Fit for purpose?

Scott Greenwood gives a registered provider’s perspective on the effectiveness of the Anti-Social Behaviour Crime and Policing Act 2014 so far.

The Anti-Social Behaviour, Crime & Policing Act 2014 feels like it only came into force yesterday, but has been in force for a number of years now and a number of registered providers, local authorities and partner agencies have used the remedies and powers introduced under it. The legislation followed a government white paper called Putting Victims First with the then government wanting a much more victim-centred approach in relation to ASB remedies and tools, a focus on reducing the number of remedies which were available at the time down to a much more concise and efficient suite of remedies with a view to expediting the legal process for the victim.

There has been commentary of late in Hansard as to whether or not the idea of this victim-centred approach and expedition in relation to legal proceedings has been achieved.

It may be a good point in time just to recap from a registered provider’s perspective as to what remedies and tools were introduced under the 2014 Act. We now have the Civil Injunction Order which is very similar to the previous Anti-Social Behaviour Injunction save that such applications can be applied for against minors and positive requirements, in relation to addressing the defendant’s behaviour, can be sought.

The power of arrest remained a remedy. We also now have a mandatory ASB ground for possession (which the Government was very keen to introduce) whereby this ground can be relied upon if one of five conditions set out in the Act are met, which includes a conviction of a serious offence (see Schedule 3.2 of the Act which sets out a long list as to what is considered as a serious offence); a committal finding in breach of a Civil Injunction Order; a breach of a Criminal Behaviour Order; a conviction of an offence under the Environmental Protection Act (statutory nuisance) (these conditions apply to the tenant, a member of their household or visitor); a Closure Order.

There is then the Community Trigger (a new concept introduced under the Act) whereby an aggrieved victim has the right to make a complaint against the actions or failure to act by certain partner agencies (including RPs) via an application to an ASB Case Review Panel led by the relevant local authority.

There are, of course, other remedies and powers introduced in the Act which refer to remedies and powers available to other partner agencies including the Police and local authorities. I do not intend to address those in this article.

Our experience

We at Radian, similarly to other registered providers, have used the Civil Injunction remedy a great deal. My own view is that it is a very effective remedy and in a lot of cases, not only does it assist in abating the anti-social behaviour complained of (often serious cases of ASB), it enables the perpetrator to take control of their actions and engage with support with a view to sustaining the tenancy going forward.

My view is that this is very much a very quick and effective remedy, particularly in cases of urgency and we have often applied for Civil Injunctions with power of arrest and sometimes exclusion provisions (whereby the perpetrator is excluded from the property and sometimes the surrounding area) on the same day that the incident or incidents have arisen or certainly the following day depending on the Court availability and timetable. I do think this is a remedy has achieved the Government’s intention of a victim-centred approach with an expedited process in cases of urgency.

I mentioned exclusion provisions and these are reserved for the most serious of cases where the perpetrator is a risk and danger to others as a result of their conduct and it is necessary for the Court to consider a provision in the Civil Injunction preventing them from remaining in the property and in some cases the surrounding area.

The court, in accordance with the statutory guidance which the supports the legislation (see Home Office Statutory Guidance for Frontline Professionals July 2014) will only make such orders in the most serious of cases because by its nature, it is excluding a resident from their home. That said, we have obtained such 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.

This article was first published in the July edition of Local Government Lawyer Insight, which can be accessed at http://www.localgovernmentlawyer.co.uk/insight Insight is published four times a year and is circulated free-of-charge to all Local Government Lawyer newsletter subscribers (click here to subscribe) in electronic format. A single hard copy is also circulated to all local authority legal departments in England and Wales. Additional printed copies are available for just £49.95 for four issues. Multiple copies are also available at £149.95 for five or £249.95 for 10. Payment can be made by purchase order/invoice or by credit/debit card. To order, please call 0207 239 4917 or email This email address is being protected from spambots. You need JavaScript enabled to view it..