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  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  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  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.