But it caught my eye. To be fair, one cannot always tell from a short judgment of this kind exactly what happened, but it gives the impression that landlord and tenant law was, at best, misunderstood. So it seemed like a golden opportunity to set the record straight.

The defendant’s father and mother had lived in the property under an assured tenancy. Sadly, the father died. The mother succeeded under s.17 of the Housing Act 1988. Later on her son, the defendant, came to live with her and look after her. The mother died. The landlord eventually decided that the defendant would not be allowed to carry on living in the property and served a notice to quit which duly expired. They claimed possession on the basis that the son was a trespasser.

But why? Assured tenancies are not magic. They have some magical properties given to them by the Housing Act 1988 but underneath they are still perfectly normal tenancies which means they are an estate in land capable of being inherited.

This means that when the defendant’s mother died, her tenancy would pass under her will or intestacy. If the mother had not been a successor, the magic of s17 might have come in to play, but she was so it did not. From the facts of the case it seems overwhelmingly likely that the son was her heir. He would then inherit the tenancy and become the tenant.

As an aside there are some subtleties here which I am not about to delve in to, such as the nature of a heir’s rights under an intestacy and the role of the Public Trustee. Readers will be familiar with the and all the usual rules about giving notice after a tenant has died.

It seems likely that the defendant was a tenant of the property and, since he lived there, almost certainly an assured tenant. You cannot end an assured tenancy by giving notice to quit. It may be that the district judge inquired into this possibility and the matter was dealt with but not mentioned in the judgment, but it really ought to have been.

The right way to evict an heir in these circumstances is of course to use Ground 7 of Schedule 2.

This is usually a moment to take stock of the past year and look forward to the next, but I’m feeling far too lazy to do it properly. Luckily, the DCLG have made the task easier by shouting again that they propose to crack down on subletting. In what is rapidly becoming an annual tradition, Grant Shapps has announced plans to consult on proposals to make sub-letting a criminal offence. Rather oddly, Mr Shapps says:

For too long this country has turned a blind eye on the multi-billion pound problem of housing tenancy fraud and abuse.

which I take to be an admission that last year’s ‘crackdown’, action team and all, was utterly ineffective.

As to the proposals – the devil will be in the detail.

Mr Shapps has coupled the sublet issue with proposals to remove security of tenure and levy a ‘market rent’ on social housing tenants earning over £100,000 per year, hitting an estimated 6,000 tenants nationally. This seems rather over the top for legislative action, but would establish the principle of restriction on tenure by income level. This may well go further, as introducing legislation with the main aim of removing Bob Crowe’s security of tenure seems a little excessive.

What with this, the coming into force of the Localism Act, with new tenure provisions, and one presumes a response to the consultation on an ASB mandatory ground for possession and closing the bus pass loophole, it is going to be a busy year. There is plenty to look forward to in case law, as well.

The blog has had a successful year, with more than 300,000 hits in 2011. Over 1250 people subscribe to updates by RSS and email (over 1000 by email), and, worryingly, over 1700 follow the @nearlylegal twitter feed. I say worryingly, as @nearlylegal has a tendency to go off piste.

The we joined the Guardian Legal Network and our pieces appeared on the Guardian Law and Guardian housing pages. What was probably the most remarkable part of the year for me was the astonishing response through the blog in terms of people signing the public letter on the mis-representation of the law on squatting. It was a genuine surprise (and somewhat humbling) to see the level of response.

At the end of 2011, another four excellent people joined the NL team, so that there are now 10 of us. Newly refreshed, we aim to keep going to our usual standard (a pleasingly non-committal and unenforceable phrase) in 2012.

 Saxon Weald Homes Ltd v Chadwick [2011] EWCA Civ 1202

Mr Chadwick had been given an AST by Saxon Weald as a ‘probationary tenancy’ on 11 August 2008. The tenancy agreement stated that if no steps for possession had been taken within 12 months, including service of notice requiring possession or notice seeking possession, it would automatically become an assured periodic  tenancy at that time. Otherwise, it would remain a periodic AST. THe clause also stated “if the tenancy converts to a fully assured tenancy, we will send you a letter confirming the change in status of your tenancy”.

