Control or compassion: social housing and antisocial behaviour

The London borough of Hackney held an open day at the end of May where the public could discuss tackling antisocial behaviour with their local authority. This new community approach is a direct consequence of the riots that swept across our major cities in the summer of 2011 and resulted in the Anti-social Behaviour, Crime and Policing Act 2014, which received royal assent on 13 March 2014 and is being brought into force in stages this year.

The philosophy underlying the new act is to
make responses to antisocial behaviour more victim-focused, showing zero tolerance towards
the most serious perpetrators and speeding up the eviction process to "stop nightmare neighbours who ruin the lives of those around them"(Putting Victims First, government white paper, 2012).

However, some of these 'nightmare neighbours'
of social landlords will be vulnerable tenants with complex medical and social needs. Anecdotal evidence shows that many will have undiagnosed mental health issues coupled with a drug and/or alcohol problem. Alternatively, their vulnerability makes them easy targets for drug dealers who take over their property.

These tenants are often well known to their social landlord but without a proper medical diagnosis, there will be no support plan in place to help them manage their tenancy and curb the antisocial behaviour. Their social landlord will then decide that the only course of action is to issue possession proceedings to evict the tenant.

Importance of discretion

Prior to the new legislation, there were only discretionary grounds to evict tenants for alleged antisocial behaviour and this element saved
many a vulnerable tenant from an outright possession order.

In broad terms, the landlord would need to show that the tenant (or a person residing in or visiting the dwelling) has been guilty of conduct causing a nuisance/annoyance in the locality or had a conviction for using the premises for illegal/ immoral purposes or been convicted of an indictable offence committed in the locality.

If the ground was made out, the court still had discretion whether to grant an order because the judge would need to be satisfied that it was reasonable to do so. Although the courts have always taken a firm line in antisocial behaviour cases, judges were prepared to grant a suspended/postponed order where a vulnerable tenant could show that there had been a significant improvement in behaviour since proceedings were issued.

Such improvement was often achieved by the vulnerable tenant being referred to the community mental health and/or substantive misuse team and receiving appropriate treatment and support before trial.

However, the legislation introduces a new mandatory ground for possession, which takes
away the court's discretion. As long as one of five conditions are met, notice requirements satisfied and a review procedure followed, the court has
no choice but to make an outright order.

Broadly, one of the five conditions that need to be satisfied are that the tenant has been convicted of a serious offence committed in the locality, has been convicted of a breach of the terms of the new injunctions or criminal behaviour orders (which replace ASBIs and ASBOs), that the tenant's property has been subject to a closure order or that they have been convicted of breach of an abatement notice in relation to a statutory nuisance.

It is difficult to envisage why a social landlord would opt to use a discretionary ground when the mandatory ground is available. This is particularly the case when it will now be possible for a social landlord to apply for an outright order where the tenant has, on just one occasion, breached the terms of an injunction or noise abatement notice.

These breaches are more likely to occur with vulnerable tenants, and the removal of the court's discretion means that it will be forced to evict without being able to take into account the
tenant's personal circumstances.

Internal review procedure

It will be argued that the internal review mechanism (similar to the one for introductory tenants) will protect and safeguard the interests of vulnerable tenants. However, on receipt of the notice, many vulnerable tenants (I suspect) will bury their heads
in the sand and not request a review in time. This is particularly the case because they will only have seven days to put in their request for a review
(see new 85ZA of the Housing Act 1985).

Also, there will be insufficient time (between service of the notice and the internal review being conducted) for vulnerable tenants to be referred to and engage with appropriate mental health services. Under the old discretionary grounds, good medical/social work evidence at trial could demonstrate an improvement in the tenant’s behaviour thus preventing an outright possession order being made against the tenant.

The government has argued that article 8 remains expressly available to challenge proceedings brought under the mandatory ground and it is true that recent Supreme Court decisions accept that where the claim has been brought by a public authority, the court must have the power to assess the proportionality of making the possession order.

In Southend on Sea v Armour [2014] EWCA Civ 231, the Court of Appeal was prepared to intervene where Mr Armour was an introductory tenant who had Asperger syndrome and depression. Various complaints of antisocial behaviour had been made against him including an allegation that he had cut off the electrical supply to the block while contractors were working, resulting in one getting an electric shock.

After serving a notice and a statutory review, a possession claim was issued but there was then a delay of 11 months before the matter came to trial. The judge at first instance held that it had been proportionate and lawful to seek a possession order within article 8 of the European Convention on Human Rights. However, it would now be disproportionate to grant a possession order having regard to the absence of complaints since the claim was issued and the effect the eviction would have on the defendant and his daughter.

Southend appealed but the Court of Appeal dismissed it on the basis that the court could only interfere if the decision at first instance was “wrong”. Armour’s improved behaviour over a significant period was clearly relevant to the issue of proportionality and what weight to give this evidence was a question for the judge.

In principle, it looks as though an article 8 defence will apply to the new mandatory ground, but the Supreme Court has made it clear that any argument on proportionality will only be considered where it has been raised by the occupier (see Hounslow LBC v Powell, Leeds City Council v Hall and Birmingham City Council v Frisby [2011] WLR 287).

Had Armour been a litigant in person, would he have been able to raise a complex article 8 defence? With the cuts in legal aid, there will be far more tenants who will not be able to access specialist housing legal advice. 

There is also great uncertainty as to how the courts will apply an article 8 defence to the new mandatory ground.

Although in Armour, the Court of Appeal was prepared to intervene, the previous Supreme Court decision made it clear that it will only do so where the case has crossed the high threshold of being “seriously arguable

Legal aid cuts

The final issue of concern is whether there will be public funding available to bring such article 8 challenges. From 27 January 2014, public funding has been withdrawn for "borderline" category possession cases. This category had previously been available when it was not possible, by reason of disputed law, fact or expert evidence, to decide that the chance of obtaining a successful outcome was 50 per cent
or more.

The problem for legal advisers is that it will be very difficult to predict what the prospects of success will
be when the only defence to a mandatory claim is an article 8 challenge. If they cannot advise the Legal Aid Agency that prospects of success are
50 per cent or more, the all-important funding will not be available resulting in potentially more vulnerable tenants being evicted.

One purpose of social housing is surely to give the most vulnerable people in society a home. Where there has been a breach of tenancy terms, why not give the tenant a second chance rather than take punitive steps to evict them? This would only marginalise vulnerable tenants further and move the problem elsewhere.

Therefore, social landlords should not rely heavily on the new mandatory ground for antisocial behaviour but use the discretionary grounds (which it should be noted have also
been amended by the new legislation)
wherever possible.

The government should also introduce a pre-action protocol for possession claims based on grounds of nuisance as there is for rent-arrear claims. This, at the very least, would provide guidance for social landlords as to when they should use the mandatory ground. SJ