Archive for the 'ASB' Category

‘Ard en fast rule*

Published
by
J
on 20/02/2010
in ASB and FLW case note
. 2 Comments

James v Birmingham City Council [2010] EWHC 282 (Admin) is a further dispute about the power of the court to vary an ASBO.

A magistrates court may make and ASBO against any person over the age of 10 if it can be proved (to the criminal standard of proof, using the civil rules of evidence) that he has acted in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself and that it is necessary for such an order to be made – s.1(1), Crime and Disorder Act 1998 and R (McCann) v Crown Court at Manchester [2003] 1 AC 787.

At least one incident of ASB in the six months prior to the application must be proved – s.127, Magistrates’ Courts Act 1980. There is, however, no prohibition on the court considering conduct which pre or post-dates the complaint – Chief Constable of West Mercia Constabulary v Boorman [2005] EWHC 2559 (Admin); Stevens v South East Surrey Magistrates’ Court [2005] EWHC 1456 (Admin); Birmingham City Council v Dixon [2009] EWHC 761 (Admin).

Either party may apply for an ASBO to be varied or discharged (s.1(8), 1998 Act), although no order may be discharged during the first two years without the consent of the authority that obtained the ASBO (s.1(9).

The power to vary an ASBO includes a power to extend its duration – Leeds City Council v RG [2007] EWHC 1612; [2007] 1 WLR 3025. Where the variation seeks to impose more stringent obligations (including an extended length) on the defendant, the authority should lead evidence to establish that such an order is necessary – Leeds, above.

Significantly, there is no right of appeal to the Crown Court against a decision of the magistrates’ to vary (or not to vary) an ASBO; one must either seek judicial review or appeal by way of case stated – Langley v Preston Crown Court [2008] EWHC 2623 (Admin).

Birmingham had obtained an ASBO against Mr James in July 2006, to run for a period of 3 years. In December 2008, they applied to vary the ASBO so as to extend the duration, exclusion zone and list of persons that he could not associate with. It adduced evidence of drug related convictions in 2008 in another part of Birmingham. The court was also provided with evidence of convictions for breaches of the ASBO and CCTV footage of Mr James, together with others, hanging around (and obscuring his face) outside of some shops which was said to be further evidence of gang related activity.

The appellant opposed the making of the variation and argued that the authority should (a) apply for a fresh order and (b) prove some further act of ASB within six months of the application for the variation having been made. The DJ rejected both submissions, but stated a case for the High Court. The questions were:

(a) was it correct (on the facts of the case) for him to allow the variation and not require the authority to issue fresh proceedings?

(b) was it correct that an application for a variation did not require proof of further ASB within 6 months of the application being made?

The appeal was dismissed and both questions answered “yes”. There was no requirement to prove further ASB on an application for a variation. The power in s.1(8), 1998 was expressed in very wide terms and did not oblige the court to consider any particular type of evidence.

Some variations would, of necessity, not be predicated on further ASB (i.e. the defendant got a job in the exclusion zone). This was so regardless of the type of variation being sought.

The only question for the court was whether such a variation was necessary in order to properly protect the public. If the existing ASBO was not achieving that end then, in principle, it should be varied.

In deciding whether a variation was necessary, the court would need to have evidence before it to justify each variation and, in most cases, the evidence would be of further ASB, but, as a matter of law, it was not necessary to prove any such acts. S.127, 1980 Act merely required that the application be  made within 6 months of event or circumstance which allegedly rendered the original order inappropriate.

It was entirely proper for the variation to be made. There was no suggestion that the authority was seeking to defeat a right of appeal and the new complaints were closely linked to the ASB which underpinned the original order. It made sense to extend the original order and not require the authority to seek a fresh order.

On the facts of the case, one thing did, however, trouble the court. It appeared that the appellant had been in prison for most or all of the six months leading up to the variation application. If that was true, then any of the allegations against him could not have been true and it may have been that the DJ proceeded on a false factual basis. However, nether party was able to confirm the date of his imprisonment and so the court was unwilling to find that the DJ had erred on this basis.

* Jonathan Manning of Arden Chambers for BCC, Victoria Osler of Arden Chambers for Mr James. My attempt at humour. Sorry.

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Trigger happy?

Published
by
Dave
on 11/02/2010
in ASB, FLW case note, Nuisance and Possession
. 0 Comments

In Barber v Croydon LBC [2010] EWCA Civ 51, the Court of Appeal found Croydon’s decision to pursue possession proceedings of a non-secure tenancy occupied by Mr Barber Wednesbury unreasonable, being by my estimation the third such successful use of a gateway (b) defence in the higher courts (after Doherty itself and McGlynn).  There are one or two important points discussed; in particular, the CA took the Taylor approach to possession proceedings as opposed to that advocated in Doran, but more of that below.

First, the facts: Mr Barber suffers from learning difficulties and a personality disorder of a permanent nature.  he was provided accommodation by Croydon under Part VII (as a non-secure tenancy) in 1999.  After an apparently clean record, in 2007, he swore at, threatened, and kicked (in the knee) the flats’ caretaker.  The council’s ASB officer then got involved and immediately served an NTQ, without considering Mr Barber’s circumstances or meeting him.  Subsequently, they did meet and, although some of the allegations were disputed, he did accept a police caution for an offence.  Croydon then issued possession proceedings, which were defended on a number of bases, although two were pursued to the CA (the gateway (b) defence and a DDA defence).  Reliance on the DDA lead to a joint instruction of a psychiatric expert (Dr Owen) who, in brief, found that his disability contributed to his behaviour in relation to the caretaker; if evicted his life would descend into chaos.  It should also be noted that there was just this one incident – there had been nothing else before or since.