There were allegations of anti social and aggressive behaviour against Mr C, who, it should be noted suffered from depression and mental health problems. His mother acted as his litigation friend in all subsequent proceedings. Despite attempts to address Mr C’s behaviour, there were further allegations. On 5 August 2009, solicitors for Saxon served both a notice seeking possession under s.8 and a notice requiring possession under s.21(4)(a) Housing Act 1988. Both notices were dated 7 August 2009 and required possession after 11 October 2009. The notice seeking possession was on grounds 12 and 14 HA 1988 and made clear that it was “served on the footing that the tenancy was an assured tenancy and that it did not apply if possession was sought on the “shorthold” ground under section 21″, so an alternative to the s.21 notice.

On 11 August 2009, Saxon (by a housing officer with authority) sent a further letter to Mr C. This letter said “I am pleased to inform you that following the successful completion of your one year starter tenancy, you are now an assured tenant” and listed the additional rights of an assured tenant.

ON 11 December 2009, Saxon began a possession claim, on the alternative grounds that Mr C had an AST and the S.21 Notice, or that he was an assured tenant and the s.8 Notice, grounds 12 & 14. Mr C, by his mother, defended on the basis that he was an assured tenant by way of the letter of 11 August, s.19A and Schedule 2A Housing Act 1988, and denying the alleged breaches and pleading reasonableness.

Mr C argued that the letter of 11 August constituted notice under Schedule 2A, which states:

1.(1) An assured tenancy in respect of which a notice is served as mentioned in sub-paragraph (2) below.E+W
(2) The notice referred to in sub-paragraph (1) above is one which—
(a) is served before the assured tenancy is entered into,
(b) is served by the person who is to be the landlord under the assured tenancy on the person who is to be the tenant under that tenancy, and
(c) states that the assured tenancy to which it relates is not to be an assured shorthold tenancy.
2. (1) An assured tenancy in respect of which a notice is served as mentioned in sub-paragraph (2) below.E+W
(2) The notice referred to in sub-paragraph (1) above is one which—
(a) is served after the assured tenancy has been entered into,
(b) is served by the landlord under the assured tenancy on the tenant under that tenancy, and
(c) states that the assured tenancy to which it relates is no longer an assured shorthold tenancy.
3. An assured tenancy which contains a provision to the effect that the tenancy is not an assured shorthold tenancy.

At the first instance trial, the DDJ found that the letter of 11 August 2009 had been sent in error and in ignorance of the notices served by the solicitors. He found that the AST could not automatically convert to an assured after 12 months by operation of the clause as notice requiring possession had been served. The letter of 11 August was not a notice but a ‘confirmation’ of an event which had not in fact occurred, so was of no effect. A possession order was made. The DDJ also found that if the alternative ground was required he would have made an outright possession order.

On appeal to the Circuit Judge, Mr C’s appeal was allowed. The Judge:

rejected the landlord’s argument that the letter of 11th August 2009 was of no effect. He found that it was a notice for the purpose of paragraph 2 of schedule 2A to the 1988 Act (as amended). He said that the letter was “quite plain on its face” and there was no room for another construction in the broader context. Accordingly, notwithstanding it had “not been the intention of other parts of the landlord’s operation”, the assured shorthold tenancy had been converted into an assured tenancy.

The Judge also ruled that the DDJ had given insufficient reasons for his decision to order possession as the alternative ground and remitted that part of the decision to the DDJ for further consideration. That was not part of this further appeal.

Saxon appealed. They were given permission on a number of grounds, of which the strongest was said to be mistake – that the 11 August letter was sent in error and was of no effect. However, at the full hearing Saxon did not rely on this ground (which had not been pleaded before the DDJ).

