Providers need to be alive to the risk of contractors becoming insolvent and how to limit the resulting inevitable disruption.
The Anti-Social Behaviour, Crime and Policing Bill is just finishing its way through Parliament and it is anticipated that it will come into force in the Autumn of 2014. The Bill represents the largest overhaul of the ASB tools available to social landlords in many years.
The ASBO is being abolished and there are various tidying up provisions to closure orders. Some of the biggest changes that will be implemented however are the new mandatory ground for possession and the re-styled Injunction “to Prevent Nuisance and Annoyance” (“the IPNA”).
IPNA - Practical implications of the changes
The test in relation to residential accommodation of any tenure is ‘nuisance and annoyance’. However the test generally not regarding residential property will be the old ASBO test – behaviour that has caused ‘harassment, alarm or distress’.
A landlord or the tenant subject to an IPNA can make an application to vary the Order – for example to include an additional prohibition or to attach a power of arrest – or to have it discharged. However, if such an application is made and dismissed by the Court, no further application can be made without the consent of a Judge or the agreement of the other party.
In practical terms, this consideration should form part of a risk assessment for officers considering making such an application. The strength of evidence must be assessed as well as the likelihood of witnesses giving evidence and attending Court.
The new mandatory ground for possession
Ground 7A allows for a mandatory Possession Order to be made if a tenant or a person residing in or visiting the property has been convicted of:
- a “serious offence” (listed in a Schedule)
- breach of a Criminal Behaviour Order (the replacement for the ASBO)
- breach of a Noise Abatement Notice at the property
or has breached an IPNA or the property is subject to a closure order.
If as a housing association you already use Ground 8 mandatory possession ground for arrears, you can adopt the same review procedure for Ground 7A. Your policies and procedures will need to be amended accordingly. Proportionality and Public Law challenges are still frequently being raised by tenant advisors and ensuring you have a clean paper trail in relation to the decision to rely on a mandatory ground is always needed in Court. Evidencing the fact that clear policies and procedures are firstly, in place and secondly, being followed will be enormously helpful in fighting off such challenges.
You may wish to consider developing a closer working relationship with third party organisations, such as Environmental Health teams. In noise nuisance cases for example, it is almost always going to be prudent to make a referral to the Environmental Health team so that sound recordings can be taken and, potentially, a Noise Abatement Notice served. If there is subsequently a conviction for breach, this gives the landlord a mandatory ground for possession. To facilitate this, you may wish to consider offering financial support for your local authority in such prosecutions, which may be a lesser expense than using the alternative discretionary ASB possession route.
When currently considering an application for an injunction, landlords will often accept an undertaking from the tenant by way of settlement of proceedings, especially if a power of arrest were not going to be available in any event. However, as the Bill is presently drafted, it would appear that breach of an undertaking will not give rise to the mandatory ground for possession; there must be a breach of an IPNA. This may be an additional consideration when looking at whether to accept an undertaking in future.
It follows that breaches of IPNAs may in future be pursued by landlords even if the prospect of a custodial sentence is slim. During the committal hearing, the Judge will make a finding of fact in relation to the breach of the Injunction and this can then be relied on to prove the mandatory ground for possession.
Although proportionality challenges continue, the case law is more and more in favour of the registered provider and even if such arguments are raised, the process to obtain a mandatory Possession Order should still be significantly quicker and cheaper than a full ASB trial.
Join us for our ASB Reforms Update in June 2014, date shortly to be confirmed.
For more information
Contact our housing litigation team for further updates on the Bill and training on its new provisions in due course via 0121 212 7400.
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