Housing Management Litigation, Including anti

Anti-Social Behaviour, Crime
& Policing Act 2014
Greg Carson
Rebecca Cobb
Geldards LLP
Bevan Brittan LLP
Anti-Social Behaviour, Crime &
Policing Act 2014
• Home Office White Paper (May 2012)
"Putting victims first: more effective responses to
anti-social behaviour:
• "We will introduce faster and more effective
powers to stop the dangerous and yobbish
behaviour of those who make victims' lives a
misery" Theresa May MP
Anti-Social Behaviour, Crime &
Policing Act 2014
• Royal Assent on 13 March 2014
• Anti-Social Behaviour, Crime and Policing Act
2014 (Commencement No.1) Order 2014/630
• Anti-Social Behaviour, Crime and Policing Act
2014 (Commencement No.2 Transitional and
Transitory Provisions ) Order 2014/949
• Anti-social Behaviour, Crime and Policing Act
2014 (Publication of Public Spaces Protection
Orders) Regulations 2014
• Statutory Guidance July 2014
Anti-Social Behaviour, Crime &
Policing Act 2014
Part 1
Part 2
Part 3
Part 4
Part 5
Part 6
Civil Injunction to tackle housing/non
housing ASB
Order on Conviction to prevent behaviour
which causes harassment, alarm or distress
Dispersal Power for behaviour causing
harassment, alarm or distress
Community Protection Notices, Public
Spaces Protection Orders and Premises
Closure Notices
Possession of houses on ASB grounds
Community Remedy document & dealing
with responses to complaints of ASB
Injunctions to Prevent Nuisance
and Annoyance
Part One (ss 1-22)
Two conditions
Def. has engaged or threatened to engage
in ASB
The court considers it just and convenient to
grant the injunction for the purpose of
preventing the Def. engaging in ASB see s1
Injunctions (1)
Who can apply for them?
Local Authorities, Housing Providers, Chief Officers
of Police, the Environment Agency and others
see s5
Against whom?
• Any person over 10 y.o.
see s1(1)
• If Def. < 18 y.o. maximum 12 months
see s1(6)
Injunctions (2)
Def. < 18 y.o. Youth Court, High Ct or County Ct otherwise
• N/A for W/O notice applications (Int Inj only remedy) see s14(1)
• Where W/O notice Injunctions made, must consult/inform
before 1st on-notice return date
see s14(2)
Must consult/inform before apply to vary/discharge
• Consult YOT if Def. < 18 y.o.
see s14(3)
• Inform anyone else applicant app. thinks approp
Procedure New section after CPR 65.9 – part IX
Injunctions – Breach (1)
• No warrant required if breach of provision
with a PoA
see s9
• Brought before County/High Court within 24 hours
of arrest
see s9(3)
• County Court if Injunction made by Youth
Court but Def. now >18 y.o.
• Youth Court if Def. < 18 y.o.
• See Schedule 2 for powers of the Court
for <18 y.o. (Supervision Order, Detention
Injunctions – Breach (2)
• Standard of Proof – Criminal
• Adults – up to 2 years Imprisonment &/or
Unlimited fine
• Youths – Supervision, Curfew or Activity
Detention (max 3 months for 14-17 yr. o)
Injunctions - What is ASB?
a) Conduct that has caused, or is likely to cause,
harassment, alarm or distress to any person
b) Conduct capable of causing nuisance or annoyance
to a person in relation to that person occupation of
residential premises
Conduct capable of causing housing-related
nuisance to any person
see s 2(1)
NB. Conduct over past 6 months relevant see s21(7)
See ‘Reform of anti-social behaviour powers draft
guidance for frontline professionals’ Oct. 2013
Injunctions - Housing-Related
‘housing-related’ means directly or indirectly relating to
the housing management functions of:
a) Housing provider, or
b) A local authority
see s2(3)
‘Housing Management functions’:
a) Functions conferred by any enactment
b) Powers of duties of housing provider or
LA as the holder of an estate or interest
in housing accommodation
see s2(4)
Injunctions - Contents
Can have prohibitions and positive requirements
• Must not interfere with the times when the Def.