The council, through the ASB team manager, nevertheless decided to proceed with the possession claim.  They did so for a number of reasons relating to the protection of their employees, sending the correct message to their tenants, the seriousness of the incident (even though isolated), and, most particularly, the manager was not convinced that the conduct was caused by Mr Barber’s mental disabilities (thus directly conflicting with the expert evidence).

The initial issue was the Doran/Taylor issue, ie at what point does the gateway (b) claim arise?  Doran said that the relevant point was the decision to serve the notice to quit; Taylor was far more expansive.  Patten LJ, giving the only reasoned judgment in this case,  sided with Taylor.  Patten’s LJ’s reasons are compelling, particularly in a claim such as the present:

… in principle, there is no reason to stop at that point [ie the NTQ].  In Kay Lord Hope spoke of the challenge under gateway (b) being to the decision of the local authority to recover possession.  That process involves not only the service of a notice to quit as a necessary first step but also the commencement and conduct of the possession action thereafter.  It seems to me that a local authority is bound to keep the position under review and to take into account any relevant facts which come to its notice at any stage in the proceedings.  This process of review has two obvious consequences.  The first is that it avoids any questions of retrospectivity by requiring the local authority to make a series of decisions which accommodate any new facts or other material relevant to its decision to seek possession.  The second is that it allows the local authority to re-consider new material subsequent to its initial decision to terminate the tenancy and so avoid the charge that it has failed to take all relevant matters into account.  By the same token, a decision to press ahead with possession proceedings taken following a re-consideration of the case subsequent to the notice to quit will be reviewable regardless of the legality of the earlier decision to commence the proceedings.

Wayne Beglan, for Croydon, relied on the ASB manager’s assessment as essentially curing any defect.  There then followed quite a lengthy discussion of the government’s ASB guidance and Croydon’s policy.  That can be cut quite short here because the essential points to note are twofold (1) both the guidance and the policy clearly delineate that action taken against people with disabilities requires a multi-agency partnership type approach and support for the individual; and (2) although Mr Barber’s action fitted into the most serious category of ASB for Croydon’s policy, which “will almost always result in legal action … for an outright possession order”, it only just did so, and the policy itself more broadly drew attention to the range of possible actions (such as an ABC) to change the behaviour of a perpetrator: “Simply to remove him to another location may not of itself solve the problem” (at [32]).

Christopher Balogh, for Mr Barber, argued that Croydon had pressed ahead with the possession claim regardless of the alternative possibilities to which they had given no consideration.  Patten LJ agreed.  There had been no liaison with other mental health or social services to develop an alternative strategy.  The ASB manager’s assertion that there had been no further disturbance at the property after the NTQ because of its deterrent effect also meant that there was no need to press on with the possession claim.  Patten LJ continued (at [43]):

But the principal criticism that can be made is that Mr Hunt carried out the analysis of whether some alternative course of action would prevent any further instances of ASB in the future without assistance from the specialised agencies and without, in my view, giving Dr Owen’s report the weight which it clearly deserves; indeed any weight.  Thus he appears to have rejected Dr Owen’s view that the incident was linked to Mr Barber’s disabilities, although no reasons are given as to the basis on which this was done.  There was also no apparent consideration of the possible consequences for Mr Barber of losing his flat which Dr Owen considered would cause his life to descend into chaos.

Any steps to explore alternatives should have taken place prior to the trial of the claim.

Conclusion: Croydon’s claim was Wednesbury unreasonable in an old-fashioned sense.  Wayne Beglan appears to have been concerned that Croydon would be issue-estopped if they sought possession on the same grounds again, an argument which seems to fly in the face of what is being required, ie a proper reconsideration of all the facts to satisfy the council’s public law obligations.

Comment:

Croydon were clearly on sticky ground after Patten LJ’s refutation of the narrow approach taken in Doran.  Patten LJ’s reasoning on this point is compelling and the gateway (b) claim must attach to each decision taken by the public authority on the way to the ultimate sanction.  Such an approach may well actively assist public authorities as previous decisions can effectively be remedied by a subsequent proper consideration, a point made by Patten LJ.  Croydon seemed to have adopted a trigger happy approach without taking into account the evidence – or, perhaps worse, disregarding the expert evidence.  I have an idea of ASB teams as having a “prosecution-first” mentality, which may be unfair but reflects a criminological bent on my part.  What this case is telling us is that public authorities need to have regard to all the evidence and the proper application of their policy (in this case, consideration of the alternatives).  Mr Barber’s personal circumstances were clearly relevant here (cf Defence Estates) because of Croydon’s policy.  One slight pang I have about this case, though, is whether it is requiring something close to a proportionality assessment of the possession claim (which may go further than other courts have gone in the past, eg Stokes esp at [77], although it does reflect the joint instructions to the expert, who was also asked to make effectively a vulnerability assessment for priority need, as well as the terms of the policy itself).

