Shaping the Housing and Community Agendas

Transcription

1 CIH response to DCLG s consultation: A new mandatory power of possession for anti-social behaviour November 2011 Shaping the Housing and Community Agendas CIH Contact: Joanne Kent-Smith Senior Policy and Practice Officer policyandpractice@cih.org Page 1 of 7

2 Introduction CIH welcomes the opportunity to respond to this consultation. CIH is the professional body for people working in housing and communities, with over 22,000 members across the UK and Asian Pacific. Our mission is to maximise the contribution that our members make to the well being of communities. Our response is informed by feedback from our members, our knowledge of the sector and our expertise from our policy and practice team and specialist teams 1. We recognise that anti-social behaviour (ASB) can damage the lives of households and bring misery for entire communities, damaging the reputation of estates and, if left unchecked, leading to neighbourhood decline. It is therefore essential that agencies involved in tackling ASB have appropriate powers to protect individuals and communities from harm. We also recognise the seriousness of the disturbances that took place in parts of the country in August In response to the riots CIH, in partnership with the National Housing Federation and Inside Housing, will be publishing the Riot Report in December This investigates the issues for housing and those neighbourhoods affected by the events. Summary We welcome the recognition in the consultation document that possession action is only a small element of social landlords work in tackling ASB and that it is the action of last resort. When a household is evicted this creates a further range of problems, both for members of the household and the agencies involved in providing services to them. Social landlords are therefore primarily focused on taking action to prevent ASB and, where it does occur, to change the behaviour of perpetrators. However, in the small number of cases where this does not prove effective in preventing serious harm to individuals and the community, possession action will be considered. We broadly support the introduction of a mandatory power for possession for ASB, recognising the following key issues: It should speed up possession action where serious ASB has been proven in another court. This is important as delays can increase the length of time individuals and communities suffer. It may also help avoid victims of ASB having to make repeat appearances in court. It may act as a deterrent to breaches of anti-social behaviour injunctions. 1 CIH manages a DCLG funded ASB Action Team which has worked with over 170 landlords over the last 18 months developing an in-depth knowledge of how social landlords deliver anti-social behaviour (ASB) services Page 2 of 7

3 The power has been designed in way to make it straightforward to use and it is based on appropriate triggers for serious ASB Additional work is required to clarify and define some specific aspects of the new power. We believe that the change to the discretionary ground for possession, introduced in response to the riots, is not well thought through and is not based on sound analysis. Key issues are: The proposal does not provide a balanced and fair approach to dealing with ASB and criminality across housing tenures. The riots involved people from all tenures and therefore introducing measures focused on a particular tenure is not appropriate. Possession action should not be regarded as tool to deal with ASB and criminality where it does not relate to the landlords housing management function. The additional provision is unlikely to be widely used by landlords in the way the government envisages. Some landlords oppose the change in principle, and others have concerns about the ability to justify the action in court and about proportionality challenges under human rights legislation. The change does not effectively address the problems that landlords sometimes encounter with the current locality clause when tackling ASB affecting the communities they serve. Our other key points are: There is a need to ensure that courts are prepared for the introduction of any changes agreed. This should include clear guidance on how to deal with proportionality challenges under human rights legislation. There is a need to ensure that local authorities and other agencies have the appropriate powers and resources to deal with ASB effectively wherever it occurs and regardless of tenure and that there is a joined up approach across government departments.. Page 3 of 7

4 Q1. Do you agree that that we should extend the scope of the current discretionary ground for possession for anti-social behaviour and criminality in this way? We do not believe that extending the discretionary ground for possession in this way is appropriate or well thought out. The change to the scope of the consultation following the riots was carried out in haste and is not based on a sound analysis. When dealing with wider ASB and criminality there needs to be equivalent treatment to individuals regardless of whether they live in social housing or the private sector. The riots involved people from all housing tenures and there is no evidence to justify introducing enforcement measures which focus on a particular tenure. We also feel that the approach, in singling out a particular tenure, creates negative perceptions about social housing. In addition, we do not believe it is generally appropriate to use possession action to address ASB and criminality where this is unrelated to the housing management function of a landlord. Our evidence suggests that the additional provision will not be widely used in cases where the ASB or criminality does not impact on the community where the social landlord operates. Landlords do not pursue possession action lightly due to the impact on the households involved. Some landlords oppose the change in principle, and others will have concerns about the ability to justify the action in court and about challenges on proportionality under human rights legislation. In addition, there are significant financial implications for social landlords in deciding to pursue possession actions. The proposed change also raises issues for information sharing between agencies and, in particular, between the Police and social landlords. Information sharing arrangements are normally coordinated on geographical areas of operation for Police and landlords. Potentially, the change as proposed would create a need for landlords to be informed of criminal convictions across the country and therefore existing information sharing arrangements would need to be significantly enhanced. Feedback from social landlords does indicate that there are problems with the operation of the existing locality clause. The definition of locality is not clear and there is inconsistency in the way that courts interpret it. In addition, some landlords find that the clause does not allow them to take effective action in dealing with problems such as ASB by gangs across an area or domestic violence, even though this affects the communities they work in. The proposed change does not effectively address this issue. The suggested new provision relates only to crimes against property and people, where these are linked to violent disorder. This means, for example, that the additional provision could not be used to deal with drug dealing across a community. We Page 4 of 7

