A past tenant's present behaviour can lead to an ASBI for the future

Article

15 September, 2009

The anti social behaviour of social housing tenants and the ways in which landlords have sought to deal with it has often been the source of a considerable amount of legal action and debate. It is generally considered that a social landlord is permitted to take action if the tenant's conduct interferes with their 'housing management function'.

Whilst this may be easy to demonstrate when the individual in question is a current tenant, a recent case in the Court of Appeal has raised the issue of what action, if any, can be taken when the perpetrator is an ex-tenant who returns to their former neighbourhood and harasses local residents. The decision reached in Swindon Borough Council v Michael Redpath [2009] EWCA Civ 943 has arguably broadened the scope of a social landlord's powers to deal with problematic behaviour.

The Facts

The appeal was brought by Redpath (R) against an anti social behaviour injunction which had been granted against him. R had been the secure tenant of the Council and had lived in a cul-de-sac for around 48 years. Following the death of his father, R succeeded to the secure tenancy and then transferred to a smaller property, where he remained until his eviction.

The eviction was caused by R's alcohol abuse and his inability to refrain from causing anti social and nuisance behaviour when intoxicated. It was evidenced at the initial hearing that R had also pursued a campaign of harassment against his neighbours. An anti social behaviour injunction, lasting for 12 months, was therefore granted prior to R's eviction. The terms of the injunction prevented R from engaging in anti social behaviour or from entering the neighbourhood in question. However, R did not comply with these requirements and he was committed to prison as a result.

A second injunction was then made which was again to last for one year, but just before the expiry of that period R returned to the neighbourhood and again caused anti social behaviour. This led to a third injunction being made against R.

R appealed against this injunction being granted on the grounds that since he was no longer a local authority tenant, the court had no jurisdiction to make the injunction. This was because, according to R, none of the main victims were local authority tenants and none of the property involved belonged to the Council (apart from a block of garages) and so R's anti social conduct could not be said to be 'housing related' under the Housing Act 1996 as it did not directly or indirectly relate to, or affect, the Council's housing management function. R also said that the term 'housing related' should be interpreted narrowly because a landlord had the additional option of seeking an anti social behaviour order in such circumstances.

The Court of Appeal's Decision

The Court of Appeal rejected R's appeal. It was held that the history of the legislation relating to anti social behaviour injunctions indicated that the jurisdiction was to be viewed broadly, rather than narrowly. Therefore, the court considered that it was clearly part of a landlord's housing management functions under the 1996 Act to preserve the peace in a particular neighbourhood of its residential property by seeking injunctions to prevent anti social behaviour which would disrupt this. In this context, it should be considered that the powers and functions of a social landlord should not be artificially narrowed.

The Court of Appeal also said that R's conduct, which had to be taken as a whole, was housing related as it was directly or indirectly related to the housing management function of the Council. Such functions included having concern for its tenants and property in a particular area and included situations where the threat to them came from a former tenant. There was no requirement within statute that the perpetrator had to be a tenant of the Council at the time of seeking the injunction. R's behaviour at the bus shelter and at the Council owned garages was 'housing related', even if it was viewed piecemeal.

However, R's conduct was not to be viewed in such a way but instead as a whole series of incidents. As an entirety, the Council's management function included having a responsibility towards it present tenants and owner occupiers of the neighbourhood in relation to the conduct of a former tenant. Therefore, it was reasonable for the court to have granted the anti social behaviour injunction.

Summary

The impact of this decision could potentially be significant for all landlords. It may now be the case that a landlord's toolkit to prevent anti social behaviour has been widened to include past tenants, if the behaviour takes place in or around their properties. It would therefore be important that records of past tenants are kept stored safely so that they could form part of any later legal proceedings. These may be matters which landlords wish to bear in mind when dealing with challenging conduct in the future.

For more information and assistance on these issues, please contact the Housing Litigation Department at Forbes Solicitors on 01772 220200 or contact Stuart Penswick by email.

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