Evicting rioters: a brief note

As a number of Councils and Housing Associations in London, Manchester, Salford and Birmingham say that they intend to evict tenants involved in rioting (and Grant Shapps has jumped in to back them, as has David Cameron), we’ve been requested to take a quick look at the relevant grounds of Housing Acts 1985 and 1988 and consider the ramifications.

The relevant grounds for an eviction would be Ground 2 of Schedule 2 of Housing Act 1985 (for secure, Council tenants) or Ground 14 Schedule 2 Housing Act 1988 (for assured, housing association tenants). These are pretty much identical, both read:

The tenant or a person residing in or visiting the dwelling-house—

(a)has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality, or

(b)has been convicted of—

(i)using the dwelling-house or allowing it to be used for immoral or illegal purposes, or

(ii)an indictable offence committed in, or in the locality of, the dwelling-house.

Both are discretionary grounds, which mean that the Court must also be satisfied that it is reasonable in the circumstances to make a possession order and that the court has a further discretion to impose a postponed or suspended possession order with conditions.

There can be little doubt that rioting and/or looting would be likely to cause a nuisance or annoyance. There are likely to be large numbers of convictions for indictable offences as well. However, the nuisance or the offence must be in ‘the locality’ of the tenanted property. ‘Locality’ is not defined in either Act or elsewhere. I would anticipate that there may well be some difficult cases on what constitutes a locality to come, where the offence/nuisance is not within the immediate neighbourhood of the property. But certainly an offence committed in another borough is highly unlikely to count.

We should note in passing that Grant Shapps, a housing minister whose knee is never knowingly un-jerked, has today suggested that the ‘locality’ condition should be scrapped so that those found guilty of ‘being involved in rioting’ in another area could be evicted. The trouble with that is it would simply mean being convicted of an arrestable offence, even if wholly unrelated to the home or to housing, would be a ground for eviction. That may just be a step too far for all kinds of reasons, not least Article 8. Mr Shapps also points to his desire to introduce a mandatory ground for possession for those convicted of ASB – but this wouldn’t apply to offences committed outside the locality as they would not be ‘housing related’.

If the rioter was in the locality but is not the tenant, e.g. a member of the household, or even a visitor, the tenant would still potentially be caught by these grounds. This would be the case even if the tenant had no involvement at all, or didn’t even know that the other person did. So parents, partners etc. could well face eviction proceedings. While the court can consider the circumstances of non-offending occupiers and the relationship between the offence and the landlord-tenant relationship, the court must also consider the seriousness of the offence and its effect on others, and the likelihood of further offences.

Anyone wondering about a proportionality issue under Article 8 should note that these are discretionary grounds (at least to date!) and that the Court’s consideration of whether it is reasonable to make an order has been previous considered to be in effect an application of the principle of proportionality (E.g. Lord Brown in Kay v Lambeth).

Of course if the rioter (or tenant of rioters household) is on an introductory or demoted tenancy, things are quite different. There isn’t time to go through the whole process, but there, on an otherwise mandatory possession order, proportionality defences would come into play.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in ASB, assured-tenancy, Housing law - All, Possession, secure-tenancy.

37 Comments

  1. The question we really need to ask is what do we hope to achieve by evicting them? Like the other idea of removing their benefits, it seems to be just a knee-jerk revenge tactic to me.

    If someone is living in council accommodation and/or on benefits, then we can assume (ignoring fraudulent claims) that they currently need that support from the state. If you remove that support their needs do not magically dissappear and so the funding for their accommodation and basic living requirements will simpy be shifted elsewhere, probably a crisis unit where they re-home people in expensive B&Bs (that probably cost the tax payer more in the long run than the original council house).

    In terms of punishment, what we should do is convict them and give them the appropriate sentence. Simply making people homeless, or making them even poorer by removiong all benefits, isn’t going to help anyone.

  2. And so it begins – Wandsworth announcing their first possession claim against a tenant whose child has been charged in relation to the riots at Clapham.

    http://www.24dash.com/news/housing/2011-08-12-First-rioter-given-eviction-notice-by-Wandsworth-council

    As far as I can tell from the report, the alleged rioter has been charged but not (yet) convicted. The service of an NSP strikes me as foolishly premature, if so. As these is no criminal conviction, it would mean Wandsworth having to actually prove nuisance-causing behaviour in the locality, rather than just relying on a conviction under (b) of the ground. Also, it is rather odd to be publicly announcing service of an NSP before it is actually served, which appears to be the case.

