Insight Local Government Lawyer Insight July 2017 36 provisions in a number of serious cases and these prove to be very effective and have provided us with an opportunity to apply for expedited possession and have the possession action determined whilst the exclusion provision is in force, thereby protecting the victims of the ASB complained of. There will always be some cases where on evidence there is sufficient urgency and risk to request an exclusion without notice, but courts are sometimes reluctant to grant an exclusion provision without notice. That is not to say they will not but, in my experience, they are sometimes reluctant and they are much more prepared to consider this at a return hearing once the papers have been served, which in certain respects defeats the objective of making the urgent application particularly if the risk is posed. However, in those cases of risk, it is important to make the application and leave it for the court to decide at their discretion whether they wish to grant it on a without notice basis or wish to consider it at a return hearing. Proportionality I have mentioned above the absolute ground for possession based on ASB. On a review of this remedy, it seems to tick all of the boxes and provides the government with what they wanted to achieve in relation to a victim-centred approach and an expedited process. However, at a closer glance and in considering the Statutory Guidance for Frontline Professionals, it is important to note that you may have cases where the relevant condition applies, but because RPs are considered a public authority for the purposes of public law and the Human Rights Act, it is important to go on to consider whether seeking this remedy is proportionate. The statutory guidance states that “the new absolute ground is intended for the most serious cases of anti-social behaviour and landlords should ensure that the ground is used selectively”. It is therefore important to make sure there is evidence to support the proportionality decision. From my organisation’s experience, we have carried out very few of these actions, although I suspect RPs in the inner cities have used this more regularly and have found them to be effective. One area we often encounter a proportionality issue is around criminal convictions; the crime committed may well come within one of the serious crimes as set out in the legislation, but often the sentence is very lenient, not providing a custodial sentence, just a community sentence and that raises the issue as to whether seeking an order is proportionate. Often in such cases, I have taken an approach of pleading in the alternative the discretionary grounds for possession based on a discretionary Notice of Seeking Possession (NOSP). Parliamentary developments The introduction of the Community Trigger from my experience is not a power that has been used very much. It is not entirely clear as to why this may be. It could be as a result of how it has been published by relevant local authorities or by the mere fact that if victims have got to the point where they do not believe they are being heard, they often give up and do not go to a formal stage of raising a Community Trigger application. This is one area which has attracted some criticism including mention in a recent debate in Parliament which has been reported in Hansard (22 February 2017 1117-1126) which focused on an ASB case another RP had been dealing with. This is quite unprecedented commentary and, in my view, pushed ASB very high up the political agenda. As to whether it will remain that high on the agenda, we will have to see. The general gist of the discussion in Parliament, as reported in Hansard, was a concern that the remedies introduced by the Act were either not being used or were not effective and a call for a review of the remedies introduced. There was some commentary as to an introduction via legislation to create a statutory duty of care for RPs in dealing with anti-social behaviour (i.e. an action in negligence). I suspect, although one can never be certain, that legislation may not be forthcoming as the legal position as to an RPs liability in relation to anti-social behaviour has been settled by case authorities which have come out of the Court of Appeal (see Mitchell v Glasgow City Council [2009] UKHL 11, Hussain v Lancaster County Council (1999) 31 HLR 164 and also Mowan v Wandsworth LBC (2001) 33 HLR 616). Further, I am not sure the introduction of a statutory duty of care is the right answer if there is a concern as to the accountability of RPs in dealing with ASB. Following on from the debate in Parliament as reported in Hansard, the then government confirmed that they intended to continue with a review of the statutory guidance on the Act with a potential particular focus on the Community Trigger with a view to making it much more robust with a view to providing the review panel with the power to award compensation. We will have to wait and see whether the new government picks up on this and such a review is undertaken. In summary, as stated above, I have found the Civil Injunction and power of arrest remedy to be very effective. I have encountered delay in relation to use of the absolute ground, particularly where there are pending criminal proceedings which can take many months to come to trial before a conviction is secured. Also we have not experienced the Police and local authorities using the Closure Order provisions very often and in some cases where they have, they have been partial Closure Orders rather than full Closure Orders (partial Closure Orders cannot be relied upon for the absolute ground). I have also found reluctance by partner agencies to apply for Civil Injunctions in cases which fall within their geography and jurisdiction. As a lawyer having practised in the area of ASB for many years, ASB is a difficult and complex area of business. It is a very emotive area and it is very difficult to find a position that pleases all parties concerned. Often it can take some time for a case to be resolved through legal process, particularly if defended and particularly if there are issues around the Equality Act such as mental health, which in my view is becoming an ever increasing issue, particularly with NHS and Social Services resources and funding being reduced. Scott Greenwood is a solicitor at Radian Group, a registered provider. ASB is a difficult and complex area of business. It is a very emotive area and it is very difficult to find a position that pleases all parties concerned.