normally works or attends school/educational
• Must avoid any conflict with any other court order
to which Def. is subject
see s1(4)
Injunctions - Positive
Requirements (1)
Before they are made:
• The court must receive evidence from Supervisor
about the suitability of the enforcement of the
• Court must be satisfied before including 2 or more
requirements, they are compatible see s3(2)
Injunctions - Positive
Requirements (2)
• Must specify who will supervise the positive
• There is a duty of Supervisor to make:
– Necessary arrangements in connection with the
– Promote compliance
– Inform the applicant of compliance/non-compliance
• Def. under duty to remain in contact with
supervisor and notify of change in address
see s3
Injunctions - Power of Arrest
and exclusion from home
• Court may grant PoA to prohibition or requirement if it
– The ASB Def. has engaged/threatened to engage
includes the use/threatened use of violence, or
– A significant risk of harm to other persons from Def.
• ‘Requirement’ does not = one requiring Def. to
participate in specified activities
• PoA may be shorter period than prohibition
see s4
• Exclusion from home only where Def. >18yr.o see s13
Injunctions - Transitional
• ss 1-10 & 13-21 not yet in force
Repeal of old provisions do not apply to:
• Applications made before commencement date
• Existing orders (whether made before or after
commencement date)
• Anything done in connections with such an order
‘existing order’ = ASBIs, ASBOs etc see 21(1)
Injunctions -v- ASBO
• Wider range of agencies can apply
• Civil standard rather than quasi criminal
• Lower ASB test than ASBOs
• No need to prove ‘necessity’
• Breach is not a criminal offence
• Positive requirements – long term solutions
Criminal Behaviour Orders (CBOs)
Part 2 (ss22 to 33) of the Act applies where Def.
convicted of an offence. (c.i.f. 20/10/14)
• Offence does not have to be ASB related
Two conditions to be met: The Court is satisfied1) On a criminal standard that Df. has engaged in
behaviour that has caused or is likely to cause
harassment, alarm or distress to any person
2) Making the CBO will help prevent Def. engaging
in that behaviour
see s22
CBOs - Contents
Can have prohibitions and positive requirements
• Can only be made if in addition to a sentence or
conditional discharge
see s22(6)
• Must consult with YOT if Def. < 18 yr.o see s22(8)
Must not
• Interfere with times Def. normally works or attends
school/ other educational establishment
• Conflict with any other court order
see s22(9)
CBOs - Proceedings
• Only prosecution can apply
see s22(7)
• Court can take into account evidence that would not
have been admissible in proceedings in which Def.