5 believe that there is a need to review the locality element of the discretionary ground, but with a focus on enabling landlords to tackle serious ASB or criminality linked to their housing management function. Q2. Do you agree that we should construct a new mandatory power in this way? We agree that a new mandatory power, constructed in this way, will enable landlords to take more effective action in some serious ASB cases. As the mandatory power is linked to previously proven serious ASB, it should reduce the time it takes to progress possession actions that meet the criteria. This is important as swifter legal action can reduce the time a victim or community has to suffer. In addition, appearing in court can be a difficult experience for victims and witnesses and the new mandatory power could reduce the need for repeated appearances. The mandatory power may also act as a deterrent to ASB, for example, a perpetrator may be less likely to breach an anti-social behaviour injunction if they know that this is more likely to result in their eviction. We agree that tenants should have a right to request a review of their landlord s decision to seek possession under the mandatory power. However, this right to review needs to be the same for all tenants of social landlords. Establishing an approach which mirrors the current arrangements for reviews of termination of Introductory Tenancies would be appropriate. However, relying on housing association complaints procedures is not seen as appropriate as this is dependent on the effectiveness of an organisation s approach to dealing with complaints and may cause delays if all stages of a complaints procedure are utilised. We agree with the proposed limitations on the court s discretion to suspend the possession order. These provide appropriate protection for the tenant as well as preventing lengthy delays in enforcement actions. Q3. Are these the right principles which should underpin a mandatory power of possession for anti-social behaviour Yes, these are right principles. To avoid delays and reduce disputes it is important that landlords can clearly demonstrate that the criteria for awarding possession have been met. Having the mandatory power based on clear tests will help achieve this. Ensuring that there is a simple approach to establishing that the ASB and is serious, and housing related, will also help reduce arguments that the landlord s action is not proportionate. Q4. Have we defined the basis for the new mandatory power correctly? If not how could we improve the definition? We agree with the identified triggers that would allow mandatory possession to be sought, as these relate to serious housing related ASB and criminality. Page 5 of 7

6 It is noted that the consultation document confirms that the triggers will be further defined in light of the final Home Office proposals on tools and powers. There are a number of areas where there is need for clearer definition. These are: There is a need for consideration of the timescale after which offences identified as triggers can no longer be used in possession actions. If an offence was carried out many years ago it may not be justifiable to use it in a possession action. There needs to be a clear and robust definition of a serious housing related offence. The use of the word cultivation, for example, is problematic as it does not cover the manufacture of harder drugs. There is a need to define further, the circumstances in which breach of an injunction for anti-social behaviour will be a trigger. Interim orders, other civil orders and undertakings linked to injunctions need to be given further consideration. Q6 Are there other issues related to the introduction of a mandatory power for possession for anti-social behavior that we should consider? There is a need to ensure that courts are prepared for the introduction of any changes agreed. For example, judges need to be given appropriate training and guidance. The first use of any new powers are more likely to be challenged as they are tested in the courts and therefore effective preparation by the judiciary will help ensure these cases are dealt with effectively and consistently. The consultation document mentions the issue of proportionality challenges to possession actions under human rights legislation. This may affect how well these proposals work in practice. Whilst the proportionality challenge can act as an additional safeguard to ensure appropriate use of possession powers, it may also be used to try to delay legitimate legal action. Social landlords have a responsibility to ensure their action is proportionate, but there is a need for clear guidance for the courts to ensure that cases which are proportionate are not unnecessarily delayed. CIH believes that a fair and balanced approach should be taken in dealing with ASB across all housing tenures. These proposals focus on dealing with ASB in rented accommodation. There is a need to ensure that local authorities and other agencies have the appropriate powers and resources to deal with ASB effectively wherever it occurs and regardless of tenure and that there is a joined up approach across government departments. Page 6 of 7

7 CIH contact Joanne Kent-Smith Senior Policy and Practice Officer, About CIH CIH provides a wide range of services available to members, non-members, organisations, the housing sector and other sectors involved in the creation of communities. Many of our services are only available to CIH Members, including discounts. Our products and services include: Training Conference and events Publications Enquiries and advice service Distance learning For further information, please contact: Customer Services: customer.services@cih.org Policy and Practice: policyandpractice@cih.org Education: education@cih.org Marketing & Communications: marketing.communications@cih.org Distance Learning Centre: dlc@cih.org Training: training@cih.org Events: events@cih.org Publications: pubs@cih.org Careers: careers@cih.org Organisational Development: customer.services@cih.org To contact any of the above departments telephone: Page 7 of 7