Tag Archive for 'ASB'

‘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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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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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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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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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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Mistaken on Undertaking

Published
by
NL
on 17/07/2009
in ASB, FLW case note and Housing law - All
. 10 Comments

nuisanceAs a reminder, in case one were needed, that undertakings to the Court in ASB cases should be considered very carefully indeed comes Circle 33 Housing Trust Limited v Kathirkmanathan (2009) CA (Civ Div) 16/7/2009 [Not on Bailii yet, available as note on lawtel].

The appellant, Mr K, was a tenant of Circle 33. He had given an undertaking to the Court “not to engage, or encourage others to engage, in conduct capable of causing a nuisance or noise” in proceedings brought following complaints about noise from the flat below. There were further complaints of noise and Circle 33 sought committal. The Court below found that although the undertaking was clumsily worded and didn’t say that Mr K wasn’t to allow or permit activities likely to create noise to take place, as a tenant Mr K was responsible for ensuring that did not happen. Mr K was committed to prison for eight weeks.

On appeal, Mr K contended that the Judge has misconstrued the undertaking, there was no clear evidence that he had committed any act of nuisance or encourage others to do so and that in any even the sentence was maifestly excessive.

Held: The words ‘allowing’ or ‘permitting’ did not appear in the undertaking, so the Judge had misdirected himself. There was no finding that Mr K was personally responsible, although the noise had come from his flat. Then, rather puzzlingly, the correct sentence would have been a suspended sentence to ensure future complaiance with the undertaking (this is puzzling because there was, on the previous findings, no breach of the undertaking established. So presumably, this means the correct sentence if there had been a breach).

A reminder, then, that an undertaking to the court is a serious matter and its terms should be clear and precise, so that it is clear when a breach has occurred, or what the undertaker must do to comply.

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Defamation and anti-social behaviour

Published
by
Francis Davey
on 14/07/2009
in ASB, FLW case note and Housing law - All
. 9 Comments

Clift v Slough Borough Council [2009] EWHC 1550 considers the extent to which a local authority has an interest or duty to pass on allegations about anti-social behaviour to its employees and contractors for the purposes of the defence of qualified to a claim for defamation. It is also an example of the all too common situation of a victim being targeted as a perpetrator.

Background

On the morning of 11 August 2005 Mrs Clift witnessed a group of five people in the public park drinking. A child of about 3 years of age was pulling plants up from a flower bed and damaging other plants. Ms Clift protested at this behaviour and was herself threatened by one of the men. In addition he himself trampled the flower bed in response to her intervention.

Mrs Clift called the police and the parks department. She was referred to the council who she telephoned. The conversation “went badly” with the council officer threatening to terminate the call, although it was in fact ended by Mrs Clift. She wrote a letter of complaint explaining how upset she was about the handling matter. In the letter she said (referring the the council officer):

“…I felt so affronted and filled with anger that I am certain that I would have physically attacked her if she had been anywhere near me. I truly am not of that nature and so, surely, this should act as a wake up call to the Borough as to the capacity she has for offending people….”

Rather than trying to address the underlying problem (the anti-social behaviour directed against C and her  unhappiness that it had not been properly addressed) the council’s Head of Public Protection (Mr Kelleher) investigated the incident itself and decided to enter Mrs Clift’s name in the “Violent Person Register”. She was rated as medium risk, her name to remain on the register for 18 months. The reason being noted as “threatening behaviour on several occasions” together with some inaccurate particulars of the incident.

By way of comparison, another entry on the register of medium risk referred to someone who had prevented a council representative from leaving premises for a period of 2 hours.

Mr Kelleher had circulated an email to 54 individuals stating:

“I have requested that Jane Clift’s name be added to the register of violent persons following repeated threats of violence towards a member of staff.

Whilst we will continue to provide her with our normal range of services, I would ask that any officer making a site visit, or conducting a face to face interview with Ms Clift does so in the presence of an accompanying officer. Equally, any member of staff receiving a telephone call from Ms Clift should make a full note of that conversation including Ms Clift’s manner”.

A hard copy was also sent to 12 council community wardens. The Register itself was circulated – though precisely how and to whom was unclear to the court. Evidence from Slough suggested that there would not have been more than 150 recipients of the Register but the exact number was not an issue left to the jury.

Mrs Clift was, unsurprisingly, unhappy about this and eventually brought proceedings under the Data Protection Act in the county court and a further claim for libel. The DPA claim was stayed pending the determination of the libel action.

Mrs Clift alleged that the register entry meant that she was a violent person who had engaged in threatening behaviour on a number of occasions. Slough defended on two grounds: (1) justification, that is that Mrs Clift was a violent person etc; and (2) qualified privilege. Mrs Clift replied by alleging malice on behalf of Mr Kelleher.

The jury found in favour of Mrs Clift, awarding her £12,000 in damages, but found that there was no malice.

Qualified Privilege

The most interesting part of the case concerned the defence of qualified privilege. For those readers who do not regularly deal with claims of defamation, some explanation is in order. “Qualified privilege” is a defence to defamation on the basis that the defendant had a duty or interest to make the statement to someone who had a duty or interest in receiving it.

Slough defended: justification (i.e. was true – C was a violent person etc) and qualified privilege – on which more later. C replied alleging malice (on which more too). In the words of Lord Atkinson in Adam v.Ward [1917] AC 309 at 334.

“A privileged occasion is …. an occasion where the person who makes the communication has an interest or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. The reciprocity is essential”.

