RECENT CHANGES IN ASB LAW Mary Martil Batchelors Solicitors For 21 July 2014
What s New? Anti-Social Behaviour, Crime and Policing Act 2014 Received Royal Assent on 13 March 2014 As of 13 May 2014 Absolute ASB Ground for Possession Discretionary Riot Ground Amendment to Ground 14 and Ground 2 Forthcoming Changes expected October 2014 Injunctions, Criminal Behaviour Order, Community Trigger, Closure Orders & other bits
New Absolute & Discretionary Grounds for Possession
ASB Possession Grounds Until now:- Discretionary Grounds: Ground 2 for secure tenants: HA 1985 Ground 14 for assured and assured shorthold tenants: HA 1988 Discretionary - Grounds on which Court MAY order possession
Familiar Discretionary Grounds Ground 2 HA 85 Ground 14 HA 88 The tenant or a person residing in or visiting the dwelling house (a) (b) has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in lawful activity in the locality, or has been convicted of: (i) (ii) using the dwelling house or allowing it to be used for immoral or illegal purposes, or an indictable offence committed in, or in the locality of, the dwelling house.
Pre-Existing Mandatory Grounds? Mandatory Grounds on which the Court SHALL order possession LAs Introductory Tenancies serve notice right to a review of decision to serve notice HAs Assured Shorthold Tenancies Starter, Probationary, supported accommodation serve 2 months notice under Section 21 HA 88 L entitled to possession as of right Court has no discretion not to grant or to suspend (except where T able to establish human rights of public law defence)
New Absolute Ground & Procedure Applies to both Secure and Assured tenancies A mandatory ground for ASB Requires a particular Notice of Seeking Possession to be served (s.83za for secure or s.8(3a) for assured) Secure tenants have a statutory right to a review of the decision to serve a Notice Assured tenants do not
New Absolute Ground & Procedure At least 1 of 5 Conditions must be satisfied Article 8 defence remains expressly available Court must make order for possession if procedure followed correctly Limited discretion to postpone date for possession: S.89 HA 1980
What Are The Absolute Grounds? For Secure s.84a For Assured Ground 7A Only apply to Serious housing-related ASB and criminality already proved in a Court of law L must satisfy at least one of the 5 Conditions in order to rely on the absolute ground
5 Conditions - Summary 1. Convicted of a Serious Housing-Related Offence 2. Breach of a s.1 Injunction (with the exception of a positive requirement) 3. Convicted of Breach of a Criminal Behaviour Order 4. Dwelling-House is subject to a Closure Order 5. Convicted of Breach of a Noise Abatement Notice/Order under s80(4) or s82(8) EPA NB: Ground cannot be used if there is an outstanding appeal against conviction / finding.
Condition 1 Serious Housing Related Offence The tenant or person residing in or visiting the property has been convicted of serious offence which was committed (a) within the locality, or (b) elsewhere against a person who resides in the locality, or (c) elsewhere against the landlord/its employee/a contractor and it was housing-related Serious Offence? Schedule 2A HA 85 Indictable only offences does not apply to summarily or low value either-way offences Cannot rely on serious offences committed prior to the Ground coming into force
ASB By Household Members and Visitors As with the current discretionary ASB grounds, the tenant need not be the perpetrator for the absolute ground to apply Conditions 1 serious offence, 2 breach of injunction, 3 breach of criminal behaviour order and 5 noise abatement conviction all apply where the conviction or finding is a against the tenant or someone residing at or visiting the property Condition 4 closure order will be made as the result of the behaviour of a person on the premises or the use of the premises
Notice Of Seeking Possession The Notice must:- Specify Ground (s.84a or G.7A) + Conditions + reasons Set out the Conviction, Finding or Closure Order being relied upon Time limits? Within 12 months of conviction or finding Within 3 months of Closure Order Inform of any right to review and deadlines
Notice of Seeking Possession (cont.) Must advise T to seek legal advice from CAB or solicitors Must specify the date after which proceedings may begin Date specified must be no earlier than the date which would apply under a Notice to Quit for a periodic tenancy or one month for a fixed term tenancy Notice ceases to be in force 12 months after date specified
Right to a Review Secure tenants have a statutory right to request an internal review (s.85za) Review request should be made within 7 days of service of notice T entitled to a oral hearing Undertaken by a senior officer not involved in the original decision The review and the decision letter should be issued before the date specified in the notice as the date after which proceedings may be commenced (e.g. within 28 days / one month)
No Right to a Review for Assured Tenants of a Housing Association HAs should invoke a voluntary internal review process and follow s.85za Why? Mitigate the impact of a likely proportionality challenge at court Similar to procedures used for starter tenancies NB: Make sure you have robust and clear review procedure
The Amended Discretionary Grounds Two changes that apply to both assured and secure tenancies Amendment to G.14 and G.2 Covers behaviour directed to L s employees contractors/agents, including outside the locality, committed by T or person residing in or visiting the dwelling-house Location of the incident is irrelevant if it affects L s housing management functions NB: You should have amended your standard ASB NoSPs by now
The Amendments to G.2 & G.14 Old Wording The tenant or a person residing in or visiting the dwelling house :- (a) has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality, or (b) has been convicted of (i) using the dwelling house 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 house New Wording (a) (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, or (b)
The Riot Ground New discretionary Ground New Ground 2ZA (Secure) and Ground 14ZA (Assured) The tenant or an adult i.e. household member aged 18 or over 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 UK Ground only applies to dwelling-houses in England
Will It Save Time & Money? Consider: L can issue on discretionary grounds immediately after NoSP but would have to review decision to seek possession using mandatory procedure if asked to do so No reasonableness requirement, but L likely to face human rights and public law defences Amend ASB Policy and Procedures documents policy decisions to be taken as to whether and when to use Publicity / Resident Awareness Net saving in time? Truly mandatory procedure? Is there a need for it?
