18 May, 2012
The formal summary of responses to the consultation entitled 'A new mandatory power of possession for anti-social behaviour' is due to be released soon - so it seems appropriate to consider what this is likely to contain.
This article will concentrate on the riot-induced amendment - to extend the discretionary ground for possession - as this has proved to be particularly controversial. We will consider the rationale behind this amendment and how some of the key objections that have been raised in response to it highlight a fundamental concern regarding its potential to make any practical difference to possession proceedings.
It was widely felt that the behaviour exhibited by the participants in the riots towards the end of the summer in 2011 needed to be dealt with via a 'zero tolerance' approach. This led eminent politicians to encourage social landlords to commence possession proceedings against their tenants where they, or a member of their household, had been involved in the riots.
However, in some cases social landlords were unable to commence possession proceedings upon the basis of the discretionary grounds contained in the 1985 and 1988 Housing Acts, as the reprehensible behaviour of their tenants was not committed in the locality of their tenanted property.
So the root of the problem was perceived to be the inclusion of 'locality' in the legislation. The Government thought that it was inappropriate for the sanction of eviction to only apply to criminal behaviour committed towards the tenant's neighbours or in the locality of their tenanted property.
The Government proposed to include additional provisions in relation to the discretionary grounds for possession, based upon anti-social behaviour. These provisions would provide the court with the discretion to grant possession where a tenant or a member of their household has been convicted of violence against property (including criminal damage and offences such as arson), violence against persons at a scene of violent disorder or theft linked to violent disorder. There would, in these circumstances, be no requirement for the offence to have been committed within the locality of the tenanted property, subject to it being committed in the UK.
However, as with all the discretionary grounds for possession, social landlords would still be required to show that the possession action was reasonable.
A number of objections have been raised in relation to these proposals and these objections highlight a potentially fundamental flaw in the proposals.
Many have argued that it is sufficient for anti-social behaviour, which is committed outside of the locality of the property, to be dealt with via criminal sanctions. However, under the proposed addition to the discretionary grounds, social tenants would face punishment by the criminal justice system followed by potential homelessness; unlike their home-owning or private tenant counterparts.
Possession proceedings are usually used as a last resort, where there has been a lengthy period of ASB and other tools have proved to be ineffective. Therefore, this raises the question of whether it is appropriate for social landlords to be encouraged to jump straight to possession proceedings to deal with one off incidents, such as involvement in riots.
It is believed that such encouragement serves to introduce uncertainty into the application of housing law - as the use of possession proceedings to deal with isolated incidents is contrary to the current case law except in very serious cases. Furthermore it contradicts the Housing Minister's foreword to the initial consultation proposals which emphasised that 'eviction should only be pulled outů as a last resortů where other remedies have been tried and failed'.
There are already concerns about whether it is appropriate for innocent family members to lose their home, due to the conduct of their family members. Usually, this can be justified upon the basis that they have been aware of their family member's conduct, have condoned it or turned a blind eye and have allowed it to continue.
But where this is not the case, and the innocent family members were unaware of their relatives' reprehensible behaviour, can this collateral damage be justified? Many think not.
The proposal to add an additional provision to the discretionary ASB grounds, which is not subject to the 'locality requirement', has been welcomed by some. This is because courts have to interpret 'locality' on a subjective case-by-case basis. This causes a problem for social landlords as they can be left in a position of uncertainty as to whether the anti-social conduct of their tenant will be deemed (by the court) to have been committed in the locality of their tenanted property. Hence, in some cases, this creates additional difficulties for social landlords in predicting the potential success of a possession action - as they have to second guess how the court will interpret 'locality' in that particular case.
However, many have suggested that this challenge is a small price to pay when balanced against the implications of the removal of the requirement.
The key concern is whether possession proceedings can ever be considered to be an appropriate tool for dealing with ASB which has absolutely no relation to a tenant's occupation of their property or the landlord's housing management functions. Local people may be annoyed that a neighbour has been convicted of an offence but such conduct is unlikely to affect the quality of life of these people if committed outside of the locality.
This use does not sit well with the fundamental rationale behind the present housing legislation - i.e. to ensure that tenants behave reasonably in their immediate locality and to protect their neighbours (and the landlord's employees) from anti-social acts. In particular, it contradicts the Housing Minister's introduction of the original proposals which focused upon the need to stop anti-social tenants making the lives of their neighbours a misery.
It is also considered by many that possession proceedings are not the most effective way to deal with anti-social behaviour - rather than dealing with the root of ASB, it often simply relocates the problem. This relocation response is generally held to be justifiable where the tenant is making the lives of their neighbours (or a landlord's employees) a misery; but it is difficult to see what justification there can be for this response where this is not the case.
The stumbling block to the proposals' potential effectiveness is the 'reasonableness requirement'.
This is because in order to be satisfied that it is reasonable to make an order for possession the court will need to consider the above issues, for instance:
- Is a criminal punishment enough deterrent or is eviction still necessary to prevent further antisocial acts?
- Can the collateral damage be justified?
- Is it appropriate for possession to be used where it's a one-off incident?
- Are possession proceedings an appropriate method to deal with ASB which has not been committed within the locality?
Where a court cannot be satisfied that the answer is 'yes' to any of these questions it is unlikely to be satisfied that it is reasonable to make a possession order.
So the potentially fundamental flaw is that the proposals will provide social landlords with the capacity to instigate possession proceedings against rioting tourists, but they will face serious difficulties surmounting the reasonableness hurdle.