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It's a confused world out there…

Published
by
NL
on 04/01/2010
in ASB, Adverse possession, Allocation, Disrepair, Housing law - All, Leasehold and shared ownership, Nuisance, Possession, Tolerated trespasser, Trusts and Estoppel, Various (non-housing), assured-tenancy and secure-tenancy
. 11 Comments

And for the new year, it seems an opportune moment to delve into the Nearly Legal search logs in a vaguely quixotic attempt to provide answers to some of the questions that brought people here. Alternatively, where this is not possible, we can stare in mute bewilderment at what was behind the question…

It is with the latter that we begin
tolata mother and daughter inheritance tax and succession with a will
Just how much can you stuff into one short question? And without giving us any idea what is actually going on?

rehousing on asthma grounds lambeth
I’m resisting the temptation to make the obvious joke about Asthma Grounds being a surprisingly pleasant low rise estate. If your current housing is having an impact on your asthma, you may get a medicial priority, but as far as I recall from Lambeth’s allocation scheme, it is not likely to be a high priority. You should see a local independent housing advisor, as a lot depends on the specific details.

not paid rent from and onwards
Are you boasting imprecisely or complaining without detail?

tenant gas inspection statutory nuisance
If you mean can a gas inspection be a statutory nuisance, no. If you want a gas inspection and the landlord isn’t carrying one out, this is a serious breach of tenancy conditions and potentially the landlord’s repairing obligations if there is a problem – in which case run, don’t walk, to your nearest housing solicitor, local authority tenancy relations team or housing advisor. If, and I am scratching my head over the statutory nuisance here, the issue is another tenant refusing access for a gas inspection in their property which is affecting yours, then their landlord is the first point of contact and possibly the local authority environmental health and/or the gas co.

charging orders declaration of trust deed
Eh? Trying to avoid a charging order or assign the benefit of one?

music 3 am asb warning
Not bloody surprised. And possibly from the same person, we have…

noise abatement order defence student
Being a student is not going to help. There is no ‘young, irresponsible and drunk much of the time’ defence in the statute.

delegated authority to issue possession proceedings
No – not by an agent or another behalf on of the landlord unless the person is the landlord’s legal representative (meaning a solicitor authorised to sign the claim on the landlord’s behalf). If a power of attorney is involved – maybe and perhaps, but if so only with leave of the court.

will i get evicted for unlawful subletting of shared ownership?
Quite possibly. Depends on the precise terms of the lease, but it is likely to be either a lease or an assured tenancy and under either a sublet is likely prohibited. You appear to know that this is the case as you call it unlawful, If it is, then it is a significant breach of lease/tenancy and the landlord could probably seek possession.

unlawfully evicted illegal subletting
I think the answer is in the question. Unless, of course, you were thrown out without a possession order having been obtained against the tenant who unlawfully let to you…

i am a tennant in a house where the bank have a posession order can i make them an offer on the property uk
You can, of course. There is absolutely no guarantee that they will take any notice of you whatsoever.

quick access to adverse possesion in luton
It is no quicker in Luton than anywhere else. 10 years now. You’ll just have to wait.

plural of criterea
What are they teaching the children in school these days? Any fule no it is criterion.

dyslexics could not understand legal contracts
Words fail me.

southwark housing act regarding repair before tenancy commence
There is a legal requirement that a property be fit for human habitation when it is let as a furnished property, but this is a pretty low threshold in any event. Otherwise, repairs are not enforceable (assuming that they are repairs for which the landlord is liable under the tenancy agreement and s.11 Landlord and Tenant Act 1985) until the tenancy has begun. However, it is worth checking Southwark’s tenancy agreement, allocation policy and other documents for any statements of the minimum standard of housing to be provided. These may be useful. Off the top of my head and without them in front of me, I couldn’t say.

the courts have given me a suspended sentance for rent arrears what does this mean
That you got a really, really tough District Judge? I presume you mean suspended possession order – if so, it means make the payments set out in the suspended order or your landlord can ask the court for a warrant to evict you. Until May 2009, it would have meant a lot of other things as well, none of them good, but at least now you remain a tenant.

when did was secure tenancy introduced
1980, it did was.

i have been living as a tolerated trespasser for 6 years can i be evicted
The good news is that you aren’t a tolerated trespasser any more and haven’t been since May 2009 – you have a ‘replacement tenancy’ of some kind. The bad news is that the original possession order is still there, so if you haven’t paid off the rent arrears – if that is what it was – you still could be evicted, but your landlord would probably need to apply to the court for permission to apply for a warrant, as the possession order is over 6 years old.

first essex high court
There may be High Courts outside London now, but this is just a little ahead of its time. The Billericay High Court is not sitting yet…

can sister claim possession of my property
I have absolutely no idea. I am not acquainted with your sister or your property or the relationship between them.

how many weeks make a year
There are limits to our public service remit. Out of curiosity, I googled this. NL is at the bottom of page one – for a post called ‘How many weeks make 8′. Above NL are about 10 links that all say ‘52, idiot. I can’t believe you are asking this’. So this person clicked on the link to NL…

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How late did you leave it?

Published
by
J
on 19/12/2009
in ASB and FLW case note
. 1 Comment

Not a post about Christmas shopping, (which is all done, thanks to Amazon) but about delays in lodging appeals against ASBOs and the case of R (Birmingham CC) v Birmingham Crown Court; R (South Gloucestershire DC) v Bristol Crown Court [2009] EWHC 3329 (Admin).

When a Magistrates’ court makes a stand alone ASBO (s.1(1), Crime and Disorder Act 1998), appeal (by way of re-hearing) is to the Crown Court. Neither the CPR nor the Criminal Procedure Rules govern such applications, rather, they are dealt with by the Crown Court Rules 1982. Those rules require that notice of any appeal be lodged with the Crown Court within 21 days of the decision under appeal, although the court has power to extend that time. An application to extend time does not (rather surprisingly) have to be served on the respondent to the appeal.

In the Birmingham case, RR sought to appeal his ASBO some ten months after it was made and only after he was convicted for breaching the terms of the ASBO. He suggested that he had been unaware of the ASBO trial (which was untrue, as he had been personally served with both the interim and final ASBO). The judge granted permission to appeal out of time on the papers. BCC questioned this, noting both the lengthy delay and taking issue with the suggestion that RR had not known about the ASBO trial.

A different Judge listed a hearing to permit BCC to make representations and, at that hearing, the original judge who had granted permission out of time confirmed his decision. Even though the court had been misled by the suggestion that RR had not known of the ASBO trial, it was still appropriate to grant permission to appeal out of time.

