Court Changes and Mandatory possession SLCNG Annual Conference 2014 Helen Tucker and Baljit Basra, Partners Housing Litigation Team

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1 Court Changes and Mandatory possession SLCNG Annual Conference 2014 Helen Tucker and Baljit Basra, Partners Housing Litigation Team

2 Court changes Single county court from April 2014 No big deal? Application can be made in any court hearing centre and then transferred to local hearing centre closest to defendant. Warning consider potential delay

3 Single County Court Emergency applications choice of court to issue in. Time short - Friday afternoons! Distance from your offices to court most local to tenant Solicitor office location Possession when urgent e.g. notice about to expire.

4 Case study Merseyside RP. Violent incident. Friday. ACS draft court papers. Go to county court at Birmingham for without notice application and hearing. ASBI made with power of arrest. orders to client to sort personal service. File transferred and on notice hearing listed in Liverpool 10 days later.

5 Court reforms getting tough Jackson reforms Court Rules and Orders must be obeyed to the letter or very serious consequences, (claim struck out) even for very minor delays. Mitchell getting tough! (Plebgate) Recent case law relaxed a little

6 Court deadlines Extensions to directions. CPR 3.8(4) agree between parties; prior written agreement; 28 days max; as long as does not put hearing date at risk. Always /fax/write to confirm extension agreed (and send to court too)

7 Court fees ouch! Increases in April 2014; 280 to issue; 155 committal; 50 without notice; 110 warrant possession Can set up fee account now good bye to cheque requests!

8 Legal Aid 2013 some work taken out of scope of legal aid completely e.g. family; stand alone housing benefit issues. Housing possession and injunctions/committals remain covered. Demotion is not. Means testing tighter (passport benefits = IS; JSA; UC or capital; gross income and disposable income limits) Less legal aid = more litigants in person

9 Court User Groups Go to them! Get on mailing list. Judges and senior staff often attend E.g. Birmingham County Court users group in summer said expect holiday cover to be provided; hearings won t fit around lawyers and parties leave. Your experience?

10 Good practice for managing litigation Central court diary hearing and directions dates saved as well as in personal diaries. Diarise all dates! Save court paperwork so centrally accessible; Ensure access to individual accounts; Team working required Recognise when court expects you to be represented! E.g. committals; appeals; youth court injunctions.

11 General ASBCP Act update Commencement date 20 October 2014; Injunctions delayed till January 2015 Home Office Statutory Guidance published Do read! The College of Policing e-learning facility is also now available at CPR amendments published (minimal and no new forms).

12 ASB Crime and Policing Act 2014 Possession Discretionary Absolute/Mandatory

13 Possession ASB Ground 14 Amended text from 13 th May 2014 to add: (aa) Has been guilty of conduct causing or likely to cause a nuisance or annoyance to the landlord of the dwelling-house, or a person employed (whether or not by the landlord) in connection with the exercise of the landlord's housing management functions, and that is directly or indirectly related to or affects those functions

14 Possession Riots New discretionary Ground 14 ZA for riot related offences from 13 May Properties in England only Riot related offences must have been committed after 13 May 2014 Offence can be committed anywhere in the UK

15 Possession Riots Definition of a riot Section 1 of the Public Order Act 1986 (1) Where 12 or more persons who are present together use or threaten unlawful violence for a common purpose and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety, each of the persons using lawful violence for the common purpose is guilty of riot. (2) It is immaterial whether or not the 12 or more use or threaten unlawful violence simultaneously. (3) The common purpose may be inferred from conduct. (4) No person of reasonable firmness need actually be, or be likely to be, present at the scene. (5) Riot may be committed in private as well as in public places.

16 Mandatory/Absolute Possession Assured Tenants-7A Housing Act 1988 Secure Tenants s84a Housing Act 1985 Mandatory Ground Prove one of the 5 conditions and (for secure Tenants but recommended for assured) internal review has been carried out

17 Condition One Conviction for serious offence (by tenant, person residing or visiting) Committed after Wholly/partly in locality of the property or Elsewhere against person with right to reside in housing accommodation in locality or Committed elsewhere against landlord s employee/agent employed whether or not by the landlord in connection with exercise of landlord s HMF and (in)directly related to/affected those HMF.

18 Condition One - Notice See Schedule 2A Housing Act 1985 for serious offence list Not proven if conviction still on appeal Serve Notice within 12 months of conviction/appeal Notice period not less than 28 days State conviction

19 Condition Two Tenant/person residing/visiting has breached an IPNA (not of a positive requirement) and Breach in locality or Breach elsewhere of a provision preventing conduct capable of causing nuisance and annoyance to: o person residing/ occupying property in locality or o Landlord s employee/agent employed in connection with exercise landlord s housing management functions and (in)directly related to/affected those functions.

