberty, following a meeting with the tenant’s legal representatives (the tenant is represented by Liberty), LB Wandsworth agreed not to bring proceedings.

If you recall (and here is our very first take on the matter, written on the day of the press release and subsequent service of Notice Seeking Possession by Wandsworth), the son of the tenant was charged with riot related offences. The son has now been sentenced for burglary. The tenant has an 8 year old daughter and was generally regarded as a community asset for voluntary work with youth groups and domestic violence victims.

Wandsworth had stated their intention to rely on their amended tenancy agreement which had as a condition that no-one in the household should do anything naughty or upsetting in the whole borough – thus considerably wider than Ground 2 Housing Act 1985. (The full text of Wandsworth’s clause is in the previous post). While clearly it is a good thing for the tenant that proceedings have been dropped, it would have been interesting, to say the least, to see this tested in Court, against an Article 8 defence amongst other things.

We should not forget that this whole sorry episode started with a Wandsworth press release trumpeting that they were the first to pursue a riot related eviction. Now, they are no doubt hoping that dropping the case will pass quietly and without a splash. Meanwhile, the tenant’s life has been laid open to press and public by Wandsworth in pursuit of what looks like a grandstanding political gesture.

One wonders whether things might not be entirely over. Certainly Wandsworth’s conduct would invite scrutiny.

And is there a question mark over riot related possession steps taken by LB Southwark?

After sending out warning letters of intent last summer to quite a few tenants whose household members were ‘suspected’ to have been involved in the riots, Southwark did serve some five Notice Seeking Possessions this January on the basis of riot related convictions being a breach of tenancy agreement. It is not clear if the tenant was the person convicted, or a member of the household. But, rather bizarrely, Southwark stated that no further proceedings would be taken against the five, instead any ‘further breaches could result in eviction’.

Now while it is not, perhaps, uncommon for Local Authorities to use NSPs as a warning shot in effect – e.g. in arrears cases – it is very odd to find NSPs being publicly and ‘officially’ used in this way. An NSP is, after all, a formal statement of the landlord’s intention to bring proceedings, not a conditional agreement. I do find myself idly wondering whether the decision to use an NSP in this way may be open to a public law challenge. If anyone is bringing such a challenge, we’d be very interested to hear from you.

It’s fair to say that I have an unnatural (purely) academic interest in high hedges – my colleagues laugh every time I try to discuss it sensibly.  I’ve always found it discursively significant that provisions about high hedges were included in the Anti-Social Behaviour Act 2003.  Anyway, there are others who have a more practical interest in them too, as can be seen from the various television programmes which grace our screens about them (often in the vein of the “neighbours from hell”).  Whether or not Dr Pelling has appeared in those programmes, I do not know, but he is (I gather) a professional McKenzie friend in certain proceedings.  Whether or not he is the Dr Pelling who has gained a certain notoriety in family proceedings, again I do not know.  But he will forever be known as the Dr Pelling who established that, when a local authority seeks to exercise its powers under the 2003 Act in relation to high hedges, it is required to do so fairly because it potentially engages the civil rights and obligations of land owners in a procedure which ultimately might lead to criminal law sanctions.

As any reader of the 2003 Act, Part 8 (which is concerned with high hedges), will know, it is sparsely furnished but contains provisions designed to deal with the adverse effects of the height of a high hedge on an owner/occupier of domestic property.  The Act contains a procedure for dealing with such complaints and requiring action by the perpetrator who has rights of appeal.  As I understand it, some people love their Leylandii and other high hedges so much they don’t want to chop them down or not by much (personally, I can’t stand them, but that’s because they’re prickly and unsightly).  Now, without getting too complicated about the facts, the local authority did not acquit themselves particularly admirably.  They issued a remedial notice on Dr Pelling in breach of a restraining order made by King J, without the further investigation they had previously promised, and di not explain why they had reached the conclusion of adverse effect on the neighbour.  They then sought to defend their position (in their acknowledgement of service) in relation to the complaint by arguing in essence that there was no requirement on them to give Dr Pelling the right to make representations or to a hearing before the decision to serve a remedial notice (a position from which they rightly resiled at the hearing).  Had they said that the application was premature and unnecessary, as Dr Pelling would have had an opportunity to present his case, that would have been the end of the matter, but that was not their position ([77]).

Dr Pelling’s argument that Article 6 was engaged and should be applied in full Le Compte force was rejected as was his next submission that an oral investigation/submissions/cross-examination was required.  As Blake J put it:

I am satisfied that Parliament, in this context, intended a reasonably simple, reasonably speedy and very focussed procedure to examine whether indeed hedges that were over two metres in height, and therefore falling within the definition of “high hedge”, adversely affect reasonable enjoyment of property by another. ([45])

However, the common law duty of fairness was relevant and should be read into the statutory procedure, not least because that was what the extra statutory guidance suggested (and now not disputed by the council.  Although this (of course) is context specific, in this particular case, it was suggested that fairness involved: information as to why it was said that the hedge was adversely interfering with the neighbour’s enjoyment; giving him the opportunity to address those matters, supply any relevant information, submit further evidence (including an expert report!) before the decision to issue enforcement action is made; and explain why they reached the decision they did so that he would know whether there was a case to appeal (at [37]).