In the South Gloucestershire case, AW and NW sought to appeal some six weeks out of time. When the council questioned these decisions, it was informed that the judge was “not prepared to revisit” the decision and that the court did not “have to show how it made its decision.”

Both authorities issued procedings for judicial review of the respective Crown courts.

The claims were dismissed. It was important not to treat the 21 day rule as an unimportant formality and an appellant had to explain why they were appealing out of time. The court should also have regard to the problems inherent in a re-hearing, both in terms of deterioration of the memory of witnesses and the additonal costs to a public authority. Whatever decision is reached, the judge must give adequate reasons for his decision.

It was significant in both cases that the appellants were teenagers. Courts were well aware that even unproblematic teenagers did not always do what was in their best interests at the right time. In addition, an ASBO was a serious remedy, particularly when made against younger persons.

In the Birmingham case, it was entirely possible that RR had not fully appreciated the importance of the ASBO being made against him. At the material time he had been arrested for serious drugs offences and was suspected of involvement in an attempted murder. The ASBO may not have been upper-most in his mind. The judge had been wrong, however, not to consider more fully (or at all) the merits of the proposed appeal. The prospect of success was clearly material to whether or not to grant permission.

However, the defect had been cured once the question of leave was revisited at the oral hearing. That hearing had gone on for some 75 minutes and had involved BCC making submissions. In those circumstances, it could not be said that the decision was unreasonable or irrational.

In the South Gloucestershire case, the judge had been given adequate information on which to base his decision. The problem was that he did not give adequate reasons. That was not, however, a sufficient basis to set aside his decision.

However, for the future, appellants should provide details as to the merits of the appal in their grounds of appeal and give reasons for delay in applying. They should also, if possible, address the question of prejudice to the proposed respondent. Consideration should also be given to amending the 1982 rules so as to require such an application to be made on notice to the proposed respondent.

I’m not entirely happy with this as it seems to me that both authorities were treated quite badly here. There is an easy solution of course – simply amend CPR 2.1 so as to make it apply to the Magistrates and Crown Courts in their civil capacity. Perhaps I should mention that in my letter to Santa…

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ASBO in absentia

Published
by
J
on 16/11/2009
in ASB, FLW case note and Housing law - All
. 6 Comments

M v Burnley, Pendle & Rossendale Magistrates’ Court [2009] EWHC 2874 (Admin) (on Lawtel only)

The claimant were two brothers, aged 13 and 14. They were subject to ASBOs which prohibited them from engaging in certain anti-social behaviour in the borough of Pendle. With seven months of the ASBO still to run the family moved to another area and the police (who appear to have obtained the original ASBO) applied to vary the geographic scope of the order.

The brothers instructed a solicitor who appears to have attended the first hearing of the variation application on their behalf. The application was opposed and a trial date set for December 2008.

When the trial came on, neither of the brothers attended, but their solicitor attended on their behalf. One of the brothers was at school (having been taken to school that morning by a taxi arranged by the local education authority) and the other was unable to attend because his mother was indisposed.

The Magistrates’ had to decide whether or not to proceed in the absence of the brothers. They concluded that they should do so. They proceeded to hear the evidence and varied the ASBO in the manner sought by the police.

The brothers applied – successfully – for judicial review of the variation. Langstaff J held that there had been a breach of the audi alteram partem principle (the right to be heard). The reasons for non-attendance were genuine and not designed to frustrate the process of the court and, in those circumstances the Magistrates’ should have adjourned the matter for a short time. It would be a rare case where it was appropriate to proceed in the absence of one party where that party was not intentionally absent.

The variation was accordingly quashed.

I’m not entirely with Langstaff J on this one (which will no doubt cause his Lordship considerable distress). Not only were the brothers represented by their solicitor (albeit he did not have full instructions) but it does not appear that any application to adjourn was made. In those circumstances, I’m not entirely surprised that the Magistrates’ decided to proceed. The rights of the community and the inconvenience to the witnesses must, contrary to the view of Langstaff J, be a relevant consideration (see, by analogy, West Kent Housing Association v Davies (1999) 31 HLR 415, where Robert Walker LJ explains the importance of appreciating the difficulty that a claimant can have in marshal ling evidence and witnesses in ASB cases).

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Reasonable excuse

Published
by
J
on 16/10/2009
in ASB and FLW case note
. 4 Comments

Only tangentially relevant to housing law, but R v Charles [2009] EWCA Crim 1570 is a decision of the Court of Appeal (Criminal Division) dealing with the question of burden of proof for a “reasonable excuse” defence when charged with breaching an ASBO.

An ASBO can be imposed in one of three ways: by complaint to a magistrates’ court (sitting in its civil capacity); by the county court in principle proceedings (i.e. ancillary to another claim) or by a criminal court which has first convicted someone for a relevant offence. In all cases, it is a crime to breach the terms of an order.

Section 1(10) Crime and Disorder Act 1998 provides a person charged with breaching an ASBO with a defence if they had a reasonable excuse for so doing.

In Charles, Mr Charles had been made subject to a post-conviction ASBO which he was alleged to have breached by threatening, assaulting and attempting to unlawfully evict one of his tenants. He contended that he had merely been trying to deal with noise nuisance and collect rent arrears and that, therefore, he had a defence under s.1(10). He argued that it was for the prosecution to prove that he did not have a reasonable excuse.

His argument was rejected by the trial judge but upheld by the Court of Appeal. Section 1(10) merely imposed an evidential burden on a defendant. Once that had been discharged, it was for the prosecution to prove that there was no reasonable excuse. This had to be done to the criminal standard of proof.

