These materials and slides are intended for guidance only and not as a substitute for legal advice or using formal reference documents such as

Transcription

1 These materials and slides are intended for guidance only and not as a substitute for legal advice or using formal reference documents such as current legislation and case law.

2 Legislation Anti-Social Behaviour Crime & Policing Act 2014 Update Tenancy Fraud Act 2013 Case law Notices to Quit Joint Tenants Human Rights and Proportionality Equality Act Defences Discrimination Possession Proceedings

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4 Royal Assent 13 th March 2014 Staged introduction May 2014 October 2014 Injunctions??? Structure 14 parts 186 Sections 11 Schedules

5 Part 1 Injunctions Part 2 Criminal Behaviour Orders Part 3 Disposal Powers Part 4 Community Protection CPN PSPO Premises Closure Part 5 Recovery of Possession Part 6 Local Involvement and Accountability

6 Key Points: Civil Orders = County/Your Court 10 years plus Consultation YOT (see section 14) Positive requirements evidence and supervision Relevant Applicants extended (see section 5) Without Notice and Interim available Exclusions and Powers of Arrest available Transitional Provisions 5 years

7 Key Points: CRASBO replacement Conviction of Offence requirement 2 stage test: Criminal standard Courts discretion Application by Prosecution Prohibition and Requirements supervision requirements Below years Over 18 2 years plus

8 Part 5 ASBCPA Conditions: Conviction for serious offence sched 3 murder/manslaughter/threats to kill/ malicious wounding Court found for breach of Injunction Convicted for breach of CBO Dwelling subject to closure order at least 48 hours Breach of abatement notice/order

9 New Housing Act A Absolute ground for possession for anti-social behaviour (1) If the court is satisfied that any of the following conditions is met, it must make an order for the possession of a dwelling-house let under a secure tenancy This is subject to subsection (2) (and to any available defence based on the tenant s Convention rights, within the meaning of the Human Rights Act 1998) (2) Subsection (1) applies only where the landlord has complied with any obligations it has under section 85ZA (review of decision to seek possession)

10 Ground 7A Any of the following conditions is met NOTE The condition will not be satisfied whilst an appeal is undertaken Human Rights will apply to those performing public functions Highly recommend offer a review prior to possession action

11 (a) The tenant, or a person residing in or visiting the dwellinghouse, has been convicted of a serious offence, and (b) The serious offence: (i) was committed (wholly or partly) in, or in the locality of, the dwellinghouse (ii) was committed elsewhere against a person with a right (of whatever description) to reside in, or occupy housing accommodation in the locality of, the dwellinghouse or (iii) was committed elsewhere against 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 directly or indirectly related to or affected those functions

12 A court has found in relevant proceedings that the tenant, or a person residing in or visiting the dwelling-house, has breached a provision of an injunction under section 1 of the Anti-social Behaviour, Crime and Policing Act 2014, other than a provision requiring a person to participate in a particular activity, and: (a) the breach occurred in, or in the locality of, the dwellinghouse, or (b) the breach occurred elsewhere and the provision breached was a provision intended to prevent: (i) conduct that is capable of causing nuisance or annoyance to a person with a right (of whatever description) to reside in, or occupy housing accommodation in the locality of, the dwelling-house, or (ii) conduct that is capable of causing 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

13 the tenant, or a person residing in or visiting the dwelling-house, has been convicted of an offence under section 30 of the Anti-social Behaviour, Crime and Policing Act 2014 consisting of a breach of a provision of a criminal behaviour order prohibiting a person from doing anything described in the order, and the offence involved: (a) a breach that occurred in, or in the locality of, the dwellinghouse, or (b) a breach that occurred elsewhere of a provision intended to prevent: (i) behaviour that causes or is likely to cause harassment, alarm or distress to a person with a right (of whatever description) to reside in, or occupy housing accommodation in the locality of, the dwelling-house, or (ii) behaviour that causes or is likely to cause harassment, alarm or distress 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 (a) the dwelling-house is or has been subject to a closure order under section 80 of the Anti-social Behaviour, Crime and Policing Act 2014, and (b) access to the dwelling-house has been prohibited (under the closure order or under a closure notice issued under section 76 of that Act) for a continuous period of more than 48 hours