OK, that last bit may be a bit of a fib, but the roads, lanes and bridle ways of Rossendale and Darwen are, it would seem, not without tensions.

“The community in Rossendale and Darwen is strong, with the glue of fantastic schools, strong churches, youth clubs and community groups binding us together. Even with our strong society, we have to acknowledge we have large groups of people who do not feel they are part of this. This was evident from the riot in Bacup.” (source) [Bacup had a population of 15,000 in 1971 and hasn't grown much].

Given the life on the edge lived on the streets of Bacup, Mr Berry welcomes tougher curfew conditions:

“These tougher curfew conditions will keep offenders in Rossendale and Darwen off the street for longer, stop them socialising in the evenings and keep them away from situations that could land them in trouble again.” (source). [Bacup had the lowest crime level in Lancashire in 2005]

I must tear myself away from the constituency website, as it is not Mr Berry’s views on the glue of strong churches and curfews in Bacup and Rossendale that concern us here, but before leaving I noted that, amongst other ‘social experiments’ leading to social breakdown (although it is still the parents’ fault), he cites ‘selling council houses’. What would Margaret think?

Mr Berry’s article is headlined “Booting out looters, muggers and arsonists is the social contract in action“. To be fair, it is probably not his choice of title, it has the smack of the sub-editor to it. But it does let us know that what follows intends to be what might be generously called a philosophical justification for the DCLG proposals on mandatory possession and for removing the locality condition in the discretionary ground for riot related offences. It has been lauded by Grant Shapps, so we might have justification for taking this to be an expression of the philosophy that is supposed to underpin the proposals.

Therefore it is in the spirit of an analysis of philosophical argument and rhetoric that I shall approach the piece. My comments, like Mr Berry’s article itself, are unsullied by such sordid concerns as evidence and practical outcomes (with one exception, where Mr Berry makes a factual claim, so I must, alas, likewise resort to facts).

In case you have trouble distinguishing between us, the article is in block quotes and my comments are in normal text.

In the light of disgraceful looting and rioting across England last week, it is absolutely right that the Coalition Government should come forward promptly with proposals for stronger housing sanctions against those who choose to wreak havoc in people’s communities. At the heart of the motivations of those criminal looters, muggers and arsonists was a nihilist view – of being immune to any real consequence of their deeds, and lacking any sense of social responsibility for their actions.

While this is but the opening paragraph, our theme is clear. Some bad people have done bad things and don’t care that good people have been hurt by that. Mr Berry takes two daring steps. First to impute a philosophical viewpoint, even a Nietzchian weltanschauung, to the rioters (although actually I think he confuses solipsism with nihilism. The latter view wouldn’t deny consequences to actions, just whether those consequences were based on an objective moral authority). Secondly, while a conventional moralist or jurisprudentialist would see these deeds as being an issue of criminal law, Mr Berry boldly links them with civil sanctions of deprivation of housing. The stage is thereby set. Looters are bad people, probably holding views derived from continental philosophy. They shouldn’t have houses as a consequence.

Tougher eviction powers are not a knee jerk reaction; rather they are another marker of this Government’s consistent commitment to better balance the rights of victims with the rights of those who inflict misery on their neighbours and whole communities.

The consultation on the mandatory ground was issued on 3 August. It was then re-issued with the new amended ‘removal of locality’ proposal on 15 August. In between those two dates, the riots happened. The new proposal was not contemplated on 3 August and is included 12 days later, while the riots took place on 8 August onwards. It is a bold leap to characterise this timetable as considered, but Mr Berry is equal to the task. We should note in passing that the ‘balancing of rights’, a phrase that pre-judges whether there is already a balance or not, is between ‘victims’ and those ‘who inflict misery on their neighbours and whole communities’. One is therefore led to expect that the powers will be concerned with protection of victims and prevention or punishment of perpetrators. Who could not want this?

As a housing lawyer prior to my election to Parliament, I have seen first hand the immense disruption and upset caused by the small number of people who are unwilling to function as responsible member of their community.

Ah, the argument from experience – one I am embarrassed to say I use myself, although at least flagged as being such and therefore doubtful. But here we have a factual statement – the only one in the article – so we must make a small detour into the realm of fact.There is a simple assertion that Mr Berry was a housing lawyer before his election in 2010 and that in the course of his practice he encountered first hand people affected by ASB. On his own site, he states “until I won in the 2010 General Election, I was a lawyer practising in housing law”. So that is up until his election.

Mr Berry, now 32, was a solicitor at the late (and apparently largely unlamented) firm of Halliwells LLP in Manchester until his election in 2010 (bloody good timing to leave, one might add). Which raises a question or two about being a ‘housing lawyer’. Halliwells certainly didn’t have a legal aid housing practice, or even a residential landlord and tenant practice that I have been able to discover. Halliwells don’t even appear to have had a ‘housing management’ practice for RSLs/LAs, which I would count as housing law. Given the disappearance of the firm, it is hard to tell and so I am open to correction, but I have asked questions here and there without anything to the contrary coming up.

A wikipedia entry describes him as having been a commercial property solicitor at Halliwells. A Daily Telegraph profile note states “Jake Berry’s area of expertise is commercial property with a focus on social housing, PFI and development law”. Jake, just because there were houses involved does not make it housing law.