This question was free from authority previously, so it’s useful to have the law clarified. The authors of the “Guide for the Judiciary on ASBOs” can feel vindicated, since they had already formed the view that this was the law (available here as a .doc file, see para. 6.5).

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Unwelcome in the valleys

Published
by
NL
on 14/09/2009
in ASB, Housing law - All, Introductory and Demoted tenancies, Possession and secure-tenancy
. 0 Comments

While we are in Wales and with thanks to the Garden Court housing bulletin, we report an Ombudsman’s decision Complaint against Cardiff CC 200702358 [pdf]

Mr Davies and Miss Brown complained about Cardiff Council’s failure to deal with noise nuisance and threatening behaviour from Mr Williams over a period of some years. All parties were Council tenants, Mr Williams lived in the flat below the complainants.

The Council’s failure to deal with Mr Williams had been the subject of a previous Ombudsman’s report in 2007 (200501496/7/8), which had made extensive recommendations on Cardiff’s handling of ASB. Mr Williams had been transferred, but to a nearby flat, in the course of this investigation.

Mr Williams had had an introductory tenancy when the initial complaints of noise nuisance where made – amounting to 8 months of near daily noise nuisance, supported by nuisance diaries and some witnessed by Council officers, before Mr Williams received ‘warnings’. There was also a police interview about threatening behaviour. All in the first year of Mr Williams introductory tenancy. Despite this, the Council confirmed Mr Williams secure tenancy. In 2006 there was an incident of threatening behaviour. The Council accepted Mr Williams account, but criminal charges were brought by the police and a conviction obtained. After the conviction, the Council served an NSP on Mr Williams, but took no further action.

Further complaints of noise and behaviour were referred by the Council to ‘Pollution control’ who declined to deal with out of hours complaints on the basis that ‘the case was too dangerous to be put to its “out of hours” service due to the perpetrator‟s violent history and the consequent risk to the safety of staff.’

From the beginning of 2007:

Miss Brown continued to submit nuisance diaries including one example from the 9 February to 23 March that had eleven separate incidents of amplified music and other disturbances; her other diaries were similar in content. In April 2007, Pollution Control served a noise abatement order on Mr Williams. Similar reports continued to be made through the year and by October witness statements were being obtained from Mr Davies and Miss Brown to support legal action by Pollution Control. An email between Housing staff and Community Safety at this time acknowledged that Miss Brown was in fear for her safety as she was the main complainant and had reported hearing Mr Williams make verbal threats to kill her and her boyfriend. The housing officer asked for advice from Community Safety on security measures for the flat and a community alarm and additional locks were provided.

In June 2008 Mr Davies and Miss Brown advised the Council that in the face of continuing complaints and lack of promised action by the Council that they had lost faith in its willingness to bring the nuisance to an end and they withdrew their witness statements and asked for a transfer instead. Pollution Control explained that they could not proceed with action under EPA without their involvement and tried to persuade them to continue but they did not do so. The Council took action to register the transfer request in November 2008 but Miss Brown had not been moved at the time of writing this report.

In October 2008 the Council transferred Mr Williams to another flat on the same estate which is in a nearby block and has windows facing the windows of the flat occupied by Miss Brown and Mr Davies. The Council said that the transfer was not connected with the complaints that had been made against him and had taken place within a timescale that was normal for that estate.

The ombudsman pointed out the range of options legally available to Cardiff, from ASBIs and the EPA through to Introductory and Demoted tenancies and eviction, and also to Cardiff’s policy, which included:

a description of the legal and non legal remedies available, examples of when each should be considered together with the grounds on which they could be sought and the burden of proof required. For example, it describes the Anti-Social Behaviour Injunction which would be used in an emergency to protect a victim or witness who had been threatened and for which the civil burden of proof, being “likely to have happened”, would be required. The grounds for seeking this remedy would be conduct that is capable of causing a nuisance or annoyance to any person and affects the housing management functions of a landlord.
The procedure includes a flow chart which directs staff to devise an action plan and to conduct a formal assessment of the complaint if it is not resolved.
It advocates weekly or monthly updates to the complainant at all stages of the complaint and speedy action at all stages; for example, where there has been violence or threats of violence or deliberate damage to property, the matter should be dealt with immediately but not more than 24 hours after the report. All emergency cases should be discussed with the Housing Team Manager within 24 hours.

This had clearly not happened at all.

The previous report had found that Cardiff left ASB to pollution control almost entirely.

The Council officers evidence was varied and disjointed. Notable was the District manager who was concerned that for housing officers:

a NOSP was regarded as a form of warning letter and that if there were no problems in the initial 28 day notice period, then it was not followed up and was sometimes even withdrawn.

Nobody had any idea why this case hadn’t been referred to the dedicated ASB unit and the newly appointed ASB specialist solicitor ws concerned about the lack of integration and about the tendency of housing officers to treat introductory and secure tenancies alike.