15 (a) the tenant, or a person residing in or visiting the dwellinghouse, has been convicted of an offence under (i) section 80(4) of the Environmental Protection Act 1990 (breach of abatement notice in relation to statutory nuisance), or (ii) section 82(8) of that Act (breach of court order to abate statutory nuisance etc.), and (b) the nuisance concerned was noise emitted from the dwellinghouse which was a statutory nuisance for the purposes of Part 3 of that Act by virtue of section 79(1)(g) of that Act (noise emitted from premises so as to be prejudicial to health or a nuisance)

16 The tenant or person residing or visiting the dwelling (a) has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise lawfullly engaged in lawful activity in the locality aa has been guilty of conduct causing or likely to cause a nuisance or annoyance to the landlord of the dwelling, or a person employed (whether or not by the LL) in connection with the exercise of their HM functions and that it directly or indirectly related to or affects those functions OR

17 (b) has been convicted of (i) using the dwelling or allowing it to be used for immoral or illegal purposes OR, (ii) an indictable offence committed in or in the locality of the dwelling Discretionary ground 14 Housing Act 1988 or 2 Housing Act 1985

18 The tenant or an adult residing in the dwelling house has been convicted of an indictable offence which took place during, and at the scene of, a riot in the United Kingdom This ground only applies to homes in England This new discretionary ground is added after ground 2 Housing Act 1985 as ground 2ZA and, after ground 14 Housing Act 1988 as ground 14ZA

19 These notices are given to individuals or the owner/ manager of a company to stop ongoing anti-social behaviour caused by them which affects the quality of life of those in the community Given by: A constable (including PSCOs), local authority or someone (PRP) with delegated power from LA, who are satisfied on reasonable grounds the conduct has occurred.

20 A notice may be given to a person over 16 or a corporate body, if satisfied on reasonable grounds that: The conduct is having a detrimental effect of a persistent or continuing nature, on the quality of life of those in the locality. And The conduct is unreasonable. Written warning must have been given first.

21 Under s48 of the Act, non compliance is an offence punishable by fines up to level 4 (up to 2,500) for individuals but up to 20,000 in the case of a corporate body A fixed penalty notice may be issued instead. This gives the person the opportunity to discharge their liability by way of a fine (no more than 100) The local authority may decide that remedial action is required, that they take on the work and charge the offender but a court order may be required The individual may have a defence if they have taken all reasonable steps to comply or have reasonable excuse for non compliance

22 New Local policing bodies to create a community remedy document inclosing the community resolutions To be used in cases; Person has engaged in ASB or committed an offence, they admit offence (and agree to participate in remedy) and is to be dealt with for that behaviour without court proceedings. Decision by a constable or investigating officer in consultation with victim. Must have sufficient evidence to warrant court action but decide this is more appropriate remedy.

23 EG: ASB was reported within 1 month of alleged behaviour and The application to use the trigger was made within 6 months of the report. Trials Manchester, Brighton and Hove, West Lindsay, Richmond LB

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25 1 Unlawful sub-letting: secure tenancies 2 Unlawful sub-letting: assured tenancies 3 Prosecution of offences 4 Unlawful profit orders: criminal proceedings 5 Unlawful profit orders: civil proceedings 6 Loss of assured tenancy status 7 Powers to require information

26 2 x Offences applicable to both secure and assured Ts: 1. Sub-let or part with possession of Whole or, Part Without landlords permission in breach of an express or implied term of the tenancy knowing to do so is a breach, the tenant ceases to occupy as their only or principal home.

27 2. Sub-let or part with possession of Whole, Part Without landlords permission in breach of an express or implied term of the tenancy, and does so dishonestly. The tenant ceasing to occupy the property as their only or principal home.

28 Offence 1 summary conviction, a fine not exceeding level 5 ( 5,000) Offence 2 2 parts i. Summary conviction 6 months and/or 5,000 ii. Conviction on indictment 2 years and/or 50,000

29 If the offence occurred due to a threat of violence towards tenant or member of family who resided with them immediately before the offence. No offence if the person in occupation Entitled to apply to Court to have a right to occupy or have the tenancy transferred If a person could apply to have the tenancy transferred to the occupier or to someone to hold it for the benefit of the occupier

30 By local authority Within 6 months Not after 3 years

31 Application available in criminal and civil proceedings

32 Section 15 Housing Act 1988 amended T will not regain security if offence established

33 In April 2014 the government published regulations enabling local authorities to compel certain agencies such as; banks, building societies, suppliers of credit, water and sewerage undertakers, providers of gas and electricity services and telecommunications companies to provide information about tenants suspected of unlawfully subletting The Prevention of Social Housing Fraud (Power to Require Information) England Regulations 2014 no. 899

34 39 Councils failed to detect any nonbenefit fraud. 21 district councils and one unitary authority reported no detected non-benefit frauds in both years. Our experience suggests it is extremely unlikely that no non-benefit fraud was committed against them.