see s23(2)
• Sections 49 and 39 of the Children and Young
Persons Act 1933 (publicity relating to
proceedings against young persons)
does not apply
see s23(8)
• Interim Orders available
see s26
CBOs - Duration
• A new CBO can’t overlap with previous CBO
• CBO must specify period for which it has effect
• Where Def. < 18 y.o. when CBO made, not be
less than 1 yr. and not more than 3 yr.o
• Where Def. > 18 y.o. when CBO made, not
less than 2 yr. o. and may be indefinite
• Prohibitions and Requirements may have
different periods
see s25
CBOs - Reviews & Breach
Review ever 12 months
see s28
• Must consider
– Compliance
– Support
– Whether application to vary or discharge
– Carried out by Chief Police Officer who
must co-operate with Local Authority
Breach is criminal offence
see s30
– Summary
6 months and/or fine
– Indictment
5 years and/or fine
Community Protection Notices
• Part 4 of the Act (ss 43-58) (c.i.f 20/10/2014)
• LA has power to issue CPN to a person 16 yr.o. or
over or a body where it is reasonably satisfied that
conduct of individual or body:
– Is having detrimental effect of a persistent or
continuing nature on quality of life of those in
– The conduct is unreasonable
see s43(1)
• Home Office guidance gives examples
– Graffiti
– Littering
– Dog fouling
– Skateboarding in inappropriate areas
CPNs: Requirements
CPN can require individual/body:
• To stop doing specified things
• To do specified things
• To take reasonable steps to achieve specified
see s43(3)
• Can only impose Requirements that are
reasonable to prevent/reduce the detrimental
effect or the risk of its continuance/ recurrence
see s43(4)
CPNs: Requirements
• Must give warning and reasonable time to comply
before serving CPN
see s43(5)
• Prior to issuing CPN must inform whoever you
consider is appropriate
see s43(6)
• CPN must:
– Identify conduct
– Explain effect of CPN (ss 46 - 51)
see s43(7)
– Specify times/periods within which
Requirements are to be complied with
CPNs: Occupiers of Premises
• Conduct on, or affecting Premises that a person:
– Owns
– Leases
– Occupies
– Controls,
– Operates, or
– Maintains
Is treated as the conduct of that person
see s44
CPNs: Appeals
• A person served with a CPN may appeal to magistrates’
court within 21 days on following grounds:
– Did not take place
– Has not had detrimental effect
– Not of persistent or continuing nature
– Is not unreasonable, or
– Is not conduct/behaviour person can reasonably be
expected to control or affect
see s46
Only prohibition in CPN remains in force
pending appeal
CPNs: Non compliance
• LA can issued FPN
see s52
• Where person fails to comply with CPN
• LA can enter ‘land open to the air’ to carry out
• Where land not ‘open to the air’ LA can serve
notice on defaulter specifying
– Work it intends to have carried out
– The costs of the works
– Inviting defaulter to consent to works
CPNs: Non compliance
• Failure to comply with a CPN is an offence
• Summary conviction a fine
– Individual
– Body
• Defences:
Not exceeding level 4 (£2,500)
Not exceeding £20,000
– Person took reasonable steps to comply , or
– There is some other reasonable excuse see s48
• Court can order Def. to carry out works, though
not authority to enter person’s home without
their consent
see s49(4)
Any Questions?
Please feel free to email me
if you have any queries
T: +44 (0)1332 378 332
M: +44 (0)7918 651 626
E: [email protected]
Anti-Social Behaviour, Crime
& Policing Act 2014
Greg Carson
Rebecca Cobb
Geldards LLP
Bevan Brittan LLP
Closure Orders
• Any tenure
• Local Authorities and Police can apply
• Nuisance or disorder in property or around
property and linked to it
• Ability to close for 24 hours without a full order
• Can extend for up to 48 hours (Superintendent)
• Closure Notice then hearing within 48 hours
Closure Order – to consider
• Establish relevant points of contact
• Get precedent notices updated and checked
• Who will bring the action where Police and LA
both involved?
• Who will bring the action when the property is
owned by an RP?
• Who will give evidence?
