In February 2011 the Home Office produced the consultation document “More Effective Responses to Anti-Social Behaviour” – a response to the earlier document “The Coalition: our programme for government” – which was introduced by the Home Secretary, Theresa May, with the following words:
“We need a new approach to a problem which is fundamentally local, and which will be different in every area. The answers have to come not from the centre, but from professionals working on the ground and from communities themselves – the people who know the victims and know the perpetrators.
So I want to see a transformation in the way anti-social behaviour is dealt with. I want to free professionals to do what they know will work in their area, and ensure they are accountable to the communities they serve rather than bureaucrats in Whitehall. I have already stripped away the centrally-imposed initiatives and performance targets. Now I want to empower people to shape the way the police and others deal with the issues that matter most to them…”
In particular the Coalition Government expressed a desire for stream-lined, faster and more flexible tools for those bodies and professionals involved in seeking to tackle Anti-Social Behaviour (ASB). This led to the White Paper in May 2012: “Putting Victims First – More Effective Responses to Anti-Social Behaviour” – and ultimately the draft Anti-Social Behaviour Bill, published on 13 December 2012 which, in the normal course, was sent to the Home Affairs Select Committee for pre-legislative scrutiny1.
So for local housing authorities and private registered providers well used to dealing with possession claims based on discretionary ASB grounds and injunctions to restrain such behaviour what difference will the chances in fact make if they proceed to final legislation?
The proposed changes
True to the stated aim, there has certainly been a proposed reduction in the number of ASB sanctions and remedies – though how relevant defacement removal notices and gating orders are to landlords is of some doubt – as well as a tendency to re-name in large part existing provisions, not least the largely successful and “popular” anti-social behaviour injunctions (ASBIs) and closure orders.
Annex B of the Bill sets out the powers to be replaced and these are – the Anti-Social Behaviour Orders (ASBOs), the drinking banning order, the ASBI, the litter clearing notice, the street litter clearing notice, the defacement removal notice, the designated public place order, the gating order, the dog control order, the anti-social behaviour premises closure order, the crack house closure order, the noisy premises closure order, the section 161 closure order, the section 30 dispersal order and the section 27 direction to leave.
This article seeks to consider in overview form the Bill and its reforms in 3 parts – Possession Claims, Injunctions and Miscellaneous.
The breach of tenancy/ASB grounds contained in grounds 1 and 2 of Schedule 2 to the Housing Act 1985 (secure tenancies) and grounds 12 and 14 of the Housing Act 1988 are retained and remain discretionary in nature.
There is to be an additional discretionary ground for England2 – the “riot ground” one might say3 – (Ground 2ZA for secure tenancies and Ground 14ZA for assured tenancies) which will apply where the tenant or a person residing in the dwelling house has been convicted of an offence which took place during and at the scene of a riot in the UK.
The major change though is the introduction of a mandatory ground (sections 83-86) which will require the court to be satisfied of at least one of five conditions, the conditions to be found (if the Bill is passed in its present form) at section 84A of the Housing Act 1985 (for secure tenancies) and Ground 7A of Schedule 2 to the Housing Act 1988 (for assured tenancies):
- Condition 1: The tenant or a person residing in or visiting the demised premises has been convicted of a serious offence4 (post-coming into force of the section) and either the serious offence was (i) committed (wholly or partly) in the property or its locality (ii) committed elsewhere against a person with a right to live in the locality (iii) was committed elsewhere against a person employed by the landlord in connection with or directly or indirectly related to or affecting the landlord's housing management functions.
- Condition 2: The tenant or person residing in or visiting the property has breached an IPNA (see below – this does not include a without notice injunction nor any provision requiring the defendant to participate in a particular activity). The breach has to occur in or in the locality of the property, or if elsewhere to a person who has the right to reside in the locality or to persons employed by the landlord in connection with the housing management functions.
- Condition 3: Breach of a Criminal Behaviour Order (see below), the breach being defined as for Condition 2.
- Condition 4: The property is or has been subject to a Closure Order and the property has been closed for more than 48 hours.
- Condition 5: A tenant or a person residing in or visiting the property has been convicted of an offence for breach of a noise abatement notice/order at the property.
There are separate requirements provided for notices seeking possession in mandatory ground cases5 and for secure tenancies a review process akin to the introductory tenancy structure (and as with the introductory and starter tenancy regimes, there is no corresponding review requirements for the private registered providers although they may be well advised to institute one to “head off” any likely articles 6, 8 and 14 challenges).
Injunctions – Part 1 of the bill (sections 1 to 13)
ASBOs are to be abolished and extended ASBIs are effectively renamed Injunctions to Prevent Nuisance and Annoyance (IPNAs):
- They will be dealt with in the county courts6 for those aged 18 or over.
- They will also be available against children from 10-17 years, in which case it will be the youth court that has jurisdiction and there will be a pre-issue consultation requirement (with the Youth Offending Team) unless the injunction is without notice (for applications against adults the applicant must merely “inform any other body or individual the applicant thinks appropriate of the application”7).
- As well as private registered providers, the police (including the Transport Police), Transport for London, the Environment Agency and the NHS Business Services Authority can apply for an IPNA.
- The “test” is as for ASBIs at present8 – that the person has engaged in conduct which is capable of causing nuisance and annoyance to any person – with the American Cyanamid9 approach of it also being “just and convenient” to grant the IPNA. However, there is no requirement as at present for the conduct to be “housing-related” save where it is a housing provider making the application10.
- Power of arrest and exclusion provisions mirror those found at section 153C of the Housing Act 1996 though unlike at present with ASBIs the court can order positive requirements in the terms of the IPNA11 (and there can be different times given for different prohibition/requirements to have effect), though section 2(1) does require someone to be identified for the purposes of supervising compliance.