In a frankly damning conclusion, the Ombudsman found systematic failings:

i) Late referral of the case for consideration of possession proceedings and the lack of active engagement or consideration of management or legal remedies by the Housing Department, who relied on the Pollution Control section to take the lead in bringing the nuisance under control although many of the issues being complained of were breaches of tenancy rather than noise pollution issues.

ii) the

lack of adequate response to the problems during 2007 and up to October 2008, when Mr Williams was moved, this being after the implementation of the Council‟s action plan following the previous Ombudsman‟s report (para 23) which was completed in March 2007. The actions of its officers and interviews suggest that the lessons have not been fully learned from the last report and that further work to reinforce the action plan is still needed. I feel that in its response to the draft report the Council has not properly absorbed the chronology of complaints and has failed to take account of the evidence contained within its own files.

iii) the Council‟s failure to take advantage of the opportunity afforded by the fact that Mr Williams was on an introductory tenancy agreement when it received numerous complaints from Miss Brown from early in his tenancy and from another tenant complaining in very similar terms of eight months of nuisance from the time Mr Williams moved in.

iv) that

the Council says in its response to my draft report that it approaches introductory tenancies in the same way as secure ones, and I believe it needs to revisit the statutory provisions on this and be reminded of the purposes for which Parliament brought in introductory tenancies. Having examined the WAG guidance on which the Council relies in its response, I feel that it has quoted selectively from this document and that a more clear sense of what the document intends is obtained from reading beyond the lines quoted.

v) the failure to pursue Mr Williams for criminal damage, leaving it to Ms Brown to push the police for a criminal prosecution.

vi) The failure to pursue the NSP, once served.

vii) No consideration of obtaining an injunction to protect the safety of Ms Brown and Mr Davies, despite the Council acknowledging a threat to its own staff.

viii) A lack of effective multi agency working.

Therefore:

I find maladministration in that the Housing Department has failed to follow its procedures in respect of the following matters:-

Lack of regular updates to the complainants and failure to convey decisions
Absence of an action plan
Absence of speedy action at any stage in the handling of the case
Absence of consideration of legal alternatives by the Housing Department
Absence of legal action to protect witnesses
Lack of effective working with other departments
Late referral to legal department
Late installation of security measures

I find no evidence of considerations of proportionality of action or right to home life under Article 8 the Human Rights Act 1998 in this case and these considerations are not directly referenced or embedded in the anti social behaviour procedures of the Council. I find that Miss Brown‟s and Mr Davies‟s human rights were engaged in this case but were never addressed by the Council.

Neither is there any evidence of considerations of Miss Brown and Mr Davies‟s position under s.183 of the Homelessness Act 2002, specifically in relation to the appropriateness of their remaining in the flat given the actual violence and repeated threat that they experienced. This is a statutory duty. Additionally, the delay of five months in dealing with their transfer request was unacceptable.

Recommended:

Ms Brown be transferred to a suitable location within 3 months

Ms Brown be paid £7,500 for the 3 years of evidenced complaint

The Council to revise ASB policy to formalise early discussion with legal representatives and consideration of the alternative legal remedies that are available to tackle anti social behaviour, and to include in its procedures appropriate advice and considerations under the Human Rights Act 1998 and Homelessness Act 2002.

Further training

Council to evidence actions in 3 to 6 months

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What is "housing-related conduct?"

Published
by
J
on 12/09/2009
in ASB and FLW case note
. 0 Comments

Swindon BC v Redpath [2009] EWCA Civ 943

By s.153A(1) Housing Act 1996, a variety of social landlords, including local housing authorities, may apply for an injunction to restrain a person from engaging in “housing-related” anti-social behaviour. That means conduct which directly or indirectly related to or affects the housing management functions of the landlord.

Mr Redpath was a secure tenant of Swindon BC (“Swindon”). In February 2003 he had been convicted at Swindon Magistrates’ Court for failing to provide a specimen for analysis and other driving offences. A neighbour, Mr Johnson, had reported Mr Redpath to the police in respect of this incident and, as a result of this, Mr Redpath began to take various unpleasant actions directed against Mr Johnson. Mr Johnson was an owner-occuper and, at this time, Mr Redpath was a secure tenant.

In July 2005, following what Rix LJ describes as a “campaign of harassment… including threats… and damage to their property” (at [4]), an SPO was granted against Mr Redpath. In June 2006, following further criminal activity, the suspension was lifted and an ASBI made against Mr Redpath, preventing him from entering the area where he used to live.

Mr Redpath was evicted in July 2006 and broke the ASBI in September 2006. The ASBI was varied but subsequently broken again. Both criminal and committal proceedings followed and Mr Redpath was given eight weeks imprisonment in respect of various criminal matters and an additional eight months in respect of proven contempts of court. A second ASBI was granted in April 2007.

Just as the second ASBI was expiring, Mr Redpath returned to the area where he used to live and again harassed Mr Johnson and his partner. Other residents saw Mr Redpath shouting, swearing, and being drunk. Mr Redpath carried out a number of acts of criminal damage and other such behavour. Further committal proceedings were issued in respect of this behaviour and Mr Redpath was again found to be in contempt of court. A third ASBI was then imposed.

Mr Redpath sought to resist the imposition of the third ASBI on the basis that, as he had ceasd to be a tenant of Swindon, there was nothing in his behaviour which was “housing-related”. This argument was rejected by the county court Judge, who found that the conduct was housing-related and, in any event, the previous behaviour had certainly been housing-related. Mr Redpath then appealed to the Court of Appeal.

On appeal, Rix LJ (at [19]) identified the sole issue for determiantion as “whether that conduct could be described as ‘directly or indirectly relating to or affecting the housing management functions’ of the Council.”

Jan Luba QC, for Mr Redpath, argued:

(a) that the behaviour which had been dealt with by the first ASBI (and probably the second ASBI, although Mr Luba “did not make clear his attitude to the second ASBI” (at [20])) could not be relied upon when considering whether or not to make the third ASBI;

(b) that the term “housing-related” should be given a narrow definition and, in particular, that victims – and the conduct complained of – had to have a close connection with the neighbourhood or housing management functions. People on a bus who were misbehaving as the bus passed through a council estate would, for example, not be caught by s.153A; bricks put through a window of an owner-occupied property would not be caught unless the perpetrator was a tenant;

(c) this narrow definition made sense because, in any other factual situation, the council could (and should) seek an ASBO instead – see Birmingham City Council v Shafi and Ellis [2008] EWCA 1186 (our note here).