    So, not knee jerk publicity seeking at all, then.

  3. What about this:

    http://www.24dash.com/news/housing/2011-08-12-Riots-Pickles-plans-to-make-evicted-tenants-wilfully-homeless

    “Now [Pickles] wants to make those made homeless from the evictions ‘wilfully homeless’ with “no duty to provide them with a home under that status”.

    I guess its hard to know whether what Pickles is reported as saying is a genuine proposal to change the law on intentional homelessness or just another sound-tough soundbite. However, quite why the present law might be insufficient to prevent those homeless because of offences they’ve committed obtaining social housing is beyond me.

    • Gavin – I hate to disappoint you, but there is no human right to have housing provided. And so say the European Court of Human Rights.

  4. Surely this action is a clear breach of the Principle of Individual Criminal Responsibility, Including the Prohibition of Collective Punishment

    (a) International Human Rights Law
    64 The principle of → individual criminal responsibility, including the prohibition of → collective punishment is reflected in Art. 5 (3) ACHR and Art. 7 (2) Banjul Charter. Although not contained in the ECHR, the ECtHR stated that ‘[i]t is a fundamental rule … that criminal liability does not survive the person who has committed the criminal act’ (AP, MP and TP v Switzerland [ECtHR] Case No 71/1996/690/882 [29 August 1997] para. 4

    • ColinW – the supposed point of the sections in the HA 1985 and 1988 are the protection of others from anti-social behaviour, not punishment of the offender. This is why I think Shapps knee-jerk proposed change will fail (at some stage). The purpose of the law – if not its implementation – is protective rather than punitive. I expect the County Court judges to approach it in that way. But the current legislation does not breach the laws you propose.

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  6. This blog post by a conservative councillor of a village in Yorkshire thinks he has the answer, by converting tenants to Assured Shorthold Tenancies, to make it easier to evict them for rioting http://bit.ly/pEbMe4

    Do try and keep up Mr Cooke haha

    • While I appreciate the link – although not the snideness – I little post isn’t of my idea, just something that seemed fairer and more sensible.

      And of course as you read the blogpost (although neglected to leave witty asides or even help and guidance there) you know it wasn’t about evicting rioters but about NOT evicting rioters.

    • Simon – the comment wasn’t by us but a visitor to this blog, as you can see. I’m not sure, but I suspect the commenter might have had in mind that there are already these things called demoted tenancies for council tenants, which make it easier for Councils to evict tenants on any further breach. No need to re-invent the wheel, in short, either for you or Ms Pullman.

  7. As despicable as the riots were, we should not be proving our tolerance by the sentences we give out but with the force in which we stop it from happening in the first place! These young people will learn more about crime inside and at risk of being lost in the system of repeat offending. Families being made homeless is as despicable as the riots some parents live in fear of their teenagers, other have brothers and sisters… unless there is a long history of unsocial behaviour this is just unacceptable and increases the divide… a family who have money/private rent or own their own house wont have it taken it from them…. if you £ the cost of what some looters (not rioters) took in comparison to what mps stole then look at the sentences once again the richer are coming out on top…. looter 8mths for under £5 Mp 4mths for over £8000… unless we address all inequalities in society this will just be the beginning as more people become disheartened and struggle to make ends meet in the difficult times ahead. The government needs to make it so that one parent can stay at home and care for the children and give parents the power to discipline their children without fear of retribution… soft absent parents is what’s wrong with society!

    • Don’t go comparing sentences based on value. The gentleman you’re referring to willingly joined a riot and engaged in looting. That he was carrying a low value of goods should not be counting in his favour in these circumstances. You are also comparing apples with oranges. If you’re going to compare sentences, then compare sentences. The looter with the water bottles has been sentenced to 6 months, Jim Devine’s sentence was and always will be 16 months. That he served less than 6 months doesn’t mean that it will be spent as if it were less than 6 months. It will take the full 10 years for a 6-30 month sentence.

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  10. Thanks for putting this post up and saving thousands from hyperventilating about the “injustice” of throwing someone out on their secure tenancy ear for the sins of their partners/children.

    My recollection is Labour brought the provision in to address serious anti-social behaviour on estates and to overcome the “it weren’t me” defence. It may appear rough, but how many times does little Johnny need be be busted for ASB on an estate before his parent(s) feel a consequence? Having worked in-house at a local authority, I can tell you the palpable relief of neighbours, whose lives are no longer a daily nightmare of fear and abuse, as they wave cheerio to these families.