• Triggers mandatory ground for possession
Absolute grounds of
1.Breach of CBO
2.Breach of Injunction
3.Criminal conviction (prescribed in the Act)
4.Closure Order at address (not notice)
5.Breach of EPA power
Notice of Seeking Possession
• Criminal conviction: serve within 12 months of
conviction or determination of appeal
• Breach of injunction: serve within 12 months of the
finding or determination of appeal
• Breach of CBO: serve within 12 months of conviction
or determination of appeal
• Closure Order: serve within 3 months of finding or
determination of appeal
• EPA Conviction: serve within 12 months of conviction
or determination of appeal
Internal Review Required
• Similar to the process for starter tenancies
– Made within 7 days of receiving notice
– Independent, internal review of decision
– Must be done before the end of the notice date
– Must be communicated to the tenant
Potential challenges
• Public law grounds – proportionality & Article 8
• Equalities Act, discrimination
• Try to deal with these in advance by:
– Keeping detailed notes
– Listing other attempts at resolving problem
which have failed
– Consulting with other agencies
– Considering impact on others, e.g. neighbours
and staff
Discretionary grounds
• Rioting – adults only, no need to be in the locality
of the property
• Behaviour towards a Landlord’s employee – can
also be outside the locality of the property
• None of the new measures help you deal with
breaches of Injunctions and SPOs
• Remedies remain committal (injunctions) and
possession (SPOs)
• Committal – lengthy and requires proof to the
criminal standard of beyond reasonable doubt
• Exclusion – useful and quick if the problem is
• Possession – more cost effective than repeated
Community Remedy
• Devised by Police in consultation with Local Authority
and community
• A list of actions which can be applied where a person
has caused ASB or committed an offence and is to be
dealt with outside the court process
• The actions must achieve one or more of the
– Assist in the person’s rehabilitation
– Make reparation for the behaviour
– Punish the person
Community Remedy Criteria
• Authorised person must have evidence that the
person has engaged in ASB or committed an offence
• The person must admit the incident
• The authorised person believes there is enough
evidence for an injunction but that an alternative
action is more appropriate
• If the incident is an offence, it must not be more
appropriate to give a caution or fixed penalty notice
Community Trigger
• A partnership process that allows someone to have their case
reviewed to see whether appropriate action was taken
• Not the same as a complaints process although referred to as a
• Involves Police, Council, Clinical Commissioning Groups, coopted registered providers
• To be a qualifying complaint the complainant must have reported
the ASB incident within a month of it occurring and must make an
application for an ASB case review within 6 months of making
this report.
Community Trigger Process
• Must publish the process & procedure
• Single point of contact for complainants
• Application received, assessed to determine if it reaches the
threshold for a case review
• Outcome communicated to complainant
• If threshold reached, review takes place and recommendations
are made
• Relevant agency has a duty to consider the recommendations
going forward
• Must publish statistics on number of complaints & outcomes each
Next steps 1
• There are a number of agencies with enforcement
powers, who will lead in what type of situation?
• Do you have an effective multi-agency procedure?
• Do you have an information sharing protocol that is fit
for purpose?
• What will you be asking in a consultation?
• What positive requirements might you wish to include
in Injunctions?
• Aim to make injunctions and suspended possession
orders as specific as possible
Next steps 2
• Amend your standard NSPs to include the new
mandatory and discretionary grounds
• Amend procedures to reflect the notice periods for
using the mandatory grounds
• Who will be responsible for authorising/issuing
• Consider your procedures, when will you use the
mandatory grounds?
Case Study 1
Please read the case study provided and discuss the following points, in
light of the new Act (please assume that all non-legal attempts have been
What action would you consider for each perpetrator?
Who could be the Applicant for these actions?
What legal test would you need to satisfy for these actions?
What would the consultation requirements be for these actions? Who
would you speak to? What would you want to discuss?
What types of conditions would you want in each order? Would there be
any legal requirements in relation to these?
What length of order would you suggest for each of these orders?
Which Court would you apply to for each of these orders?
Case Study 2
Please read the Case Study provided and imagine that you are the landlord
and you have decided you want to evict the perpetrator.
What grounds of possession would you rely on?
What do you need to do before issuing proceedings?
How long a notice period is required?
What sort of defence would you expect to be filed?
What kind of witness evidence would you be looking for?
What would you predict the outcome to be at trial?
• Non-legal tools for ASB remain unchanged and
should be used where appropriate as a first option
• The case law is expected to pass over to the new
• Same principles of proportionality apply
• Change of focus from locality-based ASB
• No longer just controlling behaviour in social
Welfare Reform Update
Bedroom Tax
Discretionary Housing Payments
Benefits Sanctions
Council Tax Reduction Scheme
Benefit Cap
Partial abolition of Social Fund – now a postcode
• DLA to PIP – problems and delays!
