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Anti-social Behaviour and possession

By James Robinson,2014-08-12 22:05
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Anti-social Behaviour and possession ...

    Anti-social Behaviour case law up-date

    1. This paper is intended to provide an up-date on recent case-law in

    anti-social behaviour cases, both in the context of possession

    proceedings and injunctions under the Housing Act 1996.

    Possession

    2. The full statutory framework is not set out in relation to secure or

    assured tenancies. However, by way of reminder in possession

    cases, the text of the relevant discretionary grounds under the

    Housing Acts 1985 and 1988 are set out further below.

    3. The basic framework for the court when considering a discretionary

    ground for possession is:

    a. Is the ground for possession made out?

    b. Is it reasonable to order possession?

    c. Whether, if it is reasonable to order possession any such order

    should be made on terms (unless to do so would cause

    exceptional hardship or otherwise be unreasonable.)

    4. Practitioners are reminded of sections 85A Housing Act 1985 and

    9A Housing Act 1988 that give a statutory basis for the

    consideration of the impact of anti-social behaviour on persons other

    than the Defendant, when considering the reasonableness of

    making an order for possession. In particular the court must

    consider:

    (a) the effect that the nuisance or annoyance has had on

    persons other than the person against whom the order is sought;

    (b) any continuing effect the nuisance or annoyance is likely to

    have on such persons;

    (c) the effect that the nuisance or annoyance would be likely to

    have on such persons if the conduct is repeated.

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Housing Act 1985: grounds 1 and 2

Ground 1

    Rent lawfully due from the tenant has not been paid or an obligation of the tenancy has been broken or not performed.

Ground 2

    The tenant or a person residing in or visiting the dwelling-house

    (a) has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality, or

    (b) has been convicted of

    (i) using the dwelling-house or allowing it to be used for immoral or illegal

    purposes, or

    (ii) an [indictable] offence committed in, or in the locality of, the dwelling-

    house.

    Ground 2, paragraph (b)(ii) the word ―indictable‖ in square brackets was

    substituted by the Serious Organised Crime and Police Act 2005, s 111, Sch 7, Pt 3, para 45, in force as of 01.01.06, SI 2005 No 3495.

Housing Act 1988: grounds 12 and 14

Ground 12

    Any obligation of the tenancy (other than one related to the payment of rent) has been broken or not performed.

Ground 14

    The tenant or a person residing in or visiting the dwelling-house

    (a) has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality, or

    (b) has been convicted of

    (i) using the dwelling-house or allowing it to be used for immoral or

    illegal purposes, or

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    (ii) an [indictable] offence committed in, or in the locality of, the

    dwelling-house.

Ground 14 in paragraph (b)(ii) the word ―indictable‖ in square brackets was

    substituted by the Serious Organised Crime and Police Act 2005, s 111, Sch 7, Pt 3, para 46, in force as of 01.01.06, SI 2005, No 3495.

Recent case law in possession cases

Raglan Housing Association v Fairclough [2007] EWCA Civ 1087

    Ground 14 (b) (ii): the tenant or a person residing in or visiting the dwelling house has been convicted of an indictable offence committed in or in the locality of the dwelling house, does not just apply to offences committed during the life of the tenancy. (At the time of Raglan this was an arrestable offence, but note above the ground has now been changed).

    Mr Fairclough was convicted of making indecent photographs of children whilst residing at 1 Banks Cottages, Studland. The offences were committed between dates in 2001 and 2004 that preceded the transfer of his tenancy to number 5 Banks Cottages in January 2005.

    The court held that ‗there is no reason to think that Parliament intended to restrict that paragraph [(b) (ii)] to offences committed during the currency of the tenancy. A tenant who is convicted of supplying illegal drugs or of burgling his neighbours‘

    house poses no less of a continuing threat if the offences were committed before he became a tenant than he would if they had been committed afterwards. It should be remembered that Ground 14 merely contains a precondition (or as the judge put it a ‗hurdle‘) to the exercise of the court‘s power to grant possession. The court is not entitled to exercise that power unless it is satisfied that it is reasonable to do so and in making that decision it must take into account the effect that the tenant‘s behaviour has already had on other people in the locality, any continuing effect which is likely to follow from it and the effect that any repetition of the same behaviour would be likely to have.‘

Sheffield City Council v Shaw [2007] EWCA Civ 42

    There is no principle that historic conduct may be so bad as to produce in one or more victims an apprehension for the future which no amount of apology and good intention can dispel and that the past conduct should outweigh future optimism. This is a possible judgment in the individual case depending on the facts and the judge‘s evaluation of the evidence.

    The Defendant had since July 2000 engaged in harassment of a local girl aged 12 in that year, stalking and threatening her (including an alleged threat to kill).

