Tag Archive for 'anti-social behaviour'

Pinnock and Proportionality

Published
by
Dave
on 31/07/2009
in ASB, FLW case note, Housing law - All, Introductory and Demoted tenancies and secure-tenancy
. 11 Comments

The CA have just handed down judgment in Manchester CC v Pinnock[2009] EWCA Civ 852, concerning the evidence that can be taken into account to justify a breach of a demoted tenancy at a review panel, the proper role of the County Court in such a circumstance, and the standard to be applied on a judicial review of a review panel decision. It is significant then in the context of demoted tenancies and demonstrates also that the proportionality standard is subject-specific. Manchester won by the way, although, no doubt Richard Drabble QC will seek leave to appeal as it was conceded that the CA was bound by Gilboy as regards whether the demoted tenancy review process is article 6 compliant (at [23]).

Facts

Mr Pinnock had lived at 65 Meldon Road for 30 years, and lives there with his partner, Christine Walker, and their five children. The five children – Clive, Trevor, Devon, Orreon and Orraine – were involved in various offences and between 1998-2007, the Recorder, who made the demoted tenancy order, which began on 08 June 2007, “listed no less than 32 matters between 1998 and January 2007 involving the family, including sentences for criminal offences, the imposition and breach of ASBOs, an Anti-Social Behaviour injunction granted against Christine Walker and breach of that injunction” ([9]). New terms were included in the demoted tenancy agreement concerning nuisance, annoyance, disturbance, harassment etc. Pretty much the day before the demoted tenancy would have become secure again, Manchester served notice of proceedings for possession and extended the demotion until the Pinnocks gave up possession. The notice referred to two breaches of the amended demoted tenancy: Clive had resisted and/or obstructed a PC; Devon had pleaded guilty to causing death by dangerous driving and driving whilst disqualified and uninsured in the locality of the property. None of the facts at any time suggested that Mr Pinnock had been involved in any such activity.

Mr Pinnock sought an oral review of that decision, at which the review panel took account of more recent serious offences committed by the sons, including conviction of Clive and Devon for burglary; Christine Walker had blamed the police for Devon’s car crash. Mr Pinnock’s defence was that the children no longer lived at the property, to which the council found that “it remains the family home where your sons return on a frequent basis”. As regards Christine Walker’s blaming of the police, “The panel felt that this clearly demonstrated that both you and your partner have failed to address your responsibilities as parents. Furthermore you both appear to refuse to accept the seriousness of your sons’ behaviour …”. The children continued to pose a serious risk to the community.

At the County Court hearing under s 143N, Housing Act 1996, the judge appears to have proceeded on a gateway (b) path a la Kay/Doherty, and found that none of the matters referred to in the possession notice would have been sufficient on their own; the review panel had not ducked the issue of whether Clive and Devon were still living in the property; that the council was entitled to rely on matters after the possession notice which Mr Pinnock knew about and had an opportunity to deal with at the panel.

Submissions

Before the CA, Richard Drabble raised a number of arguments aimed both at the statutory process for review as well as the way it was handled in this case. He argued that the basis for the panel and County Court review was proportionality and that had not been considered (eg alternative remedies). Although the panel/County Court were entitled to have regard to events after the possession notice, that was only if one of the matters in the possession notice was upheld, but none was; the County Court judge had substituted his own decision for that of the review panel.

Andrew Arden for Manchester argued, amongst other things, that the qualified rights under Article 8 had been taken into account by the legislation; the County Court judge did not have jurisdiction to review the panel’s decision on jr grounds (that could only be done in the Administrative Court); it wasn’t necessary for the council to establish that there had been breaches of the tenancy agreement.