    Now I act for tenants, including those accused by local authorities of ASB. No, it’s not nice advising a mum, whose lost control over her young adult son, that she needs to get a grip on him or ask him to leave- because the local authority are gunning to get a possession order against her.

    The Housing Act grants the County Court a great deal of discretion. Judges generally give tenants every opportunity. While a family member conviction for rioting does indeed put the secure tenancy at risk, it is not a done deal.

    The bigger point, which people seem to have missed, is that discretion is less likely to be exercised – and justice done – without proper representation. Legal aid is dying. Housing firms and firm housing departments are collapsing as I type. Solicitors are being replaced by unqualified paralegals because it’s about cutting margins and quantity, not quality.

    Maybe the hyperventilaters are correct, but for the wrong reasons. It’s not that this is new law. It’s Executive power unchecked. Kill the profession and they can do what they please.

    • Kris

      I agree on the erosion (not quite collapse yet, but getting there) of proper representation for the Defendants.

      The big distinction between the purpose of the Acts – as you describe them – and what seems to be going on now (with the proposed changes in the law on locality), is that what was intended to have a purpose of protecting others living near the offender is now being considered as a punitive clause, a further punishment. Wandsworth’s actions only serve to illustrate that. Further punishment is not a legitimate purpose and would not even have an ancillary protective benefit.

  11. If I were for a council or Housing Association, couldn’t I get around the “locality” bit by saying, “Aha, he was convicted of stealing a wide screen TV (for the sake of argument). He then stashed it at the premises. Therefore he handled stolen goods at the premises, or, in the alternative, he carried on the criminal conduct at the premises by keeping it there to permanently deprive the shop owner of it, which is an element of the offence of theft.”

    Any thoughts on whether this might work?

    • Only if the ‘offender’ were convicted of, for example, handling stolen goods at the property.

      Has to be a conviction – b(i) or b(ii) and has to be a conviction for an offence in or in the lcoality of the property.

      Keeping a stolen TV at the property per se is not behaviour likely to cause annoyance or nuisance to others in the locality.

      So, absent a relevant conviction, no it wouldn’t work.

    • So how big is locality then? In Hackney an independent electrical goods store was looted and that store’s just a few streets away, or even on the same road as, Council and Housing Association properties. A local tenant who participated in the looting of that store and was convicted would surely make out the ground?

      Also, isn’t it arguable that it’s not about bare geographical distance but about community links? A person at the other end of the borough who was rioting in the centre of Hackney and convicted could be argued to be in the same locality because that is where people from the local community gather and as such local people are affected? Is there any case law on this as to whether locailty is just in terms of distance or whether it’s more to do with “zones of interaction” so to speak.

      For instance, I live in a flatblock but don’t really interact with the other people in that block at the block. But if I and others from the block have business in the centre of town, by crasting a shop therein I’ve caused a nuisance to local people from that block?

  12. “Further punishment is not a legitimate purpose and would not even have an ancillary protective benefit”.

    If Parliament does change the locality provision, I have no doubt someone from Garden Court will raise Article 8 and proportionality.

    You call it further punishment- a canny 2-3 Grays Inn Square barrister no doubt would find a nexus to the neighbours on the estate as well as raising a pattern of ASB. We both know these local authorities will runy any pony point to placate housing officers. TLegal aid is the only thing standing between the Executive and the tenant.

    • Kris, I doubt it will actually make it to Parliament, but if it does, there will be a fair few contesting it. And it wouldn’t stand – the Article 8.2 justification isn’t there. Wouldn’t even have to go as far as proportionality.

      But if there was a pattern of ASB in the locality by a person in the household then it would fall under the existing law – the usual arguments would apply and all this ‘evict the rioters’ nonsense would be by the by.

      I was idly toying with the idea that Wandsworth’s publicly announced punitive purpose in bringing proceedings would open up an abuse of court defence. I think it might.

    • well, it does suggest there is a blanket policy which, of course, is unlawful. No doubt all cases have been considered on their own merits.

  13. Thank you for this. When I saw the stories about councils saying they would evict tenants where one household member was involved in riots I thought that they might struggle to do so, unless the rioting happened to be immediately on the doorsteps of the tenenants concerned, but it is useful to have your more expert view!

  14. Kris is partially correct about the amendment being brought in during teh Labour government. Ground 2, Schedule 2 of the 1985 Act and Ground 15 of Schedule 2 of the Housing Act 1988 were amended by ss.144 and 148 (respectively) of the 1996 Housing Act to change “to neigbours” to “in the locality”. The Serious and Organised Crime and Police Act 2005 changed the wording of both grounds so that they referred to “indictable” rather than “arrestable” offences.

