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Unlawful eviction and harassment

What is "housing-related conduct?"

By J

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.

Posted in: ASB
J is a barrister. He considers housing law to be the single greatest kind of law known to humankind and finds it very odd that so few people share this view.


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