I have asked Mr Berry – via Twitter, admittedly – to tell me about his role at Halliwells and to say what his professional housing law experience was, because I was going to be writing about his article. Sadly, I haven’t had a response.
I’ve just realised – my fault entirely – that there is no chance Mr Berry would have seen my questions via Twitter. So I’ve emailed him.

So the available information suggests that Mr Berry did not practice as a housing lawyer at all, and that it is somewhat doubtful that he had first hand experience of cases involving ASB in his practice as a solicitor. If this is not the case, then I am happy to receive a correction giving details of Halliwells’ housing practice and Mr Berry’s professional involvement in housing cases. As it stands, the only real factual assertion in the article isn’t looking good.

Earlier this month, the Department for Communities and Local Government published a consultation on a fast-track mandatory power of possession. This would apply where tenants had already been convicted by another court of a serious housing-related offence, had breached an injunction taken out against them by their landlord, or had their property closed because of the criminal activity taking place within it. This would help landlords with their existing powers of eviction where tenants or their children commit anti-social and criminal acts in the vicinity of their home.

And here, slipped in, is the first suggestion that it is not just malefactors that may be evicted. The ‘balance’ we had been pointed to between victims and offenders appears to have been shifted a bit, to include the parents of ‘children’ committing ASB. But parents are responsible/to blame for their children, so fair enough. Strangely, there is no mention of adult children, others in the household or visitors. But grey areas have no place in a moral case for mandatory eviction. Mr Berry seeks to make the argument without getting distracted by mere details like culpability, involvement or control, so we should not fault him. Once the principle is established, the rest is mere detail.

It is already the case that where tenants are evicted for anti-social behaviour, it is very likely that they will be deemed to have made themselves intentionally homeless and therefore the local councils will have no duty to provide new settled accommodation. Councils from across the political spectrum, including Hammersmith & Fulham, Greenwich, Nottingham, Salford, Wandsworth and Westminster have already pledged to use these eviction powers against such ‘neighbours from hell’ in the last week.

One must admire the effortless ease with which Mr Berry makes a popular culture reference, although still insisting on scare quotes to protect himself from being believed to actually watch such programmes. However, given that these powers have existed for many years now, this pledge may seem a little tardy, indeed knee-jerk, on the part of the councils, at least if one hadn’t already been told jerkiness of knees was not involved. Unless perhaps Mr Berry refers here to the new proposed powers, in which case there are some questions about their retrospective effect and about the clarity of his sentence construction to be answered.

However, where a tenant or a member of their household decides to wreak havoc in someone else’s community, those powers of eviction do not currently apply. This leaves open a significant loophole to ‘crime tourism’ – a criminal sidestepping such sanctions by simply travelling down the road to commit crime in a different neighbourhood.

And as the article goes on, wider still the net becomes – now it is not just the tenant or their children, but a member of their household that brings down ire on the tenant’s head.But this little extension of responsibility vanishes entirely in the glare of Mr Berry’s triumphal casting of the current grounds for ASB related possession as ‘a sanction’. The promise of his first paragraph is redeemed and magnified, for now criminals are escaping through a loophole! Criminals sidestepping is just a bad thing, no matter what it is they are sidestepping, and loopholes are also bad (unless they are about tax avoidance and overseas domiciles). So this is doubly bad. And it happens just by travelling down the road! A literally stunning confabulation of the principles and functions of civil and criminal law, with a loophole by means of a bus pass thrown in – a masterstroke.

The Government is now proposing to extend landlords’ powers to seek possession where tenants have committed such crimes beyond the locality of their property. I am confident that the vast majority of people think that it’s right that landlords can seek to evict a tenant where they ruin the lives of those living around them.

Oh dear. Perhaps Mr Berry has peaked too soon and exhausted himself half way through. Not only does he have recourse to the device of the ‘majority of right thinking people’, that being a tawdry geegaw of the desperate in the sixth form debating society, but if one is to justify scrapping the ‘locality’ condition, it is best not to justify it by the eviction of a tenant ‘where they ruin the lives of those living around them’. That is the existing law, Mr Berry. Do keep up.

It is important to remember that the provision of social housing – subsidised rents with long or lifetime tenures – is a privilege not an inalienable right.

Mr Berry still struggles to regain his form. A false opposition (for who claimed social housing was an inalienable right?) is another device of the desperate debater. If one term is simply invented – the inalienable right – then the other – the privilege – appears equally made up. A poor move.

Critics of these plans demonstrate an imperfect understanding both of the Government’s proposals and the application of human rights to the termination of tenancies.

Do tell more. As a critic, I wait for my understanding to be perfected.

Under our proposals a landlord seeks possession against a tenant on the basis of a conviction for a crime committed away from the locality of their home, the courts would have to, just as they must at the moment, consider whether it is reasonable to grant possession. But this is stating the obvious: every legal case should be considered on its merits, and everyone has a right to a fair trial.

As a long term abuser of the phrase ‘Of course’, I have a certain admiration for the way Mr Berry slips in ‘this is stating the obvious’. The gulf that this phrase covers – what would or could be weighed in the balance in deciding whether a possession order was reasonable – I discussed in the previous post, so, as a critic, I do not feel that my imperfect understanding has yet been demonstrated. Nevertheless, Mr Berry has improved. The use of ‘obvious’ leading to the insistence on consideration on the merits and a fair trial smoothly glosses over the problems of a mandatory ground for possession, where consideration of merits and a fair trial are not the same thing at all.