Judgment

Stanley Burton LJ, with whom Lloyd and Mummery LJJ agreed, proceeded first on an “apart from authority” basis ([26]-[32]). On that basis, he said that it was the whole process from the outset that needed to be considered in the context of Article 8 rights. When the demotion order is originally made, “… the court has found the removal of security a necessary and proportionate response to the conduct of the tenant or those residing with or visiting him“; and that where there had been conduct serious enough to justify a demotion order (as here), at the second stage, “… very little is required to justify the landlord’s decision to obtain possession. it would be wholly wrong, and inconsistent with the statutory scheme, to scrutinise the landlord’s decision at the second stage with the rigour required of the county court at the first stage”. As regards proportionality at the second stage, he said this

… is not a high test, and I see no real difference at the second stage between it and the domestic requirement, to which I refer below, that the landlord’s decision must not be one that no reasonable person would consider justifiable. If on review the landlord considers for good reason … that it is necessary or appropriate to obtain possession of a dwelling-house let on a demoted tenancy, and its decision is one that no reasonable person would consider justifiable, the requirement of proportionality will be satisfied. (original emphasis)

There then follow pages and pages – a bit of a cut and paste job – from Kay, Doherty, Doran, and Central Beds – with two “simple propositions” at [46]-[47]: in a statutory context like this one, if the provisions are incompatible with Convention rights, the landlord’s decision and that of the County Court is nonetheless lawful (s 6(2)(b), HRA); on a jr, the standards applicable are those applicable in a non-Convention domestic review (Doherty/Doran/Central Beds). Anyone hoping for further pearls of wisdom will be disappointed, I fear.

As regards the role of the County Court, he said that s 143D restricts that Court to considering whether the procedure had been followed. If it has been, the order must follow. He was fortified in this conclusion by three further points: (a) the county court has no power to make a quashing order, so that, if it did find the decision to be legally effective, it might have no alternative but to dismiss the claim for possession (so that the tenancy would become a secure tenancy again under s 143B(4)(b)); the whole process was intended by Parliament to be quick and section 143F(6) was directory rather than mandatory; his conclusion was consistent with the materially identical wording for introductory tenancies. Nobody had suggested here that the correct procedure had not been followed.

Although strictly obiter, therefore, he gives his views on a number of points:
What approach should the administrative court take? the court “should be cautious in the extreme before quashing a decision of a public landlord” (at [58]).
What reasons can be given in a notice? he says that such reasons may extend beyond the tenancy agreement. He is extensive in his interpretation of what can be taken into account:

My provisional view is that the reasons for the landlord’s decision may be anything relevant to its management of its housing estate, provided, of course, that it arises or becomes known after the date of the demotion order and so could not have been taken into account when it was made. If there are relevant reasons that justify the decision (in the sense that it cannot be said that no reasonable person would make that decision for those reasons) the Court should not, in my judgment, normally quash the decision.

What can be taken into account on review? anything that postdates the possession notice, provided that can be fairly done. The question is whether, at the time of the review, the landlord has a good reason to seek possession.

As for this case, he accepted that the review panel had ducked the issue of Devon’s residence, but that did not make the incident irrelevant. Christine Walker’s blaming of the police bore on whether she and Mr Pinnock were able and willing to exercise parental control; Orreon’s conviction for burglary after the possession notice was served was relevant. Even if the judge had jurisdiction, the review decision was not irrational.

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What do you want me to do about it?

Published
by
J
on 27/07/2009
in ASB, Disrepair, FLW case note, Housing law - All and Nuisance
. 0 Comments

Noise abatement notices are governed by Part 3, Environmental Protection Act 1990 (as amended). They are not ‘pure’ housing law but they are frequently used in a housing context, particularly when dealing with noise-related complaints of anti-social behaviour.

In Elvington Park Ltd and another v City of York Council [2009] EWHC 1805 (Admin), Silber J considered the content of a noise abatement notice. The appellants had been convicted by the Magistrates’ Court for causing a  noise nuisance, contrary to s.79(1)(g), 1990 Act, by allowing their airfield to be used for Formula 1 car testing and other motor-vehicle events. They appealed, both to the Crown Court and then to the High Court, against the service of the noise abatement notice. They contended that it was irrational to serve a notice which did not specify the steps that they were expected to take to prevent further noise nuisance.

Section 79(1), 1990 Act provides that it is the duty of every local authority to inspect for statutory nuisances and, where a complaint is made, to take steps to investigate that complaint. If a nuisance is found then, by s.80(1), the authority must serve an abatement notice which must require the abatement of the nuisance and / or require the execution of works or other steps, necessary for the purpose of preventing the nuisance. Failure to comply with a notice gives rise to criminal liability if prosecuted by the authority (s.80(4)).

In the present case, the notice which was served required the appellants to “take the steps necessary to prevent noise from motor vehicles and associated activities causing a statutory nuisance at other premises” without further particulars.