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    This had resulted in convictions and a number of custodial sentences. The Claimant sought possession and an ASBO including a provision excluding him from the entire city of Sheffield. The Judge heard evidence from the Defendant of his remorse and from his probation officer who found that although he was frequently in denial of the impact of his actions, he was capable of reform with psychiatric aid.

    The Judge made a suspended possession order and an ASBO but one that did not exclude the Defendant from the whole city. The Judge‘s reasoning was

    based on what he found to be a genuine chance of the Defendant reforming, being more than fanciful, whilst considering that the consequences of an outright possession order rendering him intentionally homeless would be massive. If it was possible to draft the ASBO and suspended order sufficiently tightly and widely that everyone might be protected and if the chance that this might be successful was more than fanciful it was a discretionary course the court might follow. The Court of Appeal declined to allow the Council‘s appeal on the basis

    that (1) sincerity was in the province of the trial Judge (2) the Defendant‘s potential homelessness was not the Judge‘s sole consideration (3) the Judge clearly took account of the evidence (4) there was no principle of law that historic conduct could be so bad as to produce in a victim apprehension for the future that could not be dispelled.

Knowsley Housing Trust v McMullen [2006] EWCA Civ 539

Suspension on terms of no further acts of nuisance by the Defendant‘s son was a

    proper exercise of the Judge‘s discretion where the Defendant suffered from a disability such that she was not able to control her son, he was subject to an ASBO and where the Judge had considered the effect of the behaviour on neighbours.

    The Defendant was an assured tenant with a disability for the purposes of the DDA. Possession was sought on grounds 12, 13 and 14 under Schedule 2 of the Housing Act 1988. The claim was based on the anti-social behaviour of the Defendant but also, to a larger degree, her son and damage to the house. It was the behaviour of the son that was considered most concerning by the trial Judge and the Court of Appeal he had a string of criminal convictions and was subject to an ASBO.

    At trial the Claimant indicated it would be content with an order for possession whose execution was suspended and the Defendant indicated she was prepared to submit to that. However, the Defendant was only prepared to submit to suspension on terms relating to her own and not her son‘s behaviour. The Judge indicated that the behaviour of the tenant alone would not have made it reasonable to order possession.

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On the DDA the Judge at trial did not consider that the Defendant‘s disability was

    referable to her ability to control her son, therefore the defence on the DDA would fail for want of causation, but if he was wrong on that point, the making of an order would have been justified.

    The Defence argued to the Court of Appeal that the order should not have been made as it was because:

    1. The Defendant was unable to control her son‘s behaviour and was

    mentally disabled.

    2. The son‘s behaviour was already effectively controlled and the neighbours

    sufficiently protected by the ASBO.

    3. The order for possession could be exercised without prior application to

    the court.

Where the nuisance is perpetrated by someone the tenant cannot control

    On point one above the Defence referred in particular to remarks of Sedley LJ in obiter observation in Portsmouth CC v Bryant (2000) 32 HLR 906 that ‗It may

    very well be unreasonable to make even a suspended order against somebody who will be powerless to rectify the situation and it will almost certainly be unreasonable to make an outright order against such a person‘. The Court of

    Appeal observed in this regard that:

    ; Firstly, Sedley LJ far from ruling out a suspended order in such a case,

    accepted that such an order would, if the facts of the particular case

    rendered it reasonable, be appropriate. (Paragraph 27).

    ; Secondly, the second part of the observation goes further than justified by

    principle or authority. It is wrong in principle to rule out an outright order for

    possession in a case where the 1988 Act clearly contemplates such an

    order provided that it is reasonable, especially given that reasonableness

    turns on the facts of the case. (Paragraph 28).

    There is nothing in the judgments of Simon Brown or Staughton LJJ

    in Bryant’s case to support Sedley LJ‘s observation, rather the thrust of

    their reasoning is the other way. The Court of Appeal quotes Simon Brown

    LJ in Bryant’s case, it ‗would be…quite intolerable if they [i.e. the tenant‘s

    neighbours] were to be held to be necessarily deprived of all possibility of

    relief in these cases merely because some ineffectual tenant next door

    was incapable of controlling his or her household‘ and notes that this was

    applied in Newcastle CC v Morrison (2000) 32HLR 891 and quoted and

    applied in Manchester CC v Higgins [2005] EWCA Civ 1423. (Paragraph

    29).

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    ; Thirdly, the second part of Sedley LJ‘s observation is difficult to reconcile with Morrison and London & Quadrant HT v Root [2005] HLR 439, where

    nuisance was cause in part by the tenant‘s partner who terrorised her and whom it would appear she could not control.