But I don’t accept the counsel of despair that says that tenants who have caused mayhem near someone else’s home rather than their own will never be evicted. That’s not my reading of reasonableness.

Jake (forgive the informality, I feel like I have spent some time with Mr Berry at this point), despite his housing law experience, rather presumptuously puts his own (‘common-sense’, no doubt) view of what is reasonable in the place of the Court’s. Because Jake sees no problem with reasonableness, there is no problem. I believe I mentioned solipsism earlier.

Nor do I accept the contention that human rights law and considerations of proportionality mean that tenants who have caused misery through their anti-social and criminal behaviour means that they are protected from eviction, even where the landlord has an unqualified right of possession in domestic law.

Perhaps I was wrong to doubt Jake’s housing law credentials. This masterly summation of Pinnock has made me think again. Although there is at least one too many ‘means that’ in there, this is mere grammatical nit-picking.The elegant use of ‘unqualified right to possession’ asserts Jake’s familiarity with the law, even though it has nothing whatsoever to do with the proposed removal of the ‘locality’ condition. Deploying an impressive irrelevance is a difficult skill to learn. Youngsters, take note from Mr Berry.

The Supreme Court has emphasised in recent judgments the strong presumption that, if local authority landlords have followed proper procedures it will normally be proportionate to make a possession order. The court will give a lot of weight to the local authority’s legitimate aims in seeking possession. The threshold for a successful Article 8 challenge is extremely high and will only rarely be made out.

And the use of the impressive irrelevance is taken to new heights! None of this is relevant to any article 8 challenges to the proposed new law, which will likely focus on lack of justification under Article 8(2), but Jake has claimed the support of the Supreme Court nonetheless.

Indeed, rights cut both ways. Article 8 explicitly states that public authorities can intervene in the interests of public safety, for the prevention of disorder and crime and for the protection of rights and freedoms of others. Law-abiding citizens have a right to conduct their lives and run their businesses without fear of being burgled, mugged or their homes and properties ransacked or set ablaze.

But has Jake forseen the objections? I feel we may be building up to an article 8(2) justification in protecting the rights and freedoms of others. Was his apparent lack of understanding of the relevant law merely a feint? Was Jake just toying with us, before landing the knockout blow?

Tougher eviction powers will provide a real deterrent against future crime. And once such criminals are evicted, a social home will be freed up for a deserving, law-abiding family on the waiting list.

Oh. Is that it, Jake? ‘Deterrence’ is the best you can do? In view of the scale of deterrent effect that ground 2/14 clearly had, or rather didn’t, on the recent événements, this is not convincing. They weren’t all using their bus passes to go through the loophole, you know.As a general rule when one is building to a rhetorical climax, it is as well to have some climactic point to make, or at least a dramatic flourish. Otherwise the result is bathos. A grandly rising thought that punctures itself, as Alexander Pope had it. People tend to point and laugh.

With such lists having almost doubled to 1.8 million under the Labour Government, this will obviously just be a tiny step in the broader mission of increasing access to social housing to those in need. But it is the social contract in action – the state giving a helping hand to those who play by the rules, and withdrawing special privilege from those who wish to harm others in defiance of social responsibility.

A closing flash of erudition and a grasp at a philosophy. But whose Social Contract, Jake? Hobbes – the arbitrary and tyrannical rule that alone can prevent the war of all against all? Locke – where the state as neutral judge arbitrated between the natural rights of its citizens? Or Rousseau – direct rule by the people and the law of the collective?

One must be careful of metaphors and where they might lead. If we are to consider contracts, a general rule of contract law is that damages for a breach are limited to the extent of the breach. In the ‘social contract’, it is criminal law and punishment that occupies that role. What Jake and the DCLG seek are punitive damages, over and above the restitutionary scale, expressly pour encourager les autres. I think it is clear which form of the social contract Jake has in mind, it is Hobbes, with Grant Shapps as the new Leviathan. No wonder Mr Shapps liked the article.

Overall – a C+, at best.

As has been widely announced, the DCLG consultation on introducing a mandatory ground for possession on grounds of conviction for a housing related ASB offence etc, previously discussed here, has been amended to include a question on amending Ground 2 of Schedule 2 to the Housing Act 1985 and Ground 14 of Schedule 2 to the Housing Act 1988 to remove the locality condition for certain offences. The amended consultation paper is here. The closing date is 7 November 2011

This is an exercise in two parts. In this, the first, I’ll outline and discuss the proposals in the amended consultation. Then, by way of light relief, a following post will contain an exercise in literary criticism on a statement by Jake Berry MP, Grant Shapps PPS and a self-described former housing lawyer, (apparently he did commercial property at the now in administration firm of Halliwells LLP, but we’ll come back to this), in support of the proposals.

So, for this post, the amended consultation. A new section has been added at 2.3:

We propose that this discretionary ground for possession for anti-social behaviour and criminality should remain available in all circumstances, including where a mandatory power is available. We are aware however, particularly in light of recent rioting and looting, that a number of landlords consider it would be helpful to extend the current scope of the discretionary ground, so that serious anti-social behaviour and criminality beyond the immediate neighbourhood of the property can clearly be taken into account.