The appellants argued that, having chosen to specify that works or other steps were necessary, it was incumbent on the authority to provide details of the steps that it considered should be taken.

Silber J agreed and held that (at [36]) “… if an abatement notice requires not merely abatement of noise but also steps to be taken, they should be specified but if as in the present case, the notices did not do so, they are invalid.” If this were not the case, then the person served with the notice was liable to criminal prosecution without knowing what was expected of them in order to avoid criminal prosecution.

In light of that finding, it was unnecessary to consider any further challenges to the notice. His Lordship did, however, deal briefly with a second aspect of the irrationality challenge to the notice and dismissed it on the facts of the case.

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Closure orders

Published
by
Dave
on 20/02/2009
in ASB, FLW case note and Housing law - All
. 4 Comments

There have been two recent cases on closure orders of passing interest. The first, less important case was reported in The Guardian’s Society pages. The hearing appears to have been an amusing event, attended by “a large group of sex workers and their maids”, at which the police officer giving evidence could give no direct evidence that the premises were associated with the occurrence of disorder or serious nuisance to members of the public, because there was no such record on the police computer. Not surprisingly, the judge refused to confirm the Closure order. After the hearing, apparently one of the maids asked the police sergeant “I don’t want to rub it in, but when can we have our keys back?”. One does feel for the local priest, though, who has had to put extra bars on the church doors to stop drug dealing (closure order on the church, anyone?).

More importantly, though, in Hampshire Police Authority v Smith [2009] EWHC 174 (Admin), the Divisional Court held that an appeal against a closure order has to be issued within 21 days from the date of the closure order. It does not have to be heard within that timeframe. Section 6(2), Anti-Social Behaviour Act 2003, says that “An appeal against an order or decision to which this section applies must be brought to the Crown Court before the end of the period of 21 days beginning with the day on which the order or decision is made”. Although s 6(2) is not particularly clear, and the closure order only lasts for three months, Wyn Williams J said that the contrary result, where the whole thing would have to be wrapped up within 21 days, would lead to practical problems.

The Crown Court Rules 1982 apply to such civil appeals and there is power under those rules to grant leave to appeal out of time (r 7(5)). The further question raised in the case was whether that power applied to closure orders. It was held that it did not. The policy of the 2003 Act was clear on this issue, particularly when one compares the closure order provisions with those of graffiti removal notices (s 51) and high hedges (s 71), both of which have express powers for appeals to be made out of time (which are not included in the closure order provisions): “If Parliament had intended there to be such a power it would have said so expressly” (at [29]).

All of this is fine and makes sense (at least, it’s difficult to disagree on the face of the provisions). But one must feel for Ms Smith whose family can’t access their property and whose reason for seeking leave to appeal out of time was that her solicitors had not been in receipt of public funding. And she hadn’t attended the original hearing because she hadn’t understood the closure notice as well as being with her one of her children who was in hospital at the time of the hearing.

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Something for the weekend

Published
by
J
on 13/02/2009
in ASB, Community care, Housing law - All and Possession
. 0 Comments

The House of Lords will be giving judgment in Glasgow CC v Mitchell on Wednesday 18 Feb 09 (link is to a .pdf). This is a case that we’ve missed so far but, in essence, is about the scope of the duty of care (if any) owed by a landlord to their tenants in respect of liability for the anti-social acts of another tenant. In outline, it is said that Mr Mitchell complained to Glasgow CC about his neighbour. He told Glasgow not to let his neighbour know about the complaint. Glasgow then interviewed the neighbour and told him about the complaint, naming Mr Mitchell. The neighbour then killed Mr Mitchell. There is a full (and quite detailed) analysis of the case in the current edition of the Journal of Housing Law. Although it is a Scottish case, it plainly has implications for England and Wales, not just because of the pending appeal in X v Hounslow.

Also (and thanks to Rosaleen Kilbane of CLP for the information), the decision in Secretary of State for the Environment Food & Rural Affairs v Meier & Ors [2008] EWCA Civ 903 is also off to the Lords. Our note is here.