    ; Fourthly, it appears illogical to countenance a suspended order where suspension is on terms whose breach would lead to execution of the order if the terms are ones whose breach should not lead to an outright order. In many cases there will be a stronger argument for not suspending the

    order where the tenant cannot control the nuisance-maker.

    ‘If reasonableness indicates an order for possession,

    what, it may be asked, is the point of suspending it, if

    the tenant is incapable of ensuring compliance

    However, there can be some point in suspending in

    such a case especially if, as here, the nuisance-causer

    is no longer a child and is related to the tenant. If he is

    aware that, by continuing the nuisance, he will lose his

    home, and that the tenant will lose her home, there may

    be some hope that he will see sense, and behave.’

    (Paragraph 31).

    Note paragraph 33, where the tenant cannot control the nuisance maker this may assist with respect to past breaches where the tenant has done her best to stop the nuisance. However, unless the nuisance-maker is shortly to vacate this is more likely to assist the landlord seeking an outright order or an order made on terms relating to the behaviour of the nuisance-maker.

    Paragraph 34, a Judge may well conclude that it is not open to him to impose a condition based on the behaviour of someone the tenant cannot control because it would (in the light of section 9 (3) of the HA 1988), ‗cause exceptional hardship‘ or be ‗otherwise unreasonable‘ to suspend on terms compliance with which are beyond the tenant‘s control. However,

    where the nuisance has been serious and persistent ‗the only realistic alternative to making a suspended order subject to such a condition would be to make an outright order. It would be hard for the tenant to argued that a suspend order on such terms fell foul of section 9(3).‘

    Where the nuisance-maker is subject to an ASBO

    There is no principle, practice or authority as a result of which the court should

    not make an order simply because the person responsible for the nuisance is

    subject to an ASBO, although this is relevant to reasonableness (paragraph 43).

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    The existence of an ASBO may be of particular assistance to a tenant (especially one resisting an outright order) where the person responsible for the nuisance is not the tenant (paragraph 44).

    The existence of the ASBO may justify suspension and in some cases dismissal of the claim, although in most cases where the nuisance justified the ASBO, dismissal might well be difficult to reconcile with ‗community protection‘. The

    existence of an ASBO may provide the basis for an adjournment under section 9 (1), (paragraph 45). However, such an adjournment (had one been requested in this case, which it was not) would have left the claim hanging, or the adjournment would have been on terms. The former order would have created uncertainty, the latter would have had the same effect as a suspended order, but without teeth. (Paragraph 55)

Permission to apply for a warrant

    The normal course of action is that permission is not required to apply for a warrant. However the Defendant‘s disability in this case warranted the extra protection of the court. (Paragraph 65).

Note

    Although the DDA argument failed at first instance in this case the Defendant‘s disability was clearly considered relevant at first instance and by the Court of Appeal to suspension of the order (paragraph 59), despite the fact that it was the disability that made it hard for her to control her son.

Jurisdiction

Fletcher v Sheffield [2007] EWHC 419 (Ch)

    The Housing Act 1985, s. 110 gives jurisdiction to the County Court to determine questions and claims relating to secure tenancies, it does not oust the jurisdiction of the High Court. Although the High Court had dismissed the tenant‘s appeal against a refusal of her application to vary an order for possession forthwith, it still had the power before execution to suspend the date for possession or stay or suspend execution of the order.

    In this case the facts were such that the court found no material change in circumstances to justify postponement. The tenant had ignored repeated warnings from the local authority about her conduct, she accepted at least one breach of her ASBO and she had never expressed remorse and had no awareness of the impact on neighbours.

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Demoted tenancies and Article 6

    R (On the application of Gilboy) v Liverpool City Council & Secretary of State for Communities and Local Government [2007] EWHC 2335

    The provisions relating to an internal local authority review of a decision to seek possession of a property held under a demoted tenancy coupled with the availability of judicial review satisfied the requirements of Article 6 ECHR.

    The Claimant sought judicial review of a decision of a reviewing officer of the local authority to uphold a previous officer‘s decision to terminate her demoted tenancy and to obtain possession. The Claimant‘s tenancy had been demoted on grounds of her son‘s anti-social behaviour whilst living at the property and

    because of his criminal convictions. Subsequently the local authority received further allegations and a decision was made to terminate the Claimant‘s tenancy. A review was carried out under the Demoted Tenancies (Review) of Decisions) (England) Regulations 2004 and the decision was upheld. The Claimant argued that the review was not held by an independent and impartial tribunal and so was incompatible with Article 6 of the ECHR.

    The Court found by analogy with the legislation relating to introductory tenancies considered in R (on the application of McLellan) v Bracknell Forest BC (2001)

    EWCA Civ 1510, that the review procedure under the Demoted Tenancies (Review) of Decisions) (England) Regulations 2004 was Article 6 compatible.

