Civil Housing Law

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Civil Housing Law

• The Respect Taskforce

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Anti-social behaviour What is it?

• The question of definition..
• Crime and Disorder Act 1998
• Behaviour likely to cause harassment, alarm or
  distress to at least one person who is not of the
  perpetrators own household.
• Anti-Social Behaviour Act 2003
• Conduct capable of causing nuisance or annoyance
  to any person

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Why legal action?

• To prevent repetition future anti-social
  behaviour
• Because urgent protection needed for witnesses
  against threat of violence
• Because perpetrators will not change offending
  behaviour when warned to do so
• Legal action plus possible publicity will define
  the credible authority and responsibility of
  front-line service providers
• WITNESSES WILL KNOW THEY CAN TRUST US
• PERPETRATORS WILL KNOW THEY MUST CHANGE

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Actions available to landlords

• Injunctions
• Committal to prison
• ASBOs
• Possession -immediate
• -suspended
• Demotion orders
• Eviction
• Seize equipment (local authority)

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Why injunctions?

• Sets standards of behaviour easy to understand
  by both perpetrator and complainant
• Takes action rather than displaces problem
• Avoids social exclusion (both for perpetrators
  and complainant) as no-one has to move
• Fast (sometimes virtually immediate)
• Inexpensive (need to consider legal service
  provision)
• Effective (protection on service)
• Fierce sanctions committal to prison
• Establishes shift in balance of power
• Granted on civil burden of proof / hearsay
  evidence can be one persons word against
  another
• Can prohibit or require certain acts

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The tenancy agreement

• Legally binding contract
• Sets out obligations (both tenant and landlord)
• Control

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Breach of tenancy injunctions Anti-Social
Behaviour Act 2003

• When landlord is a local authority, a HAT, an
  RSL or charitable housing trust and regardless of
  whether the tenancy is introductory, secure or
  assured
• Section 13, 153D of the Anti-Social Behaviour
  Act 2003, amends s153 of the 1996 Housing Act
  allows the relevant landlord to apply for a
  breach of tenancy injunction on the grounds that
  the tenant-
• Is engaging or threatening to engage in conduct
  that is capable of causing a nuisance or
  annoyance to any person, or
• Is allowing, inciting or encouraging any other
  person to engage or threaten to engage in such
  conduct.

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Breach of tenancy injunctions (Ctd) S153D
Housing Act 1996

• Order can exclude from a particular address or
  whole area and
• Can attach a power of arrest, if
• - conduct includes the use or threatened use of
  violence or
• - there is a significant risk of future harm if
  order is not granted
• Can be without notice to the perpetrator - go on
  one statement
• Evidence - balance of probabilities

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s153A Anti-social behaviour injunctionsAnti-Socia
l Behaviour ACT 2003

• Available since 30th June 2004 to relevant
  landlords
• Section 13 of the Anti-Social Behaviour Act 2003
  provides for ASB injunctions under s153A of the
  Housing Act 1996.
• Available against any person whose conduct
• Is capable of causing nuisance or annoyance to
  any person, and
• Relates to or affects the landlords housing
  management function.

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S153A anti-social behaviour injunctions (Ctd)

• Two tests
• The person who the order is being sought against
  is engaging or has threatened to engage in
  conduct that is capable of causing nuisance or
  annoyance
• and
• The conduct is capable of causing a nuisance or
  an annoyance to-
• A resident in landlords stock
• A resident in other housing in the neighbourhood
• A person engaged in lawful activity in the
  neighbourhood
• A person employed in connection with the landlord
  function
• It doesnt matter where this conduct takes
  place. The order is designed to prevent
  (prohibit) such conduct

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Anti-social behaviour injunctionsAnti-Social
Behaviour Act 2003 Sections 153B 153C

• Available to prevent unlawful use of premises
• Power of arrest can be attached when conduct
  includes threat or use of violence OR where there
  is significant risk of harm to a relevant person
• The order can exclude from specified premises or
  areas
• The order can be granted to prevent breach of a
  term of tenancy and, once again, include power of
  arrest and exclusions

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Injunctions s153C Power of arrest

• If exercised, perpetrator must be brought before
  a judge within 24 hours (excluding Christmas Day,
  Good Friday or any Sunday)
• Remand provision
• Standard of proof beyond reasonable doubt

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Injunctions Committal to prison

• Breaking an injunction - contempt of court
• Go back to court to seek perpetrators committal
• Perpetrator must have been served with papers and
  have at least 2 days notice
• In Manchester usually get court hearing within
  7-14 days
• Only effective against over 18s
• Standard of proof - beyond reasonable doubt

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Injunctions Undertakings

• When you apply for an injunction perpetrator
  often gets legal advice and offers an undertaking
• In theory same force as injunction - promise to
  court but no findings of fact
• Court order
• Breach of undertaking
• - can result in a committal to prison
• - will establish finding of fact which.
• - can be used as evidence in possession
  proceedings

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ASBOs

• Easier than ever to get ex-parte interim RSL
  application- in County Court proceedings
  available on criminal conviction
• Available directly for minors
• Has all the advantages of injunctions but lasts
  longer and gives wider geographical coverage
• As with injunctions, sets an intelligible and
  clear standard of behaviour which witnesses and
  the wider community can police
• Not expensive
• Why not?