Saxon argued that

the Judge was in error in failing to give any, or any sufficient, weight to the context and background in which the letter of 11th August 2009 was sent. The Judge, he said should have asked in accordance with the test propounded in Mannai Investment Co. Limited v. Eagle Star Life Assurance Co. Limited [1999] AC 749 what that letter, set in context, would have conveyed to a reasonable recipient: and had he done so he should have found that the letter was not a notice under the 1988 Act (as amended) but simply an incorrect acknowledgement of a state of affairs that had never existed: because there never had been successful completion of the probationary one year tenancy. He submitted that, given the background, a reasonable recipient would at least have been in doubt as to what the letter intended to convey and so it was insufficient as a notice.

Mr C argued that the Judge was right, the letter was plain on it face and was clearly a notice satisfying the requirements of Schedule 2A. No process of construction under Mannai could come to a different conlcusion.

Held:
The Judge below was right. While the notice of 7 August may have had the effect of preventing the AST automatically becoming an assured tenancy, that did not mean that the 11 August letter did not make it an assured tenancy, by way of para 2 of Schedule 2A.

The letter of 11 August “naturally and objectively read” was clearly a notice for such a purpose, confirmed by the setting out of the rights acquired. The words “following the successful completion of your one year starter tenancy” in the letter of 11 August could not properly be read as linking back to the preceding history and notices so as to contravene the plain meaning of the letter.

Mr Glen [for Saxon] in fact seemed to assume that this tenant, and any reasonable recipient, would have taken it, given the background, that the letter could not have been intended to convert the assured shorthold tenancy into an assured tenancy. But a tenant ordinarily is not to be expected to enquire into, or think about, a landlord’s reasons for serving an otherwise unambiguous notice in connection with a lease. In any event, as Dame Janet Smith observed in argument, a tenant here might well think that the landlord had simply changed its mind from its previous indicated intention.

The case of Mannai involved an identifiable internal ambiguity within the notice itself. It is wholly different from the present case, where there is no such ambiguity. As the Judge below crisply pointed out, the mistake is not in the wording: the mistake is in the fact that the letter was sent at all.

Mannai endorsed the objective test of the validity of a notice set out in Carradine Properties Limited v Aslam [1976] WLR 442: “Is the notice quite clear to a reasonable tenant reading it? Is it plain that he cannot be misled by it?”

While Mannai held that “The fact that the words are capable of a literal application is no obstacle to evidence which demonstrates what a reasonable person with knowledge of the background would have understood the parties to mean, even if this compels one to say they used the wrong words”, this was of no assistance to Saxon, as there was no ‘alternative’ meaning to be found.

Neither were Saxon helped by Barclays Bank plc v Bee [2001] EWCA Civ 1126. In that case two notices had been sent in the same envelope, one (defectively) opposing a new tenancy and one ostensibly agreeing a new tenancy. In those circumstances, there would indeed be a doubt as to the landlord’s intentions in the mind of the reasonable recipient. But here the 11 August letter was sent separately and subsequently.

In addition, Bee had held that an ostensibly valid notice cannot be invalidated by reference to extraneous material, as a matter of interpretation. But that was what Saxon were seeking to do, effectively arguing that a prior statement of intention, even oral, could defeat a subsequent and unambiguous notice. As a matter of interpretation this could not be argued (save for viable arguments on estoppel) and would lead to unacceptable uncertainty. In any event, Saxon were not seeking to use the factual history to clarify the notice, but to try to make it unclear, which is where their argument failed.

Appeal dismissed.

The Court noted a further issue:

I should add that Mr Glen’s position [for Saxon] was that, by reference to the Tenancy Agreement in this case, an assured shorthold tenancy was capable of automatic conversion into an assured tenancy without the need for any further notice to that effect: he said that the provisions of this Tenancy Agreement complied with paragraph 3 of Schedule 2A for this purpose. Mr Living [for Mr C] disputed that: his position was that this Tenancy Agreement of itself could not give rise to such a result under the 1988 Act (as amended), and a subsequent notice under paragraph 2 of Schedule 2A was needed. There is room for debate here. Since, in my view, it is clear that a notice under paragraph 2 was given in this case it is neither necessary nor appropriate to enter into that debate on this appeal.