Andrew Arden QC, for Swindon, responded:

(a) that the management powers of a local housing authority were broader than “pure landlord” functions and extended to encompass the well-being of the neighbourhood;

(b) that the reality of modern housing estates was that many had, pursuant to the right to buy, large numbers of long leaseholder/owner occupiers living on them. It was enough that the behaviour complained of was found to be intimidating by a tenant, regardless of whether any tenant was the focus of the behaviour, or that it concerned property owned by the council or even that it just reduced the well-being of the area;

(c) that Mr Redpath was no longer a tenant was irrelevant. S.153A did not require the person being restrained to have ever been a tenant but focused on their behaviour, rather than their accommodation history.

The Court of Appeal rejected the appeal. It was clear when one examined the legislative history of what is now s.153A that Parliament had intended the jurisdiction to be a broad one, indeed, it had consistently extended the scope of what is now s.153A since 1996.

It was equally clear that the concept of “housing management functions” was a broad one, having regard to s.21 Housing Act 1985, s.111 Local Government Act 1972 and s.2 Local Government Act 2000. It was “clearly part of a relevant landlord’s housing functions to preserve the peace in the neighbourhood of its residential properties by seeking ASBIs to restrain anti-social behaviour” (at [44]).

The decision in Shafi did not assist Mr Luba, as Shafi concerned an attempt to extend common law principles and not, as with s.153A, a statutory remedy. A claimant who had two potential remedies could chose between them as it saw fit.

On the facts, there could no no  doubt that the behaviour complained of was “housing-related.” It affected tenants of Swindon, it affected property belonging to Swindon, it came from a former tenant and was directed against people from the local area. It would be an undesirable state of affairs if Swindon lost the power to take action against Mr Redpath merely because he had been evicted. The fact that some victims were owner-occupiers was no impediment to the granting of an injunction. In addition, regard had to be given to the whole history of the matter and his previous conduct, which clearly was housing-related, informed the nature of his current behaviour.

Lord Neuberger gave a concurring judgment which touched on a number of interesting points which don’t appear to have been fully argued. Carnworth LJ agreed with both judgments.

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Kathirkmanathan revisited

Published
by
NL
on 30/08/2009
in ASB, FLW case note, Housing law - All and assured-tenancy
. 0 Comments

Circle 33 Housing Trust Limited v Kathirkmanathan [2009] EWCA Civ 921

We first reported on this case in July 2009, on the basis of a lawtel note, which was all that was available at the time. In this quiet time for new judgments, there are a few such cases for which full transcripts are now available, so we can fill in some details (and give the proper citation).

This was an appeal of a committal for breach of undertaking. The undertaking was following complaints of noise nuisance from Mr K’s downstairs neighbours. Mr K was Circle 33’s assured tenant and lived in the first floor flat with his wife, an adult cousin who is in or close to his twenties, and two children, 2 and 3 years old at the relevant time. The specific undertaking given to the County Court in September 2008 was as follows:

…not to, whether by himself or by instructing or encouraging any other person:-

1. Engage or threaten to engage in conduct capable of causing a nuisance or annoyance to [2 named ladies] to include (but not limited to) playing ball games and riding bicycles or scooters in 63 Peel Close.

2. create excessive noise, such that a reasonable person would consider it anti-social, inside 63 Peel Close between the hours of 9 pm to 7 am to include (but not limited to) running, jumping, talking loudly, slamming doors, dropping objects on the floor, playing ball games and riding bicycles in 63 Peel Close.

There were further incidents of noise -’constant running jumping and banging’ – and Circle 33 brought committal proceedings.

At the County Court, HHJ Mitchell found breaches of the undertaking and committed Mr K for 3 concurrent terms of 8 weeks. An appeal was immediately made and Mr K was released that evening. This was the expedited appeal hearing.

The appeal was on three grounds. The judge had misconstrued the terms of the undertaking; there was no evidence that Mr K was responsible for the nuisance; and that in any event the sentence was excessive.

On the first ground, the Circuit Judge had found on the terms of the undertaking as follows:

Now that is somewhat clumsily worded but in my judgment it makes it perfectly clear that, as the tenant for these premises, the Defendant is responsible for ensuring that he does not cause noise to his neighbours. Ms Rubens for the Defendant argued that to some extent if he is not — they have got to prove he is encouraging any person. Quite simply it should have said: ‘by himself, his servants or agents must not encourage or permit’ and that it seems to me would have covered it. It is rather clumsy wording but in my judgment it is still clearly aimed at not allowing or encouraging anti-social behaviour to take place and emanate from his flat. Ms Rubens submits there is nothing about failing to control his children. In my judgment the general wording is sufficient to cover the situation which we have here.

At the Court of Appeal, Ward LJ disagreed. The undertaking did not contain the words that would cover the situation:

The language, therefore, is not sufficient to do that which the judge assumed it would do: namely, to make the defendant responsible for ensuring that he does not cause noise to his neighbours. The language does not, as the judge thought, cover allowing antisocial behaviour to take place and emanate from his flat. “Allowing” does not appear in the undertaking, “permitting” does not appear in the undertaking, and the judge has therefore misdirected himself as to the effect of the undertaking and an appeal against his order should be allowed accordingly.

On this point Jacob LJ agreed strongly:

I agree. It cannot be emphasised enough that breach of an undertaking or of an injunction is a serious matter, possibly leading to imprisonment. One cannot go by some woolly spirit of intendment of the language of the undertaking or injunction by the precise language used. The judge did not do that here. Liberty of the subject is involved. The language should be read much as one would read a criminal statute, and it is not enough to say one does not like what went on. Those responsible for drafting injunctions or undertakings should take considerable care as to exactly what is involved, because if they do not then the document may either be meaningless and unenforceable or very simply restrict something which is inappropriate.