    Even if the Court had found that the decision in this case was incompatible with Article 6 it would not have made a declaration because the Review procedure does not compel the local authority to instruct its own officer to conduct a review and also because the requirement of s. 4 (4) (b) of the HRA, that primary legislation prevents removal of the incompatibility, would not be satisfied. (Gilboy

    is going to the Court of Appeal).

Anti-social Behaviour Injunctions case law

Moat Housing Group-South Ltd v Harris and Hartless [2005] EWCA Civ 287

Moat is still the leading authority on ex parte ASBIs. The Claimant had obtained

    on an ex parte basis an ASBI excluding the second appellant (who was the

    tenant) from her home and the first appellant (who was the father of her children but did not live at the same address) from the same property and surrounding area. The orders were served three hours after the time given after which the second appellant was supposed to leave her home pursuant to the order. The appellants also appealed against ASBOs and the second appellant against a

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    possession order. The Court of Appeal held in relation to the injunction and exclusion orders:

    1. When deciding whether to exercise their discretion to make an ASBI without notice county court judges should bear in mind:

    (1) that to make an order without notice is to depart from the normal rules as

    to due process and warrants the existence of exceptional circumstances.

    (2) That one such exceptional circumstance is there is a risk of significant

    harm to some person or persons attributable to conduct of the defendant if

    the order is not made immediately.

    (3) That the order must not be wider than is necessary and proportionate as a

    means of avoiding the apprehended harm. (Paragraph 72).

    2. In relation to the power of arrest, where this is sought on a without notice application, the court must be satisfied that both (a) the defendant has used or threatened violence against some person or persons of a description mentioned in section 153A and (b) there is a risk of significant harm to one or more of those persons attributable to the conduct of the Defendant if the power of arrest is not attached to those provisions immediately. (Paragraph 80)

    3. In this case the extent of the order was too wide and ought to have been restricted to what was necessary to protect prospective witnesses and restrain acts of nuisance. As long as the without notice order was non-intrusive and the return date took place timeously there was no harm in the practice of making a without notice order for six months to restrain nuisance and/or intimidation of witnesses. (Paragraph 86)

    4. Whilst hearsay evidence is admissible in such applications, its admission carries inherent dangers. It is much more difficult for a Judge to ascertain the truth if the maker of a statement does not attend court and come under cross-examination. The court rehearsed the factors relevant to assessing the weight to attach to hearsay evidence under the Civil Evidence Act 1995 and emphasised the importance of giving contemporary notice of complaints to a tenant rather than the tenant having to face anonymous accusations in court for the first time months after the alleged incidents. (Paragraph 135). Claimants must state by

    convincing direct evidence why it was not reasonable and practicable to produce the original maker of the statement as a witness. (Paragraph 140).

Breach of injunction

Hillingdon London Borough Council v Vijayatunga [2007] All ER B (D) 357

    Where in support of an application to commit the Claimant relied upon witness statements instead of affidavits the technical defect was ‗feather-weight‘. There

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    was no prejudice to the Defendant and the court had the power to waive the irregularity. The guidelines set out in M v P (Contempt of Court Committal Order)

    [1993] Fam 167 were to be followed and the ultimate question was whether the Defendant had suffered any injustice as a result of any technical irregularity, which she had not in this case.

Accent Foundation Ltd v Lee [2007] EWCA Civ 665

    The court was concerned with whether a person for whose benefit an anti-social behaviour injunction was obtained can, by inviting the person against whom the order was made into their home, waive the effect of the breach of order provided nobody else was inconvenienced.

    In this case Accent had sought an order excluding Mr Lee from the locality where his mother and sister lived and from harassing people in that neighbourhood including his mother and sister. The court made the following points:

    ; No person can under the statutory scheme agree to vary the order, that

    power is vested in the court. The question in the case was if the statutory

    consequences could be waived. (Paragraph 19)

    ; In this case it was not open to the mother and sister to waive the breaches.

    The party who obtained the order was Accent and it was sought not just

    for the benefit of the mother and sister but for the benefit of other

    neighbours.

    ; The court did not exclude the possibility that orders in another context

    might be severable, so that on some occasions an effective breach could

    be waived by a person for whom it is obtained, but the Judge was not

    prepared to make that assumption in this case. Further, the Judge did not

    think it very likely that such a consent given by a person for whose benefit

    the order was obtained could exclude action by a party who had obtained

    the order. (Paragraph 18).

    ; The Judge did take into account the fact of the invitation when considering

    sentence. (Paragraph 21)

    ; The one criticism was that the order should have included a consecutive

    sentence for 28 days rather than one calendar month. (Paragraph 24).

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