That strikes me as an interesting issue which may well crop up again, particularly given the increasing numbers of ‘starter’ ASTs.

This was an application to the Court of Appeal for a stay of eviction pending determination of an application for permission to appeal to the Supreme Court. The original Court of Appeal decision – Windsor and District Housing Association v Hewitt (2011) CA (Civ Div) 19/05/2011 – we reported on here. The issue was whether Ms H had obtained a transfer to a two bed property by ‘false statement’. The Court of Appeal found that she had. The Court of Appeal’s order gave possession on 30 June 2011. Permission to appeal was refused.

A warrant was issued on 8 July 2011 with an eviction date of 4 August. On 1 August, Ms H applied to the Court of Appeal for a stay of eviction, heard on 3 August by Mummery LJ (not one of the original appeal judges).

The delay in making the application following the making of the possession order on 19 May was a major factor in the decision, albeit that Ms H had been granted an extension of time to file application for permission by the Supreme Court (until 26 August).

Ms H argued that the reason for the delay was that a) Ms H’s original solicitors had lost their legal aid franchise shortly after the May hearing and that b) the limitation her funding certificate did not cover an application for stay and application for permission to the Supreme Court and that the LSC had not reached a decision on amending the certificate until 28 July 2011, at which point the stay application was made.

Before amendment, the limitation was “Representation of the respondent on an appeal to the Court of Appeal up to and including the final hearing of the appeal.”

However, Mummery LJ found that:

In my view, the public funding at that stage clearly covered an application for permission to appeal to the Supreme Court, which was refused by the Court of Appeal, and in my view it would also have included an application for stay of the possession order pending the determination by the Supreme Court of any petition for permission to appeal and, if that petition was granted, until the final disposition of the appeal. Those sort of applications are made every day in this court when somebody wants to appeal a decision that has disappointed them.

The amended limitation included ‘application for a stay of execution and to petition the Supreme Court for permission to appeal and prosecute the appeal if successful’. However, while this clearly covered the application, Mummery LJ remained of the view that the original limitation would cover the stay application and application for permission to appeal to the Supreme Court, apparently in reliance on those words ‘up to final hearing of the appeal’.

This was significant, because Mummery LJ found that the delay was unjustified. Although Ms H faced eviction and the point of her appeal would admittedly be defeated if the eviction went ahead, it would not be stayed. Application dismissed.

Also worth noting is that while Ms H had argued there was no prejudice to the Housing Association in a stay as the rent was being paid, the Housing Association had argued that there was prejudice in that it had demand for two bed flats from people who ‘really’ needed them. Mummery LJ accepted the Housing Association’s argument.

On the funding certificate limitation point, it would be very likely that the LSC would have agreed with Ms H’s solicitors, rather than with the view taken by Mummery LJ – that the Court of Appeal decision marked the ‘final disposition’ of the appeal as funded. So it may be well be of use to point to this decision, where that limitation is held to cover a stay application and application for permission to appeal further.

Ms H, whose appeal apparently included a Ladd v Marshall argument on new evidence that her son was indeed living with her as well as argument on the interpretation of ground 17 Housing Act 1988, we must presume has now been evicted – unless the Housing Association elected to hold fire pending the permission application. Anyone have any news on this?

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.

This was a renewed application for permission to appeal to the Court of Appeal on a second (or perhaps first- see below) appeal from the granting of a possession order. The ground of appeal was that the appellant tenant had a defence of proportionality which had not been considered by the District Judge and not considered adequately by the Circuit Judge in dismissing the first appeal.

