The Anti-Social Behaviour, Crime and Policing Act 2014 (‘the Act’) was given Royal Assent in March 2014.
Various parts of the Act have already been commenced but it is expected that the majority of the provisions affecting housing management will be commenced in autumn 2014.
The Act can be found here.
Which provisions have been commenced already?
There are three key provisions which were enacted on 13 May 2014 affecting housing management, being:
1. The introduction of a new discretionary ground for possession where a tenant or any adult residing at the property has been convicted of a serious offence which took place in a riot in the UK;
2. The introduction of the community trigger requiring a case review to be conducted where three qualifying complaints of anti-social behaviour are made; and
3. The amendment to widen the remit of the anti-social behaviour ground (ground 2 for secure tenancies and ground 14 for assured tenancies) to include conduct causing or likely to cause a nuisance or annoyance to the landlord or the landlord’s employees.
There has been some confusion as to whether the provisions relating to the new mandatory ground have been commenced following the insertion of the new ground into the Housing Act 1985 (ground 84A) and Housing Act 1988 (ground 7A). Whilst these provisions have been inserted into the text of the Act they have not yet been commenced.
So is the Act likely to make it easier for landlords to tackle anti-social behaviour?
In many respects, and as far as anti-social behaviour is concerned, the Act is political. Generally the old system of injunctions in particular, has worked well.
The remainder of this article looks at the thorny issues surrounding the practicalities of the new mandatory ground for anti-social behaviour and the workability of the supervision role for positive requirements sought as part of an Injunction to Prevent Nuisance or Annoyance (IPNA).
Will the introduction of the mandatory ground make life easier?
Legal practitioners are concerned that the mandatory possession ground for anti-social behaviour will make it more difficult to obtain injunctions once the provisions come into force. That an injunction or subsequent breach will put a tenant at risk of a mandatory possession claim may mean that more cases are defended at committal stage or that Judges are increasingly careful about the injunction orders they make to ensure that a technical or minor breach does not give rise to mandatory possession grounds. The mandatory ground will not be available where the injunction order has not been finally determined (i.e. where it is merely an interim order) or where the order is being appealed. This will inevitably have its impact on case tactics and make it more difficult to obtain a final injunction in many cases.
Breach of an undertaking would not allow the landlord to rely upon mandatory possession grounds. It may therefore be that some Judges would also look to push landlords towards undertakings where the anti-social behaviour has been occurring at a fairly low level to ensure that the tenant will not lose their home as a result of a breach.
The ability to use the mandatory ground for possession upon the conviction of the tenants or a member of his or her household for a serious offence, may prove helpful but landlords must ensure that the conviction is for one of the offences set out in the schedules inserted into the 1985 and 1988 Housing Acts.
The need to rely upon convictions and noise abatement notices in relation to some of the mandatory conditions will mean that landlords will need to have an effective mechanism or protocol in place with partner agencies by which they are made aware of convictions or breaches giving rise to mandatory possession grounds. Further, it will not be enough for a landlord to allege a breach of one of the new style injunctions to rely upon mandatory grounds for possession. The Court will need to make a finding of fact based upon an admission or after a defended hearing that there has been a breach.
Even though decisions in the higher courts have made it more difficult for tenants to successfully pursue public law and proportionality challenges, any mandatory/summary procedure which does not give the Court the opportunity to consider the proportionality of making a possession order, gives rise to the risk of challenges of this type. Landlords seeking to use the new mandatory possession ground will need to offer a review of the decision. They will also need to ensure that policies and procedures are correctly followed and that communications with the tenant are consistent in relation to the landlord’s intentions.
Social landlords need to ensure that their policies and procedures are reviewed and, if necessary, amended to allow them to rely on the new mandatory ground. They may also wish to consider varying tenancy agreements where agreements limit the grounds which may be relied upon.
How will the supervision of positive IPNA requirements work?
The Injunction to Prevent Nuisance or Annoyance (IPNA) will replace the Anti-Social Behaviour Injunction (ASBI) and Anti-Social Behaviour Order (ASBO) once in force. Where a positive requirement is included in an IPNA an individual or an organisation will need to be identified to supervise the requirement. It is envisaged that applicants may seek requirements such as drug and alcohol rehabilitation or the removing of rubbish. To make an order containing a positive requirement, the Court must be provided with evidence of both the suitability and the enforceability of the requirement from the proposed supervisor, whether an individual or an organisation.
The Act goes so far as placing a duty on the supervisor to:
• Make any necessary arrangements in connection with the requirements;
• Promote compliance with the requirement; and
• Inform the person who applied for the injunction and the appropriate chief officer of police if the Defendant complies with all of the requirements or fails to comply with the requirements.
The requirement to inform the chief office of police seems a completely unnecessary formality for most housing injunctions where the police will not be involved.
The burden of the supervisor role is going to be unattractive for most organisations which have their own resourcing pressures. On a practical level it is likely that landlords will steer away from positive requirements unless absolutely necessary due to the increased paperwork, expense and difficulty in finding a suitable and willing supervisor.