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The Housing and Regeneration Act 2008 – an update

Published
by
J
on 28/11/2008
in ASB, Allocation, Housing law - All and Regulation and planning
. 0 Comments

Two new Statutory Instruments have just come out relating to this Act, and, given that I’m updating my seminar notes about the 2008 Act, I thought I’d share them with you.

The Allocation of Housing (England) (Amendment) (Family Intervention Tenancies) Regulations 2008 deal with the interaction between the new Family Intervention Tenancy (“FIT”)in the 2008 Act and Part 6, Housing Act 1996. In broad terms, Part 6 of the 1996 Act, and the subordinate SIs, deal with the rules and procedure for the allocation of property by local housing authorities.

What the 2008 SI does is to disapply Part 6 in relation to the FIT, so that any local housing authority which offers a FIT is not required to comply with Part 6 and is not making an “allocation”.

I had wondered if there would need to be an amendment to Part 6 (or the subordinate SIs) to deal with the creation of these new types of tenancy. No, is the clear answer.

This SI does not bring FITs into force. That will have to come later. It also has no impact on the policies or procedures of an RSL in relation to any decision to offer a FIT.

The second SI is the Housing and Regeneration Act 2008 (Consequential Provisions) Order 2008. As you’ll all be aware, the 2008 Act abolished the Urban Regeneration Agency, the Commission for New Towns, English Partnerships and the Housing Corporation and, since September 2008, there has been a gradual transfer of the functions of these bodies to the new Homes and Communities Agency. This SI is part of that process and serves to update various Acts of Parliament so as to remove references to these now defunct bodies and replace them with references to the HCA.

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Pour encourager les autres

Published
by
J
on 14/11/2008
in ASB, FLW case note, Housing law - All and Possession
. 13 Comments

Webb v Wandsworth LBC (Court of Appeal, November 12, 2008, extempore judgment and only noted in Arden Chambers Eflash 328)

Ms Webb was the secure tenant of LB Wandsworth. Between 2005 and 2006 her son was involved in a number of serious criminal and anti-social acts in the local area. In response, Wandsworth issued possession proceedings relying on Grounds 1 and 2, Sch. 2 Housing Act 1985. Shortly thereafter, an ASBO was made against the son. The son subsequently left the family home, although he would regularly return to visit his mother.

The possession trial came on in October 2007. There had been no ASB for a year and the son had been living elsewhere for 8 months. The Judge made a postponed possession order, apparently taking into account the fact that the son had been charged (but acquitted) of three breaches of the ASBO.

Ms Webb appealed to the Court of Appeal and contended that the three acquittals were irrelevant considerations. The Court unanimously upheld her appeal and quashed the possession proceedings. It was wrong in principle to take those matters into account.

Sedley LJ has, apparently, gone further and in his judgment, has stated that it is not permissible to use a possession order as a means of trying to force a tenant to exercise control over a third party.

It is, as you might imagine, the comments of Sedley LJ that appear to be the most interesting. I defend a fair few ASB cases and one of the things which most frustrates me is seeing my clients being demonised for the actions of their children/(drunken) partners. At a personal level, I hope the transcript of this judgment is as promising as the Eflash suggests it will be.

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ASB corner

Published
by
NL
on 09/08/2008
in ASB, FLW case note, Housing law - All and Possession
. 1 Comment

The August 2008 Legal Action contains a couple of cases concerning anti-social behaviour possession claims that weren’t recorded elsewhere.

Ealing LBC v Jama B5/08/0104 was a Court of Appeal matter. Mrs Jama was Ealing’s secure tenant of a two bed property. The household included her husband and six children. Ealing sought possession on allegations of ASB including noise nuisance, ten instances of flooding into the flat below, problems with rubbish disposal and urination in the lift. At the County Court, the judge accepted Mrs Jama had faced some harassment, but did not accept her evidence on the flooding. The judge accepted the evidence of a plumber that the flooding was not due to defective water system. The judge held it was reasonable to make a possession order because there had been two substantial breaches of the tenancy – the flooding and serious and persistent noise nuisance. Mrs Jama appealed.

The Court of Appeal found it was impossible to hold that the noise was ‘domestic noise’. Reasonableness was a matter for the judge at first instance and the Court of Appeal would not interfere unless the judge had erred in law. For that reason the judge’s decision could not be attacked. But in any case the decision not to suspend the order was clearly right.