20 Condition Two - Notice State the finding relied upon Not proven if breach on appeal Serve Notice within 12 months of breach finding/appeal Notice period not less than 28 days

21 Condition Three Tenant/person residing/visiting convicted of breach of CBO prohibiting conduct which was A breach in locality or A breach elsewhere of a term intended to prevent behaviour causing harassment/alarm or distress to o a person with a right to reside/occupy the property in the locality or o A landlord s employee/agent employed in connection with exercise of landlord s housing management functions and (in)directly related to/affected those functions.

22 Condition Three - Notice State the conviction for breach of CBO Not proven if conviction on appeal Serve Notice within 12 months of conviction Notice period not less than 28 days

23 Condition Four Property subject to closure order lasting more than 48 hours

24 Condition Four - Notice Give details of the closure order Not proven if being appealed Serve Notice within 3 months of date closure order made/appeal fails Notice period not less than 28 days

25 Condition Five Tenant or person residing/visiting convicted of offence either o S.80(4) EPA 90 breach of an abatement notice for statutory nuisance or o S.82(8) EPA 90 breach of a Court order to abate statutory nuisance

26 Condition Five - Notice State the conviction/breach finding Not proven if being appealed Serve Notice within 12 months of conviction/appeal Notice period not <28 days

27 Mandatory Ground Internal review Internal Review required: New s83za HA85 Regulations to cover process for Secure Tenancies and Regs Written request to be made within 7 days of service of notice For Assured Tenancies - suggest follow same review procedure as for Secure Tenants Act expressly recognises HRA (Human Rights Act) challenges possible

28 Mandatory Ground Review NSP Ground 7A (assured) Section 84A (Secure) Conditions 1, 2, 3, 4 or 5 7 days Tenant right to request a review Describe original decision and date Describe Grounds for review Whether request an oral hearing; if not landlord send notice to invite submissions Accept ? Landlord review more senior person and independent from original decision maker Notify Tenant in writing with reasons before expiry date in Notice Issue proceedings if review upholds decision

29 Mandatory Ground Oral Review Notice of Oral hearing date Not less than 5 days Oral Hearing date Consider T advance written representations Minimum of formality Applicant make submissions/can be accompanied by friend/representative T can call witnesses/ask questions other witnesses Landlord rep can do same as T Can adjourn on applicant request/ can proceed in their absence Make decision

30 Notice Format Assured Tenants Section 97 ASBCPA14 has amended Section 8 Housing Act 1988 but prescribed form not been amended directly Use prescribed form NSP with amended wording. SLCNG/ACS prepared a template Refer to Ground 7A in usual way, with or without other grounds

31 Notice Format Secure Tenants Not use NSP. Separate Notice (not in a prescribed form) to be used. Must state: Is a Section 84AA Notice Court will be asked to make a possession order under Section 84A Set out reasons for landlords decision to apply for order including the condition(s) Inform of right to review If also relying on a Schedule 2 Ground must specify and set out particulars and still NOT need to use usual NSP

32 Possession Mandatory + Discretionary Grounds Together? What are the issues? Statutory Guidance pg 63 Will it help to combine? Arrears? Impact on preparation for hearing? e.g. extent of evidence

33 Case Study 2 It is March Mr Room has caused noise nuisance for about 6 months. Neighbours are complaining. Environmental Health have been informed. You are considering your options. Mr Room also has arrears of 1100 and every year it takes a long time to get access for his annual gas safety inspection and the next due date is only a month away.

34 Case Study - Questions 1. What possible options are available? 2. What would you do and in what order?

35 Strategic Issues to Consider 1. Work closely with Environmental Health Departments. Funding prosecutions? Provide any supporting evidence? 2. Working closely with the police to obtain closure orders/cbos. 3. Transition. Remember offences/breaches must have been committed after too.

36 Strategic Issues 4. Apply for committal on injunctions rather than use discretionary possession grounds. If injunction breach proven, enables condition 2 to be used. More defended committals likely? 5. Update Policies and Procedures on ASB. Consultation with tenants. Statutory Guidance pg 60.

37 Strategic Issues 6. Publicise new remedies to new tenants sign up processes 7. Introduce Internal Review processes. 8. Update precedents Notice; grounds etc. 9. Delay may limit use waiting for convictions etc.

38 Any Questions????

Disclaimer: Whilst every effort has been made to ensure the accuracy of these materials,

No responsibility can be accepted for action taken or refrained from solely by reference to

Anthony Collins Solicitors LLP 2014 If you have any queries or comments in regards to this

39 Disclaimer: Whilst every effort has been made to ensure the accuracy of these materials, advice should be taken before action is implemented or refrained from in specific cases. No responsibility can be accepted for action taken or refrained from solely by reference to the contents of these materials. Anthony Collins Solicitors LLP 2014 If you have any queries or comments in regards to this presentation please contact Baljit Basra on or OR Helen Tucker on or

ASB Reforms. Baljit Basra Partner

ASB Reforms. Baljit Basra Partner ASB Reforms Baljit Basra Partner Baljit.basra@anthonycollins.com 30 th September 2014 ASB Crime and Policing Act 2014 Injunctions CBOs and Closure orders Possession Strategic Issues Injunctions Power to