Forthcoming Changes
The New ASB Injunction Out with the old and in with the new..
What Do We Currently Use? Anti-Social Behaviour Order ( ASBO ) Anti-Social Behaviour Injunction ( ASBI ) Both will be replaced by the.. Section 1 Injunction
Who Can Apply? a Local Authority a Housing Provider the Chief Officer of Police for a police area the Chief Constable of the British Transport Police Force, & others. Section 5(1)
Housing Association Limitation A housing provider may make an application only if it concerns ASB that directly or indirectly relates to or affects its housing management functions: s5(3) housing management functions defined at s5(4) Housing Provider includes a charitable housing trust, a housing action trust and a non-profit private registered provider of social housing: section 20(1) LA is in a separate category
Conditions for an Injunction (1) The respondent is aged 10 or over: section 1(1). The court is satisfied, on the balance of probabilities that the respondent has engaged or threatens to engage in anti-social behaviour: s1(2); and it is just and convenient to grant the injunction for the purpose of preventing the respondent from engaging in anti-social behaviour: s 1(3).
Conditions for an Injunction (2) ASB is defined at section 2(1). (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 s occupation of residential premises, or. (c)conduct capable of causing housing-related nuisance or annoyance to any person.
Consultation Except where the application for an injunction is being made without notice to the perpetrator, limited consultation requirements apply under s 14: If the perpetrator is under 18 the Youth Offending Team must be consulted In other cases, just inform any organisation or person you think fit
Where to Apply? High Court or County Court: section 1(8)(b). Youth Court if respondent under 18: s 1(8)(a). Transfer to county court possible if respondent becomes 18 before any order: s 18(3). If just one of defendants is under 18 the case of the adult may also be heard in the Youth Court: s 18(2).
Key Elements Negative and/or positive requirements Positive requirements will be supervised Powers of arrest against adults where police officer has reasonable cause to suspect breach of negative requirement Exclusion orders against adults where use/threatened use of violence or where a significant risk of harm Applies for stated period, or can be indefinite i.e. until further order Maximum period for under 18s is 1 year Interim injunctions, including without notice to perpetrator no positive requirements if no notice Variation/discharge possible Enforcement by application to commit as before
Criminal Behaviour Orders Replaces the Post-Conviction ASBO Can contain prohibitions AND positive obligations Only available to CPS on application, or in addition to sentence Broadly, 3 pre-conditions: 1. person (the offender ) convicted of an offence 2. court satisfied, beyond reasonable doubt, offender has engaged in behaviour that caused or was likely to cause harassment, alarm or distress to any person 3. court considers order will help prevent offender from committing such behaviour in future
Community Triggers A new power to enable victims to force a Case Review re. cases of persistent ASB To promote local involvement and accountability Led by local authority, but in partnership with the local police, health authority and housing providers 5 trial areas Bodies will be able to set their own threshold E.g. 3 reports of ASB in 6 months Cannot be set at more than 3 incidents
What is Needed? Good working arrangements with local partner agencies i.e. Police and LA and other Housing Providers A published ASB case review procedure incl. timeline for responding to complainants A single point of contact to activate the trigger An agreed way to prevent individuals from being targeted by malicious and vexatious complaints An agreed protocol between partners as to when the trigger is activated including sharing of information A simple monitoring framework for assessing the impact of key ASB outcomes
Community Protection Notices To deal with ongoing minor nuisance e.g. noise By someone over 16 Test: conduct is unreasonable, persistent and is having a detrimental affect on the quality of life of the local community By police and local authority only Breach of requirement in notice is an offence Power to seize offending item(s) Can issue fixed penalty, or Prosecution Individual fine 2,500 Company fine 20,000
Community Remedy Police and Crime Commissioners must consult the public on sanctions to deal with low-level crime and ASB outside of the court system. The PCC and Chief Constable must ensure menu is proportionate. Police officers to use the menu of sanctions when using two types of out of court disposal informal community resolutions and conditional cautions Victim to be consulted on the sanction to be offered to the offender and given the option to choose from the menu. The police (or CPS in some cases) must ensure the sanction offered to the offender is proportionate to the offence.
Other Bits Public Space Protection Order For local authority only E.g. preventing dogs in playground, drinking in parks Closure Order For police only Similar to current 2 stage process i.e. Closure Notice then Order Premises used for actual or likely nuisance to members of the public or actual or likely disorder near premises associated with use Lasts for 3 months but can be extended for a further 3 months (max.) NB: Closure Order will trigger Mandatory ASB Ground
Dangerous Dogs Will amend the Dangerous Dogs Act Extend the Act to all private property So includes your own home Exception for householders Who are in the building and believe other person is a trespasser Allows dogs to be seized from private places Offence now where it appears dog will injure any Assistance Dog, even if it does not attack it
Also in the Act Firearms new offences/amendments Protection from Sexual Harm and Violence - new offences/amendments Dispersal Orders - For police only - Issue direction excluding a person from an area Forced Marriage Court can make a protection order Up to 5 years for a breach Creates a new criminal offence And various little bits about policing admin etc.
RECENT CHANGES IN ASB LAW Mary Martil, Partner mmartil@btchelors.co.uk DDI: 020 8768 7032 21 July 2014