- Breach sentencing is as at present for adults, whilst for children it could result in a curfew, activity or supervision requirement, or (as a last resort) detention for up to 3 months.
The somewhat related Closure orders are in essence retained in a sub-section entitled “Closure of Premises Associated with Nuisance or Disorder” (Chapter 3, sections 66-82) and the various existing closure powers will effectively be put under the one provision. As now, the orders are available to the Police and local authorities.
Criminal Behaviour Orders are replacing the CRASBO and the drinking banning order with removal of the former requirement that it is “necessary for the protection of the public” (sections 21-30). It must also be applied for by the prosecutor and will last from 1 to 3 years.
Dispersal Orders (sections 31-37) allow the police to exclude persons over 10 from an area for a specified period of time of up to 48 hours (and confiscate items such as alcohol which may cause or be likely to cause ASB) if they have reasonable grounds for suspecting that the person’s presence or behaviour is contributing or likely to contribute to ASB in the area and that the direction is necessary.
Community Protection Notices (sections 38-52) are intended to direct the individual, business or organisation to stop causing the nuisance/ASB, more than one incident being required, and can be issued by the police, authorised persons in the local authority and staff of private registered providers (if designated by the local authority). This is not intended to be a replacement of statutory nuisance procedures under the Environmental Protection Act 1990 but rather those existing measures such as litter clearing notices, defacement removal notices and street litter control notices (and extends the behaviour by reference to a more general description). The test is that the authorised person reasonably believes that the behaviour, action or inaction is having a detrimental effect on the quality of life of those in the local community or is otherwise detrimental to the amenity of the locality, and there is no reasonable excuse for the same. Breach is a criminal offence and subject to a fixed penalty notice or criminal prosecution.
Problems of drinking in public, and other such public displays of (potential) detrimental behaviour, are dealt with by way of Public Spaces (Protection Orders) (sections 53-57) which will be available to local authorities, following consultation with the police, and will place necessary restrictions on a particular area. Breach sanctions are similar to the CPN.
Finally, the Bill has separate headed “Local involvement and accountability” concerning what are referred to as community remedies such as out of court disposals and criminal behaviour conditional cautions (sections 89-91). This is intended to be a transparent process and requiring serious consultation on the part of the police with their local area. The intention is to address low level crime – such as low-level criminal damage, low value theft, minor assaults (without injury) – and ASB out of Court and by way of some sort of community punishment. The Police will offer a remedy off the agreed “menu” to an offender (who admits the offence), having consulted the “victim” (or they can instead face formal Court action) this could include an acceptable behaviour contract, mediation, payment of compensation, reparation to the victim, etc.
The community approach also involves the community trigger12 whereby those affected by ASB can ask for a review of the approach taken to persistent ASB and the process seeks to encourage genuine inter-agency co-operation and oversight.
The reforms should be introduced within the next two years and it will be interesting to see how they will change, if at all, before then. The Home Affairs Committee report in February of this year did recommend13:
- The strengthening of the Community Trigger so that authorities that do not deal with ASB are identified and held to account.
- The setting up a new National Anti-social Behaviour Forum headed by a chief constable, a housing association chief executive, and a local council leader, for a term of two years.
- The end of the “arms race” against Anti-social Behaviour by setting reasonable limits on the behaviour covered by the new powers.
To what extent these and other suggested amendments are accepted by the Coalition Government and Parliament remain to be seen but it is fair to say that whilst many housing commentators are concerned at the efficacy of the mandatory possession ground they will have breathed a sigh of relief that if there were two sides of the divide/approach to injunctive relief – ASBOs and ASBIs – it is the latter that has won out.
1Their report was published on 15 February 2013
3See Nearly Legal’s reference to a case earlier this year at Wandsworth County Court where the District Judge rejected a claim for possession against the mother of a rioter as the relevant tenancy clause forbidding such conduct was not an “obligation of the tenant” (or tenancy), was not in relation to any acts in the locality and in any event it was not reasonable to make an order – http://nearlylegal.co.uk/blog/2013/02/a-bit-too-widely-cast/
4Defined in Schedule 2A and further explained at section 83(9)
5To be section 83B of the Housing Act 1985 and an amended section 8 of the Housing Act 1988
6For the most part, though section 1(8)(b) does give the High Court jurisdiction too
8Though the Home Affairs Committee in its recent report on the Bill was of the view that the definition of ‘nuisance’ for the purposes of the IPNA were too wide and should have some subjective element such as intent or recklessness – see paragraph 28 of the report at http://www.statewatch.org/news/2013/feb/uk-hasc-asbo-report.pdf Conclusions of the Committee included – (i) Rationalising the number of ASB powers is welcome; (ii) Key elements necessary to tackle ASB are missing: good inter-agency working, intelligent information sharing and a network of services; (iii) The move away from automatic criminalisation for breach of an Injunction is positive, but the powers are far too wide; (iv) The 'Community Remedy' must not 'become the modern pillory or stocks': officers must have the discretion to choose alternative disposals; (v) The 'Community Trigger' will not be effective against persistent ASB unless there is a national limit on the number of complaints that can be made before action is taken.
9American Cyanamid Co v Ethicon Ltd  AC 396;  2 WLR 316; HL and in line with section 37(1) of the Senior Courts Act 1981
12The community trigger has been piloted in Brighton, West Lindsey, Boston, Richmond Housing, and Manchester
13And there has been further recent consultation on the community remedies.
14As set out in the Housing (Tenancy Deposits) (Prescribed Information) Order 2007, SI 2007/797
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