Mr H had a starter tenancy (or AST) from West Kent Housing Association, an RSL/PRPSH. In January 2010, the RSL had a meeting, described as a re-hearing – at which it was decided not to extend or renew the tenancy, but instead serve notice. This was in the context of a complaint by a neighbour about ‘an act’ by Mr H that she saw through her door. The meeting notes suggested that it was difficult for the RSL review panel to reach a decision about what had happened, but on the balance of probability, they went with the neighbour. Mr H had and continues to deny the event occurred.

Thus possession proceedings cane before the Dartford County Court. At first instance, which was before either Manchester City Council v Pinnock [2010] UKSC 45 or Hounslow London Borough Council v Powell [2011] UKSC 8 were handed down, the District Judge did not consider proportionality at all and a possession order was granted.

There was then an appeal to HHJ Simpkiss.

Mr H “is a young man of 21 years old. He is insulin dependent and he is now married and has a child. Because of his insulin dependence, which has been with him since birth, he is vulnerable and it is said that he has suffered certain cognitive and comprehension difficulties. The result of the possession proceedings will be that he will become homeless and will therefore have to apply to the local authority for housing on the basis that he is homeless, and an issue will then arise as to whether he has become intentionally homeless.”

This was raised before the Circuit Judge. There had been no public law challenge to the review decision-making process, but it was raised that the decision was flawed.

The Circuit Judge held that there was no prospect of a successful challenge to the review process. The only signficant points raised were that Mr H denied the allegations and that the police had not considered them proveable to the criminal standard. However, these were not the issues that the RSL faced.

On proportionality, the CJ acknowledge that Mr H was vulnerable.

He noted that allegations had been made about his conduct in fact on several grounds, indecent exposure, intimidation of a neighbour and affray, and he also noted that the appellant denied all these allegations. The judge then referred to the speech of Lord Hope [in Powell] in which Lord Hope held that in relation to proportionality there was a high threshold before it could be argued, and it had to be seriously arguable before it could be raised before the judge. Proportionality in this context means a proportionate means of achieving a legitimate aim, and the court had to recognise that the local authority was likely to be in a better position than a court to assess whether there were good management review reasons for seeking the order. Ordinarily the local authority did not have to explain or justify its reasons for seeking a possession order to which it was entitled.

The CJ futher noted Lord Neuberger’s statement in Pinnock that it would only be in the exceptional case that Art 8 proportionality would be even arguable. Further, the local authority (here RSL) should be assumed to be acting in accordance with its duties.

The judge held that it was not necessary for the court to investigate whether the allegations relied on were correct. There had to be something put forward on behalf of the defendant to raise issues as to whether the decision to take possession was one which could stand and was lawful. In the present case there was a disagreement about the internal appeal process, but at the end of the day the judge was satisfied that, even though the events had occurred earlier in the tenancy, they were material which the local authority could take into account. There was an internal procedure and that procedure was followed.

There were no serious arguments to be determined before making a possession order and this was not an exceptional case. He dismissed the appeal.

Permission to appeal on the papers was denied. On renewed permission to appeal, Arden LJ accepted that arguably this should be treated as a first appeal, the DJ having reached a decision before the relevant judgments in Pinnock and Powell, so that the CJ’s decision was the first on proportionality.

Mr H submitted that this case was analogous to that of Powell in Powell v Hounslow. Ms Powell was facing possession from temporary accommodation due to rent arrears, apparently due to issues with or failure to make housing benefit claims. She was given permanent accommodation before the Supreme Court hearing, but Lord Hope stated that, if there had been a live issue it would “have been preferable for her to be given an opportunity for the proportionality of the order to be considered in the light of her personal circumstances”. If evicted Ms Powell would have been homeless and entitled to make a homeless application. There would have been a duty because of her children [For some reason, intentional homelessness was not raised by counsel for Mr H, or at least it is not referred to by Arden LJ]. Mr H would be similarly vulnerable and in priority need but would be found intentionally homeless if evicted.

Arden LJ found that the case was not particularly analogous to Powell. There had been a review in this case and, unlike this case, there was the potential solubility of Ms Powell’s rent arrears through HB. Further, the landlord in this case was not a local authority with a prospective Part VII duty.