High Peak BC v Purser Buxton County Court 26/11/2007, like North Devon Homes v Batchelor, concerned a conviction for posession of drugs. Ms Purser was a secure tenant with two children. In Jnauary 2006 she was convicted of possession of cannabis resin. In October 2007, she pleaded guilty to supply of ecstasy, possession and supply of amphetamine and possession and supply of cannabis resin, all at the property. She received a nine month sentence, suspended and a 12 month supervision order. She was engaged with professional drug support and family support services and drug test were negative.

In the possession proceedings, DJ Jolly found it was reasonable to make a possession order, but in view of the evidence that suggested there was a ‘real hope’ for the future, the order was postponed for two years on condition Ms Purser comply with the tenancy agreement.

Also in Legal Action, R v Edwards [2008] EWCA Crim 1172 (not on Bailii) did not concern possession proceedings, but rather an ASBO excluding Ms Edwards from the home she owned for ten years. The ASBO was made on the basis of ‘extreme harassment’ of a neighbour, including damage to their car, throwing rubbish and excrement at their house, loud singing and banging. She had breached an injunction, a restraining order and had been sentenced to imprisonment three times.

The Court of Appeal upheld the ASBO. An order excluding someone from their home that they own is very much a last resort, but that point had been reached. The order was necessary and proportionate, considering Art 8.

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Possession and evidence

Published
by
NL
on 22/07/2008
in ASB, FLW case note, Housing law - All, Possession and assured-tenancy
. 0 Comments

North Devon Homes Ltd. v Batchelor [2008] EWCA Civ 840 concerned a claim for possession of an assured tenancy. At County Court, the claim was brought on grounds 10, 12 and 14 HA 1988. While the claim resulted in a postponed possession order for ground 10 rent arrears, the claims on ground 12 (non-performance of obligation) and 14 (nuisance/arrestable offence). The Circuit Judge had refused to make a possession order on grounds 12 and 14 on the basis that it was not reasonable to do so.

North Devon appealed that decision, arguing that the Judge took into an account an irrelevant matter, had failed to consider a relevant matter and failed to consider a relevant matter raised in the respondent’s evidence.

Briefly, the evidence that North Devon had put forward at the first hearing was of Ms B’s

conviction before Exeter Crown Court on May 2007 of possession of 7.5 grammes within 76 wraps or thereabouts of cocaine, a controlled drug of Class A with the intent to supply it, and also of money laundering. She pleaded guilty to possession of the cocaine with intent to supply, upon the specific basis that she had been asked to hold the drugs for her son and had agreed to do so intending to hand them back to him. However, she was prevented from doing so by the arrival of the police on 22nd September 2005 to execute a search warrant at the flat. Conversely, the jury convicted her of having laundered about £1600 on two specific occasions. The £1600 was part of a larger sum of £27,000 which had been laundered, not necessarily by her, over about a three month period. She had also pleaded guilty to a specific offence of possession of cannabis. She was sentenced to eighteen months imprisonment to run concurrently on the offences of possessing cocaine with intent to supply and on money laundering, with no separate penalty being imposed for the possession of the cannabis.

By the time of the substantive hearing, Ms B was released from prison and back at the property. Ms B gave oral evidence. North Devon apparently did not put forward witnesses at the hearing. In evidence Ms B admitted that she ‘may’ continue to use cannabis for pain relief (Ms B was 61 and in sheltered accommodation). The Judge found that there was not sufficient evidence to establish nuisance under Ground 14(a) or 14(b)(i) immoral or illegal purposes. However, the conviction clearly fell under 14(b)(ii). In deciding that it was not sufficient to make possession reasonable, the Judge said

Mr James (counsel for the respondent) argued that once the Court puts on one side, as it has to do, and as I have done, the complete absence of satisfactory evidence produced to establish nuisance or annoyance and looks at the defendant’s conviction for possession of 7.5 grammes of cocaine with intent to supply, this court must, as the Crown Court had to do so, accept the defendant’s basis of plea, namely looking after it for her son, intending to hand it back to him on one occasion only in September 2005. Whilst I would not necessarily agree with Mr James that this was merely a technical offence, I would nonetheless agree that in gradation of seriousness it is at the lower end of the scale of possession with intent to supply a Class A controlled drug. Insofar as the possession of cannabis is concerned, whilst of course this remains a criminal offence now of Class C, if every tenant of a dwelling house within the public sector was to be visited by a possession order because it was reasonable to make one, the courts would inevitably be swamped with such claims. The facts of this case as presented are wholly different from those in the Musah case [City Council of Bristol v Martin Mousah (1998) 30 HLR 32]  and those in the Stonebridge Housing case. Having considered the available evidence and the arguments I do not therefore consider that it would be reasonable to make an order for possession under either Grounds 12 or 14 in this case. 