We are therefore proposing to include additional provisions in Ground 2 of Schedule 2 to the Housing Act 1985 and Ground 14 of Schedule 2 to the Housing Act 1988 so that the court may grant possession where a tenant or member of their household has been convicted of violence against property (including criminal damage and offences such as arson), violence against persons at a scene of violent disorder or theft linked to violent disorder. There would in these circumstances be no requirement that the offence had been committed within the locality of the dwelling house, subject to it being committed in the United Kingdom.

The question is just ‘do you agree?’.

So, let us trot through what have all too rapidly become the customary objections.

The purpose of Ground 2/Ground 14 was intended to be protective. The justification being that other tenants in the area of the property should be able to be protected from ASB related to the tenant’s occupation of the property. As a discretionary ground, the court is able to balance, under reasonableness, the right of the tenant to remain in occupation and the risk to others in that locality of continued annoyance or nuisance arising from the tenant’s continued occupation (including from others in the household or visitors) or criminal activity in the property or the locality.

It was not intended to be a punitive clause – a further punishment for ASB or criminal behaviour in the area – but that is now how it is being portrayed. The locality condition is called ‘a loophole’ by Mr Berry MP, for example, on the basis that it allows people to avoid being punished for their behaviour by the removal of ‘the privilege’ of social housing.

I’m not going to delve into whether there should be a punishment purpose to a ground for possession, or whether or not one agrees that making people homeless, with all the consequent costs, is a good, effective or practical response to the kinds of criminal acts described. These are issues others have discussed and probably better than I could. But just considering it as a lawyer, the re-purposing of the ground of possession for a punitive purpose raises a host of questions and issues that the DCLG’s knee jerk and simple-minded amendment does not address.

Why should those in council or other social housing tenancies be subject to this further punishment for their actions, or more worryingly the actions of their household or visitors, where those in the private rented sector or owner-occupiers are not subject to the same sanction? The line that such tenants are ‘subsidised by the public’ has been repeatedly used to justify a tenancy as a privilege to be withdrawn, but they generally aren’t subsidised by the public purse – or only to the extent of housing benefit, which would be a bigger public burden if they were in private sector tenancies.

Given the extent of the interference with Article 8, including the potential eviction of tenants who have not committed a criminal act or even been in the same area in which the act was committed, what is the justification in terms of the protection of the public?

The current ground has its article 8.2 justification for interference with article 8 rights in the nexus between the tenancy of the property and the ASB or criminal behaviour in the property or locality. But eviction of the tenant for the acts committed (possibly by someone else) anywhere else in the UK has no justification in the protection of the public, because there is no connection between the tenancy and the criminal act. The lack of address to this point in the amended consultation document is both shameful and shortsighted, because if this proposal ever hit the statute books, cases would end up in the Supreme Court and/or the European Court of Human Rights on this issue (as well as others) pretty quickly.

The rhetoric about intentional homelessness resulting from such evictions being bandied around has at no point made clear that intervening settled accommodation in the private sector would break the chain of causation. So regardless of some of the recent statements of Grant Shapps and Ravi Govinidia (Wandsworth Council leader), a local authority homeless duty could well arise again in respect of the same people after 6 months.

So if this is not a ‘ban’ from social housing, has no part in protecting people in the locality from further location specific behaviour, and is effectively just a way of making life unpleasant for the offender and their (potentially wholly uninvolved) family or household for a while, what is the purpose beyond its punitive nature?

And while we are on the lack of coherent principle, why just this limited list of criminal acts? If the justification for the ground is punitive (or, as is somewhat ridiculously argued by Grant Shapps in his letter to social housing providers, as a deterrence – as if the consequences for their mother’s tenancy were or would be uppermost in the minds of rioters content to trash their local corner shop while not actually being bright enough to wear masks), then why restrict it only to certain ‘riot related’ criminal acts, oh and violence against property in general?

By the time this hits Parliament, one would hope that the ‘bring in tanks with tasers and tear gas’ frenzy of the one-off sitting of the House of Commons would have abated such that the mere mention of the words ‘violent disorder’ would not be enough for the proposal to pass unquestioned.

On the practical side, this is proposed to remain as a discretionary ground, subject to the court’s assessment of whether it is reasonable to make a possession order. But exactly what factors is the court suppose to weigh in the balance in reaching such a decision?

There is no necessary nexus between the property and the crime. No neighbourhood whose interests and safety are to be weighed against the tenant keeping their home. What would be the point of assessing a risk of re-offending when that risk has nothing to do with the continuation of the tenancy or not?

Reasonableness in the context of the Housing Acts 1985 and 1988 has no punitive component and cannot actually function with one bolted on. So what is the court to consider in deciding whether an order is reasonable?

And lastly – through my lack of energy rather than exhaustion of the topic – without seeing the proposed wording, the retrospective effect is not clear. Would a conviction for a relevant offence before any Act came into force be grounds for subsequent possession proceedings?

It must be hoped that someone at the DCLG will have a convincing word with Shapps and Pickles (a great name for a provincial firm of solicitors, by the way) before this proposal gets anywhere near a bill. If it does get into law in anything like the present form, it will be of little practical use, but I confidently predict that a few councils will try it, and the few remaining legal aid housing lawyers will promptly appeal as far up as it takes.

