Articles

Anti-social behaviour measures

New measures for social landlords to tackle anti-social behaviour

Part 2 of the Anti-Social Behaviour Act 2003 (the Act) takes effect on the 30th June 2004.  It amends existing legislation and provides further tools for social landlords to deal with anti-social behaviour.  The main changes are:-

• the provision of a new way of obtaining injunctions
• the introduction of "demoted tenancies" which reduce security of tenure
• the introduction of a requirement that social landlords publish policies and procedures for dealing with anti-social behaviour

The New Injunction Procedure

Sections 152 & 153 of the Housing Act 1996 are repealed and replaced by Sections 153A - E.  There are three types of injunction:-

S 153A - Anti-social behaviour injunctions

The Defendant must be engaging, have engaged, or be threatening to engage in conduct which is:-

• capable of causing nuisance or annoyance to any person, and;
• which directly or indirectly relates to or affects the housing management functions of the landlord.

AND the conduct must be capable of causing nuisance or annoyance to a person

• with a right to reside in or occupy housing accommodation owned or managed by the relevant landlord, or;
• with a right to reside in or occupy other housing accommodation in the neighbourhood of such housing accommodation as above, or;
• engaged in lawful activity in or in the neighbourhood of such housing accommodation, or;
• employed in connection with the exercise of the relevant landlord's housing management functions

The word "capable" implies a wider test than under the old injunction procedure.  It is sufficient that the conduct complained of is capable of causing nuisance and annoyance which means that the landlord does not have to prove that nuisance or annoyance has actually been caused.  This means that neighbours or other tenants do not have to provide witness statements in support as evidence can be given by professional witnesses i.e. housing officers or the police.  It is immaterial where the conduct occurs, although the behaviour must still relate to the housing management functions of the landlord.  Importantly, these injunctions can be made as freestanding applications - there is no need for any other cause of action such as e.g. possession proceedings.  Furthermore, they can be made against any person not just the tenant.

S 153B - Injunctions against unlawful use of premises

This section allows landlords to apply for injunctions where someone has used or threatened to use their housing for an unlawful purpose - e.g. for drug dealing or as a brothel.

There is no longer any need for violence or threat of violence or a significant risk of harm.  The use of the word unlawful is a wide definition and would appear to include breaches of civil rules.

S 153D - Injunctions against breach of a tenancy agreement

This section allows the landlord to apply for an injunction against a tenant in respect of the breach or anticipated breach of a tenancy agreement on the grounds that the tenant is:

• engaging or threatening to engage in conduct which is capable of causing nuisance or annoyance to any person, or;
• allowing, inciting or encouraging any other person to engage or threaten to engage in such conduct.

S 153C - Injunctions : exclusion orders and powers of arrest

This section allows the Court when granting an injunction under the above sections to attach a power of arrest to the injunction or to exclude a person from specified premises or a specified area where:

• there is the use or threat of use of violence, or
• a significant risk of harm which is defined as including serious ill treatment or abuse whether physical or not.

The Court may attach a power of arrest to any provision of the injunction.  It is possible that somebody may be excluded from returning to their own home.  However, such a drastic step is only likely to be taken in the most serious of cases and then only granted on an interim basis until a full hearing.

All injunctions are granted for a specified period of time and can be applied for with or without notice.  If a without notice application is made the defendant will be given the opportunity to make representations as soon as possible after the making of an order.

Demotion Orders

Sections 14 & 15 of the Act:

• amend Section 82 of the Housing Act 1985 and insert a new section 82A
• introduce a new section 6A of the Housing Act 1988
• introduce a new section 20B of the Housing Act 1988

Local authorities, housing action trusts and registered social landlords can apply for Demotion Orders which have the following effect:-

• local authority or housing action trust secure tenancies become "demoted tenancies"
• secure and assured tenancies of registered social landlords become "demoted assured shorthold tenancies"

Making a Demotion Order

The landlord must serve a notice before applying for an order.  The minimum notice periods are:

• assured tenancies - 2 weeks
• secure tenancies - 4 weeks

The court will only make a Demotion Order if:

• the tenant or person residing in or visiting the dwelling house has engaged or threatened to engage in anti-social behaviour conduct to which sections 153A and 154B applies, and;
• the landlord has served the necessary notice, unless it is just and equitable to dispense with notice.

In addition the Court must be satisfied that it is reasonable to make an order for a demoted tenancy.

Effect of Demotion Order

From the date specified in the order security of tenure is lost.  If the tenant remains in occupation a new demoted tenancy comes into effect on that day.  Any rent owed to the landlord under the previous tenancy will still be owed, and the parties, tenancy period, rental payment and due dates will remain the same.  The landlord can serve a statement on the tenant detailing which other express terms of the former tenancy should be imposed in the new tenancy.