Appeal allowed on that basis. On the issue of lack of evidence against Mr K personally, the Court agreed. There was no evidence sufficient to identify the originator of the nuisance and some of the nuisance complained of was unlikely to have had Mr K as its source.

On the excessive sentence issue, if there had been a breach of undertaking, Ward LJ notes that there was evidence before the CJ that the behaviour had reduced and there were no recent complaints. Mr K had apologised and it was a first commital. In view of that and as:

The primary objects of a committal are of course in part to punish for the contempt, but also to use the sanction coercively so as to prevent a recurrence. In those circumstances it seems to me that the right sentence in any event would have been a suspended sentence, and I venture to think that in the first instance four weeks would have been ample to force future compliance with this undertaking.

The appeal suceeded on all grounds, but with the wording of the undertaking being key. Jacob LJ’s words are a clear reminder that for undertakings, where liberty is at stake, going by ‘what must have been intended’ by the undertaking is simply not enough.

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Webb v Wandsworth LBC – Take 2

Published
by
J
on 29/08/2009
in ASB, FLW case note, Housing law - All, Nuisance, Possession and secure-tenancy
. 0 Comments

We first noted Webb v LB Wandsworth [2008] EWCA Civ 1643 in November 2008 when it was discussed in an Arden Chambers eflash. Earlier this week, the transcript was finally released. Slightly later this week, it was corrected so as to make sense. Thus, 9 months after the decision, we can finally tell you what Sedley LJ was actually saying.

Ms Webb was (and, as far as I know, still is) the secure tenant of the London Borough of Wandsworth. One of her children had been engaging in serious anti-social behaviour in and around Ms Webb’s home. By the time of trial, he was no longer residing with Ms Webb although he was not living very far away and would return to visit Ms Webb. At the date of trial it appeared that there had not been any ASB for about a year. The high point of the case for the local authority was that the son had been arrested (but not convicted) on three occasions for breach of an ASBO.

It was common ground that Grounds 1 and 2 were made out, but Ms Webb contended that it was not reasonable to make an order. Wandsworth argued that it was reasonable to make an order, but that it should be postponed on terms.

The Circuit Judge made a PPO, with terms requiring inter alia, the son not to reside at the property and Ms Webb appealed to the Court of Appeal.

Ms Webb raised the following grounds of challenge:

(a) There was very little behaviour that Ms Webb was personally culpable for. Wilson LJ, giving the main judgment, accepted that this was a relevant factor but, following Bryant v Portsmouth CC [2000] 32 HLR 906, there was nothing objectionable in requiring Ms Webb to take responsibility for the behaviour of her household. In addition, following Manchester CC v Higgins [2006] HLR 261, the existence of the ASBO against the son indicated that it would be reasonable to make an order;

(b) Wandsworth had failed to follow their ASB policy, which, in broad terms, indicated the possession proceedings would be instituted only where other remedies had failed. On the facts, said the court, the policy had been followed. There had been many other attempts to resolve the ASB, including the acceptance by Ms Webb and her son of an Acceptable Behaviour Contract. In addition, his Lordship was not entirely satisfied that a tenant could raise a defence/reasonableness argument based on the terms of an ASB policy

(I break here to note that his Lordship is, with respect, wrong to have any such doubts. An ASB policy is something that a local housing authority / housing association must have, see s.218A Housing Act 1996. The Secretary of State is further empowered to issue guidance on the contents of the same, see s.218A(7). It is, as a matter of public law, not open to public body to simply ignore policies or Government guidance – R (Rixon) v LB Islington (1998)  1 CCLR 340 – indeed, they have “special importance where the behaviour of the tenant’s children is at the root of much of the trouble” – per Brooke LJ in Moat Housing Group v Hartless [2005] EWCA Civ 287, at [102])

(c) The Judge had used the possession order as a means of further sanctioning the son, since it was primarily him and his behaviour that was likely to result in any breach of the terms of postponement. This was entirely legitimate and, whilst the Judge would have been well advised to expressly consider the interests of the other children and the harm that would result to them if the son were to breach the terms of the postponement, this was an ex tempore judgment and the Judge had the relevant evidence before her during her judgment.

(d) The Judge had taken the allegations of breach of an ASBO into account. It was, Wilson LJ held, inappropriate to even consider unproven allegations. They were irrelevant to the question of reasonableness and, as the Judge had taken an irrelevant factor into account, the whole decision had to fall.

Sedley LJ, in a short concurring judgment, went slightly further as regards point (c). To his mind, there is a difference between a court (i) making a tenant responsible for persons who the tenant has a degree of control over and (ii) making a tenant responsible for persons over whom the tenant has no control. The latter is impermissible (Wilson LJ (albeit obliquely) appears to say something similar at [5]. I think you need to read [5] with [24] to understand what Sedley LJ is saying).

In addition, the court should have given express consideration to the Article 8 rights of the other inhabitants of the house before making a possession order. The case appeared to Sedley LJ to be one where it was appropriate to adjourn on terms.

Mummery LJ added nothing of substance but dealt with a minor procedural matter.

This isn’t quite as strong a judgment from Sedley LJ as I’d hoped, but it’s far from bad news. I do think that there is some difficulty in the idea that a tenant should always be responsible for the acts of their visitors/other residents. Why should one adult be responsible for the acts of another adult? In the criminal field, we’ve abandoned any such idea (R v Simon Kennedy [2007] UKHL 38). Surely the time has come to recognise that Bryant has to have some limits? I do think the position as regards liability for the acts of ones children is more complex, but, as regards adults, it seems to me that this might be the start of a (welcome) retreat from Bryant.

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