35 The Act New approaches in tackling tenancy fraud CIH May 2014 Audit Commission reports

36 Right to Buy application Apparently made by sisters False information on length of residency Application refused Fraud charges brought guilty pleas Living at other properties Not related 20 months imprisonment Appeals - dismissed

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38 One of 2 joint tenants can end a periodic tenancy by service of a valid NTQ

39 Right to Respect for Private & Family Life Does the rule in Monk breach Art 8?

40 There is no conflict between the rule in Monk and Art. 8 ECHR, but; Para. 21 Judgment So far as Mr Sims case on article 8 is concerned, there is no doubt but that he was entitled to raise the question of proportionality..

41 Dixon v UK, App 3468/10 [2012] ECHR 424 Brother & sister Wandsworth LBC Sister serves NTQ Possession Order obtained Pre-Pinnock High Court refused to set aside Appeal to European Court of Human Rights Procedural breach (accepted by UK Government) Proportionality not considered Mr Dixon paid 3000

42 Chesterfield BC v Bailey [2011] EW Misc18(cc) Sole tenant Moved to another property Joint tenant Marriage breakdown Husband serves NTQ Possession commenced Defence Art. 6 and Art. 8 ECHR

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44 1) Everyone has the right for his private and family life, his home and his correspondence. 2) There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health morals, or for the protection of the rights and freedoms of others.

45 Entitlement to raise the question of proportionality

46 ..high threshold of being seriously arguable...the threshold for raising an arguable case on proportionality was a high one which would succeed in only a small proportion of cases.

47 Principals of such a defence: i. Must be pleaded and sufficiently detailed to show the high threshold of Seriously arguable is met ii. Court must (absent good reason) at the earliest opportunity consider such a defence to see if it reaches the threshold

48 Southend on Sea BC v Armour [2014] EWCA Civ 231 Introductory tenant Possession claim issued Trial delayed for substantial period No further incidents Disproportionate to grant possession

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50 Mr Akerman duress stress disorder Temporarily housed homeless Offers of accommodation made He could not cope with making the decisions Housing decide duty discharged Possession defence disability discrimination Claim dismissed

51 Applied same test as Pinnock proportionality Proportionate means of achieving a legitimate aim Equality Act defence Consider Balance interests of parties Permission given for appeal to Supreme Court

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53 Secure tenancy since 1995 Resident with son and partner Allegations ASB son and group of youths Convictions criminal damage etc CA upheld decision for possession and dismissed the appeal

54 Only or principal home Article 8 NTQ served Mr Lawal not at property therefore lost security Trial evidence 70 months leading to trial only 7 months at property First instance Art. 8 raised possession obtained Appeal: Decision upheld High threshold Administration of stock strong argument scarce resource and high demand

55 Suspension or Outright Order Serious ongoing aggressive behaviour First instance breach accepted but suspended Appeal Court of Appeal allowed Still risk of further breaches drink/drugs relapse.cont d

56 Mummery LJ:.The onus should be on the party who seeks to have the benefit of suspension of a possession order to provide cogent evidence to show that what can generally be characterised as ASB will not recur or will be unlikely to do so.

57 ASB Possession Outright likely to continue CA will not interfere unless Judge was clearly wrong

58 Are you Getting Value for Money? We are a leading housing law firm and work closely with our clients to fully understand their requirements across the whole spectrum of Housing Management. To find out how our legal services can help your organisation, please contact us: Tel: or info@whiteheadsols.co.uk Please ask for Paul Lloyd What we offer: Capped or Fixed fees Free advice line and case management surgeries Workshops Out of hours service Free monthly e-briefings Housing law training Areas of expertise include: Anti-social Behaviour Emergency injunctions Possession proceedings Disrepair case management All aspects of tenancy management Income maximisation Unlawful subletting and squatting Housing cases involving vulnerable tenants