Qualified privilege is not an absolute defence. It is defeated if the claimant is able to show “malice” which has a rather technical meaning, namely that the maker of the statement had no honest belief in the truth of the statement made, or that it was made for an improper motive.

The question the court had to consider was the extent of the defence. In other words: with whom was the council under a duty to communicate?

In Kearns v General Council of the Bar [2003] EWCA Civ 331, the Court of Appeal contrasted a situation where there was a recognised existing relationship between the parties, in which case the qualified privilege question of duty/interest would not be fact sensitive from a situation where there was no such recognised relationship in which case the particular circumstances surrounding the individual publication would have to be investigated.

The judge had followed Kearns in W v Westminster City Council [2005] EWHC 105 concerning the publication of words contained in a report made for the purposes of the Children Act which, employees of the council admitted, should not have been published but that publication had occurred because of a mistake and misunderstanding on their part. The judge had ruled that whether or not the publication should have taken place was irrelevant because there existed a recognised existing relationship which engaged qualified privilege irrespective of the factual details of a publication.

Although the defamation claim failed in Westminster City Council there was a separate claim under the Human Rights Act 1998. In the human rights claim, the judge found that there was an interference with the claimant’s Article 8 rights because the information was highly sensitive and potentially very damaging to him.

A decision of the Court of Appeal that was not cited in Westminster was Wood v Chief Constable of the West Midlands Police [2003] EWHC 2971 (QB). In Wood Lord Bingham CJ said:

the police, as a public body, ought not generally to disclose information which comes into their possession relating to a member of the public, being information not generally available and potentially damaging to that member of the public, except for the purpose of and to the extent necessary for the performance of their public duty. The principle rests on a fundamental rule of good public administration which the law must recognise.

…

The question is whether the occasions of publication were privileged. That said, a decision to publish information which may be untrue may well call for even greater care than a decision to publish information which is known to be true.

Wood concerned information that had been published before the coming into force of the Human Rights Act or the Data Protection Act. The judge thought that it indicated that different principles applied, even at common law, to the consideration by a public body to publish potentially damaging information. Of course Kearns did not concern publication by a public body, but the judge thought that if there was a contradiction between Kearns and Wood he would be bound to follow Wood.

No Human Rights claim was brought by Mrs Clift, but her Reply was amended so as to rely on the Human Rights Act to counter the defence of qualified privilege. The judge thought that, in particular as a result of the guidance in Huang v Home Secretary [2007] 2 AC 167, the Human Rights Act did require that the court engaged in a factual enquiry to consider whether the extent of each publication by the defendant was proportionate, despite the existence of a recognised existing relationship which, on the authority of Kearns would normally preclude such an investigation.

The judge found that qualified privilege did exist in the publication to  customer facing staff and managers in Trading Standards, Neighbourhood Enforcement and Community Safety but not in Licencing, Food and Safety, Children and Education Services nor to Community Wardens, Trade Union Officials and anyone in the four partner organisations outside the council. That exclusion had an effect on damages since publications on occasions of qualified privilege would be excluded except where malice was shown.

Conclusion

I think this case does have some relevance to housing law. It touches on a situation that (in my experience anyway) comes up in practice where a client has information about them, possibly highly prejudicial to them, shared between organisations. The case requires an authority to consider the proportionality of that distribution lest it be vulnerable to a claim for defamation. No HRA claim was brought, so this decision is, strictly speaking, confined to a claim for defamation, but in my view the reasoning on the duty of public bodies has wider application.

In practical terms it means that public bodies should be rather more careful about keeping records of alleged criminality or anti-social behaviour and about any distribution of those records. That, in my view, can only be a good thing. Calling a document a “Violent Persons Register” if you know full well that some of those persons have never used violence.

On a very personal note: I think this case sadly illustrates a trend in official behaviour which emphasizes the protection of staff to the detriment of its service to the community. Where officials behave badly, incompetently or insensitively they often provoke angry and vigorous responses from members of the public. This is unsurprising, it is far easier to stay calm when dispensing (in)justice than when trying to obtain it. I suspect most readers will at some time or another have wished the person they were speaking to would drop dead but that does not make us all murderers.

What went wrong here was that Mrs Clift was a victim. She appears never to have had any useful official action concerning the criminal acts she witnessed and that were directed against her. If (and the evidence does not suggest this was the case) she had been impolite to the council employee she spoke to, that does not disentitle her to the protection of the law. Slough ought to have considered whether the way it manages complaints of this kind contributed to what happened and done something about it. The mantra of protection of staff should not excuse all.

I would like to think lessons have been learned but I suspect they have not.

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Not taking the hint

Published
by
J
on 18/03/2009
in ASB and Housing law - All
. 0 Comments

Just a short note about an ASBO case that was decided in the Divisional Court today – Birmingham City Council v Dixon (18.3.09).

Imagine, if you will, that a local authority applies for an ASBO against “X”. After the application is issued, but before the final hearing, X continues to act in an anti-social manner. Can the local authority rely on those “new” incidents in the substantive ASBO application?

Yes, said the Divisional Court. It goes both to propensity to carry out the original acts of ASB complained of and certainly goes to the necessity (see s.1(1)(b) Crime and Disorder Act 1998) to make the order. If, however, the local authority wants to rely on those acts so as to prove that the defendant has acted in an anti-social manner (see s.1(1)(a) Crime and Disorder Act 1998), then it would need to seek leave to amend the original complaint.

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