Or, more accurately ‘locality’. Sorry if that got anyone excited over nothing.

As has been widely announced, the DCLG consultation on introducing a mandatory ground for possession on grounds of conviction for a housing related ASB offence etc, previously discussed here, has been amended to include a question on amending Ground 2 of Schedule 2 to the Housing Act 1985 and Ground 14 of Schedule 2 to the Housing Act 1988 to remove the locality condition for certain offences. The amended consultation paper is here. The closing date is 7 November 2011

This is an exercise in two parts. In this, the first, I’ll outline and discuss the proposals in the amended consultation. Then, by way of light relief, a following post will contain an exercise in literary criticism on a statement by Jake Berry MP, Grant Shapps PPS and a self-described former housing lawyer, (apparently he did commercial property at the now in administration firm of Halliwells LLP, but we’ll come back to this), in support of the proposals.

So, for this post, the amended consultation. A new section has been added at 2.3:

We propose that this discretionary ground for possession for anti-social behaviour and criminality should remain available in all circumstances, including where a mandatory power is available. We are aware however, particularly in light of recent rioting and looting, that a number of landlords consider it would be helpful to extend the current scope of the discretionary ground, so that serious anti-social behaviour and criminality beyond the immediate neighbourhood of the property can clearly be taken into account.

We are therefore proposing to include additional provisions in Ground 2 of Schedule 2 to the Housing Act 1985 and Ground 14 of Schedule 2 to the Housing Act 1988 so that the court may grant possession where a tenant or member of their household has been convicted of violence against property (including criminal damage and offences such as arson), violence against persons at a scene of violent disorder or theft linked to violent disorder. There would in these circumstances be no requirement that the offence had been committed within the locality of the dwelling house, subject to it being committed in the United Kingdom.

The question is just ‘do you agree?’.

So, let us trot through what have all too rapidly become the customary objections.

The purpose of Ground 2/Ground 14 was intended to be protective. The justification being that other tenants in the area of the property should be able to be protected from ASB related to the tenant’s occupation of the property. As a discretionary ground, the court is able to balance, under reasonableness, the right of the tenant to remain in occupation and the risk to others in that locality of continued annoyance or nuisance arising from the tenant’s continued occupation (including from others in the household or visitors) or criminal activity in the property or the locality.

It was not intended to be a punitive clause – a further punishment for ASB or criminal behaviour in the area – but that is now how it is being portrayed. The locality condition is called ‘a loophole’ by Mr Berry MP, for example, on the basis that it allows people to avoid being punished for their behaviour by the removal of ‘the privilege’ of social housing.

I’m not going to delve into whether there should be a punishment purpose to a ground for possession, or whether or not one agrees that making people homeless, with all the consequent costs, is a good, effective or practical response to the kinds of criminal acts described. These are issues others have discussed and probably better than I could. But just considering it as a lawyer, the re-purposing of the ground of possession for a punitive purpose raises a host of questions and issues that the DCLG’s knee jerk and simple-minded amendment does not address.

Why should those in council or other social housing tenancies be subject to this further punishment for their actions, or more worryingly the actions of their household or visitors, where those in the private rented sector or owner-occupiers are not subject to the same sanction? The line that such tenants are ‘subsidised by the public’ has been repeatedly used to justify a tenancy as a privilege to be withdrawn, but they generally aren’t subsidised by the public purse – or only to the extent of housing benefit, which would be a bigger public burden if they were in private sector tenancies.

Given the extent of the interference with Article 8, including the potential eviction of tenants who have not committed a criminal act or even been in the same area in which the act was committed, what is the justification in terms of the protection of the public?

The current ground has its article 8.2 justification for interference with article 8 rights in the nexus between the tenancy of the property and the ASB or criminal behaviour in the property or locality. But eviction of the tenant for the acts committed (possibly by someone else) anywhere else in the UK has no justification in the protection of the public, because there is no connection between the tenancy and the criminal act. The lack of address to this point in the amended consultation document is both shameful and shortsighted, because if this proposal ever hit the statute books, cases would end up in the Supreme Court and/or the European Court of Human Rights on this issue (as well as others) pretty quickly.

The rhetoric about intentional homelessness resulting from such evictions being bandied around has at no point made clear that intervening settled accommodation in the private sector would break the chain of causation. So regardless of some of the recent statements of Grant Shapps and Ravi Govinidia (Wandsworth Council leader), a local authority homeless duty could well arise again in respect of the same people after 6 months.

So if this is not a ‘ban’ from social housing, has no part in protecting people in the locality from further location specific behaviour, and is effectively just a way of making life unpleasant for the offender and their (potentially wholly uninvolved) family or household for a while, what is the purpose beyond its punitive nature?

And while we are on the lack of coherent principle, why just this limited list of criminal acts? If the justification for the ground is punitive (or, as is somewhat ridiculously argued by Grant Shapps in his letter to social housing providers, as a deterrence – as if the consequences for their mother’s tenancy were or would be uppermost in the minds of rioters content to trash their local corner shop while not actually being bright enough to wear masks), then why restrict it only to certain ‘riot related’ criminal acts, oh and violence against property in general?

By the time this hits Parliament, one would hope that the ‘bring in tanks with tasers and tear gas’ frenzy of the one-off sitting of the House of Commons would have abated such that the mere mention of the words ‘violent disorder’ would not be enough for the proposal to pass unquestioned.

On the practical side, this is proposed to remain as a discretionary ground, subject to the court’s assessment of whether it is reasonable to make a possession order. But exactly what factors is the court suppose to weigh in the balance in reaching such a decision?

There is no necessary nexus between the property and the crime. No neighbourhood whose interests and safety are to be weighed against the tenant keeping their home. What would be the point of assessing a risk of re-offending when that risk has nothing to do with the continuation of the tenancy or not?

Reasonableness in the context of the Housing Acts 1985 and 1988 has no punitive component and cannot actually function with one bolted on. So what is the court to consider in deciding whether an order is reasonable?

And lastly – through my lack of energy rather than exhaustion of the topic – without seeing the proposed wording, the retrospective effect is not clear. Would a conviction for a relevant offence before any Act came into force be grounds for subsequent possession proceedings?

It must be hoped that someone at the DCLG will have a convincing word with Shapps and Pickles (a great name for a provincial firm of solicitors, by the way) before this proposal gets anywhere near a bill. If it does get into law in anything like the present form, it will be of little practical use, but I confidently predict that a few councils will try it, and the few remaining legal aid housing lawyers will promptly appeal as far up as it takes.