Sadly, I’m going to have to link to some sources (including the Daily Mail) that identify the Wandsworth tenant and her son, who is the alleged rioter. I’m not going to use their names because, at least at present, I see no reason to do and quite a lot of reasons not to (not least if my suspicions are right). But I’m afraid that I can’t avoid linking to material that does.

Let us begin at the beginning. On Friday 12 August, Wandsworth put out a press release announcing:

A council tenant whose son has appeared in court charged in connection with Monday night’s disturbances in Clapham Junction will today (Friday) be served with an eviction notice.

The tenant is believed to be the first in the country to now be facing the prospect of losing their council-owned home as a result of Monday night’s rioting and looting.

The notice is the first stage in the legal process of eviction. The notice gives warning that the council will be seeking possession of the property and that an application will be made to the courts seeking the tenant’s eviction. The final decision will rest with a judge sitting at the county court.

William Flack has done a fine job of dissecting the comments of Council leader Ravi Govindia that follow. But what is worth noting is that:

a) Wandsworth claim to be about to serve a Notice Seeking Possession that day.

b) Wandsworth put up the press release before the Notice was actually served

c) The son was charged (and remanded in custody) but not convicted.

All this is quite surprising, not least the press release prior to serving actually the notice, which is, to say the least, disgraceful behaviour.

It is also worth noting that the alleged offences were at Clapham Junction. As will become clear, the family home is a council flat in Battersea.

Now I, and indeed everyone else assumed that Wandsworth were seeking possession under Ground 2 Housing Act 1985. I expressed surprise that they did not wait for conviction, as if they brought proceedings they would have to prove the alleged nuisance or annoyance under subsection (a).

After Friday and as some details apparently trickled out – mostly via the usually unwelcome attentions of the Daily Mail – the location of the flat being in Battersea became clear. The Mail also identified by name the son and his mother, the tenant.

Quite how the Mail got these details, assuming they are right, has to be a matter for speculation – but the options are that either Wandsworth put enough detail in their press release to enable the Mail to identify the alleged rioter, or someone at Wandsworth told the Mail who was involved.

At this point, any housing lawyer is thinking ‘whether or not there is a conviction (and that is a big IF, of course), Clapham Junction is not in the locality of a flat in Battersea – or at least this should head to the Court of Appeal if the County Court said it was’.

But the Mail, in its loveable way, kept on. The initial Mail stories were wholly supportive of Wandsworth and tried to set the tenant in a bad light, even listing her rent arrears.

Today, however, the Mail had an interview with the tenant. Not only was it surprisingly sympathetic and omitted any mention of the size of her TV, it described the eviction moves as “controversial” and as prompting “huge public debate”.

This, surely, is the sound of the Mail back-tracking rapidly. This may be because the tenant is described as a ‘devout christian’ and ‘charity worker’, or it may be because the Mail has figured out that even its own readership does not uncritically accept punishment evictions. No matter, either way it means that Wandsworth has lost its biggest media cheerleader on this eviction. If even the Daily Mail is having second thoughts, Ravi Govindia clearly runs the risk of looking, well, pretty damn stupid in such a desperate act of witless publicity seeking.

But there may be more. The Mail describes what was sent to the tenant. They describe it as ‘a letter’ which:

signed by deputy housing manager Tom Crawley, to [tenant], says [the son's] alleged behaviour may mean the family have breached their tenancy conditions under the Housing Act 1985.

The conditions state that no one living at the property should ‘do anything which causes or is likely to cause a nuisance’ or commit ‘an arrestable offence’. It also points out that the family is [£X] in arrears with their rent.

Now if this is at all accurate – and it is the Mail, so it may not be at all – then this isn’t a Notice Seeking Possession, but a warning letter. Certainly anything stating that X’s ‘alleged behaviour may be a breach’ is not a Notice Seeking Possession, which would have to set out the grounds on which possession would be sought. It is less clear whether the Mail’s rendition of the tenancy conditions cited in the letter is full and accurate. If it is then the ‘letter’ is just wrong in law – no mention of locality – but this may be the Mail editing, of course.

There is nothing like enough detail here to be sure, but it certainly raises the suspicion that Wandsworth haven’t actually served an NSP. If that is true – if – then the press release and all the subsequent media attention for Mr Govindia would be a little lacking in the actualite department.

Wandsworth have put this whole affair well and truly in the public domain. So, there are a few questions that need answering:

i) Was a Notice Seeking Possession served on 12 August 2011 on the tenant referred to in your press release?
ii) If so, was Ground 2 Housing Act 1985 cited as a ground for possession?
iii) If so, Ground 2 (a) or (b)
iv) If it wasn’t a Notice Seeking Possession that was served, what was it? And why did you describe it as an ‘eviction notice’?

I look forward to this being cleared up.

[Update 16 August 2011. A reliable source tells me that Wandsworth claim to have served an NSP and that it is only on Ground 1 - breach of tenancy conditions - citing ASB and rent arrears.