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Nature of an anti-social behaviour order

• Can be made against person over age of 10
• Can prohibit anything necessary to protect others
  from ASB
• Lasts minimum of 2 years
• Can be varied on application of defendant or
  applicant
• Cannot be discharged without consent of both
  parties
• Breach is an arrestable criminal offence
• Prosecution of breach in Magistrates Court can
  attract 6 months imprisonment or a fine of 5,000
• Prosecution of breach in Crown Court can attract
  maximum sentence 5 years imprisonment or a fine
  of 5000
• Court cannot impose conditional discharges for
  breach

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Home Office guidance on ASBOs

• Not order of last resort - phrase deleted from
  guidance
• Dont have to show all other remedies exhausted
• Should consider interventions to divert or
  support perpetrator into pro-social behaviour
  but
• Principal purpose of the order is to protect
  those subjected to anti-social behaviour
• ASBOs intended for criminal or sub-criminal
  activity
• ASBOs should be used to protect from
  discrimination

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Terms of an anti-social behaviour order

• Will depend on nature of anti-social behaviour -
  terms to reflect this
• Can exclude from given area (maps)
• Can include prohibitions of type used in
  injunctions
• Must be necessary to protect others in the future
• CPS will generally prosecute breaches - get
  advice on wording - need to ensure breach capable
  of proof

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Breach of an anti-social behaviour order

• Order registered on Police National Computer
• Breach arrestable offence
• Defence of reasonable excuse

• If defendant is a local authority or RSL tenant
  breach will establish ground for possession
  (Ground 2, Schedule 2, Housing Act 1985)

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ASBOs provisions of the Anti-Social Behaviour Act

• Applicant authority (neighbour nuisance team) can
  have an authorised person present
• Can bring the prosecution for breach
• Can join other perpetrators 18 or over to
  existing legal action already taking place in the
  County Court (eg injunction or possession or
  demotion actions)
• Criminal prosecutors can ask for an ASBO on
  conviction
• Making of orders in Youth Court (on conviction
  for other offence) free from any reporting
  restrictions unless specifically imposed now
  same as Magistrates Court.
• Must consider making a Parenting Order with ASBOs
  for under 16s

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Police Reform Act 2002ASBOs (s61-66)

• RSLs and transport police can apply for ASBOs
• ASBO will protect relevant persons elsewhere in
  England and Wales
• ASBO subject breaching prohibitions, is guilty of
  an offence
• ASBO can be made against a tenant in County Court
  possession proceedings
• ASBO can be made against convict at the end of
  criminal proceedings
• Interim ASBOs can be made pending determination
  of main application - ex parte with agreement of
  Court in serious cases
• Consultation required between and with police and
  local authorities before ASBO application

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Standards of proof

• it will be sufficient for the magistrates, when
  applying section 1 (1) (a) to be sure that the
  defendant has acted in an anti-social manner.
• Lord Steyn Regina v McCann 2002, para.37

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Possession why evict?

• Witnesses rarely demand it unless agencies fail
  to injunct
• Without some injunctive action for exclusion, not
  effective
• May be use on a case by case basis, if other
  interventions have failed
• To stop criminal activity which is damaging the
  surrounding residents lives
• To stop violent attack on neighbouring residents
  / visitors / staff
• Associated rehabilitation hugely important
  otherwise new and different witnesses will suffer
  in perpetrators chosen new location
• Landlord reputation at serious risk in
  transferring known perpetrators into new tenancy
  without a credible rehabilitation programme.

