You may recall that, on August 3, 2011, the Government launched a consultation paper on its proposals to introduce a “mandatory power of possession” against tenants who are responsible for acts of anti-social behaviour. On August 15, 2011, following the riots in England, the consultation was widened to include a new discretionary ground for possession against tenants who have committed certain criminal offences at the scene of a riot anywhere in the United Kingdom.

On May 22, 2012, the Government published their response. It proposed, unsurprisingly, to introduce both proposals.

In relation to the new discretionary ground, I cannot add to what Andrew Arden QC and Caroline Hunter said in their editorial on the subject in the Journal of Housing Law last year (see [2011] JHL 115) and do not intend to do so. It is worth noting, however, that the Government intends to press ahead with the proposal despite noting that opinion was “evenly divided” and that “there were strong reactions to this question” (para 3.1). For such a controversial proposal one might expect a detailed analysis of the pros and cons of the change of the law. Not in this case: two paragraphs out of 32 were given to the question and neither paragraph contained any evidence or analysis to support the proposal. Evidence based policy this is not.

To be fair to the Government, they do give more detailed consideration to the question of whether to introduce a mandatory ground for possession. The problem, as is set out below, is that the analysis supporting the introduction of such a ground appears to be fatally flawed.

Mandatory ground for possession

The new mandatory ground for possession will be based on the current introductory tenancy procedure (i.e. the landlord will be required to give its reasons for seeking possession in a notice and the tenant will have the opportunity to request that his landlord conduct an internal review of their decision before the court is required to make a possession order). Such grounds will be available in circumstances where:

(i)            the tenant, or a member of the tenant’s household, or a visitor to the property has been convicted of a violent or sexual offence, an offence against property, supplying drugs or production with intention to supply drugs, where the offence was indictable and committed within the locality of the property within 12 months;

(ii)           the tenant or a member of the tenant’s household or a visitor to the property has breached the terms of a final Crime Prevention Injunction (i.e. a new civil injunction obtained in circumstances where a tenant has been guilty of conduct capable of causing a nuisance or annoyance)  within the last 12 months and the CPI was obtained by, or in consultation with, the landlord;

(iii)          the property has been closed as a result of the magistrate’s court granting a CPO for more than 48 hours;

(iv)         the tenant or a member  of the tenant’s household or visitor to the property has been convicted by the magistrate’s court for breaching a noise abatement notice in respect of the property made under Environmental Protection Act 1990.

Why is the mandatory ground being introduced?

The Government, in its response to the consultation, stated that the purpose of the mandatory ground was to “speed up the [eviction] process to better protect victims in the most serious cases of anti-social behaviour and criminality” rather than to increase the number of evictions (para 4.27). The Government acknowledges that more evictions are not necessarily desirable and the eviction of a tenant should be “a last resort to be used exceptionally and where other interventions to tackle anti-social behaviour have been tried and failed” as an eviction may “simply move the problem elsewhere” (para 4.26).

Will there be more evictions?

If the intention is to speed up the eviction process rather than to increase evictions it is not at all clear why the court’s discretion to suspend or postpone the eviction has not been retained in circumstances where there is persuasive evidence that the tenant’s behaviour will improve, i.e. the only circumstances in which a court should suspend or postpone a possession order under the current discretionary ground (see Manchester City Council v Higgins [2005] EWCA Civ 1423). Removing this discretion will mean that tenants who can demonstrate that their behaviour has improved will none the less be evicted where they otherwise wouldn’t have been. At first blush, it would appear therefore that this change can only have the effect of increasing the number of evictions and any assertion to the contrary must be wrong.

The Government is confident, however, following the responses it has received from landlords, that this will not be the case. The Government, assured by the consultation responses, takes the view that the mandatory ground for possession will only be used for cases which would have resulted in an outright order possession being made under the current discretionary grounds (para 4.28).

This confidence seems misplaced. First, it is hard to envisage circumstances where a landlord will opt to use the discretionary ground where the mandatory ground is available and the landlord wants an outright possession order. While not always the case, landlords do not generally bring claims for possession unless they are confident that an outright order is both obtainable and the appropriate remedy. It is not uncommon, however, for the court to take a different view and suspend the possession order. Therefore it must logically follow that the removal of the courts discretion will lead to more outright orders of possession than is presently the case.

Second, the mandatory ground’s conditions are likely to be satisfied in circumstances where at the moment landlords are unlikely to obtain an outright order for possession. It is hard to imagine many courts granting possession orders, let alone outright orders for possession, where a tenant has breached an injunction by entering an exclusion zone on one occasion or breached a noise abatement notice. Yet a court will, if the ground is relied upon by the landlord, be forced to evict a tenant in such circumstances. The Government expressly rejected calls for the ground to be limited to serious or persistent anti-social behaviour and does not intend, through guidance, to limit the use of the ground.

Third, while the majority of landlords indicated that they would not use the mandatory ground in all of the cases where it was available, certain landlords were clear that they would look to use the mandatory ground in most of the instances where it was available (para 3.33) and only 15% of the landlords consulted said that they not consider the using the mandatory ground at all. While it is unclear from the consultation responses, it is not hard to imagine that landlords will tend to use the discretionary ground where all they want is a suspended possession order and the mandatory ground where an immediate possession order is desired.

Fourth, nor will there be any restriction or regulation, through statutory guidance, on the use of the mandatory ground. The Government has emphasised that “it will entirely be for landlords locally to decide whether to make use of the new mandatory [ground]… in circumstances in which we intend [it] will be available (para 4.24).

On any view it must follow that, contrary to the Government’s intention, evictions will increase.

Will it speed up the eviction process?

Supporters of the ground in the consultation argued that the mandatory ground was necessary as the eviction process was too cumbersome.

It is hard to see, however, how the proposals will actually speed up the eviction process. First, for any of the mandatory ground’s conditions to be satisfied a county, crown or magistrates’ court must have found a tenant guilty of anti-social conduct. This will inevitably involve there being a trial, unless the allegations are admitted or the tenant chooses not to defend the claim.  Thus, the mandatory ground may replace the need for a possession trial, but it will not replace the need for a trial at all. Such trials, whether they are in the county, magistrates’ or crown court, are subject to the same delays that affect possession claims. Moreover, wherever a court, be it civil or criminal, has found an allegation of anti-social behaviour proved, the tenant is prevented from denying that he did not do it and thus avoiding the need for the landlord to prove anything at trial.

Second, any claim for possession brought on the mandatory ground is susceptible to a public law or Article 8 defence. While such a defence is unlikely to be successful, a defence that is seriously arguable must be allowed to proceed to a trial and should not be dealt with summarily. The Supreme Court envisaged that defences which warranted a trial would be rare, but so far, in certain parts of the country, this has not proved to be the case. In such circumstances, this will also delay the eviction process.

We would have thought, as did various respondents to the consultation, that the more effective way to speed up the eviction process would be to invest more, and curb inefficiencies, within the court system. Alas, that proposal is rejected.

Conclusion

No proponent of a change in the law can ever be sure that the change they propose will achieve its purpose. By introducing a mandatory ground for possession, however, it ought to be obvious from the consultation responses that the change to the possession process is unlikely to speed up the eviction process and yet would increase the number of evictions. They cannot say that they were not warned.