Further, the Court must star from the postion that the landlord had fulfilled its duties when it concluded that the evidence of the neighbour was to be preferred and that it had to take into account its duties to other tenants.

The CJ had considered proportionality, but his decision should be considered on the basis of a first appeal.

The decision at the appeal hearing did not seem to me to consider Mr Haycock’s conduct since the incident complained of or his vulnerability and allied personal circumstances. It must be arguable whether a registered social landlord is to be treated as in a different position from a housing authority under a housing duty. Therefore those issues seem to me one which can properly be considered as at the second stage. In other words it seems to me, in the particular circumstances of this case, that it is just about arguable that the proportionality of the making of a possession order should have been considered by the judge because there were factors which had not been taken into account, namely whether his conduct since the start of the tenancy had been of a different order and the question of whether given that he would be likely to be homeless and might be intentionally homeless as a result of the finding on disputed allegations.

Permission reluctantly given.

Comment
The ‘interim’ decision to effectively treat this a first appeal, given the timing of Pinnock etc. is interesting, but surely now of limited applicability.

Still, this one will be worth watching. Partly because the landlord is an RSL and it wil be interesting to see how the Court of Appeal approach housing management in an RSL rather than a local authority, prima facie. Also because – as should be clear from the passages cited above (and there were more) – both the CJ and Arden LJ seem to get themselves into a terrible tangle over whether the fact that a landlord body might have a Part VII housing duty would make any difference to a proportionality defence. I can’t see why it would or indeed should, but this may be unfair on the basis of what was clearly an ex tempore judgment.

As to the defence, it is hard to say on the brief basis of this permission judgment.

Certainly it would have been stronger with a combined public law defence to the decision to seek possession – and this appears to have been confused by Arden LJ and perhaps the CJ with a challenge to the review procedure on standard public law grounds (flawed, considering irrelevant info or not considering relevant info, irrationality etc.).

From this brief permission decision it is impossible to tell if a full gateway b challenge was raised below (i.e. the decision to evict being one no reasonable person would consider justified in the circumstances, including Mr H’s personal circumstances). But as this appeal is now proceeding on proportionality alone, this is an all or nothing defence, as we noted in discussing Hounslow v Powell.et al

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.

Mew v Tristmire concerned whether or not two “houseboats” were “dwelling houses let as separate dwellings” as required in section 1 of the Housing Act 1988 in order for them to be assured tenancies.

The “houseboats” appear to have been converted WWII landing craft that were, in the event, not used in the D-Day invasion. Both rested on wooden platforms so that they did not rise and fall with the tide. Both could be lifted off the platforms and removed, although one, “Emily” was fixed to an additional structure that had been added some 5 years previously and which would be damaged or destroyed if “Emily” was moved.

The court took the “houseboats” status as “dwelling houses” depended on their forming a part of the land, which in turn depended on their degree of annexation. Readers may be familiar with the considerable case law that has built up around the question of annexation and the fertile source of argument to which it can give rise, particular in the context of business tenancies.

The court considered, on the one hand, Elitestone v Morris, where a bungalow had been constructed in situ. The House of Lords held that, although it merely rested on some concrete pillars by its own weight — and so was not strictly speaking “fixed” to the land — it could only be removed by demolition and thus was properly speaking a part of the land.

On the other hand was Chelsea Yacht & Boat Co Ltd v Pope where a houseboat that was moored to the banks of the Thames (and a pontoon) could be untied (and the mains services disconnected) and floated away was found to be chattel that did not form a part of the realty.

The court considered that the condition of the houseboats at the time they were installed was relevant. At that time, on the findings of the first instance judge, the houseboats were capable of being floated away, even though now they had deteriorated to a point where removal would mean their destruction. As a result the case was more like Chelsea Yacht than Elitestone. The houseboats continued to be chattels and so could not be dwelling houses. The tenants of the houses could not, therefore be assured tenancies.

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.