The tenancy remains demoted for a period of 12 months.  The demotion period will continue if the landlord has served notice of proceedings for possession within 12 months.  If notice of proceedings for possession are served then the tenancy will stay demoted until either:

• notice of proceedings for possession is withdrawn, or
• six months has elapsed without possession proceedings being issued, or;
• determination of possession proceedings in favour of the tenant.

A non assured demoted tenancy has provisions which are similar to introductory tenancies.  Demoted secure tenants of registered social landlords will become assured tenants if their security is restored.  They can not become secure tenants again.  This means that they will lose their right to buy and have reduced succession rights, reduced rights of consultation and be subject to a different rent review regime.  Tenants with a reserved right to buy as a result of a stock transfer will lose this right.

Obtaining Possession

Demoted tenancies

A tenant is entitled to 4 weeks notice of the landlord's intention to seek an order.  The notice specifies that the Court is asked to make an order for possession and it must set out the reasons for the landlord's decision to apply for an order.  The notice must also inform the tenant of his right to request a review of the landlord's decision and of the time within which the request must be made.  Providing these requirements are met the court must make an order for possession.

Demoted Assured Shorthold Tenancies

Possession can be obtained using the accelerated possession procedure.  The normal requirement that a possession order will not take effect earlier than six months after the grant of the tenancy does not apply. As the demoted assured shorthold tenancy will also be periodic this means that the landlord can serve a Section 21 notice at the commencement of the tenancy.

Tenants of local authorities may seek a judicial review of how their cases are dealt with.  Tenants of registered social landlords may complain to the independent housing ombudsman.

Structured discretion

The Act also introduces a new section 85A to the Housing Act 1985 and a new Section 9A to the Housing Act 1988.  The Court must, when considering whether it is reasonable to make an order for possession on the grounds of nuisance or anti-social behaviour namely Ground 2 (secure tenancies) or Ground 14 (assured tenancies), consider:-

• the effect that the nuisance or annoyance has had on persons other than the person against whom the order is sought.
• any continuing effect the nuisance or annoyance is likely to have on such persons.
• the effect that the nuisance or annoyance would be likely to have on such persons if the conduct is repeated

These have been introduced to provide greater certainty of outcome when judges are exercising their discretion.  Importantly the emphasis now lies on the effect that the defendant's behaviour has on others rather than what the effect of making an order would have on the defendant.

Policies and Procedures

Section 218A of the Act requires all local authorities, housing action trusts and registered social landlords to have in place:

• a policy in relation to anti-social behaviour, and
• procedures for dealing with occurrences of anti-social behaviour

These should be published within six months of the commencement of the Act.  The policy and procedures should also be available for inspection and be available on payment of a reasonable fee.  A free summary should also be available.  The policy will need to be reviewed with regard to guidance issued by the Secretary of State if the landlord is a local authority or a housing action trust or the Housing Corporation if the landlord is a registered social landlord.

Landlords who seek to use the new provisions under the legislation are strongly encouraged to ensure that they are complying with their policies and procedures.

S 85 of the Act

This provision also comes into effect on 30th June 2004.  It allows local authorities, housing action trusts and registered social landlords, when making applications for an anti-social behaviour order (ASBO) in the county court, to join a third party who is not a party to the proceedings but whose acts are "material in relation to the principal proceedings", to allow an ASBO to be made against the third party.

This may assist where the nuisance is being caused by a person other than the tenant e.g. the tenant's child.

Ss 1-11 of the Act

Under these sections the police may request the magistrates' court to make a closure order where illegal drugs are being consumed at a property.

The first step requires the police to request a "closure notice" where:

• premises have been used in connection with the use or supply of a class A drug, and
• there has been disorder or serious nuisance to members of the public.

An application for a closure order can be made when the above are satisfied and the order is necessary to prevent the disorder and/or serious nuisance.

An order can be effective for up to 3 months and the police will secure the premises.  A tenant will therefore become excluded from his home although the tenancy will continue and the tenant will continue to be liable for the rent.

Conclusion

These measures are principally designed to allow social landlords to apply quickly and effectively to deal with incidents of anti-social behaviour.  A greater choice of remedies allows landlords to consider what the most appropriate response is in a particular case.  The reduction of security of tenure will allow landlords to evict with far greater ease particularly in cases of demoted assured shorthold tenancies.  It remains to be seen how the new injunction procedure will be applied and whether the provisions will be liberally interpreted or not.  What is clear is that anti-social behaviour need not be tolerated and landlords have a "full toolkit" of measures to deal with different situations.