    This is what Woodfall says about “locality”: “The word “locality” is designed to cver as wide an area as possible, while maintaining a link between the tenant’s behaviour and the fact that he lives in the area.”

    My guess is that if a son of a tenant whose home was in an estate whose residents regularly travelled to the shops nearby and the son stole from, burgled or set fire to one of those shops then that would be sufficient to satisfy the locality requirement. If, however, the son had travelled to an area where the tenant’s neighbours were most unlikely to shop and committed his crimes there then it would probably not be satisfied.

  15. I have to ask, is simply “asking them to leave” a real option for parents? Firstly, I doubt most teenagers tell their parents when they’re going to a nightclub let alone “Oh I’ll be back in a bit, just going to do some looting and pillaging.”. I think Cameron and some of the commentators here are over-emphasizing the control parents have over their kids (even if they try) or simply whether they know what their kids get up to. Unless we’re advocating that parents do routine checks on their kids facebook and twitter accounts – any other burden other than to provide for your child and set a good example is unrealistic. We can’t deny that even if you have all the rules at home and try to teach kids right from wrong – they can still rebel, they can still turn out pretty rotten for a whole host of other reasons attributed to external factors.

    If you commit murder, your parents wouldn’t get locked up too and have their benefits stripped.

    Why is it okay to punish parents – who may be hard-working, moral, and decent members of
    society who have had the misfortune of having a moron for a son/daughter? How is this direct accountability?

    Punish the offender. Don’t create offenders by extension.

    • i am writing in the hope that i get a reply. I m a mother of a 28 year old son who took part in the riots and is currently in prison. I have today been informed by my council that I could be evicted because he was convicted. I am totally ashamed of his actions and beleive rioters should be punished. I have worked very hard all my life and have never been in trouble. I have 2 other teenage children at home. During the rioting I was very ill and admitted into hospital for 2 weeks. 7 months later, I found out what he had done. Now me and my family are going to be punished for something we had no part in. I am so worried.

  16. NL et al

    Firstly, may I just say this website is an excellent resource of both knowledge and detailed comment. Long may it continue.

    I have never felt the need to comment, but this issue really has sparked some very interesting debate.

    Turning to the matter at hand, Wandsworth’s actions in trying to deal with the looters and rioters in this fashion, is there not an issue with Art 6 – right to a fair trial? As far as I am aware, the Council have not served the Notice Seeking Possession. They have merely released a press statement disclosing their intention to do so. Is the Defendant not being prejudiced in such an instance?
    To try to scrap the ‘locality’ condition with regards to anti-social behaviour (ASB) and/or try to extending it to criminal acts (are they only Housing related or not?) seems to my mind to be a position that is fraught with difficulties and best avoided. Another contributor noted that the ASB issue was concerned with preventing harm to neighbours and the like and the move to now use it as a punitive measure. I concur with this viewpoint wholeheartedly. If Wandsworth do actually commence possession proceedings on the Ground 2, Schedule HA 1985, trying to rely on the particular circumstances of the rioting and looting, I fully expect the District Judge to take great delight in dismissing the proceedings completely. If they do succeed, appeals all the way to Supreme Court should follow. The end conclusion being that the Defendant remains in the subject property with her family.

    • Hi NR. I understand that the notice was served, albeit that Wandsworth had issued a press release before doing so. Wandsworth themselves did not identify either the alleged rioter or the parent (though the Daily Mail subsequently did, either because Wandsworth had provided enough info to deduce the alleged rioter’s ID, or because they got the info from Wandsworth). Having thought about it, though, I can’t see the prejudice – names on actual possession proceedings are public, after all. (BTW I was the other contributor on protective v punitive)

      But the Wandsworth story may be murkier than it first seemed – post on its way.

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  18. All the talk of evicting rioters is government and government hanger on blarney and completely over the top. We already have adequate punishments available for the type of crime seen on our streets recently and we need those to be enforced rather than headline grabbing. We do not need any amendments to our laws or new ones which will be little more than a gimmick. Those convicted of riot get eveicted anyway and of course immediately re-accommodated at Her Majesty’s pleasure. What about evicting bankers who have caused many more ruined businesses, wrecked neigbourhoods and possibly more deaths. The sale of their vast houses might be more profitable than kicking someone out of a council flat.

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