As pointed out in the comments below, Wandsworth's current tenancy agreement includes a clause requiring the tenant, occupiers and visitors 'not to commit ASB in the property, the neighbouring area and London Borough of Wandsworth' (which includes Battersea and Clapham junction). The relevant clause (31 of the tenancy conditions) reads:

This is a list of things that you, your lodgers, friends, relatives, visitors and any other person living in the property are not allowed to do whilst in the London Borough of Wandsworth or the area which is local to the property:
• breach the tenancy conditions
• do anything which causes or is likely to cause a nuisance to anyone living in the borough of Wandsworth and/or the local area
• do anything which interferes with the peace, comfort or convenience of other people living in the borough of Wandsworth and/or the local area
• cause damage to property belonging to other people or council property in the borough of Wandsworth and/or the local area
• harass anyone in the borough of Wandsworth and/or the local area because of his or her race, colour, nationality, culture, sexuality, gender, age, marital status, religion or disability
• use the property for any criminal, immoral or illegal purpose
• threaten or harass or use violence towards anyone in the borough of Wandsworth and/or the local area
• threaten or harass or use violence towards council employees, managing agents or contractors
• use or threaten violence towards anyone living in the property
Any breach of the tenancy conditions by anyone living in or visiting the property, or where there is a joint tenancy, by one of the joint tenants, will be treated as a breach by the tenant. If you are evicted it is likely you will be considered to have made yourself ‘intentionally homeless’ and consequently not be entitled to rehousing by the council.

A few points

There has to be a question as to whether this clause can stand up in court. How can a clause forbidding your visitors to commit ASB anywhere in LB Wandsworth be argued as related to the tenancy, for example. The term breached must be a term of the tenancy, not a 'personal obligation' (Paddington Churches Housing Association v Boateng 1999 Legal Action 27). The extension to the whole Borough makes this a personal obligation (don't do anything, or allow household or visitors to do anything naughty in LB Wandsworth). As such it is unrelated to the property - note that the clause draws a distinction between the property and its locality and the Borough as a whole.

This is an amended tenancy condition - in 2009 - and is not in the tenancy agreement originally signed by the tenant. As noted by a commenter below, the Council's power to vary conditions of a tenancy is given at s.102 and s.103 Housing Act 1985, but that power only extends to terms of the tenancy. If this isn't a term of the tenancy, the Council has no power to include it by variation and the term is not valid for any pre-variation tenants (and couldn't be enforced under ground 1 for any tenants at all). This is assuming that the 2009 variation was validly carried out in the first place.

Further, I suspect that the clause, or at least the element extending the 'area of responsibility' to the whole borough may well be unfair for the purposes of Unfair Terms in Consumer Contracts Regulations 1999, not least because it is unrelated to the property or the area of the property.

Wandsworth have made things interesting - assuming the tenant has decent representation, Wandsworth will be putting put the validity of that clause in their amended tenancy conditions on trial. I frankly don't fancy their chances.

Even if the clause stands, I suspect, as do other commenters below, that the court is not going to find it reasonable to make a possession order. Such things as whether the breach is continuing, persistent or repeated and the personal circumstances of the tenant are factors in whether it is reasonable to make an order.

Secondly, the son has not been convicted of any offence and unless and until that changes, Wandsworth are going to have to prove the alleged ASB.

Adding in rent arrears surely invites a challenge - Wandsworth have made the basis for their decision to seek eviction publicly very clear and it had nothing to do with rent arrears. If the ASB element is not made out or the tenancy condition found to be void, then could the claim proceed on rent arrears alone? There has to be an argument about oppression - using the rent arrears for other purposes. Even if it was allowed to, the chances of getting an eviction on the arrears in that situation would be pretty minimal.

And lastly, is the Mail's account of the 'letter' accurate? If the letter/notice refers to something that 'may' be a breach of the tenancy condition, then the ground has not been stated, which would leave rent arrears as the only part of ground 1 actually stated in the notice. But of course, the Mail is not necessarily accurate...

Overall then, assuming the NSP was valid, it looks like Wandsworth will be relying on their unilateral amendment of the 'tenancy conditions' to try to avoid the locality issue in Ground 2. There will be a lot of people watching this, both social landlord and tenants, because the validity of such a clause will be a big issue. ]

The relevant grounds for an eviction would be Ground 2 of Schedule 2 of Housing Act 1985 (for secure, Council tenants) or Ground 14 Schedule 2 Housing Act 1988 (for assured, housing association tenants). These are pretty much identical, both read:

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 indictable offence committed in, or in the locality of, the dwelling-house.

Both are discretionary grounds, which mean that the Court must also be satisfied that it is reasonable in the circumstances to make a possession order and that the court has a further discretion to impose a postponed or suspended possession order with conditions.

There can be little doubt that rioting and/or looting would be likely to cause a nuisance or annoyance. There are likely to be large numbers of convictions for indictable offences as well. However, the nuisance or the offence must be in ‘the locality’ of the tenanted property. ‘Locality’ is not defined in either Act or elsewhere. I would anticipate that there may well be some difficult cases on what constitutes a locality to come, where the offence/nuisance is not within the immediate neighbourhood of the property. But certainly an offence committed in another borough is highly unlikely to count.