North Devon’s grounds of appeal were that:

The Judge’s comments in the passage above were irrelevant to the extent that they addressed the likelihood of Ms B being rehoused. In addition, inasmuch as smoking cannabis was a criminal offence, it was for the courts to uphold the law not to be perceived as condoning illegal activities.

The Court of Appeal did not agree with that interpretation of the passage. All the Judge was addressing was the seriousness of the conviction for possession of cannabis. The Judge was not clearly wrong to reach the conclusion he did.

Secondly, North Devon argued that the Judge had failed to consider ‘previous warnings’ to Ms B, relying on a letter to her of Sept 2005 – not in evidence at the Court of Appeal but quoted in a skeleton argument.

You will remember that I visited you on 5 Auust 2005 following several complaints that had been made by those living around you. You will remember that one of the complaints was that you were having a steady stream of visitors to your home and it was alleged that you were involved in drug dealing or using. I am continuing to receive complaints about the number of visitors you have visiting you during the day.

The Court of Appeal found that this went to 14(a) – which had not been raised on appeal – but that in any event the Judge had dealt with the issue of visitors and rejected North Devon’s case, which decision was also not appealed.

Thirdly, North Devon’s evidence that Ms B would continue to use cannabis was no stronger than the ‘maybe’ that the Judge had addressed. There was no reason for the Court of Appeal to find that Ms B would continue to smoke cannabis.

In response to a submission from North Devon that ‘the wrong message would be given out’, Lord Justice Wall said:

In my judgment, there are two short answers to that submission, although neither is strictly necessary for the determination of this appeal. The first is that if there is a message in this case (and speaking for myself the case seems to me to turn on its particular facts and to raise no point of principle) it is that actions for possession are serious and regard must be had to the facts of the particular case. As I see it, the judge paid careful attention to the particular facts and weighed them up meticulously. The second follows from the first, namely that, on the particular facts of this case and as the case was presented to him, the judge was entitled to deal with the respondent’s convictions as he did, and he was thus entitled to hold, as he did, that the respondent’s breaches of her tenancy agreement did not bring her within the scope of this court’s decision in Bristol City Council v. Mousah: or, to put the matter another way, that they were not such as to make it unreasonable for the judge, to decline to make a possession order. 

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Duty to protect update 1

Published
by
NL
on 28/05/2008
in ASB, Community care, Housing law - All, Nuisance and secure-tenancy
. 0 Comments

Update on this case from Friday 24 May. No judgment available yet that I have seen, but there is a further new story on the Hounslow case at 24dash.com, which gives a few more details.

Specifically, the negligent failure found was that housing did not invoke emergency transfer processes, despite a) social services involvement with the family and b) complaints and warnings from neighbours about the youths’ presence and activities in the claimant’s home. It arose from a found lack of communication between social services and housing and lack of appreciation of the seriousness of the situation and failure to give priority in both departments, despite the evidence.

Damage of £97K, suspended pending appeal.

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A duty to protect?

Published
by
NL
on 24/05/2008
in ASB, Community care, Housing law - All, Nuisance and secure-tenancy
. 4 Comments

A case is reported in the Guardian which apparently extends local authorities’ duty to protect tenants from third parties to include vulnerable adults, not only children.

A couple, both with learning difficulties, were terrorised in their flat by a group of youths over two days, during which they were assaulted and abused. Hounslow Council had failed to rehouse the couple, although the threat of attack ‘was foreseeable’.

At the High Court, Hounslow argued there was no duty of care, but Mr Justice Maddison held otherwise. The failure to rehouse was negligent. Damages of £100,000 were awarded. Hounslow were given permission to appeal.

I’m looking forward to seeing the judgment on this one.

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