Anti-social behaviour cases are one of the staple cases for the young barrister. If acting for landlords (whether local authority or housing association), they’re a great way to develop trial experience in a relatively low-risk environment. I say “low risk” because, for the most part, landlords have got quite good at these cases and courts have become quite cynical, such that you usually get an order of some sort.
For tenants, if your experience is anything like mine, you start off fighting the good fight and happily running the defence your client wants to run (often some highly elaborate version of bare denial) and (generally) you go down in flames. Your client isn’t believed. The landlord has produced a plethora of witnesses (some anonymous, which always troubles me) and the judge has seen it all before. Defending ASB cases rapidly makes you realise that, in some cases, your client is best served by making admissions and pressing for a suspended/postponed order.
Now, I don’t for a second suggest that we should be going back to a pre-Bristol CC v Mousah (1998) 30 HLR 32 view, when often quite terrible behaviour did not result in an outright order. But there are a few instances where I do rather fear that the law has gone too far pro-landlord, or, perhaps, is too harsh on certain categories of defendant. For example, I do struggle with the idea that a tenant should be responsible for the acts of their (adult?) children or visitors. I don’t see why we should fix one adult with responsibility for the acts or omissions of another. In particular, that sort of situation seems to arise disproportionately frequently against single parent female tenants (I can’t find it at the moment, but Prof Hunter and Prof Lister have both written very powerfully on this gender impact). Given the enormous range of remedies open to social landlords which can be used to target the actual cause of the behaviour (i.e. the children), far too many reach for the simple option of pursuing the tenancy-holder.
Now, whether or not that is the underlying factual background of Tuitt v Greenwhich LBC [2014] EWCA Civ 1669 (not online, Santa – dressed as Chief – delivered us a transcript), I can’t say. But it is an example of the concern I outlined above.
Ms Tuitt was the secure tenant of Greenwhich in a flat which she occupied with her 18-year old son and her partner. The tenancy agreement had the usual clauses prohibiting her or her family from engaging in ASB in the area, harassing council staff, etc. It appears that her son was causing some anti-social behaviour and, in 2010, he signed an Acceptable Behaviour Agreement. Plainly, that didn’t work as, by 2012, her son was involved in an incident (for which he was later convicted) where planks of wood were thrown off a building onto the caretaker. Possession proceedings were issued. Before trial, the son was convicted of further criminal offences. The DJ made an outright possession order. She was particularly struck by the seriousness of the allegations, the failure of Ms Tuitt to appreciate how serious they were and her failure to take steps to ameliorate the situation, e.g. by asking her son to leave.
On appeal, Ms Tuitt tried to focus on her lack of personal culpability, relying on Sedley LJ in Portsmouth City Council v Bryant [2000] 32 HLR 906
It may very well be unreasonable to make even a suspended order against somebody who will be powerless to rectify the situation and it will almost certainly be unreasonable to make an outright order against such a person. There are, after all, other legal expedients, not least under the Prevention from Harassment Act 1997, by which those guilty of anti‑social conduct can be directly punished or restrained
But, as the Court of Appeal pointed out, that had to be seen in context. In Bryant itself, Simon Brown LH had said that the case-law clearly showed that “… no personal fault on the tenant’s part is required to bring a case within ground 2…”. Further, Knowsley Housing Trust v McMullen [2006] HLR 43 had expressly rejected the idea that “…an order for possession, whether outright or suspended, could or even should not have been made as a matter of principle simply because the tenant could not control the activities of the person in her household responsible for the nuisance”. The trial judge had carefully considered the relevant law and facts and her decision could not be faulted.
The second ground of appeal got very short shrift. It was said that the behaviour of the son had improved and the judge should have recognised that. The judge had taken a different view of the evidence and it was one she was plainly entitled to reach. The third was even shorter. Contrary to the argument for the appellant, there had been many incidents over a long period of time, as the judge had correctly found.
Appeal dismissed.
The research that J was thinking of is probably C. Hunter and J. Nixon, “Disciplining Women: Anti-social Behaviour and the Governance of Conduct” in A. Millie (ed.) Securing Respect: Behavioural Expectations and Anti-social Behaviour in the UK (Bristol: The Policy Press, 2009).
It is a very interesting piece of work. Baroness Lister made a similar point during the debates about the mandatory possession ground (or possibly the riot ground) in the Anti-social Behaviour, Crime and Policing Act 2014.
Thanks Chief. That is it.
Thank you for the helpful reference to an article on an issue which has been increasingly concerning me – the amount of single parent women subject of ASB/possession proceedings. Quite often, these women have experienced substantial domestic violence and then face eviction or onerous injunctions. I have been wondering whether it would be possible to run arguments based on CEDAW (gender-based violence being a form of discrimination: General Recommendation 19, referred to in the homelessness context in Yemshaw v London Borough of Hounslow [2011] UKSC 3).
I think this book contains the article: http://books.google.co.uk/books?id=euIUhwAcLoMC – I look forward to reading it.
Is it possible? Yes. Will it win below the Supreme Ct? Probably not. It’d be very important to find the right case as well to run the argument.
Pace Santa, the judgment is now online: Royal Borough of Greenwich v Tuitt [2014] EWCA Civ 1669 (25 November 2014) http://www.bailii.org/ew/cases/EWCA/Civ/2014/1669.html
Thanks – not sure how I missed that.
As to why social landlords go for possession rather than use the other tools at their disposal; cost plays a part in two ways. Firstly, apart from remedies such as ABCs (which was used, but failed, in this case), they involve (costly) court proceedings; and with no guarantee that they will be effective to stem the behaviour, so tend not to be used – with Council budgets being squeezed as they are, cost can become an overriding factor.
The situation therefore is apt to deteriorate to the point where, when the lawyers do get it, possession has become a viable option – and why take the risk of going for what are seen as lesser remedies with no guarantee of success when possession is available so that the problem can be moved on?
As to whether this bears disproportionately on single parent female tenants, we’d need to know whether there’s data on whether, or the extent to which, their children feature disproportionately amongst alleged culprits.
What is clear from the substantive judgment in this case is that Ms Tuitt herself did not impress the Court of Appeal one iota:
“Had the Defendant said to the judge, for example, that she accepted that the situation was serious and that she would require Anton Tuitt to leave if there had been any repetition of his behaviour, the situation might have been different, but that was not the Defendant’s approach, despite the somewhat pusillanimous contents of her witness statement. The Defendant was effectively in denial.”
(from para 20).
The Court was also clear that she directly instigated one of her son’s actions of which complaint was made, and that other actions of his resulted from her fallings out with others:
“She found that his extreme conduct was the result of both the Defendant and Anton Tuitt falling out with people and that the Defendant had actually sent him into the Gilbourne estate in breach of his bail conditions.”
(from para 16).
Does that just not depress you? It’s easier and cheaper to go for possession? I don’t deny that you’re probably right, and I don’t envy front-line officers who must make these decisions, but, surely for something as serious as removing your home, a more robust process is needed?
That isn’t to disagree with the actual decision here which, as both the CA and you point out, sits fairly and squarely within existing law. My concern is with how that law is applied.
“Does that just not depress you?”
Of course; I’ve always believed that if central government wills the ends, it must will the means – but that’s an argument that was effectively lost many years ago.