Welfare Reform Update
• Universal Credits
• Idenitify your vulnerable tenants now and request
direct payments
• Direct payments after arrears arise
• Short term only?
• News from the pilot studies
• Prepare your finance officers!
Welfare Reform – What Next?
General election May 2015
Conservatives: continued rollout of welfare reform
Labour: will abolish bedroom tax
Liberal Democrats: will review and rework
bedroom tax
• UKIP????
• Deficit remains key problem, further welfare
reform inevitable even under a majority Labour
Any Questions?
I am happy to answer your questions during the
session or over lunch.
If you would like to contact me please email
[email protected] or telephone
0870 194 3007
Rebecca Cobb
Bevan Brittan LLP
Housing Management
Greg Carson
Rebecca Cobb
Geldards LLP
Bevan Brittan LLP
• R v Hamza (21.08.14) sentence for fraudulent
right to buy application (CA) (Criminal Division).
Defendant’s appeal –v- 20 months sentence
refused. Aggravating factors inc, 2 applications,
dishonesty from outset and planning
• R v Ali (31.07.14) (CA) A appealed against
Confiscation Order under Proceeds of Crime Act
2002. CA reduced CO from £1.4M to £544K,
Conduct does not constitute an ‘offence’ until
enforcement notice served and becomes
Possession Claims
• Birmingham CC -v- Beech (17.06.14)
• Mr & Mrs W had joint tenancy which became secure in
1980. Mr W died and Mrs W subsequently went into care
home. Mrs W’s daughter moved in. BCC obtained N2Q
from Mrs W in care home.
• CA dismissed appeal holding relationship between HO &
tenant was not one that gave rise to presumption of
undue influence.
• There was no relationship of trust & confidence.
• Mrs W had capacity and understood effect of N2Q
Equality Act 2010 defences (1)
Aster Communities Ltd v Akerman-Livingstone (CA)
Mr A-L had severe prolonged duress stress disorder.
Mr A-L refused to move to perm. accom. A commenced
possession proceedings. A-L’s defence based on EqA
CA dismissed appeal holding court should
• consider whether arguable defence as with Article 8.
• The issue of Proportionality relevant
• Interest of social landlord in obtaining possession
will outweigh D’s interest in most but not all cases
Equality Act 2010 defences (2)
Aster Communities Ltd v Akerman-Livingstone cont.
• for D to succeed in disability discrimination cases
must demonstrate considerable hardship they can’t
fairly be asked to bear
• CPR 55.8 enabled court to dispose of summarily
• Circumstances of A-L’s case if proven would not
outweigh A’s interest and lower Ct was right dismiss
defence summarily
• Leave given to go to Supreme Court (14.12.14)
Coventry v Lawrence SCt (23.07.14)
• L was occupier of a bungalow near a track and
stadium used for speedway racing owned by C.
• L sued C for nuisance
• Supreme Ct by majority dismissed claim. In order for
landlord to be liable in nuisance they must have either
authorised it by letting the property or participated
directly in the nuisance.
• On facts “Uses” could have been carried out
without causing nuisance & therefore to succeed
L had to prove C was a direct participant
Service Charges
Daejan Properties Ltd v Griffin (14.05.14)
• Corroding steel beams unobserved & unrepaired
• 2008 one threatened structure of building
• Emergency works carried out, and subsequently remaining
beams replaced
• LVT held if beams been replaced when should have been, costs
of works (£333K)would have been less. LVT reduced
recoverable amount to £44K
• Upper Tribunal upheld appeal. Historic neglect did not touch on
question as to whether costs of works reasonably incurred
• On hearing evidence UT found contention that savings
could have been made had not been made out.
Any Questions?
Please feel free to email me
if you have any queries
T: +44 (0)1332 378 332
M: +44 (0)7918 651 626
E: [email protected]

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