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Possession

• Serving a notice not a legal action in and of
  itself
• Should be serious about securing possession
• Housing Act 1996 (sections 144 - 147)
• Extension of ground or annoyance / nuisance
• Can secure suspended or immediate order
• Can just displace problem so need to think
  carefully

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Possession

• Necessary to prove breach of tenancy conditions
• Judge must also decide that it is reasonable in
  the circumstances to grant an order
• Can now also secure ASBOs against the tenant as
  part of possession proceedings
• Possession outcome not always guaranteed despite
  good evidence

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Possession provisions of the Anti-Social
Behaviour Act 2003, section 16

• In considering whether to grant possession, from
  30th June 2004, the Judge must now
  consider
• The effect of the nuisance on people other than
  the perpetrator
• The likely effect on people of any continuing
  nuisance
• The likely effect on people of repetition of the
  nuisance

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Possession proceedings Reasonable

• You can assist
• Good process / procedures / policies
• Evidence of good process
• - letters
• - interview notes
• Particularly important - warnings to the
  perpetrator

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Section 14 of the Anti-Social Behaviour
ActDemotion for anti-social behaviour

• Available since 30th June 2004
• Application is to the County Court for Demotion
  Order
• Secure / assured tenancy terminated from date
  specified in the order
• Demoted tenancy created from same date if tenant
  remains
• Arrears payable under demoted tenancy
  overpayment credited
• Court must be satisfied that a person residing in
  or visiting the dwelling house has engaged or
  threatened to engage in conduct to which the
  section applies that it is reasonable to make
  the order
• Apart from security and the right to assign, all
  terms of the tenancy remain

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Demotion for anti-social behaviour (Ctd)

• Start by way of notice of particulars with date
  on which court proceedings can be started
• From this date, notice is valid for 12 months
  during which the application can be made
• Process is the same as for introductory tenancies

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Police Reform Act 2002 Section 50 power to
require name and address

• Section 50 If a constable in uniform has reason
  to believe that a person has been acting, or is
  acting in a manner likely to cause harassment,
  alarm or distress, he can require that person to
  give their name and address
• Failure to provide accurate information is an
  offence (can be fined)
• Can be used in conjunction with the incident
  diary to identify perpetrators

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Police Reform Act 2002Section 59 Seizure of
motor vehicles

• Where a constable in uniform believes that a
  motor vehicle is being used in a manner which is
  causing or likely to cause harassment, alarm or
  annoyance to any member of the public, they can-
• Order the person driving it to stop
• Seize and remove the vehicle
• Enter premises if there are reasonable grounds
  for believing the motor vehicle is being stored
  there
• Use reasonable force if necessary to exercise the
  above powers
• The Constable must warn first, unless
  impracticable to do so

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S1 of the Anti-Social Behaviour ActClosure of
premises where drugs are used unlawfully

• Authorising officer not below rank of
  superintendent
• Must have reasonable grounds that-
• The premises have been used in connection with
  the unlawful use, production or supply of a class
  A drug and
• That the use of the premises is associated with
  the occurrence of disorder or serious nuisance to
  members of the public.
• The local authority must be consulted
• Reasonable steps must be taken to identify anyone
  who lives, controls or has an interest in the
  property

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Closure of premises for drugs (Ctd)

• Constable must serve a closure notice
• Must specify a date and time when the application
  will be heard
• Must be before the Magistrates court within 48
  hours of the service of the notice
• Maximum period of 3 months but can be extended
  for a further 3 months

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Environmental Protection Act 1990

• Available to the local authority
• Abate noise nuisance
• Investigation / gathering of evidence
• Serve a noise abatement notice
• Breach professionally witnessed
• Lay information before the court / secure a
  warrant (without notice)
• Enter premises, by force if necessary, and remove
  all good / equipment associated with the nuisance
• Keep for a minimum of 28 days
• Store up to a maximum of 6 months after 28 days
  has expired

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Anti-Social Behaviour Act 2003 S30 Dispersal
Orders

• Either police or local authority can instigate
  process must be agreement
• Power to disperse groups of 2 or more
• Effective 24 hours a day for prescribed period
  of time
• Unsupervised young people can be escorted home
  after 9.00pm
• Aimed at stopping residents from feeling
  intimidated or harassed but must be used with
  other measures
• Can be small, compact areas or whole estates but
  must be evidence of persistent anti-social
  behaviour

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Section 30 Dispersal Orders (Ctd)

• Has to be consultation between police and local
  authority
• Has to be a signed written agreement specifying
  defined area, grounds on which authorisation is
  given and period for which the powers can be
  exercised
• Agreement must form part of a wider action plan
• Agreement has to be publicised
• Maximum period of 6 months
• Authorisation can be withdrawn but must be after
  consultation with the local authority

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Section 30 Dispersal Orders (Ctd)

• Order can give a police constable the authority
  to-
• Give instructions for a group to disperse
  immediately or within a specific period of time
• Give instructions for the group to disperse and
  to leave the area(if their residence is not in
  the defined area)
• Give instructions prohibiting any person who
  doesnt live in the area from returning within 24
  hours.
• Breach of the Order can result in a fine and / or
  imprisonment for up to 3 months

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End