We should note in passing that Grant Shapps, a housing minister whose knee is never knowingly un-jerked, has today suggested that the ‘locality’ condition should be scrapped so that those found guilty of ‘being involved in rioting’ in another area could be evicted. The trouble with that is it would simply mean being convicted of an arrestable offence, even if wholly unrelated to the home or to housing, would be a ground for eviction. That may just be a step too far for all kinds of reasons, not least Article 8. Mr Shapps also points to his desire to introduce a mandatory ground for possession for those convicted of ASB – but this wouldn’t apply to offences committed outside the locality as they would not be ‘housing related’.

If the rioter was in the locality but is not the tenant, e.g. a member of the household, or even a visitor, the tenant would still potentially be caught by these grounds. This would be the case even if the tenant had no involvement at all, or didn’t even know that the other person did. So parents, partners etc. could well face eviction proceedings. While the court can consider the circumstances of non-offending occupiers and the relationship between the offence and the landlord-tenant relationship, the court must also consider the seriousness of the offence and its effect on others, and the likelihood of further offences.

Anyone wondering about a proportionality issue under Article 8 should note that these are discretionary grounds (at least to date!) and that the Court’s consideration of whether it is reasonable to make an order has been previous considered to be in effect an application of the principle of proportionality (E.g. Lord Brown in Kay v Lambeth).

Of course if the rioter (or tenant of rioters household) is on an introductory or demoted tenancy, things are quite different. There isn’t time to go through the whole process, but there, on an otherwise mandatory possession order, proportionality defences would come into play.

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.

Selective licensing is, in short, a mechanism whereby authorities can require landlords to obtain licenses before being allowed to let property. Before making a designation, the authority must take reasonable steps to consult persons likely to be affected (s.80(9), Housing Act 2004) and (as the law stood at the relevant time), obtain the consent of the Secretary of State. The Secretary of State has published guidance on the level of consultation that should take place and what he would expect authorities to do before bringing in a designation. For a full review of the background, see our previous posts, where David Smith sets it all out in rather more detail.

Anyway, back to the case – in 2008, Hyndburn decided to introduce a selective licensing scheme. Their consultation exercise consisted of a questionnaire about local problems (do you have a problem with noisy neighbours, should bad things happen to bad people, etc) and didn’t, for example,

(i) contain any firm details of the boundaries of the proposed designation;

(ii) contain any details of the proposed license conditions or fee structure;

(iii) give any reasons why the authority considered that selective licensing was a good idea.

There was about an 11% response rate to that questionnaire which (unsurprisingly, given the vanilla nature of the questions) indicated broad support for anything that would stop bad things happening (really, it is as bad as that).

The authority then applied to the Secretary of State for approval of the designation. Sadly, the information provided to the SoS was, to put it neutrally, somewhat less than wholly accurate. The SoS was told that the consultation results were published online (they weren’t) and that various methods of consultation had been used in addition to the questionnaires (which wasn’t true). The SoS then confirmed the designation and, in response, six landlords issued proceedings seeking to quash it.

The arguments were threefold. Firstly, it was said that there simply had been no consultation within the meaning of s.80(9) and the guidance – that required there to be a specific proposal, with boundaries, a fee structure, etc which was consulted on. Secondly, it was said that the passage of time between the 2008 consultation and the designation was so long that the results had become stale. Finally, the authority were said to have misled the SoS.

The claim was allowed on all three basis. Section 80(9) did require much greater detail than had been provided; the boundaries of the scheme, the licence conditions, the reasons for considering it necessary were all matters that should be put to consultees for their comment. Whilst the ‘stale’ point might not have got anywhere itself, when seen in context, it was clear that the limited consultation exercise that was actually carried out might have had only a limited shelf-life and the authority should have had regard to this fact. Finally, the misleading information provided to the Secretary of State further undermined confidence in the consultation exercise.

The designation was therefore quashed.

Quite a useful little case, I suspect, as it puts some flesh on the bones of s.80(9), 2004 Act, and now tells authorities what sort of information needs to be provided during the consultation process. And, of course, reminds them of the need to tell the truth…

While we are on County Court proceedings based on drugs and nuisance (see the previous post), this is a possession case following closure orders and allegations of dealing. Hat tip to ‘Recent Developments in Housing Law’ Legal Action June 2011 for the details.

Mr Forbes was Hammersmith’s secure tenant and had lived in the property for 31 years. He was a heroin addict. There were no nuisance issues prior to June 2010. Between June and October 2010 residents made complaints that Mr F was dealing drugs. The police raided and found a small quantity of heroin. Mr F was charged with possession of a class A drug and pleaded guilty.

The police and Council obtained a closure order for 3 months, extended for a further 3 months by the Magistrates Court. The evidence for the closure order was principally anonymous witness statements by residents and CCTV evidence of a number of visitors to the property.

Hammersmith sought possession on the basis of the same evidence, with further evidence in the form of anonymous statements mentioning the improvement in the area since the closure order.

During the period of the closure order, Mr F had made serious efforts to address his addiction, although there was some relapse as he was of no fixed abode due to the closure order.

At trial DJ Morris decided that on the balance of evidence, Mr F was a drug user who had allowed his home to be used by others for dealing. This had caused a nuisance to the neighbours. However, the DJ was satisfied Mr F was not a dealer himself. He ordered a suspended possession order on strict terms, with a review after 3 months to further address Mr F’s progress in addressing his addiction and any further occurrence of nuisance.